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State v. Shaw

Court of Appeals of Iowa

November 6, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
KENNETH CURTIS SHAW, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.

         Kenneth Shaw appeals his conviction and sentence for first-degree robbery in violation of Iowa Code sections 711.1 and 711.2 (2017).

          Mark C. Smith, State Appellate Defender, (until withdrawal), and Shellie L. Knipfer, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., and Tabor and Greer, JJ.

          POTTERFIELD, PRESIDING JUDGE.

         Kenneth Shaw appeals his conviction and sentence for first-degree robbery in violation of Iowa Code sections 711.1 and 711.2 (2017). Shaw was sentenced to a twenty-five year prison sentence, with 70% mandatory incarceration. On appeal, Shaw argues: (1) the State did not provide sufficient evidence to show Shaw committed the robbery at issue; and (2) the jury pool was not a fair cross-section of the community in violation of his rights under the Sixth Amendment to the United States Constitution and Article I, section 10 of the Iowa State Constitution.

         I. Factual Background and Proceedings

         This appeal relates to the March 1, 2017 robbery of Check Into Cash, a payday loan company. Around 6 that day, the store manager Nicholas Harvey was on the phone when a man entered the store and approached the counter. The man requested Harvey break a ten dollar bill for him. When Harvey opened the till to retrieve one dollar bills, the man pulled out a pistol and pointed it at him. Harvey backed away from the till. The man came around to Harvey's side of the counter, grabbed the removable tray from the till, and threw the till on the floor. He grabbed the money from the floor then left the store.

         Once the man left, Harvey ran to the back of the store and hit a panic button that called the police. Once the police arrived, Harvey identified the robber as Shaw. Harvey had helped Shaw open an account and apply for a loan at Check Into Cash in January and recognized him when he entered the store. Harvey told the police what had happened and gave them a customer information sheet Shaw had filled out when he applied for the loan. The customer information form included Shaw's cellphone number, social security number, and a photocopy of Shaw's driver's license.

         The Des Moines Police Department assigned the case to Officer Brad Youngblut. Officer Youngblut created a six-person photo lineup, which included Shaw and five other men similar in appearance to Shaw, and presented the lineup to Harvey. Harvey identified Shaw as the perpetrator "[f]airly immediately." Officer Youngblut was eventually able to contact Shaw on March 5, through the phone number Shaw had given Harvey. Shaw told Officer Youngblut he was currently in Milwaukee and had been there at the time of the robbery. Officer Youngblut asked Shaw to provide him with any physical proof that he was presently in Milwaukee, but Shaw indicated he could not.

         After finishing the call, Officer Youngblut obtained a subpoena for Shaw's cellphone records. The records showed Shaw had returned his call from the Des Moines area, in the vicinity of both Shaw's home and Check Into Cash. The records also showed Shaw was around the same area on the day of the robbery. Officer Youngblut called Shaw back and confronted him with this information. Shaw either ended the call or was disconnected and would not answer Officer Youngblut's subsequent attempts to contact him.

         A warrant was issued for Shaw's arrest, and he was taken into custody on April 18, after he was pulled over for a routine traffic stop. Shaw was charged with first-degree robbery and pled not guilty. Jury selection was scheduled for February 21, 2018, with the trial to begin the next day. Shaw moved to dismiss the jury pool, arguing the panel did not represent "a cross-section of the community and a fair racial makeup" under the Iowa Supreme Court's decision in State v. Plain, 898 N.W.2d 801 (Iowa 2017). Only one of the forty-four jurors- 2.3% of the jury pool-identified as African American, despite African Americans making up 6.8% of the population of Polk County, from which the jury pool was drawn.[1] Two other jurors did not identify their race. The trial court ultimately denied the motion, noting that because over 25% of jurors called in Polk County in 2017 (the most recent data available) declined to specify their race, "[t]here was simply no way for the Court to make the determination that there is a systematic underrepresentation of African Americans in our jury pool."

         Shaw was found guilty of first-degree robbery and sentenced to a twenty-five ...


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