from the Iowa District Court for Floyd County, Rustin T.
defendant appeals his conviction for second-degree murder,
challenging the jury pool and raising several other claims of
C. Smith, State Appellate Defender, and Melinda J. Nye,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, Louis S. Sloven and Coleman J.
McAllister, Assistant Attorneys General, and Rachel A.
Ginbey, County Attorney, for appellee.
the third case we decide today concerning a defendant's
right to an impartial jury drawn from a fair cross section of
the community. An African-American defendant was charged with
first-degree murder in Floyd County, a county that is
approximately 2.3% African-American in population.
See Iowa Code §§ 707.1, .2(1)(a)
(2017). The decedent was also African-American. The jury pool
of unexcused jurors, however, contained only one
African-American. The district court overruled the
defendant's motion to strike the jury panel. Later, the
court declined to permit defense counsel to individually voir
dire the prospective jurors on a sequestered basis concerning
their racial attitudes. During trial, the court also refused
to admit into evidence the decedent's prior criminal
record or other bad acts unless the defendant knew about
them. Further, the court declined to give the defendant's
proposed implicit-bias instruction, noting that it had not
been previously reviewed by an Iowa court and that its
subject matter was essentially covered by the latest version
of an instruction promulgated by the Iowa State Bar
Association. Lastly, the court did not allow the defendant to
assert a "stand your ground" defense because it had
not become effective until after the alleged murder had been
committed. The jury found the defendant guilty of
second-degree murder. See id. § 707.2.
appeal, we find that the district court's voir dire
ruling and its decision not to give the implicit-bias
instruction were within the court's discretion. We also
agree with the district court that when asserting
self-defense, the defendant generally may not offer proof of
prior bad acts not known to the defendant as a way of proving
the allegedly aggressive character of the other party. And we
agree that the stand your ground defense does not apply to
crimes committed before that law took effect. However, we
believe further consideration of the defendant's
fair-cross-section claim is warranted in light of the
decisions we are filing today in State v. Lilly, __
N.W.2d__, __ (Iowa 2019), and State v. Veal, __
N.W.2d__, __ (Iowa 2019). Therefore, we conditionally affirm
the defendant's conviction and sentence while remanding
for further proceedings consistent with Lilly,
Veal, and this opinion.
Facts and Procedural History.
the day on June 30, 2017, Shaun Biehl and his ex-girlfriend
Jocelyn Simmons were spending time at her apartment in the
Clarkview Apartments in Charles City. Biehl and Simmons were
no longer in a romantic relationship but remained friends.
Their four-year-old daughter also lived in the apartment.
While Biehl was there, Nate Fleming dropped in several times.
Fleming was a relatively small man who weighed 146 pounds and
was five feet, seven inches tall. According to Biehl, Fleming
was not upset or angry when he came by. Both Biehl and
Simmons were also familiar with Antoine Williams, another
resident of the Clarkview Apartments. Williams was a large
man who weighed approximately 300 pounds and was six feet,
seven inches tall.
8:10 p.m., Biehl put his and Simmons's daughter to bed.
Biehl and Simmons sat down to watch television. After
watching a full episode of a show, Biehl remembers hearing
two gunshots outside and running to a window that overlooked
the Clarkview Apartments parking lot. Biehl saw Williams
standing outside Fleming's red Chevy Equinox with his arm
extended into the open driver's side door. Biehl heard
two more shots and saw muzzle flashes. He then saw Williams
pull Fleming's body out of the vehicle, throw him on the
ground, get in the truck, and drive off.
called 911 on his cellphone and rushed outside to try to
render assistance. Others also came to the scene. Fleming was
on his back, bleeding with bullet wounds in his chest area,
and gasping for air. Meanwhile, Biehl spotted Williams
driving back toward the group in the Equinox. Biehl told
everyone to run and ran himself. Williams sped past the group
in his vehicle and continued out of the complex. Fleming died
at the scene.
