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State v. Veal

Supreme Court of Iowa

May 24, 2019

STATE OF IOWA, Appellee,
v.
PETER LEROY VEAL, Appellant.

          Appeal from the Iowa District Court for Cerro Gordo County, Rustin T. Davenport Judge.

         The defendant appeals his convictions for first-degree murder and attempted murder, challenging the jury pool and raising several other claims of error. AFFIRMED ON CONDITION AND REMANDED WITH DIRECTIONS.

          Dylan J. Thomas, Mason City, for appellant.

          Thomas J. Miller, Attorney General, Louis S. Sloven and Scott D. Brown, Assistant Attorneys General, and Carlyle T. Dalen, County Attorney, for appellee.

          Russell E. Lovell, II, Des Moines, and David S. Walker, Windsor Heights, for amicus curiae NAACP.

          MANSFIELD, JUSTICE.

         I. Introduction.

         This double homicide case presents important questions concerning a defendant's right to an impartial jury drawn from a fair cross section of the community, as well as a number of other trial-related issues. The defendant, an African-American, was charged with committing two murders in Cerro Gordo County and attempting to commit a third. Because of pretrial publicity he asked for a change of venue, and the trial was moved to Webster County. Although the Webster County jury venire contained five African-Americans, no African-American was seated on the jury that actually heard the defendant's case. The State exercised a peremptory strike on the last remaining African-American on the panel because the State's lead prosecutor in this case had also prosecuted her father successfully for murder. Following a jury trial, the defendant was convicted.

         On appeal, we affirm the district court's ruling that there was no Batson violation in the striking of the juror.[1] We also reject the defendant's claims of a speedy trial violation, prosecutorial error, evidentiary error, lack of competence to stand trial, and insufficient evidence to sustain his convictions. However, we believe further consideration of the defendant's fair-cross-section claim is warranted in light of the decision we are filing today in State v. Lilly, ___ N.W.2d ___ (Iowa 2019). Therefore, we conditionally affirm while remanding for further proceedings consistent with Lilly and this opinion.

         II. Background Facts and Proceedings.

         At about 2:00 a.m. on November 17, 2016, Mason City police officer Jennifer Barr was on patrol when she received a call from the dispatcher. An individual named Ron Willis, calling from outside Caleb Christensen's house, reported that Peter Veal had shot Willis's cousin and hit Willis on the head with a pistol. While en route to the location identified by the dispatcher, Officer Barr saw Veal walking in her direction. Veal was wearing a "light green coat," jeans, and a hat. Veal stopped when Officer Barr began to pull her patrol vehicle over. As soon as Officer Barr directed her spotlight toward Veal and made eye contact with him, he took off running. Officer Barr tried to pursue Veal but was unable to locate him.

         When Veal was subsequently apprehended, he was shirtless and hatless, and it was apparent that his hands and jeans were very bloody. Veal also had mist drops of blood on his face. Veal had a cut on his hand, which he claimed to have received from jumping a fence, although the cut was on the top-not the bottom-of his hand.

         Meanwhile, at Christensen's house, two people were dead. Melinda Kavars, Willis's cousin, was dead from a single gunshot wound. Christensen had been stabbed to death as a result of multiple knife wounds. The semiautomatic handgun used to kill Kavars was found at the scene with a jammed cartridge inside.

         The police spotted Willis outside Christensen's house. He was shaking, sobbing, and crying. He informed police that Veal had shot Kavars and had tried to shoot him but the gun had malfunctioned. Willis explained that he had run out of the house. He expressed concern for the fate of Christensen. Willis had a cut on the top of his head where he said Veal had struck him with the gun.

         There was a bloody trail beginning in the house that continued all the way to the location where Veal was apprehended. Along the trail, police found several items discarded by Veal-a hat, a cellphone, a green jacket, a shirt, and a folding knife.

         A footprint analysis confirmed that the bloody footprints in the house matched the shoes Veal had been wearing. There was no trace or trail of blood out the door where Willis had exited.

