               IN THE SUPREME COURT OF IOWA
                              No. 17–1989

                           Filed May 24, 2019


STATE OF IOWA,

      Appellee,

vs.

ANTOINE TYREE WILLIAMS,

      Appellant.


      Appeal from the Iowa District Court for Floyd County, Rustin T.

Davenport, Judge.



      The defendant appeals his conviction for second-degree murder,

challenging the jury pool and raising several other claims of error.

AFFIRMED ON CONDITION AND REMANDED WITH DIRECTIONS.



      Mark C. Smith, State Appellate Defender, and Melinda J. Nye,

Assistant Appellate Defender, for appellant.


      Thomas J. Miller, Attorney General, Louis S. Sloven and Coleman J.

McAllister, Assistant Attorneys General, and Rachel A. Ginbey, County

Attorney, for appellee.
                                    2

MANSFIELD, Justice.

      I. Introduction.

      This is 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.

      On 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
                                      3

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.

       II. Facts and Procedural History.

       Late in 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.

       Around 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.
                                     4

      Biehl 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.

      Simmons 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 head.

      Christopher 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.

      After 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
                                     5

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.”

      Later, 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.”

      Williams 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.

      Williams 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.
                                      6

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.”

      Williams 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.”

      An 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.

      On July 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).

      Trial 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
                                     7

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
      2017.

      On 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).

      On 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
                                     8

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 [1] 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 African-American.

            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.

      The 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
                                       9

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.

      Trial 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 examination.
                                     10
            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.

      Williams’s 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?”

      During 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.

      Additionally, 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 of firearms.

      Williams 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.
                                      11

However, Brown denied at trial he had provided the gun to Williams.

Brown said he had previously seen Williams with a gun.

      Williams 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 . . . .”

      Even at trial, Williams admitted that he never saw a gun on

Fleming’s person:

           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 my
      answer.

            Q. Did you see a weapon in the car? A. I did not check
      for one, sir.

           Q. Well, did you see Mr. Fleming with a weapon?
      A. You’re just trying to switch this on me; but no, sir.

      On 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
                                    12

seventy percent minimum. See id. § 707.3(2); id. § 902.12. Williams filed

a notice of appeal, and we retained the appeal.

      On 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.

      III. Standard of Review.

      We 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.

      We 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 follows:

             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
                                            13
       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)).

       “We 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)).

       IV. Fair-Cross-Section Claim.

       The 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 community. 1


       1Williams  argues on appeal that his rights under article I, section 10 of the Iowa
Constitution were also violated. His motion to strike the jury panel and his motion for
new trial in the district court mentioned exclusively the Sixth Amendment. When the
district court denied the motion to strike, it mentioned only the Sixth Amendment, the
only legal ground Williams had raised. However, when the district court denied the
motion for new trial at the time of sentencing, it said it had considered the matter “both
under the Federal and the State Constitutions.”
         We have held that a defendant who specifically identifies only a federal
constitutional claim in the trial court has not preserved a state constitutional claim. See
Veal, ___ N.W.2d at ___; State v. Coleman, 890 N.W.2d 284, 286–87 (Iowa 2017); State v.
Prusha, 874 N.W.2d 627, 630 (Iowa 2016). It is true that the district court referred to the
Iowa Constitution sua sponte at the very end of trial court proceedings—i.e. in denying
the motion for new trial at the time of sentencing. However, a motion for new trial is too
late to raise a constitutional challenge to the jury panel. See State v. Johnson, 476 N.W.2d
330, 333–34 (Iowa 1991) (finding that a constitutional objection to the jury panel was
waived when first asserted in a postverdict motion for new trial).
               A post-verdict motion challenging the jury panel simply comes too
       late to comply with the policies behind the preservation requirement. At
       the time of defendant’s motion, the only corrective action the trial court
       could have taken would have been to sustain the motion for new trial and
       conduct a second trial in front of a second jury.
Id. at 334; cf. State v. Watkins, 463 N.W.2d 411, 412–13 (Iowa 1990) (finding no waiver
when a Sixth Amendment challenge was made after the panel had been sworn).
Accordingly, we hold that Williams waived any article I, section 10 challenge to the jury
panel.
                                            14

       As 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 systematic

exclusion.

       In two 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 ___.

       For 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


        Williams states in his brief that if error was not preserved “under the Iowa
Constitution, . . . trial counsel was ineffective.” Appellant’s Br. at 30. Yet beyond making
this statement, Williams has not briefed either element of ineffective assistance. See
Strickland v. Washington, 466 U.S. 668, 687–96, 104 S. Ct. 2052, 2064–69 (1984). We
decline to consider this claim on direct appeal.
                                           15

“small numbers” problem observed by the district court in its thoughtful

ruling.

       Once 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 (2010)).

       To 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.”

       There 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 appeared. 2


       2We   reiterate, however, that in this case the state constitutional claim was not
preserved.
                                     16

      In 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 claim using the criteria we have set

forth today. See Lilly, ___ N.W.2d at ___; Veal, ___ N.W.2d at ___.

      V. Individualized Voir Dire on Racial Attitudes.

      Williams next argues that he is entitled to a new trial because his

attorneys were unable to conduct individualized voir dire of the potential

jurors on race issues outside the presence of the other potential jurors.

The weight of authority places this subject within the domain of trial court

discretion, at least when the case does not have particular racial

overtones. See, e.g., United States v. Parker, 872 F.3d 1, 7, 8 (1st Cir.

2017) (“[N]o authority exists to support Parker’s theory—floated during

oral argument—that if the case facts suggest the judge should voir dire on

race, then only an individual voir dire will do.”); United States v. Hosseini,

679 F.3d 544, 555 (7th Cir. 2012) (“[O]rdinarily, questioning jurors as a

group is sufficient to satisfy the Sixth Amendment, even when the

defendant belongs to a racial, ethnic, or religious minority and juror bias

on one or more of these grounds might be a concern.”); People v. Harris,

306 P.3d 1195, 1220 (Cal. 2013) (finding no abuse of discretion in denying

the defendant’s motion for individual sequestered voir dire on race);

Commonwealth v. Robinson, 942 N.E.2d 980, 986 (Mass. App. Ct. 2011)

(finding that individual voir dire regarding racial bias was not required

because the case did not involve an alleged interracial killing, interracial

rape, or sexual offense against a child by a defendant of a different race);

Smith v. State, 977 So. 2d 1227, 1237 (Miss. Ct. App. 2008) (finding no
                                          17

error in denial of the defendant’s motion for sequestered voir dire on

attitudes toward race).

