                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1713
                            Filed November 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LUNDELL EARLEST BUCHANAN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Casey D. Jones, District

Associate Judge.



      Lundell Buchanan appeals multiple criminal convictions following a jury trial.

AFFIRMED ON CONDITION AND REMANDED WITH DIRECTIONS.




      Chad R. Frese of Kaplan & Frese, LLP, Marshalltown, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.




      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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MULLINS, Judge.

       Lundell Buchanan appeals multiple criminal convictions following a jury trial.

He contends the racial composition of the jury pool violated his constitutional right

to a jury drawn from a fair cross-section of the community.1 Our review is de novo.

See State v. Plain, 898 N.W.2d 801, 810, 821 (Iowa 2017).

       Before the impaneling of the jury the morning of trial, defense counsel stated

the following to the court:

       [W]e’d like to strike the entire jury panel as not reflective as . . . a fair
       cross section of the community. We would note that not only are the
       initial 25 potential or prospective jurors Caucasian, but all of the
       remaining jury pool are Caucasian as indicated on their jury
       questionnaires. We don’t believe this is a true reflection of the
       community. Lundell Buchanan, being an African-American male, is
       not willing to stand trial before this panel as it is not reflective as a
       true cross section of the community.

The State resisted, asserting Buchanan presented no evidence of systematic

exclusion of potential jurors on the basis of race. See id. at 823–24 (discussing



1
  Buchanan also seems to argue the district court abused its discretion in denying his
morning-of-trial request for new counsel on the basis that he previously alleged his
defense counsel rendered ineffective assistance in a prior representation. Buchanan
additionally seems to contend his attorney was ineffective in failing to discover this
circumstance sooner. Because Buchanan provides us with no legal authority to support
his position that the district court’s denial of the motion was improper, we deem the
argument waived. See Iowa R. App. P. 6.903(2)(g)(3); Ingraham v. Dairyland Mut. Ins.
Co., 215 N.W.2d 239, 240 (Iowa 1974) (“To reach the merits of this case would require us
to assume a partisan role and undertake the appellant’s research and advocacy. This role
is one we refuse to assume.”). To the extent he argues counsel was ineffective, we find
the record sufficient to conclude Buchanan failed to meet his burden to show his counsel
failed to perform an essential duty or that he suffered prejudice. See Strickland v.
Washington, 466 U.S. 668, 687 (1984); State v. Lopez, 907 N.W.2d 112, 116 (Iowa 2018).
        On Buchanan’s jury-composition argument, the State forwards other error-
preservation and waiver arguments with respect to the technical format of Buchanan’s
brief on appeal in relation to his failure to state where in the record error was preserved
on the argument and how error was actually preserved in the district court. We find
Buchanan’s brief is sufficient to advise us how and when error was preserved, and error
was preserved when the district court denied Buchanan’s request for additional time to
investigate the composition of the jury.
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the third element for establishing a violation of the fair cross-section requirement

defined in Duren v. Missouri, 439 U.S. 357, 364 (1979)).            Defense counsel

responded he would “like an opportunity to look into . . . some kind of systematic

exclusion” and requested the court to recess the trial so he could get “discovery

on the method of how these prospective jurors were selected for this panel.” The

court denied Buchanan’s motion to strike the jury panel, citing Buchanan’s failure

to provide evidence to establish a prima facie case of systematic exclusion and

noting “it is clear that Linn County is vastly Caucasian.”

       On appeal, Buchanan argues defense counsel’s “request to recess to

investigate this matter further and possibly present evidence on this violation was

not only reasonable, but constitutionally necessary.”

       Recently, in Plain, an African-American defendant objected to the racial

composition of his jury pool where African Americans represented 8.9% of the

population of the county in which the trial was held, but “the pool of potential jurors

included only one African-American man among fifty-six potential petit jurors—or

1.8% of the group.” Id. at 810. When a defendant lodges a fair cross-section

objection, the defendant has the burden to establish a prima facie case 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 821–22 (quoting Duren, 439 U.S. at 364). Plain was unable to present any

evidence of systematic exclusion in conjunction with his objection, thus negating
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the establishment of a prima facie case of a violation of the fair cross-section

requirement. Id. at 810. On appeal, the State argued the failure to present

evidence was dispositive, while Plain argued his failure to present evidence was

because the jury manager did not provide him with the jury-pool data that he

requested. Id. at 810, 827. The supreme court sided with Plain, concluding:

       Defendants are entitled to access the information needed to enforce
       their constitutional right to a jury trial by a representative cross-
       section of the community. . . . To the extent Plain did not meet his
       prima facie case with respect to the third prong of the test, we
       conclude he lacked the opportunity to do so because he was not
       provided access to the records to which he was entitled.

Id. at 828.

       Although the circumstances in this case are different, we find the supreme

court’s admonishment that “[d]efendants are entitled to access the information

needed to enforce their constitutional right to a jury trial by a representative cross-

section of the community” compelling and equally applicable. Although we fully

acknowledge the State’s concern for the multiple and frequent continuances of the

trial in this case and Buchanan’s apparent motives to instigate the same, the jury-

composition issue did not reveal itself until the morning of trial, at which time

defense counsel recognized it and raised the issue. The procedural history of this

case does not dissolve Buchanan’s ability to effectively guard his constitutional

right to a jury drawn from a fair cross-section of the community when a potential

violation of that right rears its head, albeit at the eleventh hour.

       Here, Buchanan requested a recess of the trial so he could attempt to obtain

the information he is entitled to receive when the potential jury-composition issue

first became apparent the morning of trial. Because defendants are entitled to
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access the information necessary to enforce their right to a jury drawn from a fair

cross-section of the community, we conclude the district court should have granted

Buchanan’s request and allowed him to investigate the matter.2 Consistent with

Plain, we conditionally affirm Buchanan’s convictions and remand the matter to the

district court for development of the record on the challenge to the composition of

the jury. See id. at 829. Following development of the record, we direct the district

court to determine whether Buchanan’s constitutional right to a representative jury

was violated. If so, the court shall grant a new trial.

       AFFIRMED ON CONDITION AND REMANDED WITH DIRECTIONS.




2
  As to the State’s complaint on appeal that Buchanan did not present evidence on the
second Duren prong, concerning representativeness, the State appeared to concede in
the district court African Americans were underrepresented in the jury pool, as it only
resisted on the basis of systematic exclusion.