         DNA analysis confirmed the presence of Christensen's blood on Veal's discarded knife and shirt. Christensen's blood was also found on the jeans and shoes Veal was still wearing when apprehended. Veal's shirt, jeans, and shoes also contained evidence of his own blood.

         An analysis of the gun determined that Willis's skin tissue was on the back of the slide. This was consistent with Willis's claim that Veal had struck Willis with the gun after it jammed when Veal tried to shoot Willis. The gun also had DNA from an unknown contributor on the textured portion of the pistol grip, but the sample was too weak to determine the source of the DNA.

         Willis knew both Veal and Christensen. Willis later testified that on November 16, at around 7:00 p.m., Willis received a call from Veal, who wanted to hang out. Willis picked up Veal and bought beer from a liquor store before the two of them arrived at Christensen's home at around 8:00 or 8:30 p.m. Willis introduced Veal to Christensen.

         Later, Willis and Veal left and went over to Kavars's home. As noted, Kavars was Willis's cousin. She had invited Willis over for an early Thanksgiving dinner. Willis introduced Veal to Kavars. While at Kavars's house, Veal cut two lines of methamphetamine with a pocket knife. Kavars and Veal inhaled methamphetamine through a straw, and Willis smoked marijuana. After about forty minutes, the three of them went over to Christensen's house. They likely arrived after midnight.

         At Christensen's house, the four of them socialized in the living room. Willis and Veal drank beer, Kavars drank Vodka, and Christensen drank whiskey. Veal indicated at some point that he was not feeling well. Willis told him to go outside and get some fresh air. Veal left for about ten or fifteen minutes. When he came back in, he sat down briefly, but then he got back up and went to the bathroom.

         Shortly thereafter, Veal returned from the bathroom and sat down. Willis and Kavars were talking and laughing when suddenly Willis saw Veal abruptly rise from his seat and shoot Kavars in the throat with a pistol. Willis could not see the location from which Veal had obtained the gun. Willis observed blood coming from Kavars's throat, and he watched her take her final breaths.

         Veal then turned the pistol on Willis. Willis pled with him not to shoot. "I got kids, Peter," he told him. Veal attempted to fire but the gun jammed. Veal hit Willis on the right side of the head with the pistol.

         As this was happening, Christensen was frozen on the couch. Willis saw Veal trying to get the jammed round out of the pistol, and Willis started running, believing Christensen would be following him. By the time Willis reached the side exterior door in the kitchen, the place was dark because the only lamp being used in the house had gone out. Willis managed to unlock the door in the dark and exit the house. The last thing he heard Christensen say as he was departing was, "What the f ___ are you doing?"

         Once out of the home, Willis ran across the street and called 911. Willis later saw Veal leave the house and run south. Willis remained across the street and called some friends who arrived and helped calm him down. When the police came, Willis remained at the scene. He gave the police permission to search his vehicle, and he agreed to go to the police station to make a statement.

         On November 23, the State filed a trial information in the Iowa District Court for Cerro Gordo County charging Veal with two counts of first-degree murder for the deaths of Kavars and Christensen and one count of attempted murder with respect to Willis. See Iowa Code §§ 707.1, .2(1)(a), .11 (2017). Because of the publicity surrounding the case, Veal sought a change of venue, and the trial was moved to Webster County.

         The parties appeared for trial on Monday, July 10, 2017. Of the Webster County jury pool of 100 people who had returned juror surveys, eighty-seven of them checked in at the courthouse that morning.

         Veal is African-American. However, of those in the jury pool who reported their ethnicity, only one juror had self-identified as African-American, and she did not appear on July 10. Webster County is approximately 4.6% African-American.[2]

         Before voir dire began, Veal objected to the jury venire. He alleged a violation of his Sixth Amendment right to a fair trial based on underrepresentation and systematic exclusion of African-Americans from the jury selection process.

         The court initially gave the defense until later that day to investigate its claim of underrepresentation and systematic exclusion. Further discussions took place on the record during the course of the day, and the court ultimately agreed to conduct a hearing on July 11. Because July 10 was the ninetieth day for speedy trial purposes, the court found good cause to extend the speedy trial deadline to July 11.