      In State v. Windsor, a case involving an African-American defendant

and a white alleged victim, we held that

      trial courts in Iowa should make or permit counsel to make
      specific inquiry into racial prejudice upon proper request in
      similar circumstances and in any case in which a reasonable
      possibility exists that the verdict might be affected by racial
      prejudice.

316 N.W.2d 684, 686–87 (Iowa 1982). Yet we also held that “absent special

circumstances of the nature delineated in Ham [v. South Carolina, 409 U.S.

524, 93 S. Ct. 848 (1973)], the inquiry may be limited to a question of the

panel sufficient to call the jurors’ attention to the subject and require

response from any juror harboring racial bias.” 3 Id. at 687. In State v.

Oshinbanjo, our court of appeals followed in Windsor’s tracks and held

that a district court did not abuse its discretion in denying “defendant’s

request to individually question prospective jurors out of the presence of

the other jurors” on the subject of racial prejudice. 361 N.W.2d 318, 321

(Iowa Ct. App. 1984).

      Williams asks us, in effect, to overrule Windsor. He argues that
several decades have passed and there has been new scholarship on

implicit bias. But Williams cites no scholarship directed to the specific

issue here—namely, the effectiveness of questioning prospective jurors on

race in an individual, sequestered setting as opposed to a group setting.




      3Ham,   as we explained in Windsor, involved a defendant who
      was a civil rights activist who alleged that local authorities had framed him
      on a drug charge because of his civil rights work. Thus, racial prejudice
      was a material issue affecting the merits of the case.
Windsor, 316 N.W.2d at 686.
                                             18

        On our review of the record, we find the district court did not abuse

its discretion. The defendant and the decedent were of the same race and

there is no suggestion that race played a role in the alleged crime or its

investigation. Additionally, the district court balanced Williams’s request

against other concerns. This case had received some notoriety in this

county of around 16,000 people. The district court noted that if it granted

individualized voir dire, it would no longer be possible to finish jury

selection that day. 4 The court worried that it would be more difficult to

limit the exposure of a large group of potential jurors overnight to improper

influence than to limit the exposure of a small group of actual jurors: “It’s

a lot easier if I have 14 people [twelve jurors and two alternates] that I have

to take care of and -- keep track of.” There is logic to the court’s reasoning.

The message that people need to act responsibly tends to be better received

when those people have been given responsibility. Thus, a person who

has been told she or he is an actual juror may be more prone to take the

court’s admonition seriously. Finally, we note that defense counsel’s panel

questioning on the subject of race was thoughtful and insightful.

        Having said that, we emphasize that this was a murder trial where

the defendant faced a very severe sentence. Defense counsel should be

given considerable leeway in utilizing voir dire to eliminate potential racial

bias from the jury.

        VI. Implicit-Bias Instruction.

        At trial, the district court gave Jury Instruction 5, which stated in

part,

              As you consider the evidence, do not be influenced by
        any personal sympathy, bias, prejudices or emotions.
        Because you are making very important decisions in this case,
        you are to evaluate the evidence carefully and avoid decisions

        4Jury   selection was completed on March 10, the first day of trial.
                                      19
       based on generalizations, gut feelings, prejudices,
       sympathies, stereotypes, or biases. The law demands that you
       return a just verdict, based solely on the evidence, your reason
       and common sense, and these instructions. As jurors, your
       sole duty is to find the truth and do justice.

       However, the court denied Williams’s request to give the following

additional instruction:

       Our system of justice depends on judges like me and jurors
       like you being able and willing to make careful and fair
       decisions. Scientists studying the way our brains work have
       shown that, for all of us, our first responses are often like
       reflexes. Just like our knee reflexes, our mental responses are
       quick and automatic. Even though these quick responses
       may not be what we consciously think, they could influence
       how we judge people or even how we remember or evaluate
       the evidence.

       Scientists have taught us some ways to be more careful in our
       thinking that I ask you to use as you consider the evidence in
       this case:

       Take the time you need to test what might be reflexive
       unconscious responses and to reflect carefully and
       consciously about the evidence.

   •   Focus on individual facts, don’t jump to conclusions that may
       have been influenced by unintended stereotypes or
       associations.

   •   Try taking another perspective. Ask yourself if your opinion
       of the parties or witnesses or of the case would be different if
       the people participating looked different or if they belonged to
       a different group

   •   You must each reach your own conclusions about this case
       individually, but you should do so only after listening to and
       considering the opinions of the other jurors, who may have
       different backgrounds and perspectives from yours.

       Working together will help achieve a fair result.[5]




       5Achieving   an Impartial Jury Project, Toolbox, Am. Bar Ass’n 17–20
(footnotes omitted), https://www.americanbar.org/content/dam/aba/publications/
criminaljustice/voirdire_toolchest.pdf (last modified Oct. 13, 2015).
                                     20

      The court noted that Williams’s proposed instruction had not been

reviewed by any Iowa court to its knowledge. The court also pointed out

that Instruction 5 in its view covered the subject matter:

             Instruction 5 does talk about setting aside stereotypes,
      biases, and prejudices. I think that addresses the issue. The
      law -- The jury’s otherwise instructed to consider what they’ve
      heard in the courtroom; and -- and if they follow those
      instructions, then the race of the -- of the defendant or the --
      or Mr. Fleming would not be pertinent. I’m aware of the
      concerns; but, as I said, I think Instruction 5 addresses that
      matter.

Williams argues on appeal that the district court’s refusal of his implicit-

bias instruction amounted to reversible error.

      In Plain, the district court declined to give a different implicit-bias

instruction than the one Williams requested here. 898 N.W.2d at 816. We

noted in Plain that denial of a cautionary instruction like an implicit-bias

instruction is subject to an abuse-of-discretion standard. Id. We held the

trial court had abused its discretion “because it erroneously believed it

lacked authority from our court to give the [implicit-bias] instruction.” Id.

at 817. Yet, in the end, we found that the district court’s refusal to give

Plain’s requested implicit-bias instruction was not prejudicial. Id.

      In this case, unlike Plain, the district court did not conclude it lacked
authority to give an implicit-bias instruction.       Rather, it found that

Instruction 5 adequately addressed the concern. Instruction 5 was based

on the Iowa State Bar Association’s latest version of Instruction 100.8. See

Iowa State Bar Ass’n, Iowa Criminal Jury Instructions 100.8 (2018)

(revised June 2016). The Iowa State Bar Association updated Instruction

100.8 in 2016 so that it now directs the jury to “avoid decisions based on

generalizations, gut feelings, prejudices, sympathies, stereotypes, or

biases.” Id. This version of Instruction 100.8 did not exist at the time of

Plain’s trial and was not given in Plain. See Plain, 898 N.W.2d at 839 n.14
                                             21

(Waterman, J., specially concurring) (quoting from the jury instructions).

