from the Iowa District Court for Lee County, Mary Ann Brown,
defendant appeals his conviction for first-degree robbery,
challenging the jury pool and the sufficiency of the evidence
to convict him.
C. Smith, State Appellate Defender, and Shellie L. Knipfer,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, Louis S. Sloven and Andrew
Prosser, Assistant Attorneys General, and Clinton Boddicker,
County Attorney, for appellee.
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.
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.
Facts and Procedural Background.
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.
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.
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.
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.
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.
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.
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
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.
initial jury instructions before opening statements, the
district court gave the following instruction on implicit
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
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.
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
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
III. Standard of Review.
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).
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
Composition of the Jury Pool.
an African-American, challenges the composition of the jury
pool in North Lee County from which his jury was
selected. 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
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.
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.
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).
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.
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.
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
[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
Plain, 898 N.W.2d at 823 (quoting United States
v. Hernandez-Estrada, 749 F.3d 1154, 1163 (9th
Cir. 2014) (en banc)).
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.
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.
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
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
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
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.
Fair and reasonable representation.
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
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
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, ...