         In an attempt to increase the number of African-Americans in the venire, the court summoned an additional jury pool to appear on the 11th. The court also instructed the sheriff to contact the jurors who had been summoned but had not appeared on the 10th.

         With the extra jury pool, there were 153 potential jurors available at the courthouse on July 11.[3] Five were African-American.[4] Meanwhile, defense counsel had completed a historical review of jury questionnaires in Webster County for all of 2016. They reported to the court that the overall African-American percentage of Webster County jury pools that year was approximately 1.3%. Veal moved to strike the jury panel and dismiss the case, arguing the State had systematically excluded and underrepresented African-Americans in its jury pools in violation of the Sixth Amendment and that it was too late to fix the problem given the speedy trial deadline.

         The district court denied the motions, noting that the additional pool had redressed to some extent the lack of African-American jurors in the original pool. As the court explained in its subsequent written ruling,

The Court denied Defendant's motion [to strike the jury panel] based on both the second and third part of the Duren [v. Missouri, 439 U.S. 357, 99 S.Ct. 644 (1979)] test. The Court found that with the addition of Pool 2 and the availability of additional jurors who self-identified as African-American, at least in part, that the representation of African-Americans was fair and reasonable. As to the third part of the Duren test, the Court found that there was insufficient evidence that there was systematic exclusion of African-Americans in the jury selection process.

Jury selection then took place.

         The initial voir dire panel of thirty-four potential jurors included three African-Americans. One had a prior felony conviction in Iowa, was still on parole, and had been prosecuted by the State's lead prosecutor. He was excused for cause. See Iowa R. Crim. P. 2.18(5)(a) (allowing a challenge for cause based on "[a] previous conviction of the juror of a felony"). A second potential juror also had a felony conviction, although from another state. His civil rights had not been restored, and he was excused for cause. See id.

         The final African-American potential juror was S.H. The State's lead attorney had prosecuted S.H.'s father in a prior case resulting in three class A felony convictions. During voir dire, S.H. acknowledged that she had attended part of the trial. The State exercised a peremptory challenge on her. Although the defense lodged a Batson challenge to the strike, the district court overruled the challenge finding that the State had offered "a sufficient nondiscriminatory reason for striking that juror."

         Following four days of presentation of evidence, a jury found Veal guilty on all charges. On September 12, Veal was sentenced to consecutive sentences of life without parole on the first-degree murder charges and twenty-five years on the attempted murder charge. See Iowa Code § 901.5; id. § 902.1, .3, .9. Veal appealed, and we retained the appeal.

         III. Standard of Review.

         We review constitutional questions de novo. State v. Plain, 898 N.W.2d 801');">898 N.W.2d 801, 810 (Iowa 2017). This includes claims of systematic exclusion of a distinctive group from the jury pool in violation of the Sixth Amendment. Id. at 810, 821-29. It also includes Batson challenges. See State v. Mootz, 808 N.W.2d 207, 214, 215-20 (Iowa 2012). Yet, we give "a great deal of deference to the district court's evaluation of credibility when determining the true motives of the attorney when making strikes." Id. at 214; see also State v. Griffin, 564 N.W.2d 370, 375-76 (Iowa 1997).

         We likewise review de novo a district court's decision whether a defendant is competent to stand trial. See State v. Lyman, 776 N.W.2d 865, 873 (Iowa 2010), overruled on other grounds by Alcala v. Marriott Int'l Inc., 880 N.W.2d 669, 708 & n.3 (Iowa 2016).

         In the speedy trial area, "[w]e review a district court's determination whether the State carried its burden to show good cause for the delay for abuse of discretion." State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017). Also, "[w]e review a district court's decision on claims of prosecutorial misconduct for abuse of discretion, which occurs when 'a court acts on grounds clearly untenable or to an extent clearly unreasonable.'" State v. Coleman, 907 N.W.2d 124, 134 (Iowa 2018) (quoting State v. Krogmann, 804 N.W.2d 518, 523 (Iowa 2011)). We review rulings on demonstrative evidence for an abuse of discretion. See McNeal, 897 N.W.2d at 703. We also review evidentiary rulings regarding the admission or exclusion of prior bad acts for abuse of discretion. State v. Putman, 848 N.W.2d 1, 7 (Iowa 2014).