It is also noteworthy that both Williams and Fleming were of the same

race, unlike in Plain where the defendant was African-American and the

complaining witness was white. See id. at 809 (majority opinion). Given

these factors, we find the district court did not abuse its discretion in

declining to give Williams’s requested implicit-bias instruction. 6 This does

not mean, of course, that it would have been an abuse of discretion to use

Williams’s requested instruction.

     VII. Fleming’s Convictions and Other Prior Bad Acts Not Known
by Williams.

       At trial, Williams asserted that he shot Fleming in self-defense. In

support of this claim, Williams was allowed to introduce (1) evidence of

Fleming’s behavior on the day of the shooting, (2) any other specific acts

by Fleming known to Williams, and (3) Fleming’s alleged reputation for

aggressive behavior.         Specifically, Williams was permitted to introduce

evidence that on the evening in question, Fleming was highly intoxicated,

and that he had been acting tough, voicing threats, and driving recklessly.

Williams also was allowed to offer proof that Fleming—a person who was

short of stature—had a “Chihuahua complex.”
       However, Williams was not allowed to introduce Fleming’s criminal

history report 7 or proof of specific prior acts of violence not known to

Williams.       Williams contends this was error.               The State, meanwhile,

responds that the district court’s ruling can be sustained on several


       6Notably, in Plain, we held that an abuse-of-discretion standard of review applied
to whether an implicit-bias instruction should have been given. See Plain, 898 N.W.2d
at 811, 816. We specifically distinguished the prior case of Alcala v. Marriott International,
Inc., 880 N.W.2d 699, 707–08 (Iowa 2016), which we said did not apply to “cautionary”
instructions such as an implicit-bias instruction. Id.
       7There  was no offer of proof to make a record of what was in Fleming’s criminal
history, but apparently it contained a number of assault convictions.
                                     22

grounds. Among other things, the State urges us to clarify the meaning of

Iowa Rule of Evidence 5.405.

      Iowa Rule of Evidence 5.405, concerning “Methods of proving

character,” states,

            a. By reputation or opinion.       When evidence of a
      person’s character or character trait is admissible, it may be
      proved by testimony about the person’s reputation or by
      testimony in the form of an opinion. On cross-examination of
      the character witness, the court may allow an inquiry into
      relevant specific instances of the person’s conduct.

            b. By specific instances of conduct. When a person’s
      character or character trait is an essential element of a charge,
      claim, or defense, the character or trait may also be proved by
      relevant specific instances of the person’s conduct.

      Before this rule was even adopted, we held in State v. Jacoby, “It is

the rule in Iowa and the majority of jurisdictions that the quarrelsome,

violent, aggressive or turbulent character of a homicide victim cannot be

established by proof of specific acts.” 260 N.W.2d 828, 838 (Iowa 1977).

      As we explained in Jacoby,

             The reasons for the rule prohibiting proof of specific acts
      of violence appear to be at least threefold: (1) A single act may
      have been exceptional, unusual, and not characteristic and
      thus a specific act does not necessarily establish one’s general
      character; (2) although the state is bound to foresee that the
      general character of the deceased may be put in issue, it
      cannot anticipate and prepare to rebut each and every specific
      act of violence; and (3) permitting proof of specific acts would
      multiply the issues, prolong the trial and confuse the jury.

Id. (quoting Henderson v. State, 218 S.E.2d 612, 615 (Ga. 1975)).

      Then, after we had adopted rule 405 of the Iowa Rules of Evidence,

which later became rule 5.405, we reaffirmed Jacoby. See Klaes v. Scholl,

375 N.W.2d 671, 675–76 (Iowa 1985).         In Klaes, a citizen sued police

officers for assaulting him. Id. at 672. The testimony was in conflict as to

who was the aggressor. Id. at 673. We indicated that evidence of the
                                     23

citizen’s “character for violence” would be admissible. Id. at 674. Quoting

the rule 405, we said that “defendants could of course have introduced

evidence of [the citizen’s] violent character by reputation or opinion

testimony.” Id. at 675. Yet we held it was improper for the district court

to have admitted specific instances of the citizen’s prior conduct. Id. at

675–76. We rejected the notion that character is an essential element of

a claim of self-defense, stating,

      We believe, however, that in cases like this one the “issue” in
      question is not one of character but rather of conduct. We hold
      therefore the evidence of Scholl’s prior conduct did not go to
      an essential element of self-defense as required by [rule
      5.405(b)] and was not admissible.

Id. at 676 (citations omitted).

      Three years later, however, we were confronted with the same issue

in State v. Dunson, 433 N.W.2d 676, 677 (Iowa 1988), a criminal assault

case where the defendant raised a claim of self-defense. The defendant

sought to introduce evidence that shortly after the altercation in question,

the alleged victim followed him and ran him over with her automobile. Id.

at 679.      We quoted rule 5.405(b) but did not address the distinction

between conduct evidence and opinion or reputation evidence. Id. at 680–
81. Nor did we comment on whether the victim’s character for violence is

an essential element of a self-defense claim. Id. We did not mention or

even cite to Klaes.    Id.   Rather, we simply said that the evidence was

“relevant” and “material” and therefore should have been admitted on that

basis. Id.

      In State v. Fish, the court noted that “most states with evidentiary

rules similar to the Federal Rules of Evidence permit the defendant to

introduce reputation and opinion evidence, but not specific acts of

violence, to prove the victim’s violent character.” 213 P.3d 258, 268 (Ariz.
                                     24

Ct. App. 2009). Citing Dunson, the Arizona court noted that Iowa was one

of two states not to follow this approach, but it implicitly criticized Dunson

for failing to discuss “the essential element issue.” Id. at 269.

      Uncertainty exists today as to the applicable rule in Iowa. The court

of appeals decision in State v. Shearon, 449 N.W.2d 86 (Iowa Ct. App.

1989), illustrates this point. There the court of appeals said, “Specific

instances of conduct may be used to demonstrate character when

character is an essential element of a claimed defense.” Id. at 87. Yet the

court declined to take a position on whether character is an essential

element of self-defense in a criminal case, stating,

            This court notes that in the context of a civil case in
      which it was claimed that the combative character of an
      alleged assault victim should have been admitted, the Iowa
      Supreme Court held that specific instances of the victim’s
      conduct did not go to an essential element of the defendant’s
      claim of self-defense. Klaes v. Scholl, 375 N.W.2d 671, 676
      (Iowa 1985). As the State has not made an analogous
      argument in this case, we assume the applicability of [rule
      5.405(b)] and address our attention to whether Coaklay’s
      testimony was relevant and/or prejudicial.

Id. at 87 n.1. Ultimately, it found the specific-act evidence inadmissible

anyway because it “would have been substantially prejudicial and would

have outweighed the probative value . . . .” Id. at 88.

