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State v. Lilly

Supreme Court of Iowa

May 24, 2019

STATE OF IOWA, Appellee,
v.
KENNETH L. LILLY, Appellant.

          Appeal from the Iowa District Court for Lee County, Mary Ann Brown, Judge.

         The defendant appeals his conviction for first-degree robbery, challenging the jury pool and the sufficiency of the evidence to convict him.

          Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, Louis S. Sloven and Andrew Prosser, Assistant Attorneys General, and Clinton Boddicker, County Attorney, for appellee.

          MANSFIELD, JUSTICE.

         I. Introduction.

         This appeal of a conviction for aiding and abetting a bank robbery requires us to consider the defendant's rights to an impartial jury under the Sixth Amendment to the United States Constitution and article I, section 10 under the Iowa Constitution, as well as the sufficiency of the evidence to sustain the defendant's conviction. The defendant, an African-American, was convicted following a jury trial in North Lee County. His jury contained no African-Americans. Nor were there any African-Americans in the jury venire that reported that day. The defendant, relying on our recent decision in State v. Plain, 898 N.W.2d 801 (Iowa 2017), attempted to establish a violation of his constitutional rights by presenting documentary evidence and testimony regarding jury pools in North Lee County and jury management practices followed in North Lee County and the Iowa Judicial Branch as a whole. The district court concluded that his effort fell short.

         On our review, we reject the defendant's challenges to the sufficiency of the evidence. However, because we have made further elaboration and refinement of our analysis in Plain, we conditionally affirm and remand for further proceedings consistent with this opinion.

         II. Facts and Procedural Background.

         At approximately 10:11 a.m. on June 29, 2016, the Fort Madison Police Department received a 911 call reporting an apparent robbery in progress at the Fort Madison Bank and Trust. The caller, Joseph Hardin, had been waiting to cash a check at the bank's drive-through window. A man exited from the car in front of him and entered the bank with a mask pulled over his face. Hardin then heard what sounded like a gunshot, and a bank employee waved at Hardin to drive away. While on the phone with the police, Hardin recounted details about the passenger who had stepped out of the car and entered the bank, but he could neither identify the car's driver nor remember any specifics about the car.

         Within minutes, police arrived at the bank. The robber, later identified as Lafayette Antonio Evans, spotted one of the police cars. He ran out of the bank through the back exit with a haul of cash in a zip-tie bag. Following a police chase and an exchange of gunfire, Evans was fatally shot. Investigators found a mask, a semiautomatic handgun, and a hand-held radio on Evans's person.

         The defendant, Lilly, was the uncle of Evans's wife. Before the robbery, Lilly's wife had received a money order from Evans's mother. According to a witness present at the bank, a Suburban-type vehicle had dropped off Evans at the bank. This witness noticed a black fan had been clipped to the rear-view mirror of the Suburban. She also observed that the driver was a large African-American man, a general description that fit Lilly.

         After seeing a Suburban parked outside of Lilly's home, the police executed a search warrant on the vehicle on July 7. A black fan was found in Lilly's Suburban along with a citizens band (CB) radio capable of communicating with the hand-held radio recovered from Evans.

         When investigators interviewed Lilly, he stated that Evans had been staying with him until leaving his residence the night before the robbery. Lilly also claimed to have slept until about 10:30 a.m. or 11:00 a.m. the morning of the robbery on June 29, and then run some errands by himself and driven to Rockford, Illinois. Lilly added that Evans had free use of Lilly's vehicle while staying with Lilly.

         Video surveillance from local businesses disproved Lilly's account of his whereabouts on June 29. It established that Lilly had been at a convenience store in town at 8:39 a.m., at a hardware store in town at 9:23 a.m., and at a McDonald's near the bank at 10:14 a.m., just minutes after the 911 call reporting the robbery. Lilly also had on his person a receipt for buying a drink at the McDonald's with a 10:15 a.m. imprint. In addition, the convenience store video showed a passenger in the Suburban who was wearing a white shirt, the same color as the shirt that Evans wore when he committed the robbery later that morning.