         We review challenges to the sufficiency of the evidence for correction of errors at law. State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). We review a denial of new trial on the ground the verdict is contrary to the weight of the evidence for abuse of discretion. State v. Ary, 877 N.W.2d 686, 706 (Iowa 2016).

         IV. Fair-Cross-Section Claim.

         Veal maintains that the jury selection process used in Webster County violated the Sixth Amendment requirement that juries be drawn so as to represent a fair cross section of the community.[5] We addressed a similar claim today in Lilly, ___ N.W.2d ___. In Lilly, the defendant raised both the Sixth Amendment and article I, section 10. Id. at ___. We applied the Duren/Plain framework to these issues. Id.; see also Duren, 439 U.S. at 364, 99 S.Ct. at 668; Plain, 898 N.W.2d at 822. We held that under article I, section 10, a defendant establishes the underrepresentation prong of the Duren/Plain framework by showing that the representation of a distinctive group in the jury pool falls below the representation in the eligible juror population by more than one standard deviation. Lilly, N.W.2d at ___. We held that the representation of the group in the eligible juror population should be assessed using the most current census data, adjusted for any reliable data that might affect eligibility, such as the numbers of persons under the age of eighteen. Id. at ___.[6] Lilly also held that aggregated data on multiple jury pools could be used, so long as the data were not selective. Id. at ___. Additionally, Lilly held that a defendant whose jury pool contains at least as high a percentage of the distinctive group as the eligible population has not been aggrieved under the Duren/Plain framework. Id. at ___.

         Turning to the systematic-exclusion prong of Duren/Plain, we reiterated in Lilly that the defendant must prove "causation," that is, that the underrepresentation actually resulted from a particular feature or features of the jury selection system. Id. at ___. However, we held that "run-of-the-mill jury management practices" can, under appropriate circumstances, constitute systematic exclusion. Id. at ___.

         We believe that Lilly's holdings are equally valid when a case is decided under the Sixth Amendment, with two exceptions. We are not persuaded that one standard deviation would be enough to establish the underrepresentation prong for federal constitutional purposes. In Castaneda v. Partida, the United States Supreme Court seemingly endorsed two to three standard deviations as an appropriate threshold under the Fourteenth Amendment, and we are not persuaded the Supreme Court would adopt a more lenient standard under the Sixth Amendment. 430 U.S. 482, 496 n.17, 97 S.Ct. 1272, 1281 n.17 (1977). We believe a downward variance of two standard deviations must be shown under the Sixth Amendment.

         We also are not persuaded that run-of-the-mill jury management practices can constitute systematic exclusion under the Sixth Amendment. In Berghuis v. Smith, the Supreme Court noted,

Smith catalogs a laundry list of factors in addition to the alleged "siphoning" that, he urges, rank as "systematic" causes of underrepresentation of African-Americans in Kent County's jury pool. Smith's list includes the County's practice of excusing people who merely alleged hardship or simply failed to show up for jury service, its reliance on mail notices, its failure to follow up on nonresponses, its use of residential addresses at least 15 months old, and the refusal of Kent County police to enforce court orders for the appearance of prospective jurors.

559 U.S. 314, 332, 130 S.Ct. 1382, 1395 (2010) (citations omitted). The Court then went on,

This Court . . . has never "clearly established" that jury-selection-process features of the kind on Smith's list can give rise to a fair-cross-section claim. . . . [I]n Duren, the Court understood that hardship exemptions resembling those Smith assails might well "survive a fair-cross-section challenge."

Id. at 333, 130 S.Ct. at 1395 (citation omitted) (quoting Duren, 439 U.S. at 370, 99 S.Ct. at 669).