      Recently, in State v. Webster and State v. Einfeldt, we upheld on

other grounds the exclusion of specific acts evidence that had been offered

to prove a homicide victim’s aggressive character.        See Webster, 865

N.W.2d 223, 243–44 (Iowa 2015); Einfeldt, 914 N.W.2d 773, 783–84 (Iowa

2018). Yet we did say in Einfeldt, “[I]f the accused asserts he or she acted

in self-defense, specific instances of the victim’s conduct may be used to

demonstrate his or her violent or turbulent character.” 914 N.W.2d at

784. The State urges that this statement, which was not necessary to our

decision, misstates the law.
                                      25

      We conclude today that the plain text of rule 5.405 should be

followed.   That text allows specific-acts evidence to be used to prove

character only when character is an “essential element” of a charge, claim,

or defense. Iowa R. Evid. 5.405(b).

      Character is not an essential element of justification. Iowa Code

section 704.3 provided, “A person is justified in the use of reasonable force

when the person reasonably believes that such force is necessary to defend

oneself or another from any actual or imminent use of unlawful force.”

Depending on the facts and circumstances, a reasonable belief may exist—

or may not exist—regardless of the other person’s character.

      Indeed, when Rule 5.405 was adopted, the Official Comment

embraced Jacoby as “an example of Iowa application” of subsection (b).

Jacoby, as noted, does not allow specific acts to prove a victim’s character.

260 N.W.2d at 838.

      Furthermore, Dunson has come under criticism. Professor Laurie

Doré has noted that Dunson did not overrule Klaes and is inconsistent

with it. 7 Laurie Kratky Doré, Iowa Practice SeriesTM: Evidence § 5.405:2,

at 324–25 (2017 ed.) [hereafter Doré]. In her view, Klaes is right:

      [U]nless a defendant claims to have known about the victim’s
      violent conduct (and therefore acted reasonably in using
      defensive force), a defendant seeking to admit evidence of a
      victim’s character to support self-defense should only be
      permitted to use reputation or opinion evidence, not specific
      instances of the victim’s conduct.

Id. at 325–26.

      One of Professor Doré’s former colleagues, Professor James Adams,

has likewise criticized Dunson for “ignoring the analysis in Jacoby and

Klaes” and giving “no effect” to the first part of rule 5.405.     James A.

Adams, Admissibility of Proof of an Assault Victim’s Specific Instances of

Conduct as an Essential Element of a Self-Defense Claim Under Iowa Rule
                                     26

of Evidence 405, 39 Drake L. Rev. 401, 416–17 (1990). He goes on to say

that “nothing in the Iowa Rules of Evidence or the Federal Rules of

Evidence from which they were derived . . . suggests such an interpretation

[i.e., the interpretation in Dunson] is appropriate or desirable.” Id. at 429.

Even if Dunson were correct, Professor Adams believes it would be subject

to criticism for making a change in interpretation “without discussion of

prior case law or any basis for the change.” Id.

      Thus, we hold that a defendant asserting self-defense or justification

may not prove the victim’s aggressive or violent character by specific

conduct of the victim unless the conduct was previously known to the

defendant. See Klaes, 375 N.W.2d at 676 (“[W]e are not dealing with the

special situation in which the person claiming self-defense had actual

knowledge of the other person’s prior acts of violence.”); Jacoby, 260

N.W.2d at 838–39 (“[A]ccording to most courts . . . if, prior to the homicide,

the defendant . . . knew of other acts of violence of the deceased, he may,

in support of his contention that he had reasonable grounds to believe

himself in imminent danger from an assault by the deceased, introduce

evidence of such prior unlawful acts of violence by the deceased.”

(alteration in original) (quoting 40 Am. Jur. 2d, Homicide, § 306, at 575));

Doré, § 5.405:2, at 325 (distinguishing the situation where “a defendant

claims to have known about the victim’s violent conduct”).

      Our interpretation of rule 5.405 gives full effect to the rule. There

are some cases where character is an essential element—Klaes gives

alienation of affections and slander as examples.       375 N.W.2d at 676.

Professor Doré notes, “In child custody situations . . . , the character trait

of moral unfitness may be an element and specific instances of conduct

may be used to demonstrate that character trait.” Doré, § 5:405:2, at 526–

27. But self-defense is not one of those situations.
                                      27

      Accordingly, we hold the district court did not err in ruling that

Williams could not introduce Fleming’s criminal record or other specific

acts of violence not previously known to Williams.

      VIII. Stand Your Ground Defense.

      Lastly, Williams argues the district court erred when it held that

amended Iowa Code section 704.1, which became effective on July 1, 2017,

did not apply in his case. See 2017 Iowa Acts ch. 69, § 37 (codified at Iowa

Code § 704.1 (2018)).    During the 2017 session, the general assembly

rewrote section 704.1 to read as follows:

             1. “Reasonable force” means that force and no more
      which a reasonable person, in like circumstances, would
      judge to be necessary to prevent an injury or loss and can
      include deadly force if it is reasonable to believe that such
      force is necessary to avoid injury or risk to one’s life or safety
      or the life or safety of another, or it is reasonable to believe
      that such force is necessary to resist a like force or threat.

             2. A person may be wrong in the estimation of the
      danger or the force necessary to repel the danger as long as
      there is a reasonable basis for the belief of the person and the
      person acts reasonably in the response to that belief.

            3. A person who is not engaged in illegal activity has no
      duty to retreat from any place where the person is lawfully
      present before using force as specified in this chapter.

Iowa Code § 704.1 (2018).

      Most notable is subsection 3, a new stand your ground provision,

which eliminates any duty to retreat before using force if one is not

engaged in illegal activity.   Id.   The legislature provided that the 2017

amendment would not become effective until July 1, 2017—a few hours

after Williams shot Fleming the evening of June 30. See 2017 Iowa Acts

ch. 69, § 50; Iowa Code § 3.7(1) (2017).

      We conclude the district court made the right call when it held the

2017 amendment did not apply in this case.          The amendment was a
                                         28

change in substantive law, and it was the legislature’s prerogative not to

make that change effective until July 1.

       Williams relies on Iowa Code section 4.13(2), which provides,

       If the penalty, forfeiture, or punishment for any offense is
       reduced by a reenactment, revision, or amendment of a
       statute, the penalty, forfeiture, or punishment if not already
       imposed shall be imposed according to the statute as
       amended.

However, the 2017 amendment did not alter the punishment for murder;

at most, it expanded the scope of a potential defense. See 2017 Iowa Acts

ch. 69, § 37 (codified at Iowa Code § 704.1 (2018)).

