review from the Iowa Court of Appeals.
from the Iowa District Court for Polk County, Paul D. Scott,
seeks further review of his conviction for murder in the
second degree. AFFIRMED.
C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, Linda J. Hines, Assistant
Attorney General, John Sarcone, County Attorney, and Olu A.
Salami, Assistant County Attorney, for appellee.
case a gay defendant, Stephen Jonas, was charged with
first-degree murder in a case with sexual overtones. Among
other claims, Jonas asserts the district court improperly
failed to strike for cause a potential juror who expressed
bias against gay people in a jury questionnaire and in
response to questioning in voir dire as required by Iowa Rule
of Criminal Procedure 2.18(5)(k). Because of the
district court's refusal to disqualify the potential
juror, Jonas exercised one of his peremptory strikes, granted
by Iowa Rule of Criminal Procedure 2.18(9), to remove the
potential juror from the jury. The case proceeded to a jury
trial. Jonas was convicted of second-degree murder.
appealed. Jonas claims that because he was forced to use a
peremptory strike to disqualify a potential juror who should
have been disqualified for cause, reversal is required even
though the challenged potential juror was not seated and
there is no specific showing of prejudice in the case. Jonas
recognizes our prior precedent, State v. Neuendorf,
509 N.W.2d 743, 747 (Iowa 1993), is contrary to his position
and invites us to reconsider that precedent. Jonas also
asserts that there was insufficient evidence to support the
jury verdict and that his counsel was ineffective for failing
to object to statements made by the prosecutor in closing
arguments and failing to request a limiting instruction with
respect to other statements made by the prosecution in
transferred the case to the court of appeals. On the question
of jury selection, the court of appeals, citing
Neuendorf, rejected Jonas's challenge on the
ground that even if the district court erred in refusing to
dismiss the potential juror, the defendant failed to show
prejudice. The court of appeals further rejected Jonas's
challenge to the sufficiency of the evidence and his claims
that counsel was ineffective for failing to object to closing
argument and failing to seek a limiting instruction.
granted further review. When we grant further review, we have
discretion to limit the issues considered by this court.
State v. Pearson, 804 N.W.2d 260, 265 (Iowa 2011).
We allow the decision of the court of appeals to stand on the
ineffective-assistance-of-counsel claims. We consider only
the question of whether the verdict must be reversed under
the circumstances because the district court failed to
disqualify the potential juror for cause. For the reasons
expressed below, we affirm.
Factual and Procedural Background.
August 23, 2014, Zachery Paulson was found dead in the lot of
his father's business bordering the Clive Greenbelt
Trail. Following an autopsy, it was determined Paulson died
from multiple stab and incised wounds. The police
investigation focused on Jonas. Jonas ultimately admitted to
stabbing Paulson but asserted he did so in self-defense.
to Jonas, about one week before Paulson's death, he and
Paulson engaged in a mutual hug that led to kissing. Other
witnesses described the encounter as unwanted and Paulson
pushed Jonas away and asked him to leave. After the incident,
Jonas continued to contact Paulson via text message
throughout the next week. The text messages went unanswered.
claimed on the night of Paulson's death, he went to a
local bar to confront Paulson about the incident. According
to Jonas, he and Paulson left the bar for a parking lot where
they engaged in small talk. Jonas maintained Paulson struck
him with a hammer and a fight ensued. Jonas told the police
he remembered stabbing Paulson only five times. Paulson was
moaning when Jonas left the scene, and Paulson eventually
died from the wounds.
September 30, 2014, Jonas was charged by trial information
with murder in the first degree. Jonas filed a notice of
defense of justification. The trial began on July 2, 2015.
written questionnaire asked each potential juror the
following question: "The defendant in this case is gay.