likewise recalled being with Biehl at the apartment the
evening of June 30. Fleming came by a couple of times to see
her, and he was not upset or angry, although he smelled of
alcohol. Simmons also remembered hearing shots and rushing to
the window after their daughter had been put to bed. The
first thing she saw was Williams holding a gun and standing
over Fleming's body. After that, she saw Williams get
into the red Chevy Equinox and drive away. Simmons too ran
outside, and observed Fleming lying on the ground bleeding
and then losing consciousness. She put a pillow under his
Vierkant, who was familiar with Williams, lived next door to
the Clarkview Apartments. On the evening of June 30, around
8:30 or 9:00 p.m., Vierkant was outside with his children. He
saw Williams walk past and said hello to him. According to
Vierkant, Williams was focused on a red car that he was
walking toward. Vierkant saw an African-American man in the
red car with his hands on the wheel but could not see the
man's face. Vierkant did not hear any talking or arguing
between Williams and the man in the red car. He then saw two
flashes and heard two bangs. At the time, he thought these
were just fireworks. Vierkant ran back outside later after
the police arrived at the apartment complex.
the police arrived, they found two .380 caliber shell casings
on the ground at the scene. They were also later able to
track down the abandoned red Equinox, but Williams had moved
on to Chicago, Illinois. On July 5, Williams was arrested
there. On July 7, Williams was interviewed in Chicago by a
special agent with the Iowa Division of Criminal
Investigation. When asked about the evening of June 30,
Williams initially claimed that he had hung out with a group
that included Fleming and then gone over to an
ex-girlfriend's apartment and stayed there for the night.
Williams claimed he did not learn until several days later
that Fleming had been shot. Williams steadfastly denied
having anything to do with Fleming's death, saying,
"No, sir, that's crazy."
questioning became more pointed. Williams was asked, "Do
you think that law enforcement knows that you were involved
in -- in [Fleming's] death?" Williams acknowledged
at that point that he had shot Fleming in the parking lot of
the Clarkview Apartments. He said that he had been
approaching the Chevy Equinox when Fleming "said
something that triggered him." Williams said he was
standing a few feet from the open window of the car when he
shot Fleming. He shot "however many bullets he had in
his gun." Williams also admitted he "never saw
[Fleming] with a gun that night."
admitted that after he shot Fleming, he opened the car door,
pulled Fleming out, and got into the vehicle and drove away.
Williams said that he later broke Fleming's cellphone
into pieces and threw them away. He also retrieved two shell
casings from the car and discarded the gun he had used to
shoot Fleming. Williams said he had purchased the gun from Ed
Brown and had kept it under the sink in his apartment.
went on with this version of events. He claimed that earlier
that evening of June 30, when Fleming, Williams, and others
were hanging out at the apartment complex, Fleming had
questioned the group whether they had something to do with a
beating Fleming had recently received. Before Fleming left in
his vehicle, he allegedly told others in the group, "You
better not be standing here when I get back." Williams
told the investigator he went to retrieve his gun after
Fleming left. Williams added that he should have let the
matter go. As Williams put it, "I did it, I did it, and
I shouldn't have done it."
did not claim in the interview that he had acted in
self-defense. To the contrary, he said, "[I]t's on
me. That's on me."
autopsy report determined that Fleming died from multiple
gunshot wounds. Fleming's body contained six gunshot
wounds, which were caused by between four and six bullets.
Four bullets were recovered from Fleming's body. One of
the wounds had gunpowder stippling, which meant that the gun
had been discharged within eighteen inches of Fleming's
body. Fleming's blood alcohol concentration at the time
of his death was .242.
19, a trial information was filed in the Iowa District Court
for Floyd County, charging Williams with first-degree murder.
See Iowa Code §§ 707.1, .2(1)(a).
On August 24, Williams moved to change the venue from Floyd
County. On September 11, the district court denied the
motion, indicating that the majority of the media articles
had been factual and that it did not believe prospective
jurors would have a predisposition about the case. The court
did instruct the clerk, however, to bring in an additional
jury panel to ensure there would be sufficient numbers from
which to select a jury. On September 18, Williams filed a
notice that he intended to rely on the defense of
self-defense/justification at trial. See id. §
704; Iowa R. Crim. P. 2.11(11)(c).
was scheduled to begin October 10. On October 2, Williams,
who is African-American, filed a motion to challenge the jury
panel. Williams's motion noted that African-Americans
represent 2.3% of the Floyd County population according to
the 2016 census, yet only two of the 166 potential jurors who
submitted questionnaire responses for two jury pools for
October through December 2017 self-identified as
African-American. (One of these two had been excused.)