       Recently, in State v. Harrison, we held that the 2016 legislation

dividing what had been second-degree robbery (a class “C” felony) into

second-degree robbery and third-degree robbery (a class “C” felony and an

aggravated misdemeanor) did not apply retroactively. 914 N.W.2d 178,

205 (Iowa 2018). We explained,

       It is a well-settled law that substantive amendments to
       criminal statutes do not apply retroactively. Since third-
       degree robbery did not exist in the Iowa Code at the time of
       Harrison’s offense, Harrison was not entitled to a jury
       instruction differentiating between felony robbery and
       misdemeanor robbery.

Id. (citations omitted). We think Harrison controls here. 8

       IX. Conclusion.

       For the foregoing reasons, we conditionally affirm Williams’s

conviction and sentence, but we remand this case for further consideration

of Williams’s claim that his jury was not drawn from a fair cross section of

the community in violation of the Sixth Amendment. If the court rejects



       8Inany event, it is highly questionable whether the facts of this case present a
stand your ground situation. Williams did not claim Fleming approached him; rather,
Williams acknowledged he approached Fleming and then shot him while he sat in the
vehicle.
                                     29

that claim, then Williams’s conviction and sentence shall stand. If the

court accepts that claim, Williams shall receive a new trial.

      AFFIRMED        ON     CONDITION        AND      REMANDED           WITH

DIRECTIONS.

      Cady, C.J., and Wiggins and Appel, JJ., concur in divisions IV, VII,

and VIII of the court’s opinion but dissent as to divisions V and VI.

      Waterman, Christensen, and McDonald, JJ., concur in divisions V,

VI, VII, and VIII of the court’s opinion but dissent as to division IV.
                                     30

                                                #17–1989, State v. Williams

WIGGINS, Justice (concurring in part and dissenting in part).

      I agree with the majority opinion’s analysis in division IV on the fair-

cross-section claim, in division VII on Fleming’s convictions and other

prior bad acts not known by Williams, and in division VIII on the “stand

your ground” defense.      I feel compelled to dissent from the majority

opinion’s analysis in division VI on the implicit-bias instruction and in

division V on individualized voir dire on racial attitudes.

      Iowa is one of the worst states in the Union regarding racial disparity

in imprisonment. As I pointed out in State v. Plain, a 2016 report by The

Sentencing Project showed blacks made up 3.1% of Iowa’s population,

while 25.8% of Iowa’s prison population was black. 898 N.W.2d 801, 830

(Iowa 2017) (Wiggins, J., concurring specially).          These statistics are

disgraceful. I believe this racially disparate treatment of blacks by our

criminal justice system is due to implicit racial bias.

      Although the judicial system cannot fix the problem on its own, it is

incumbent on every judge in every county courthouse to do whatever is

necessary to make sure black men and women receive a trial with a fair

and impartial jury free of racial bias. This starts with not only recognizing

the existence of racial bias in our state, but also making a concerted effort

to rid our courthouses of any hint of racial bias.         This task requires

diligence and extra trial time.

      The majority in Plain mandated courts be proactive about implicit

bias in the future when it said, “We strongly encourage district courts to

be proactive about addressing implicit bias; however, we do not mandate

a singular method of doing so.”      Id. at 817 (majority opinion).     In my

concurring opinion, I stated,
                                    31
             Due to the disgraceful disparity in the punishment and
      incarceration between blacks and whites, we should not wait
      for further research and study on the issue of implicit bias
      and racial disparity. The demand for justice to our black
      citizens does not allow for further stalling. A defendant and
      his or her counsel are in the best position to know whether
      the circumstances of the present case warrant an implicit-bias
      instruction. A defendant and his or her counsel are also in
      the best position to determine whether instructing jurors on
      implicit bias may lead to a better outcome or not.

             In the future when a defendant requests an implicit-
      bias instruction and implicit bias may have an effect on a jury,
      there is no reason for the court not to instruct the jury on
      implicit bias.

Id. at 830 (Wiggins, J., concurring specially). Two other justices agreed

with this language. Id.

      Nevertheless, the district court here chose to ignore it.          The

instruction given by the court stated,

            As you consider the evidence, do not be influenced by
      any personal sympathy, bias, prejudices or emotions.
      Because you are making very important decisions in this case,
      you are to evaluate the evidence carefully and avoid decisions
      based on generalizations, gut feelings, prejudices,
      sympathies, stereotypes, or biases. The law demands that you
      return a just verdict, based solely on the evidence, your reason
      and common sense, and these instructions. As jurors, your
      sole duty is to find the truth and do justice.

This was not an instruction aimed at addressing implicit bias. Rather it

was an instruction dealing with personal sympathy, conscious biases or

prejudices, or emotions.

      Implicit biases are held deep in the subconscious, and as humans,

we are often unaware of them or their influence on our cogitations and

actions. E.g., Mark W. Bennett, Unraveling the Gordian Knot of Implicit

Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the

Failed Promise of Batson, and Proposed Solutions, 4 Harv. L. & Pol’y Rev.

149, 149 (2010) (“Implicit biases are the plethora of fears, feelings,
                                             32

perceptions, and stereotypes that lie deep within our subconscious,

without our conscious permission or acknowledgement. Indeed, social

scientists are convinced that we are, for the most part, unaware of them.

As a result, we unconsciously act on such biases even though we may

consciously abhor them.”); Anthony G. Greenwald & Linda Hamilton

Krieger, Implicit Bias: Scientific Foundations, 94 Calif. L. Rev. 945, 946

(2006) (“[T]he science of implicit cognition suggests that actors do not

always have conscious, intentional control over the processes of social

perception, impression formation, and judgment that motivate their

actions.”); Jerry Kang et al., Implicit Bias in the Courtroom, 59 UCLA L. Rev.

1124, 1129 (2012) [hereinafter Kang et al.] (“[Implicit social cognition’s,

which includes implicit bias,] impact on a person’s decisionmaking and

behaviors does not depend on that person’s awareness of possessing these

attitudes or stereotypes. Consequently, they can function automatically,

including in ways that the person would not endorse as appropriate if he

or she did have conscious awareness.”). In addition, research portends

that implicit bias will influence jurors unless the court expressly brings

the subject to the jurors’ attention. See, e.g., Kang et al., 59 UCLA L. Rev.

at 1184–86. Thus, a jury instruction addressing implicit bias must clearly

present itself as one on implicit bias and must target the hidden and

subconscious nature of that type of bias. The bias instruction given in

this case did not do so. 9


       9This  can be seen by comparing the language of the instruction given in this case
with an actual implicit-bias instruction given by a federal district court judge, for
example. Now-retired Judge Mark W. Bennett, who served in the United States District
Court for the Northern District of Iowa, used to give the following implicit-bias instruction:
       Do not decide the case based on “implicit biases.” As we discussed in jury
       selection, everyone, including me, has feelings, assumptions, perceptions,
       fears, and stereotypes, that is, “implicit biases,” that we may not be aware
       of. These hidden thoughts can impact what we see and hear, how we
       remember what we see and hear, and how we make important decisions.
                                           33

       The requested instruction covered implicit bias. It stated,

       Our system of justice depends on judges like me and jurors
       like you being able and willing to make careful and fair
       decisions. Scientists studying the way our brains work have
       shown that, for all of us, our first responses are often like
       reflexes. Just like our knee reflexes, our mental responses are
       quick and automatic. Even though these quick responses
       may not be what we consciously think, they could influence
       how we judge people or even how we remember or evaluate
       the evidence.