         Lilly was arrested on October 26 and charged in the North Lee County District Court with aiding and abetting first-degree robbery under Iowa Code sections 703.1, 711.1, and 711.2. He entered a plea of not guilty on November 18. On September 14, 2017, Lilly, an African-American, filed a motion challenging the jury pool as not a fair cross section of the community. He pointed out that no one who answered a jury questionnaire for that pool identified himself or herself as African-American. All but three who disclosed their race responded that they were "White" or "Caucasian," and of those three, one self-identified as "Asian," one as "Other," and the third as "White/Black." Lilly also noted that according to the 2013 United States census, 3.2% of the Lee County population was African-American. The court conducted an evidentiary hearing on Lilly's challenge, receiving testimony from Dawn Willson, a judicial specialist responsible for picking the names for jury service in North Lee County, and Mark Headlee, the information technology director for the Iowa Judicial Branch. The court also received exhibits, including the last five years of "race reports" from North Lee County jury pools.

         On September 25, the court denied Lilly's motion. It concluded that "the defendant has failed to establish . . . that any underrepresentation of African-Americans on the list is due to a systematic exclusion of the group in the jury selection process." Jury selection began the following day, and no African-American jurors were seated in the jury of six men and six women.

         In its initial jury instructions before opening statements, the district court gave the following instruction on implicit bias:

Reach your verdict without discrimination. In reaching your verdict, you must not consider the defendant's race, color, religious beliefs, national origin or sex. You are not to return a verdict for or against the defendant unless you would return the same verdict without regard to his race, color, religious beliefs, national origin or sex.[1]

         After the State finished its case-in-chief, Lilly moved for a judgment of acquittal. The court denied the motion. Lilly renewed his motion for acquittal at the close of evidence, which the court again denied. The court gave the same implicit-bias instruction in its final instructions.

         On September 29, the jury found Lilly guilty of robbery in the first-degree. On November 22, the court denied Lilly's motion for new trial and sentenced him to twenty-five years in prison subject to a 70% mandatory minimum. See Iowa Code §§ 902.9(1)(b), .12(1)(e) (2016). Lilly appealed, and we retained the appeal.

         On appeal, Lilly contends the racial composition of the jury pool violated his rights to an impartial jury under the Sixth Amendment to the United States Constitution and article I, section 10 of the Iowa Constitution. He contends the evidence was insufficient that he aided and abetted Evans in the robbery of the bank. He also contends he received ineffective assistance of counsel when his counsel failed to move for a judgment of acquittal as to first-degree robbery based on the lack of evidence that he knew a firearm would be used in the robbery.

          III. Standard of Review.

         "We review constitutional issues de novo." Plain, 898 N.W.2d at 810. We also review ineffective-assistance-of-counsel claims de novo. State v. Harris, 891 N.W.2d 182, 185 (Iowa 2017). "However, when the claim is that counsel was ineffective in failing to move for judgment of acquittal, this implicates the question whether such a motion would have been meritorious, which turns on the sufficiency of evidence." State v. Henderson, 908 N.W.2d 868, 874-75 (Iowa 2018).

         Sufficiency of the evidence claims are reviewed for corrections of errors at law. See Iowa R. App. P. 6.907; see also Harris, 891 N.W.2d at 186. In making determinations regarding the sufficiency of the evidence, we "view the evidence in the light most favorable to the state, regardless of whether it is contradicted, and every reasonable inference that may be deduced therefrom must be considered to supplement that evidence." Harris, 891 N.W.2d at 186 (quoting State v. Jones, 281 N.W.2d 13, 18 (Iowa 1979)). If the record contains substantial evidence to support the defendant's conviction, we will uphold a trial court's denial of a motion of acquittal. Id. "Evidence is substantial if it would convince a rational trier of fact the defendant is guilty beyond a reasonable doubt." Id. (quoting State v. Jorgensen, 758 N.W.2d 830, 834 (Iowa 2008)). Evidence can be either circumstantial or direct, or both. Id. Evidence is substantial if a reasonable trier of fact would be convinced that the defendant is guilty beyond a reasonable doubt. Henderson, 908 N.W.2d at 875.