Williams also reported tallies for the last four years:
In the calculations overall in the [last] four years, there
were 1, 404 jurors, of which, 452 did not respond to the race
question. Of the 952 remaining jurors, in this four-year
span, only 9 members reported being African American, which
would be only 0.9% of the jurors pooled from 2013 through
October 3, the State filed a resistance to Williams's
motion. The State acknowledged that the most recent census
data showed that 2.3% of the population in Floyd County was
Black or African-American, but argued this figure should not
be used for comparisons because the African-American
population was disproportionately younger and 2.3% did not
reflect the percentage actually eligible for jury service.
The State also urged the data on which Williams relied were
flawed because they did not account for jurors who declined
to disclose their race on their questionnaire responses. The
State thus insisted that Williams had not proved substantial
underrepresentation or systematic exclusion under the
three-part Duren/Plain standard. See Duren v.
Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668 (1979);
State v. Plain, 898 N.W.2d 801, 822 (Iowa 2017).
October 5, the district court held a hearing on pretrial
motions at which it received exhibits and heard argument on
the motion to strike the jury panel. On October 6, the
district court entered a written ruling denying
Williams's motion to challenge the jury panel. The court
found that Williams failed to show a violation of his Sixth
Amendment rights under the second and third prongs of the
Duren/Plain test. The court noted,
Turning to the panels available for the defendant's trial
the Court required the clerk to call in two separate pools.
According to Exhibit D, the last two pages, there were 103
letters sent to potential jurors in Pool 1 and 103 letters
sent to potential jurors in Pool 2. Twelve letters were
either undelivered or did not respond as to Pool 1. Thus
there were 91 responses in Pool 1. In Pool 2 there were five
that were undelivered or failed to respond. There were 98
responses in Pool 2.
In Pool  there are 23 potential jurors who did not
identify their ethnicity. The 23 number is derived from
adding the three who responded, the nine who were excused,
and the ten who were disqualified, and the one who was
deferred. Subtracting 23 from 91 results in 68 potential
jurors who responded and self-identified their ethnicity. In
Pool 2, of the 98 responses, 28 responses did not
self-identify their ethnicity (six responding, 14 excused,
six disqualified, and two deferred). Subtracting 28 from 98
results in 70 potential jurors who responded and
self-identified their ethnicity.
Combining the two pools results in 138 individuals who
responded to their summons and who self-identified their
ethnicity. Exhibit D demonstrates that there is one
self-identified African-American who was excused from the
jury. The Court understands that the reason for the excusal
is because the individual was attending college away from
home. Panel 2 has one person [who] identified as
If the jury pool was proportional to the population, out of
138 jurors, there should be two to three potential jurors who
are African-American. If the Court accepts the
defendant's figure of 2.3 percent, then the number of
expected African-American jurors in the pool should be at
least three jurors.
district court went on to reject Williams's argument that
the excused African-American juror could not be considered
because "there is no showing that the method of excusing
jurors is such that African-Americans are excused in greater
numbers than other persons of different ethnicity or
nationality." The court then found no
underrepresentation because given the small numbers involved,
"it is difficult to apply a rigid statistical analysis
to the matter." The court also held there was no showing
of systematic exclusion of African-Americans from the
potential jury pool. It noted, however,
In reviewing historical numbers, the Court believes that the
state court system can do more and the Court suspects that a
more through statistical analysis would show that
African-Americans are less likely to have motor vehicle
registration or are less likely to be registered to vote.
However, that showing has not been made in this case. The
Court believes that additional lists could be used to
increase the potential numbers of distinct minority groups.
However, while believing there may be better ways to select
potential jurors, this does not mean that the current method
systematically excludes African-American jurors. The State
attempts to use neutral, readily-available lists.
Defendant's position does not address potential other
reasons for the potential underrepresentation of
African-Americans on the historical jury pools. There is not
sufficient showing that a systematic exclusion resulted from
something that the State has done.
began as scheduled on October 10. Two days earlier, Williams
had moved for individualized voir dire by counsel "so
that the Defendant can effectively and adequately exercise
his peremptory challenges in selecting jurors." For most
of the day of the 10th, the court, the prosecution, and the
defense conducted voir dire, and a number of prospective
jurors were excused. In the afternoon, the defense approached
the court and specifically requested taking each of the
thirty-four prospective jurors in the box for a private
interview to talk to them about their attitudes regarding
race, among other things. The State opposed the request. The
district court ruled,
THE COURT: All right. I'm going to overrule that motion.