       Scientists have taught us some ways to be more careful in our
       thinking that I ask you to use as you consider the evidence in
       this case:

       Take the time you need to test what might be reflexive
       unconscious responses and to reflect carefully and
       consciously about the evidence.

       •   Focus on individual facts, don’t jump to conclusions that
           may have been influenced by unintended stereotypes or
           associations.
       •   Try taking another perspective. Ask yourself if your
           opinion of the parties or witnesses or of the case would be
           different if the people participating looked different or if
           they belonged to a different group?

       •   You must each reach your own conclusions about this case
           individually, but you should do so only after listening to
           and considering the opinions of the other jurors, who may
           have different backgrounds and perspectives from yours.

       Working together will help achieve a fair result.



       Because you are making very important decisions in this case, I strongly
       encourage you to evaluate the evidence carefully and to resist jumping to
       conclusions based on personal likes or dislikes, generalizations, gut
       feelings, prejudices, sympathies, stereotypes, or biases. The law demands
       that you return a just verdict, based solely on the evidence, your individual
       evaluation of that evidence, your reason and common sense, and these
       instructions. Our system of justice is counting on you to render a fair
       decision based on the evidence, not on biases.
Kang et al., 59 UCLA L. Rev. at 1182–83 (quoting Mark W. Bennett, Jury Pledge Against
Implicit Bias (2012) (unpublished manuscript) (on file with authors)). Judge Bennett’s
instruction is strikingly similar to the one given in the instant case. But, unlike Judge
Bennett’s instruction, the instruction given here does not specifically mention “implicit
biases,” their hidden nature, or their potential unintended effect.
                                       34

Achieving an Impartial Jury Project, Toolbox, Am. Bar Ass’n 17–20

(footnotes     omitted),   https://www.americanbar.org/content/dam/aba/

publications/criminaljustice/voirdire_toolchest.pdf (last modified Oct. 13,

2015).

      This instruction first explains to the jurors the concept of implicit

bias. Id. at 17–18 & nn.68–71. The instruction then requires the jurors

to be aware of implicit bias when considering the matter. See id. at 18 &

nn.72–73. Finally, it tells the jurors to focus on the facts without jumping

to any conclusions influenced by stereotypes. Id. at 19 & n.74. It also

tells the jurors to look at the evidence from the perspective of a person

belonging to a different group. Id. at 19 & nn.75–76.

      The majority reviewed this case on abuse of discretion.           That is

incorrect. We overturned the prior law on abuse-of-discretion review when

a party requests a jury instruction. Alcala v. Marriott Int’l, Inc., 880 N.W.2d

699, 707–08 (Iowa 2016). In Alcala, we held review of “refusals to give a

requested jury instruction [is] for correction of errors at law” when Iowa

law requires the instruction be given. Id. at 707. “Iowa law requires a

court to give a requested instruction if it correctly states the applicable law

and is not embodied in other instructions.” Id. (quoting Sonnek v. Warren,

522 N.W.2d 45, 47 (Iowa 1994)). As noted above, the district court did not

embed the requested instruction in the instruction it gave the jury. Racial

bias goes to the heart of a fair trial. A fair trial is a tenet of due process in

this country. The instruction given concerned personal bias, not implicit

bias. Moreover, the requested instruction is a correct statement of law.

Therefore, I would find an error at law for not giving the requested

instruction.
      As to the majority’s analysis regarding individualized voir dire on
racial attitudes, I must also dissent. In light of the great racial disparity
                                     35

in imprisonment in this state, I disagree with the district court judge’s
conclusion that expediently completing voir dire in one day was more
important than Williams’s quest to find a jury free of racial bias. The
majority’s myopic and maladroit paralogism that the district court found
it was more important to finish voir dire in one day rather than to worry
that a prospective juror would be exposed to improper influences overnight
is an excuse, not a reason. It is also illogical. Wouldn’t the same concern
apply to jurors the parties picked to serve? Why wouldn’t these jurors be
subject to the same improper influences? Admonitions take care of this
problem. See, e.g., State v. Hanes, 790 N.W.2d 545, 552 (Iowa 2010) (“We
presume juries follow the court’s instructions.”).
      It appears to me that the judge did not allow individual voir dire for
no other reason than to shorten the trial. This is unacceptable, especially
considering the State charged Williams with first-degree murder with the
penalty being life in prison without the possibility of parole.     This is
equivalent to the death penalty in Iowa.
      Studies show jurors do not always disclose everything in voir dire.
E.g., Collins v. State, 158 A.3d 553, 562 n.8 (Md. 2017).       Thus, it is
necessary to do a thorough voir dire to root out implicit bias. That takes
time. Scheduling concerns should not be the basis for refusing to conduct
individual voir dire. United States v. Blitch, 622 F.3d 658, 667 (7th Cir.
2010) (finding abuse of discretion when trial judge decided not to conduct
individualized voir dire on the issue of juror bias because of scheduling
concerns regarding the judge’s upcoming commitment to sit by
designation on another court).      Therefore, I would find an abuse of
discretion in not allowing individualized voir dire.
      In conclusion, I would reverse the judgment of the district court and
remand for a new trial.
      Cady, C.J., joins this concurrence in part and dissent in part.
                                      36

                                                 #17–1989, State v. Williams

APPEL, Justice (concurring in part and dissenting in part).

      I concur with the majority opinion except for divisions V

(individualized voir dire) and VI (implicit bias).

      I want to specifically point out, on the issue of fair cross section of

the jury, I agree for reasons discussed in my opinion in State v. Lilly, ___

N.W.2d ___, ___ (Iowa 2019) (Appel, J., concurring specially). I dissent,

however, on the question of whether the district court abused its discretion

in refusing to give an implicit-bias instruction.      I also dissent on the

question of whether a defendant may be permitted to engage jurors

individually in voir dire about race issues.

