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State v. Fenton

Court of Appeals of Iowa

June 20, 2018

STATE OF IOWA, Plaintiff-Appellee,
MARSEAN T. FENTON, Defendant-Appellant.

          Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.

         Marsean 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.

          Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant Attorney General, for appellee.

          Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.

          TABOR, JUDGE.

         A jury 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 postconviction-relief proceedings.

         I. Facts and Prior Proceedings

         In 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.

         In a 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.[1] 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.[2], 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 individuals."

         While 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".

         Soon 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.

         Another 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.

         Once 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.

         At 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.

          II. Analysis

         A. Juror Removal

         Fenton 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.

         The 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 Batson[3] challenge.

         The 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.[4] 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."

         The 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.

         On 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 warrants reversal.

         Fenton's 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 ...

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