         However, Veal's pool contained only five African-Americans out of 153 potential jurors. This 3.27% figure is below the percentage of African-Americans in Webster County (4.6%) and also below the percentage of eighteen-and-over African-Americans in Webster County (3.9%).[7] Turning to the aggregate data, they show only thirty-five self-identifying African-Americans out of 2637 persons who responded to the juror questionnaire in Webster County in 2016. This is statistically significant even under the higher Castaneda threshold. The odds of getting only thirty-five successes out of 2637 trials with p of .046 are 4.05 X 10-21. As the State concedes in its brief, "The odds of that occurring randomly . . . are very low." This remains true even if the overall percentage of African-Americans living in Webster County is adjusted to account for the fact that a higher percentage of African-Americans living in Iowa are under eighteen and cannot serve on juries. See Lilly, ___ N.W.2d at ___. The odds of getting only thirty-five successes out of 2637 trials with p of .039 in that case are 2.29 X 10-15. Other adjustments, such as for the Fort Dodge prison population or for individuals of mixed race, likely would not alter the bottom line revealed by the aggregate data.[8]

         Yet we note that Veal's counsel aggregated data from jury questionnaires for 2016 only. Veal's trial actually took place in July 2017. The record does not indicate whether similar data were available for the first half of 2017. We cautioned in Lilly that aggregate data cannot be gathered selectively. See id. at ___. Thus, if data were readily available for the first half of 2017, it would be inappropriate to exclude them.

         Veal did not attempt to meet the third prong of Duren/Plain other than by arguing that systematic exclusion can be inferred from the 2016 aggregated data. As we explained in Lilly, that is not enough. Id. at ___. The defendant must identify some practice or combination of practices that led to the underrepresentation, and it must be something other than the "laundry list" the Supreme Court declined to condemn in Berghuis. See 559 U.S. at 332, 130 S.Ct. at 1395.

         As in Plain and Lilly, we believe the appropriate course of action here would be to remand the case. Neither the parties nor the district court had the benefit of today's decisions. A remand will offer Veal a further opportunity to develop his arguments that his Sixth Amendment right to an impartial jury was violated. If the district court concludes a violation occurred, it shall grant Veal a new trial.

         V. Speedy Trial Claim.

         Veal next argues his rule 2.33 right to a speedy trial was violated. See Iowa R. Crim. P. 2.33(2)(b). Veal's argument centers on a one-day delay that occurred from July 10, 2017, to July 11, 2017, while the parties litigated the fair-cross-section claim.

         We begin by reviewing the relevant dates. The trial information was filed November 23, 2016. Trial was originally scheduled for January 24, 2017. Veal never waived speedy trial.

         On December 30, 2016, Veal applied for a psychiatric evaluation of himself at state expense. On January 4, the court suspended proceedings and ordered such an evaluation. The evaluation was filed on February 28. The evaluator recommended that Veal be referred to the forensic psychiatric hospital for restoration of competency. On March 3, the court approved the referral and continued the suspension of proceedings. On May 15, the reports of two professionals were filed concluding Veal was now competent to stand trial. On May 23, the court found that Veal's competency had been restored and vacated the suspension of proceedings. The court reset trial for June 26.

         Veal's counsel shortly thereafter moved to continue trial from June 26 to July 10 based on counsel's unavailability. The State did not oppose this request, and the court granted it. Everyone agreed that July 10 was the last available date within the ninety-day speedy trial window, taking into account the date the trial information was filed and excluding the time spent addressing Veal's competency.

         On the morning of July 10, the court convened proceedings intending to begin the trial. Veal's counsel observed there were no minorities and sought until the afternoon to explore racial disparity and systematic exclusion in the jury venire. Further discussions occurred later that morning and Veal's counsel asked for additional time past the 10th to investigate systematic exclusion. The State resisted the request. It noted that Veal had been in possession of the list of potential jurors earlier and could have raised the fair-cross-section claim before the day of trial. The State also asked the court to find good cause for extending the ninety-day deadline if it granted more time.