      I. Systemic Approach Required.

      I write separately to emphasize, again, that in order to ensure

criminal defendants receive a fair and impartial trial with a cross section

of members of the community, a systemic approach is required.              The

progress that has been made today on the question of fair cross section in

jury pools is important. See id. But in my view, the promise of providing

defendants with a fair and impartial trial free from racial discrimination

will require an across-the-board approach. Any effective effort to address

the potential of racial bias must include approval of individual inquiry of

racial bias in voir dire, revision or abandonment of the approach to

peremptory challenges of Batson v. Kentucky, 476 U.S. 79, 93–98, 106

S. Ct. 1712, 1721–24 (1986), see State v. Veal, ___ N.W.2d ___, ___ (Iowa

2019) (Appel, J., dissenting), the availability of an implicit-bias instruction

at the request of the defendant as suggested by the American Bar

Association, and development of the principles outlined in Peña-Rodriguez

v. Colorado, 580 U.S. ___, ___, 137 S. Ct. 855, 869 (2017), which permit a

defendant to penetrate the jury box when there is evidence that the verdict
                                     37

was tainted by racial discrimination. This case involves the questions

surrounding an implicit-bias instruction and individualized voir dire.

      II. Implicit-Bias Instruction.

      I agree fully with Justice Wiggins’s opinion on the question of

whether the district court erred in failing to give an implicit-bias

instruction in this case. The district court declined to give the proposed

instruction because, in its view, the instruction has not been specifically

approved by this court and other instructions adequately covered the

subject.   The district court was plainly incorrect in both of these

observations.

      In State v. Plain, 898 N.W.2d 801, 811 (Iowa 2017), we considered a

case where the district court declined to give an implicit-bias instruction.

The district court denied the instruction because “it knew of no authority

approving or requiring the instruction and because the instruction was

not included in the Iowa State Bar Association’s model instructions.” Id.

at 817.

      In Plain, this court rejected the district court’s “no authority”

rationale. The Plain court emphasized that the cautionary implicit-bias

instruction   proposed   in   the   case   was   a   correct   statement   of

antidiscrimination principles and was thus permitted under Iowa law. Id.

Because the district court’s judgment relied upon an error of law, the

majority concluded that the district court’s decision refusing to give the

instruction was an abuse of discretion. Id.

      This case is indistinguishable from Plain.          The ABA model

instruction, although more verbose than that proposed in Plain, is a

correct statement of law. As in Plain, prior approval of this court or the

Iowa State Bar Association was not required.
                                     38

      Further, in this case, the district court suggested that other

instructions regarding burden of proof and other instructions were the

equivalent of an implicit-bias instruction. In particular, the district court

seemed to rely on Instruction 5, which generally stated that jurors were

not to be influenced by “any personal sympathy, bias, prejudices or

emotions,” to “evaluate the evidence carefully,” to “avoid decisions based

on generalizations, gut feelings, prejudices, sympathies, stereotypes, or

biases,” and to return a verdict based “solely on the evidence, your reason,

and common sense.”

      There is nothing wrong, of course, with Instruction 5. But it does

not cover the question of implicit bias.      Implicit bias is bias that is

subconscious or unintentional. See generally Plain, 898 N.W.2d at 830–

36 (Appel, J., concurring specially). Because of the often unrecognized but

potentially very powerful pull of implicit bias, the American Bar

Association has recommended that judges should give an instruction on

implicit bias. While we have not yet required a particular approach to

implicit bias, the Plain court declared, “We strongly encourage district

courts to be proactive about addressing implicit bias; however, we do not

mandate a singular method of doing so.” Id. at 817 (majority opinion). It

was error for the district court to conclude that Instruction 5 covered the

same subject matter as an implicit-bias instruction.

      The concept of implicit bias is old, but the notion of an implicit-bias

instruction is somewhat new. Change comes hard. In my view, however,

the time has come, and has in fact long since passed, to adjust our

approach to implicit bias in our courtrooms.         Giving an appropriate

implicit-bias instruction at the request of the defense is not a panacea, but

it moves us in the right direction in seeking to ensure that racial bias plays

no part in our justice system.
                                      39

      There is some good news in all of this. Researchers have found that

instructions that emphasize fairness and the importance of recognizing

racial bias can have impact. Elizabeth Ingriselli, Note, Mitigating Jurors’

Racial Biases: The Effects of Content and Timing of Jury Instructions, 124

Yale L.J. 1690, 1714–15 (2015). The impact is probably greatest if the

instruction is given at the beginning of trial as well as after the evidence is

received.

      III. Individual Voir Dire of Jurors Regarding Racial Bias.

      I also conclude that the district court erred in not allowing individual

voir dire. I join Justice Wiggins’s opinion on this point as well. I write

separately to emphasize the limitations of conventional group voir dire in

rooting out racial bias and the modest potential of individual voir dire,

properly handled, in addressing the potential of racial bias.

      First, closed-end judge-based questioning is ineffective in identifying

racially prejudiced jurors. As noted by a leading scholar many years ago,

closed-end questions from the court, such as questioning whether the

jurors can be fair and impartial, base their verdict on the evidence, and

follow the court’s instructions, would not smoke out professed racists like

Lester Maddox or George Wallace. Albert W. Alschuler, The Supreme Court

and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury

Verdicts, 56 U. Chi. L. Rev. 153, 160 (1989); see also Barbara Allen

Babcock, Voir Dire: Preserving “Its Wonderful Power,” 27 Stan. L. Rev. 545,

547 (1975) (noting a juror motivated to remain on a panel “will evade or

misconstrue, unconsciously or deliberately, general voir dire questions in

order to avoid answering and possibly being struck”).

      We have previously recognized the shortcomings of voir dire by legal

catechism. In Jonas, we canvassed various authorities cautioning against

relying upon a “magic question” approach to voir dire in juror
                                    40

rehabilitation. State v. Jonas, 904 N.W.2d 566, 571–72 (Iowa 2017); see

also Dingle v. State, 759 A.2d 819, 826–28 (Md. 2000) (explaining that a

simple,     perfunctory   examination   by   a   judge   would   not   reveal

misconceptions or unconscious biases); James H. Gold, Voir Dire:

Questioning Prospective Jurors on Their Willingness to Follow the Law, 60

Ind. L.J. 163, 188–90 (1985) (arguing that defendants should be permitted

to individually question prospective jurors to expose possible bias against

a rule of law).

      Further, aside from the nature of the questioning, the environment

matters.    As noted some time ago, “Collective questioning on sensitive

issues may not elicit a response from some jurors who would respond in

private.”   Commonwealth v. Shelley, 409 N.E.2d 732, 740 n.12 (Mass.

1980). As a result, the ability of the defense to engage in individualized

voir dire, while hardly foolproof, at least increases the likelihood of

identifying jurors who may not be fair and impartial.