Would this fact in any way influence your ability to be fair
and impartial if you were selected to be a juror in this
case?" A potential juror put an X next to
"yes" and, in the place provided for an
explanation, wrote "I would try to keep an open mind,
but I would have a hard time overlooking it." During
voir dire, Jonas's defense attorney asked the potential
juror about the potential juror's affirmative answer to
the question. The defense attorney asked, about Jonas's
sexuality, "You agree that fact is going to affect your
ability to be fair?" The potential juror replied,
"Somewhere in the back of my mind something would come
up. I just-I'm just being honest with you." The
defense attorney pressed further, "So is it fair to say
that you are not going to be able to give Mr. Jonas a fair
trial because of that?" The potential juror answered,
I would say that young man would probably do better without
me on the jury, just to be honest with you. I would try to be
fair. I'm 50 years old and I would try to be fair, but he
probably would have better jury selection than myself.
defense attorney asked, "Because is that a factor you
will not be able to exclude?" The potential juror said,
"I don't know if I'd be able to. I would try to
exclude it, but, you know, somewhere in the back something is
going to come up I guess."
prosecutor tried to get a different answer from the potential
juror, asking if the juror could not make a decision based on
the evidence. The potential juror responded, "Again, I
would sit there and somewhere along the way something would
come up in the back of my mind. I will try. Honestly I will
try that, but the young man would probably do better with
someone else." The prosecutor said, "I know you
have personal feelings. Can you set those aside and made a
decision based on [the evidence and the judge's
instructions]?" The potential juror answered,
Again, I would try, but I'm sure there would be something
that would come up. . . . I'm 50 years old. I work with
truckers and guys in oil refineries and in oil wells.
It's just permeated in my life. So I will try to be
honest and fair, but again, there would be something that
would come up. I'm just being honest.
The court then took over questioning of the potential juror:
THE COURT: When you say there is going to be something that
comes up, what do you mean by that? A. You know, in the back
of my mind, and I don't want to insult anybody here, I
just would-I don't know. I would think I will try to be
honest, but then again I would be like, oh, well. And I
can't explain it exactly.
THE COURT: My question for us is this: Does the fact that the
defendant, Mr. Jonas, has identified himself as a gay man,
does that fact alone cause you to be biased or prejudice[d]
against him in determining whether or not he's guilty or
innocent in this case? A. Again, I don't think it would
be determined whether he was guilty or innocent, but I would
still have a bias there some place, yes.
THE COURT: Okay. So are you-if I instruct you as to what the
law is, are you going to be able to follow what the law says?
THE COURT: Are you-does the fact that the defendant, again,
is gay, does that cause you to not be able to listen to the
evidence and keep an open mind with respect to guilty or not
guilty, the facts of this case? Do you understand that
question? That was a little bit- A. I understand that, you
know, again the facts are going to be the facts and my-and
that's what we will hear and that's what we will
determine. But, again, somewhere down in the-
THE COURT: Well, the law doesn't require that you forget
the fact that Mr. Jonas is gay, so that's why I'm
concerned about the fact that you are telling us that there
is something that might pop up in the back of your head. You
don't have to forget the fact that he has identified
himself as being gay.
Is that what you are telling the Court is that you are not
going to be able to forget the fact that he's gay. Or do
you think that the fact that he's gay means that more
likely than not that he-that you are not going to be able to
give him a fair trial? A. I think, again, the gentleman would
probably do better without me on the jury. I think there
could be something in the back of my mind that would- again,
I'd listen to the facts. I would try my best, but
it's who we are.
defense attorney then resumed questioning the potential
juror, asking him if there will still be bias in the back of
his mind. "I think there will be, yes, sir, " the
potential juror replied. The defense attorney asked the
potential juror if a gay man making a sexual advance to
another man would bother him. The potential juror said,
"[I]t would bother me, yes."
the potential juror left the room, Jonas's defense
attorney moved to dismiss him for cause, stating,
"[T]here is no question that this juror cannot be fair
and impartial to Mr. Jonas because he is gay." After
hearing arguments from both sides regarding the potential
juror, the court made the following ruling:
Well, my problem is he has said that he's going to have
it in the back of his mind and that the defendant would be
better off not having him as a juror. After he said that, he
still continues to express the opinion that he could be fair
and unbiased and be able to try a fair case.
And I just don't think that the record is there to strike
him for cause at this point. So I'm going to allow [the
juror] to stay on the panel.
potential juror was allowed to stay on the panel until
defense counsel used a peremptory strike to remove him. Jonas
used all ten of his peremptory strikes.
jury returned a verdict of guilty for murder in the second
degree. Jonas appealed. The court of appeals affirmed. On the
issue of jury selection, the court of appeals held Jonas
could not show he was prejudiced by the denial of a for-cause
strike for the potential juror because the potential juror
did not serve on the jury and Jonas did not allege the
remaining jury was biased as a result of his use of all of
his peremptory challenges. See Neuendorf, 509 N.W.2d
at 747. The court therefore declined to reach the issue of
whether the district court erred in declining to strike the
potential juror for cause.
applied for further review, which we granted.
