from the Iowa District Court for Black Hawk County, David P.
Fenton appeals from his convictions for burglary in the third
degree following a home invasion and burglary in the third
degree from a motor vehicle.
C. Smith, State Appellate Defender, and Vidhya K. Reddy,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee.
by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
found Marsean Fenton guilty of third-degree burglary for a
home invasion. He also pleaded guilty to a separate charge of
misdemeanor burglary of a motor vehicle. On appeal, he argues
(1) the removal of the only African American juror on his
panel, after the jury had been sworn, was improper and
prejudiced him as an African American defendant; (2) the
district court erred in denying his mistrial motion after the
jury viewed a prejudicial portion of a patrol car video; (3)
substantial evidence did not support the jury's verdict;
(4) trial counsel was ineffective by allowing Fenton to plead
guilty to the misdemeanor burglary when the speedy-trial rule
would have resulted in dismissal of that charge; and (5)
trial counsel was ineffective in not challenging the
sentencing court's failure to abide by the plea agreement
on the misdemeanor charge. Because Fenton cannot show
prejudice from the juror's removal, the court did not
abuse its discretion in denying the mistrial motion, and
substantial evidence supported the jury's verdict, we
uphold the felony conviction. Because the record is
inadequate to assess the merits of the two
ineffective-assistance claims, we preserve them for possible
Facts and Prior Proceedings
November 2015, the State charged Fenton with burglary in the
third degree from a motor vehicle, an aggravated misdemeanor,
in violation of Iowa Code section 713.6A(2) (2015). Fenton
entered a written guilty plea, allegedly conditioned upon the
court's acceptance of the negotiated sentence including a
180-day suspended jail term. Fenton planned to request a
deferred judgment at sentencing. The sentencing court did not
accept the plea agreement conditions, instead imposing a
two-year suspended sentence.
separate incident, the State charged Fenton with burglary in
the third degree, a class "D" felony, in violation
of Iowa Code section 713.1 and .6A. At 12:30 p.m. on October 25,
off-duty police officer Nicholas Berry saw two individuals,
later identified as Kevantae Reed and juvenile
K.M., standing at a street corner near a closed
business. Berry saw another man, Fenton, standing about fifty
feet away, urinating on a fence. Berry knew a woman lived
alone in the adjacent house on Maxwell Road. Berry stopped
his car in a nearby driveway and called an on-duty police
officer to "come over and check on these
Berry was on the phone, he watched Fenton motion to Reed and
K.M. as if calling them over to him. Reed and K.M. did not
walk toward Fenton, but after a few moments, Fenton walked
toward them. Berry circled the block but the men walked
behind a building out of his sight. After a few minutes,
Berry saw them again, walking toward the same corner. After
few more minutes of circling, Berry saw Reed standing alone
in the driveway of the Maxwell Road house. Berry said Reed
was pacing and looked "anxious".
uniformed police officers arrived. Reed was no longer in the
driveway. Officers heard the rattling of a chain link fence
in the back yard. At the back of the house, they found an
open window with the screen removed. Inside the house was a
red pry bar on which criminalists later found K.M.'s
finger and palm prints. The officers discovered Reed on the
other side of the fence with two small puncture wounds in the
palm of his hand. In his pocket were rubber gloves, one of
which was torn and bloody. The officers determined Reed had
injured his palm on the "Y"-shaped wires at the top
of the chain link fence. Officers also matched the tread on
Reed's shoes to marks left in the dirt at the
backyard's fence line.
officer driving in his car saw Fenton and K.M. run from
behind a nearby business. The officer stopped and asked to
talk with Fenton and K.M. They were both sweating and
breathing hard. The officer arrested them and searched their
pockets before placing them in the back of a police car.
Officers recovered cash from K.M.'s pocket. In
Fenton's pockets, officers found cash, change, and rubber
gloves. The gloves did not appear to have been worn.
the homeowner arrived, officers entered and discovered open
doors and drawers. The homeowner reported some cash and
change she kept in a jar in the dining room was missing.
Fenton's trial, the court swore in thirteen jurors-twelve
who would eventually serve and one alternate. The parties
agreed all thirteen jurors would hear the evidence and one
would be dismissed by random selection before deliberations.
After jury selection, the trial recessed for one week to
accommodate defense counsel's military duty. During the
recess, the State discovered one of the jurors, J.W., had not
disclosed prior convictions and charges pending in Black Hawk
County. Upon reconvening, but before the presentation of
evidence, the State requested removal of juror J.W. for cause
and the court agreed. The remaining twelve jurors heard the
evidence and found Fenton guilty of burglary in the third
degree. Fenton appeals.
asks for reversal based on the court's removal of juror
J.W. after the thirteen jurors were sworn in but before the
State started its case in chief. The prosecutor sought
removal after finding J.W. had improperly filled out his jury
questionnaire. Question 4 asked, "Have you ever been
convicted of a crime other than a traffic offense." J.W.
checked, "Yes, " and disclosed a 2014 conviction
for public intoxication but did not included additional
convictions for disorderly conduct and obstruction of 911
communications. Question 5 asked, "Have you or any close
friend or relative been a party or witness in a court case
other than a divorce proceeding?" J.W. responded,
"No." The State later discovered J.W. had two
additional pending criminal charges. The charges were being
handled by the same assistant county attorney prosecuting
Fenton's case. During voir dire, the prosecutor twice
asked the potential jurors if they knew "anybody with
the County Attorney's Office" or if they had
"any family members or friends currently being
prosecuted by the Black Hawk County Attorney's
Office[?]" J.W. did not respond.
defense resisted the prosecution's request for removal,
arguing the State waived its objection to the juror by not
discovering the additional information earlier and noted his
dismissal would remove the only African American juror on the
panel, but counsel declined to raise a
court found the State could not have realized the need for
removal during voir dire because J.W. had not properly
disclosed his pending charges, even when asked by the
State. The court agreed to excuse J.W., but noted
it was not finding J.W. intentionally misled anyone:
"It's very likely this was a misunderstanding of the
question being asked." The court concluded, "[T]he
fact that he is being prosecuted would be extremely
prejudicial to the State in this case."
court brought J.W. into the courtroom and explained why he
was being excused. J.W. said, "All right, thank
you." Neither party engaged in further discussion with
J.W. The court began the trial immediately afterward.
appeal, Fenton raises several contentions. First, the State
waived its objection to J.W. when it did not raise the issues
before the jury was sworn. Second, jurors may only be
dismissed on limited bases after they have been
sworn-including misconduct, bias, or hardship to the
juror-and none of those was proven here. Third, removal of
the juror constituted per se prejudice resulting in Fenton
not receiving a fair trial. In addition, removing the only
African American juror from the panel trying an African
American defendant affected the jury's impartiality and
arguments implicate both constitutional and statutory rights.
The state and federal constitutions guarantee the rights to
due process and a fair and impartial jury. See U.S.
Const. amend. VI (impartial jury), XIV § 1 (due process
of law); Iowa Const. art I, §§ 9 (due process of
law), 10 (impartial jury). They also guarantee the right to
equal protection, implicated in the jury selection process.
See U.S. Const. amend. XIV (equal protection); Iowa