One, for the reasons stated by the State. I -- We've
listened to this jury, and I think most of them have
expressed an opinion that they can be fair and impartial and
don't have any predisposition in -- in this matter. And
just from that kind of general sampling, I don't think
it's going to be necessary to have an individual
The second reason is just a matter of -- of timing. Five
minutes each -- and I think that's generous -- times 34
is 170 minutes, which is, you know, almost three hours. And
if we take some breaks here and there for the court reporter,
you know, basically we'd be using a half a day for that.
We have a shot of getting the jury selected today. I
don't know if that's going to happen or not. My
experience is if I have 150 people having to come back
overnight, we lose some of them, there might be exposure to
things that we don't want to have them exposed to.
It's a lot easier if I have 14 people that I have to take
care of -- and keep track of.
So I don't want to spend that time in order to -- to pick
a jury, given all that; and also I -- I think it's
somewhat unfair to -- to the jury members that we do that
without, you know, more cause shown for doing that.
counsel proceeded to voir dire the jurors concerning racial
attitudes as a group. For example, she asked, "If
you're picked to be on the jury and you go back to the
jury room and you hear another juror making an argument based
on race, what would you do?"
the defense case, Williams presented witnesses who testified
that Fleming had a disagreeable and boastful personality and
had got into an altercation earlier that month and threatened
retaliation. Witnesses also testified that Fleming was
driving recklessly, had tried to slap a woman, and was making
threats on June 30. Witnesses also testified to
Williams's peaceful disposition.
Williams testified on his own behalf and gave a different
version of events than he had provided after his arrest.
According to Williams, earlier in the day on June 30, Fleming
was driving recklessly through the Clarkview Apartments
parking lot, acting aggressively, insulting people, and
making threats. Williams claimed the threats included the use
testified he obtained the gun he used to shoot Fleming from a
friend, i.e., Brown, earlier on June 30 because he was
fearful of Fleming. However, Brown denied at trial he had
provided the gun to Williams. Brown said he had previously
seen Williams with a gun.
claimed that when he approached Fleming in the Chevy Equinox
on the evening of June 30, Fleming was highly agitated and
had his music on loud, and Williams was trying to calm him
down. According to Williams, Fleming said to him, "Man,
you know what, don't even approach my m_f_ing car,"
and accused him of being in association with the individuals
who had recently beaten up Fleming. After some exchanges back
and forth, in Williams's words, "[H]e started
reaching for what I thought was a gun." At this point,
Williams said he pulled the gun out of his back pocket,
covered his face, and fired shots at Fleming repeatedly until
the gun was empty. Williams claimed he covered his face the
entire time that he was shooting Fleming, although all the
shots apparently hit their mark. Williams also claimed that
when he pulled Fleming out of the car, "I didn't
think he was really hurt . . . ."
trial, Williams admitted that he never saw a gun on
Q. Did you ever see a weapon in the car? A. I -- I don't
know. I didn't check for one, though. That -- That's
Q. Did you see a weapon in the car? A. I did not check for
Q. Well, did you see Mr. Fleming with a weapon? A. You're
just trying to switch this on me; but no, sir.
October 18, the jury returned a verdict finding Williams
guilty of the lesser included offense of murder in the second
degree. See Iowa Code § 707.3. On December 8,
the court sentenced Williams to an indeterminate term of
imprisonment of fifty years with a mandatory seventy percent
minimum. See id. § 707.3(2); id.
§ 902.12. Williams filed a notice of appeal, and we
retained the appeal.
appeal, Williams raises five arguments. First, he contends
that he was denied his constitutional right to a jury panel
drawn from a fair cross section of the community. Second, he
contends the district court abused its discretion in not
allowing individualized voir dire of potential jurors on
race-related issues. Third, he maintains the district court
erred in excluding evidence of Fleming's criminal history
and prior acts of violence not known by Williams. Fourth,
Williams insists that the district court erred in refusing to
give his proposed jury instruction on implicit bias. Finally,
Williams contends the court erred in not following the stand
your ground amendment that was enacted in 2017 and became
effective on July 1 of that year.
Standard of Review.
review constitutional questions de novo. Plain, 898
N.W.2d at 810. This includes claims of systematic exclusion
of a distinctive group from a jury pool in violation of the
Sixth Amendment. See id.
review claims of voir dire error for an abuse of discretion.
State v. Martin, 877 N.W.2d 859, 865 (Iowa 2016).