         The court decided to give Veal's counsel until the following day, i.e., the 11th, to conduct research and discovery on the fair-cross-section claim. On the question of speedy trial, the court ruled,

THE COURT: To grant the motion to -- to allow time to do discovery and make a further record regarding whether an under-representation is due to the systematic exclusion of a group in the jury selection process necessarily requires trial to begin after the 90 days. I think there has to be a conscious choice of that or at least be aware of that.
So given those situations, that they're really in conflict, counsel for the defendant, I just want to, you know, understand for the record, knowing that you're at the 90th day, you are asking for additional time to do further discovery or present further arguments on this matter to extend -- and that would extend this case past 90 days. Is that your position? MR. KLOBERDANZ: Yes, Your Honor.
THE COURT: All right. And you've discussed that with your client also? MR. KLOBERDANZ: Yes, Your Honor, we have.
THE COURT: All right. Based upon that record, I will agree to give defense counsel additional time. I find, however, that there is good cause shown for extending the time to present this case for trial:
As Mr. Brown has said about four times, the State is ready to proceed here today. The jury panel was here. We were ready to begin the case. The jury panel is coming back at 1:00, so we could continue the case yet today;
That the circumstances where Defendant's motion was first raised on Friday of last week [July 7], frankly, without any time for any of us to do anything about it, and then raised today, makes the situation where it would have been impossible to deal with this matter before the conclusion of the 90 days;
That this is the defendant's motion with full knowledge that this would require trial to begin after 90 days.
And in light of that, the defendant has chosen to seek the additional time to exercise his rights under the Plain case to do some further discovery; and, therefore, I think that the -- any delay in the case would -- would be attributable to the defendant and there'd be good cause for -- for not getting this case tried within 90 days.

         The next day, July 11, a second pool of potential jurors had been summoned to add to the first pool. Veal, meanwhile, provided additional data based on jury pools in Webster County for all of 2016 and formally moved that his jury venire be stricken as not reflecting a fair cross section of the community. In addition, Veal moved for dismissal of the case based on violation of his speedy trial rights, reasoning that it was the State's duty to provide a jury panel representing a cross section of community within the ninety-day deadline. The court denied both motions, reiterating on the speedy trial issue that "there was good cause to go past the 90 days." At this point, the parties proceeded with jury selection.

         Iowa Rule of Criminal Procedure 2.33(2)(b) provides,

If a defendant indicted for a public offense has not waived the defendant's right to a speedy trial the defendant must be brought to trial within 90 days after indictment is found or the court must order the indictment to be dismissed unless good cause to the contrary be shown.

         The good cause determination focuses on "the reason for the delay." McNeal, 897 N.W.2d at 704 (quoting State v. Winters, 690 N.W.2d 903, 908 (Iowa 2005)). Yet we also consider "surrounding circumstances such as the length of the delay, whether the defendant asserted his right to a speedy trial, and whether prejudice resulted from the delay." Id. Here the delay was only one day, it was precipitated by the defendant's request for more time to investigate and present evidence on the fair-cross-section issue, and the defendant cites no prejudice that resulted from this single-day postponement. In our view, the district court carefully balanced a number of concerns. "[P]utting ourselves in the shoes of the district judge," we find no abuse of discretion. See id. at 708.

         Veal denies there was good cause for any delay. Treating the judicial branch and the county attorney's office collectively as "the State," Veal maintains it was the State's obligation not just to be ready to try the case on July 10, but also to have a jury pool meeting constitutional standards available that day. Thus, Veal's argument would effectively transform any fair-cross-section violation not remedied before the ninety-day deadline into a speedy trial violation.

         Veal cites no authority for his effort to conflate substantive legal claims with speedy trial violations. We are not persuaded. By Veal's logic, any time we find on appeal that a defendant is entitled to a new trial, we should also find that "the State" violated the defendant's speedy trial rights by committing a legal error that resulted in a new trial beyond the ninety-day deadline. This would go too far.