         IV. Analysis.

         A. Composition of the Jury Pool.

         Lilly, an African-American, challenges the composition of the jury pool in North Lee County from which his jury was selected.[2] None of the jurors who heard his case was African-American. Of the pool from which his jury was selected, one person marked "Other" on the questionnaire, one marked "Asian," and one marked "White/Black." None of them, however, were part of the venire from which Lilly's jury was chosen.[3]

         Before trial, a hearing was held in which Lilly was given the opportunity to show that African-Americans were being systematically underrepresented in North Lee County jury pools. Lilly presented "race reports" for the last five years of jury pools from late 2012 to late 2017 in North Lee County. The reports showed that on the approximately 2789 questionnaires returned during the last five years, only fourteen potential jurors self-reported as being African-American. Approximately 30% of respondents did not disclose their race.

         In 2013, Lee County had a 3.2% African-American population; in 2016, that figure was 3%. No statistics were presented regarding North Lee County. The State noted below, and reiterates here, that the African-American population in Iowa is, on average, younger than the overall population. It estimates that 75.83% of Iowans are eighteen years or older, and thus eligible to be jurors, whereas only 65.4% of African-American Iowans are eighteen or older.

         1. The Duren/Plain framework. In State v. Plain, we considered a challenge under the Sixth Amendment to the racial composition of a jury pool. 898 N.W.2d at 821. We noted that the Sixth Amendment "right to an impartial jury entitles the criminally accused to a jury drawn from a fair cross-section of the community." Id. We explained that under Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664 (1979), a defendant can establish a prima facie violation of the fair-cross-section requirement by showing:

(1) that the group alleged to be excluded is a ''distinctive'' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Id. at 822 (quoting Duren, 439 U.S. at 364, 99 S.Ct. at 668).

         We noted that to establish the second Duren prong "jurisdictions generally apply one or more of the following statistical tests: (1) absolute disparity, (2) comparative disparity, and/or (3) standard deviation." Id. Absolute disparity is calculated by subtracting the percentage of the minority group in the jury pool from the percentage in the community. Id. We faulted the absolute disparity test for failing to "account for the relative size of the minority group in the general population." Id. at 823. For example, if absolute disparity is set at 10% and the minority group is less than 10% of the relevant population, the defendant would never be able to meet the absolute disparity test, even if the system for selection of jury pools were biased against that minority group. See id.

         "Comparative disparity is calculated by dividing the absolute disparity by the percentage of the population represented by the group in question." Id. We criticized that test because "it can overstate underrepresentation for groups with a small population percentage." Id. For example, if a pool of 100 jurors contains two members of a minority group but the percentage of members of that minority group in the relevant community is 3%, this translates into a comparative disparity of 33 1/3%, even though this result would be a relatively common outcome of a random process.

         The final test, standard deviation, uses accepted statistical methods to determine the likelihood that a disparity between the minority percentage in the pool and in the population is the result of something other than chance. See id. These statistical methods are commonly used in employment discrimination cases. See, e.g., Pippen v. State, 854 N.W.2d 1, 20 (Iowa 2014) (noting that the plaintiffs "point out that the racial disparity in the hiring of applicants deemed qualified for the job by DAS was statistically significant."). In Plain, we said that standard deviation was also "imperfect" because

[m]easures of the standard deviation presume randomness; however, the chances of drawing a particular jury composition are not random, in part because "the characteristics of the general population differ from a pool of qualified jurors."

Plain, 898 N.W.2d at 823 (quoting United States v. Hernandez-Estrada, 749 F.3d 1154, 1163 (9th Cir. 2014) (en banc)).

         We decided in Plain to overrule State v. Jones, 490 N.W.2d 787, 792- 93 (Iowa 1992), to the extent it held that absolute disparity was the appropriate test to use. See id. at 826. We concluded that "[p]arties challenging jury pools on the ground that they are unrepresentative may base their challenges on multiple analytical models." Id. at 827. We added, "Because what constitutes a fair cross-section of the community is a fluid concept, a flexible approach for determining when a racial disparity rises to the level of a constitutional violation is warranted." Id.

         Further, we held that defendants are entitled to "access to the information necessary to prove a prima facie case." Id. at 828. We conditionally affirmed Plain's conviction and remanded to the district court "for development of the record on the Sixth Amendment challenge." Id. 829.

         In this case, Lilly attempted to prove up a challenge using the Duren/Plain framework. He brought his challenge under both the Sixth Amendment and article I, section 10 of the Iowa Constitution, which like the Sixth Amendment provides a right to trial before "an impartial jury."