Likewise, evidentiary rulings are reviewed for an abuse of
discretion. State v. Huston, 825 N.W.2d 531, 536
(Iowa 2013). This includes rulings on the admission or
exclusion of evidence regarding prior bad acts. State v.
Putman, 848 N.W.2d 1, 7 (Iowa 2014). Additionally, we
review the refusal to give a cautionary jury instruction for
abuse of discretion. See Plain, 898 N.W.2d at 811.
We have described the abuse-of-discretion standard as
When assessing a district court's decision for abuse of
discretion, we only reverse if the district court's
decision rested on grounds or reasoning that were clearly
untenable or clearly unreasonable. Grounds or reasons are
untenable if they are "based on an erroneous application
of the law or not supported by substantial evidence."
Id. (quoting State v. Dudley, 856 N.W.2d
668, 675 (Iowa 2014)).
review rulings on questions of statutory interpretation for
correction of errors at law." State v. Childs,
898 N.W.2d 177, 181 (2017) (quoting State v. Iowa Dist.
Ct., 889 N.W.2d 467, 470 (Iowa 2017)).
jury that convicted Williams had no African-Americans on it.
It also appears there were no African-Americans on the
October 10 panel that was seated in the courtroom and went
through voir dire. Williams maintains that the jury selection
process used in Floyd County violated his Sixth Amendment
right to have a jury drawn from a fair cross section of the
noted, the district court found that Williams had failed to
meet either the second or the third Duren/Plain
prong. It observed that out of 138 individuals in the
combined pool, there were only two self-identified
African-Americans, but it was "difficult to apply a
rigid statistical analysis to the matter" in light of
"the small numbers involved." It also found no
showing that a particular State practice had resulted in
other cases decided today, we have discussed what a defendant
must prove to establish a fair-cross-section constitutional
violation. See Lilly, __ N.W.2d at __;
Veal, __ N.W.2d at__ . As we have explained, under
the second Duren/Plain prong, the percentage of the
distinctive group in the population should be determined
using the most recent available census data. See
Lilly, __ N.W.2d at__; Veal, __ N.W.2d at __.
These data may be adjusted to account for those who are
actually eligible to serve as jurors, for example, by
eliminating the population that is under eighteen and the
population (if any) that is incarcerated in a state prison
located in the county. See Lilly, __ N.W.2d at __;
Veal, __ N.W.2d at__ .
Sixth Amendment purposes, the defendant must then show that
the percentage of the group in the jury pool is less than
this expected percentage by at least two standard deviations.
See Veal, __ N.W.2d at __. Pools may be aggregated,
so long as pools closer in time to the trial date are not
omitted when earlier pools are included. See Lilly,
__ N.W.2d at__; Veal, __ N.W.2d at__ . The
aggregation of pools can help solve the "small
numbers" problem observed by the district court in its
underrepresentation has been shown, the defendant must then
show that some practice or practices caused the
underrepresentation-i.e. the third Duren/Plain
prong. See Lilly, __ N.W.2d at__; Veal, __
N.W.2d at __. As we have explained in Veal, for
Sixth Amendment purposes, the practice must be something more
than an item on the Berghuis v. Smith "laundry
list." Veal, __ N.W.2d at__ (quoting
Berghuis, 559 U.S. 314, 332, 130 S.Ct. 1382, 1395
illustrate how this analysis might work, in this case one
African-American juror was excused from even coming to the
courthouse on October 10 because she was in college. Williams
argues that she and other preexcused jurors should not be
counted in determining the percentage of the distinctive
group in the jury pool, making the ratio 1/130 rather than
2/138. The State and the district court viewed the matter
otherwise. As the State reasons, there is no reason to omit
persons who received a juror summons from the statistics,
"especially in the absence of any allegation that
hardship excusals are granted in patterns that contribute to
underrepresentation or exclusion."
is a potential problem with the State and the district
court's position, at least under article I, section 10 of
the Iowa Constitution. A policy or practice relating to
excusing jurors might amount to systematic exclusion. See
Lilly, __ N.W.2d at __. If a defendant wishes to try to
prove that it does, the defendant should not be foreclosed
from doing so by a rigid rule that calculates the pool based
on who was summoned, rather than who actually
this case, the district court prepared a careful ruling based
on the caselaw as it existed at the time of trial. But it did
not have the benefit of today's decisions. As in
Lilly and Veal, we believe the appropriate
course of action is to remand to give Williams a further
opportunity to develop his Sixth Amendment fair-cross-section