         VI. Batson Challenge.

         Veal contends the district court erred in overruling his Batson challenge to the State's exercise of a peremptory strike on an African-American prospective juror. Batson holds that a defendant may establish a prima facie case of racial discrimination by showing that the prosecutor has exercised one or more peremptory challenges to remove from the venire members of a racial minority and that these facts and other relevant circumstances raise an inference of discrimination. See Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 1723-24 (1986). Such a showing shifts the burden to the prosecution to come forward with a race-neutral explanation for exercising the challenges. Id.

         During voir dire of this juror, the lead prosecutor recognized her as the daughter of a person he had prosecuted successfully for three class "A" felonies. The juror had attended two days of her father's trial. The juror stated during voir dire that she believed her father was treated fairly. She conceded he was "involved" in the crimes but said she did not "know for sure if he was the only person."

         The State exercised one of its peremptory strikes on this juror. Veal's counsel objected on the basis of Batson and the prosecutor provided the following explanation:

So I'll tell you why we struck Ms. [H.]. Ms. [H.] is the daughter of [S. H.]. I prosecuted [S. H.] for three class A felonies in this county; kidnapping, sexual abuse, and murder, all in the first degree. It was a very high-profile case, a very brutal killing . . . .
At the time of the -- the crime -- I can't tell you the year or the date. I do lose dates -- but Ms. [H.], I believe, was right around the age of 17 years old. I vaguely remember her being present at least at part of the -- if it wasn't the trial, it would have been part of the pretrial proceedings. She was with her mother . . . .
. . . .
I mean, I can't keep a juror on whose father I prosecuted for a class A felony. I mean, there -- there -- she may have latent hostility towards me personally because of what I did. Her expressions that she made on the -- on the record, she said that his sentence was fair. She doesn't appear to have a whole lot of contact with him; but that's not a risk I can take, particularly under the circumstances of this case.
We have -- The allegation is that Mr. Veal killed two people. At least based in part on what our expert has said, he may be blaming a -- a second person, may be blaming Ron Willis, claiming that he didn't -- that Mr. Veal's claiming that he didn't do the crime that he's accused of.
And Ms. [H.] raised that issue with me concerning the fairness and what she thought about the trial of her father, [S. H.], whenever she said somebody else might have been involved.
I can tell you right now, in the [S. H.] case, no one else was involved. We had strong physical evidence against him that he was the sole perpetrator of those three crimes. That's what concerns me about Ms. [H.]. I think those are race-neutral reasons to strike her.
If she were white, I would make the exact same objection to having her -- or make the same exact strike that I would. And it -- this has nothing to do with her race; it has everything to do with her background and who her father is and the fact that I was directly involved in that case and that prosecution. So for those reasons, that's why we exercised our preemptory challenge.
One other thing I would tell you is we did wait to the end to strike her with No. 10 because I thought the defense might actually challenge her for the same reason; that she had, you know, had this -- this connection to a previous high-profile violent crime here in the county. I could see actually how that they could maybe justify a preemptory strike on that basis, as well. I thought that would alleviate this problem of having to articulate why we're doing it; but apparently that didn't happen, so that's why we took her with No. 10.
Just don't want you to read anything else into that. That's why we waited till the end. So those are our reasons, and we would ask that our strike be upheld.

         Defense counsel did not question the State's motive for striking this juror, but argued that her voir dire responses gave no indication of bias. Because this juror was the last available African-American juror, defense counsel "ask[ed] the Court to hold the State to a very high standard given the circumstances here."

         The district court overruled Veal's Batson challenge, stating,

Prosecution of a potential juror's father in a -- in an apparently class A case by the same attorney as is in this case, I think, is a sufficient nondiscriminatory reason for striking that juror; and that's why I'm going to overrule your objection.