         The district court concluded that it was unable to decide whether the second Duren/Plain prong had been met, and therefore focused on the third prong. There, it reasoned:

Even if the jury panels are not representative of the African-American population in the community, in order for the defendant to challenge the panel he must still prove that the underrepresentation is due to a systematic exclusion of the group in the jury selection process. The evidence at the hearing disclosed that jury managers for all jury panels chosen in the state of Iowa use a system created by the judicial branch under the direction of the State Court Administrator. The decision has been made by the State Court Administrator that those jury managers are only able to access lists created from voter registration lists supplied by the Iowa Secretary of State and driver's license and DOT identification lists supplied by the Iowa Department of Transportation. This court and the North Lee County jury manager have no choice in which lists are utilized. Consequently, the court sees no purpose will be served by granting the defendant's prayer for relief to strike this jury panel and have the jury manager call in another panel using the same lists. Based upon the past five-year history, there's very little likelihood that a newly-drawn jury panel would include individuals who on their questionnaires identify themselves to be African-Americans. It's more likely than not that a new panel would contain just the same representation of African-Americans as the current panel.
Redrawing the panel would not be expected to change the outcome. If the system is flawed, the system for drawing panels in the entire state is flawed.
. . . .
No evidence has been presented to this court that there is any other list available that could be used in a systematic random selection process that would increase the representation of African-Americans on the jury list. What other readily available and discernable list of names is available? What more could those creating the list do to increase the number of African-Americans on the list? Without that information even being discussed, there is no evidence that the underrepresentation of African-Americans is due to a systematic exclusion of the group in the jury selection process.

         On appeal, Lilly reasserts his challenges to the jury pool under the Duren/Plain framework. Although Lilly raises both Federal and State Constitutions in his briefing, he does not advance a separate Iowa constitutional analysis. As we have said,

When a party does not suggest a framework for analyzing the Iowa Constitution that is different from the framework utilized under the United States Constitution, we apply the general federal framework. However, we reserve the right to apply the federal framework in a different manner.

In re Det. of Anderson, 895 N.W.2d 131, 139 (Iowa 2017). Accordingly, we will apply the Duren/Plain three-part test under the Iowa Constitution, reserving the right to apply it differently.

         2. Fair and reasonable representation.

         Both Lilly and the State ask us to provide more clarity on the second prong. Lilly observes that Plain "does not answer the question of how to utilize the three statistical tests- particularly in minority populations that are extremely small in the community." The State likewise points out that Plain "offered no further guidance" beyond telling district courts they could rely on all three tests. This, according to the State, has "created considerable uncertainty," and the State urges us "to provide guidance on how to analyze the resultant statistics." In other words, both parties ask us to go beyond what we said in Plain.[4]

         On further reflection, we believe that the determination of whether minority representation is "fair and reasonable in relation to the number of such persons in the community" ought to be performed by accepted statistical methods. See Plain, 898 N.W.2d at 822 (quoting Duren, 439 U.S. at 364, 99 S.Ct. at 668). Neither absolute disparity nor comparative disparity is such a method. As Lilly puts it, absolute disparity "understates the disparity" and comparative disparity "overstates the results." See People v. Luong, 378 P.3d 843, 850 (Colo.App. 2016) ("Absolute disparity tends to understate a small group's underrepresentation on jury panels, while comparative disparity tends to overstate it."). By contrast, standard deviation analysis appears to get at the heart of the matter-i.e., "the probability that the disparity between a group's jury-eligible population and the group's percentage in the qualified jury pool is attributable to random chance." Berghuis v. Smith, 559 U.S. 314, 324 n.1, 130 S.Ct. 1382, 1390 n.1 (2010).

         Moreover, we are not sure the criticism of standard deviation we voiced in Plain is entirely correct. It is true that this statistical method "presume[s] randomness." Plain, 898 N.W.2d at 823. Rather than being a flaw of the method, though, we see that as the method's strength. It enables judges to determine whether there has been a deviation from randomness that would indicate a problem. It is also potentially true that "the characteristics of the general population differ from a pool of qualified jurors." Id. (quoting Hernandez-Estrada, 749 F.3d at 1163). However, as the State observes, the one established difference is that the African-American population tends to be younger and therefore may contain fewer qualified jurors. It is possible to adjust for this difference, as the State proposes, ...


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