Standard of Review.
review the district court's rulings on challenges to
potential jurors for cause for abuse of discretion. State
v. Tillman, 514 N.W.2d 105, 107 (Iowa 1994); State
v. Hardin, 498 N.W.2d 677, 681 (Iowa 1993). The district
court is vested with broad discretion in such rulings.
State v. Mitchell, 573 N.W.2d 239, 240 (Iowa 1997);
Tillman, 514 N.W.2d at 107.
challenge related to the failure of the district court to
disqualify the potential juror raises two state law issues
under Iowa Rule of Criminal Procedure 2.18(5)(k)
dealing with disqualifications for cause and rule 2.18(9)
providing for peremptory challenges. The first issue is whether
the district court abused its discretion under rule
2.18(5)(k) in failing to discharge the potential
juror for cause when the potential juror, in a case involving
a gay defendant in a sexual context, expressed bias against
gay people in a jury questionnaire and affirmatively told the
court in voir dire he would follow the court's
instructions, but further advised the court that bias would
remain in the back of his mind. The second issue relates to
the use of peremptory challenges under rule 2.18(9). The
second issue posed in this case is a variant of the
Neuendorf question, namely, whether under state law
a defendant must show actual prejudice when the district
court unlawfully fails to disqualify a potential juror, but
the potential juror is not seated because the defendant
removed the potential juror through exercise of a peremptory
Disqualification of Juror for Cause.
issue of disqualification of a juror for cause, there is
authority for the proposition that when a potential juror at
the outset of voir dire expresses bias or prejudice
unequivocally, the potential juror should be disqualified for
cause notwithstanding later, generalized statements the
potential juror could be fair. See generally 58 Am.
Jur. Proof of Facts 3d Challenges for Cause in Jury
Selection Processes § 23, at 434-36 (2000)
(describing history and proper role of rehabilitation).
According to this approach, once the genie of prejudice or
bias is out of the bottle, it is a fool's errand to put
it back in through persistent coaxing.
is ample authority for this approach in the caselaw. For
example, in Morgan v. Illinois, the United States
Supreme Court stated when actual bias is stated, generalized
affirmative response to questions like "[w]ould you
follow my instructions on the law even though you may not
agree" is insufficient to avoid disqualification of
potential juror. 504 U.S. 719, 723-24, 733, 112 S.Ct. 2222,
2226-27, 2232 (1992). Other cases reach similar results.
See, e.g., Johnson v. Reynolds, 121 So.
793, 796 (Fla. 1929) (en banc) ("It is difficult, if not
impossible, to understand the reasoning which leads to the
conclusion that a person stands free of bias or prejudice who
having voluntarily and emphatically asserted its existence in
his mind, in the next moment under skillful questioning
declares his freedom free from its influence.");
Gosling v. Commonwealth, 376 S.E.2d 541, 544 (Va.
Ct. App. 1989) (holding juror who expresses positive,
unequivocal bias should be disqualified notwithstanding
subsequent generalized statements regarding ability to be
the actual-bias cases, a later affirmative response to a
"magic question" using the words fair and impartial
is not enough to rehabilitate the potential juror. See
State v. Fletcher, 353 P.3d 1273, 1281 (Utah Ct. App.
2015) ("[Bias] is generally not rebutted simply by a
subsequent general statement by the juror that he or she can
be fair and impartial . . . ." (quoting State v.
Woolley, 810 P.2d 440, 445 (Utah Ct. App. 1991)). If a
potential juror expresses actual bias, "the law will not
trust him" to be fair and impartial. Dyer v.
Calderon, 151 F.3d 970, 984 (9th Cir. 1998) (quoting
United States v. Burr, 25 F. Cas. 49, 50 (D. Va.
1807)). As noted in People v. Merrow, answers to the
trial judge's generalized and leading questions "may
suggest overt acquiescence in the trial court's ...