         Here and below, Veal insists that a nondiscriminatory reason for striking the last African-American juror is insufficient and that we should adopt something like a cause requirement in those circumstances. This is contrary to our precedent. In Griffin, we upheld a prosecutor's use of strikes on the only two African-American members of the panel. 564 N.W.2d at 375-76. We noted that the prosecutor's explanation "need not rise to the level justifying exercise of a challenge for cause" but must be race-neutral and "related to the particular case to be tried." Id. at 375 (quoting Batson, 476 U.S. at 97-98, 106 S.Ct. at 1723-24). We affirmed the district court's acceptance of the prosecutor's explanation that both jurors had previously sat on a jury that convicted the defendant of lesser included offenses in a willful injury case. Id. at 376. We stated that "[t]hese qualify as racially-neutral reasons" and "[t]here is nothing to suggest they were a mere pretext." Id. The same observations can be made here; indeed, to an outsider, the prosecutor's reason for striking juror H. here seems more substantial than the reasons given in Griffin.

         More recently, in Mootz, we said that a Batson challenge should not prevail "merely because the judge does not find the reason given to be persuasive." 808 N.W.2d at 218. Rather, "[t]he reason given must, in and of itself, violate equal protection." Id.

         Veal argues that allowing prosecutors to use peremptory strikes on prospective jurors who are relatives of individuals they previously prosecuted "disproportionately implicates African-American potential jurors." We are aware of the disproportionate impact when jurors can be removed based on prior interactions with law enforcement. But see id. at 219 ("Our cases have repeatedly noted that a juror's interactions with law enforcement and the legal system are a valid, race-neutral reason for a peremptory challenge."). But this case involved a special set of circumstances-a prosecutor's use of a peremptory strike on a juror because the same prosecutor had sent her father to prison for the rest of his life. We affirm the district court's ruling that this was a valid, race-neutral reason for rejecting the Batson challenge.

         VII. Prosecutorial Error or Misconduct.

         Veal contends that the prosecutor was guilty of misconduct in several instances, requiring reversal of his convictions and a new trial. We have drawn a distinction between prosecutorial misconduct and prosecutorial error. State v. Schlitter, 881 N.W.2d 380, 392-94 (Iowa 2016). The former requires an intentional violation of a clear legal or professional standard; the latter involves a mistake or an exercise of "poor judgment." Id. at 394 (quoting Shawn E. Minihan, Measuring Prosecutorial Actions: An Analysis of Misconduct Versus Error, Prosecutor, Dec. 2014, at 25). We will treat Veal's claim as one of prosecutorial misconduct or error.

         Veal first takes issue with the following exchange during voir dire:

MR. BROWN: . . . Ms. [M.], I'll come back to you. I've mentioned multiple times here that this is a murder case and an attempted murder; right? Okay. And I think with Ms. [P.], she talked about a case that she was on that dealt with a --serving a minor; correct? Okay. So obviously when you compare the two, that's, you know, certainly minor compared to -- to a murder. Would you agree? MS. [M.]: Yes.
MR. BROWN: Okay. So looking at comparing those two, would you say that we would have to have more evidence in a murder case than we would in someone who sells alcohol to a minor? MS. [M.]: Yes.
MR. BROWN: Okay. I get that answer a lot too. Do you realize that the burden in those two cases is exactly the same, the definition would be the same? Do you follow me? MS. [M.]: Uh-huh.
MR. BROWN: So it'd be beyond a reasonable doubt as it's defined by the judge here. The same instruction would be given in the case like what Ms. [P.] had talked about. So the burden is the same in the sense that it's defined the same. Do you follow me? MS. [M.]: Yes.
MR. BROWN: Okay. So would you hold us to the burden as the Judge gives it to you -- MS. [M.]: Yes.
MR. BROWN: -- and not think that we have to have something more than that? MS. [M.]: Correct.

         Veal's counsel shortly thereafter moved for a mistrial based on this exchange. He said, "I don't know if that went over the line but want to bring it to the court's attention. . . . It was a comparison of selling alcohol to minors and -- and murder . . . ." He then added that when a prosecutor compares two crimes it is "at least arguably a comment on potential punishment; and certainly that's not appropriate or proper."

         The court denied the motion for mistrial. It recalled the reference as an effort to equate the burden of proof for both crimes. It did say that the comment could be viewed as one on possible punishment, and counsel ...


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