      In addition, the advent of the large body of social psychology

literature on implicit bias means that if a lawyer is to engage in effective

voir dire, the advocate cannot skate over the surface with collective

questions to jurors about explicit racial bias, which all will deny in any

event. A more individualized approach is required if implicit bias is to be

explored. See Nat’l Ctr. for St. Cts., Jury Trial Innovations 69 (G. Thomas

Munsterman et al. eds., 1st ed. 1997) (stating that individual voir dire is

the best method for jury candor); John H. Blume et al., Probing “Life

Qualification” Through Expanded Voir Dire, 29 Hofstra L. Rev. 1209, 1250

(2001) (explaining that social science research supports individually

questioning jurors to get candid answers); Neal Bush, The Case for

Expansive Voir Dire, 2 Law & Psychol. Rev. 9, 20 (1976) (observing that the

court is intimidating to potential jurors and individual voir dire may make
                                     41

them feel more comfortable); Cynthia Lee, A New Approach to Voir Dire on

Racial Bias, 5 U.C. Irvine L. Rev. 843, 846 (2015) [hereinafter Lee]

(explaining that while closed-end questions are unlikely to be helpful, a

series of open-end questions educating jurors about implicit bias may be

helpful); David Suggs & Bruce D. Sales, Juror Self-Disclosure in the Voir

Dire: A Social Science Analysis, 56 Ind. L.J. 245, 261 (1981) (advocating

individual voir dire); Tania Tetlow, Why Batson Misses the Point, 97 Iowa

L. Rev. 1713, 1740 (2012) (“The right to voir dire about racial prejudice

remains an incredibly important procedural protection to root out juror

racism.”); see also Am. Bar Ass’n, Principles for Juries & Jury Trials 65, 73

(2005) (encouraging questioning of juries both as a panel and individually,

and citing studies showing focused examination in more private setting

can yield invaluable information regarding juror qualifications).

      Further, even if individual voir dire about race-related issues does

not lead to the exercise of a strike, it can serve to mitigate the potential

effects of implicit bias. Social science studies suggest that calling jurors’

attention to the possibility of implicit bias can be a helpful tool in causing

jurors to reflect and lessen its impact. See Lee, 5 U.C. Irvine L. Rev. at

843 (summarizing studies).

      There is no claim in this case that the victim was white. But the

better-reasoned state court cases indicate that a member of a racial

minority is entitled to conduct voir dire on the issue of racial prejudice

even if the victim is not of another race. See Maes v. Dist. Ct., 503 P.2d

621, 625 (Colo. 1972) (en banc) (holding that there is a right to inquire on

voir dire regarding racial views under the Colorado Constitution even if the

crime does not have a racial element); People v. Baker, 924 P.2d 1186,

1191 (Colo. Ct. App. 1996) (discussing a right to inquire into the racial

views of the venire pool under the due process and jury trial provisions of
                                     42

the Colorado Constitution); State v. Marsh, 362 A.2d 523, 525 (Conn.

1975) (“Our state, by constitutional provision, allows the questioning of

each prospective juror individually by counsel, and, within that

framework, counsel is entitled to interrogate on the subject of race

prejudice.”); Bowie v. State, 595 A.2d 448, 453 (Md. 1991) (explaining that

state law permits questioning of jurors for racial prejudice in a trial of an

African-American charged with murder at the request of defense); State v.

Williams, 550 A.2d 1172, 1190 (N.J. 1988) (stating that when the

defendant is a member of a racial minority, a more searching voir dire

should be conducted if requested).

      The usual reason expressed for curtailing voir dire is time. But as

was observed long ago, “[E]xpedition is clearly subsidiary to the duty to

impanel an impartial jury.” United States v. Dellinger, 472 F.2d 340, 370

n.42 (7th Cir. 1972).

      Here, the defendant, an African-American, was about to be tried for

first-degree murder. He faced the prospect of life in prison without parole,

Iowa’s equivalent of the death penalty. African-Americans comprised only

2.3% of the population of the county in which he was being tried. Further,

in addition to starting as a distinct minority, the jury panel was not

representative of the population of African-Americans.      The trial judge

declined to draw new jury pools because they would no doubt suffer from

the same defect as the pool before the district court. So, with a virtual

assurance that no African-Americans would be on this jury, the district

court was unwilling to take a few extra minutes to allow the defendant to

explore sensitive issues involving racial bias even though the African-

American defendant faced life in prison without parole. That, to me, is an

abuse of discretion. To the extent State v. Windsor, 316 N.W.2d 684, 687

(Iowa 1982), is to the contrary, I would overrule it.
                                     43

      IV. Conclusion.

      The best way to ensure fair and impartial juries for African-

Americans is to have African-Americans serving on Iowa juries.           See

Georgia v. McCollum, 505 U.S. 42, 61, 112 S. Ct. 2348, 2360 (1992)

(Thomas, J., concurring) (“[S]ecuring representation of the defendant’s

race on the jury may help to overcome racial bias and provide the

defendant with a better chance of having a fair trial.”); Peters v. Kiff, 407

U.S. 493, 503–04, 92 S. Ct. 2163, 2169 (1972) (“When any large and

identifiable segment of the community is excluded from jury service, the

effect is to remove from the jury room qualities of human nature and

varieties of human experience . . . . [I]ts exclusion deprives the jury of a

perspective on human events that may have unsuspected importance in

any case that may be presented.”); State v. LaMere, 2 P.3d 204, 212 (Mont.

2000) (“[D]iversity begets impartiality.”); Samuel R. Sommers, On Racial

Diversity and Group Decision Making: Identifying Multiple Effects of Racial

Composition on Jury Deliberations, 90 J. Personality & Soc. Psychol. 597,

597 (2006) (explaining that racially diverse juries were more amenable to

a discussion of racism, discussed more trial evidence, and made fewer

errors). But that is not enough. We must look to other potential tools to

address both explicit and implicit bias. Although individualized voir dire

and explicit bias instructions do not guarantee impartiality, they certainly

promote it. Because of the failure to allow individual voir dire and the

failure to give an explicit bias instruction at the request of the defendant,

I would reverse the conviction and remand for a new trial.
                                    44

                                              #17–1989, State v. Williams

McDONALD, Justice (concurring in part and dissenting in part).

      For the reasons set forth in my separate opinions in State v. Lilly,

___ N.W.2d ___, ____ (Iowa 2019), and State v. Veal, ____ N.W.2d ___, ____

(Iowa 2019), I respectfully dissent from division IV of Justice Mansfield’s

opinion and the resultant judgment. I concur in full in the remainder of

Justice Mansfield’s opinion.

      Waterman, and Christensen, JJ., join this concurrence in part and

dissent in part.
