                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1881
                            Filed September 27, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHOROIN DEVONTEA SMITH,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, Bradley J.

Harris (jury selection) and Kellyann M. Lekar (trial and posttrial motions), Judges.



       A defendant appeals his conviction challenging jury selection and the

court’s denial of his motion for a new trial. AFFIRMED.



       Robert W. Conrad of Conrad Law Office, Knoxville, for appellant.

       Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant

Attorney General, for appellee.



       Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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VOGEL, Presiding Judge.

       Choroin Smith was convicted following a jury trial of willful injury causing

bodily injury, intimidation with a dangerous weapon with intent, and possession of

a firearm as a felon. He claims (1) the district court was wrong to overrule his

Batson1 challenge to the State’s strike of an African-American from the jury, (2)

the court should have granted his challenge to the jury pool as not being a fair

cross-section of the community, and (3) the State solicited improper

impeachment testimony in violation of State v. Turecek, 456 N.W.2d 219, 225

(Iowa 1990). He also claims he is entitled to a new trial due to all of these errors.

I. Background Facts and Proceedings.

       The underlying facts of the case are not pertinent to this appeal. It is

sufficient to say Smith was convicted of shooting DeMarcus Green in the

shoulder during an argument on the porch of a house in February 2015. Before

trial, Smith moved in limine to prevent the State from admitting evidence from a

witness, Deziaray Lewis, who, when deposed, recanted certain statements she

initially made to police. In the motion, Smith asked the State be prohibited from

questioning Lewis regarding “the events which transpired on the porch of 518

Rhey Street February 22, 201[5],” “any identification of any person alleged to

have been seen with a gun,” and “the identification of Choroin Smith as the

person who . . . shot DeMarcus Green on the porch of 518 Rhey Street on

February 22, 201[5].” See Turecek, 456 N.W.2d at 225 (holding the State may

not “place a witness on the stand who is expected to give unfavorable testimony

1
  See Batson v. Kentucky, 476 U.S. 79, 89 (1986) (holding the Equal Protection Clause
prevents prosecutors from using peremptory strikes to remove potential jurors based on
race).
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and then, in the guise of impeachment, offer evidence which is otherwise

inadmissible.”).

       At the hearing on the motion in limine, the State asserted:

       Miss Deziaray Lewis made statements contrary to what she initially
       made. The State doesn’t plan to go into her initial statement, but
       the State plans on calling her for the identification of the defendant
       as far as the defendant’s presence there on the porch but not—
       initially she had said that he was the shooter and she could identify
       him as the shooter. I’m not going to ask her questions or try to
       impeach her with regards to that, but I believe I can ask her
       questions putting him on the porch because she did continue to
       testify to that in her deposition.

Defense counsel responded: “That’s fine. That seems right to me.” Defense

counsel again reiterated on the first day of trial this understanding of the State’s

position regarding the testimony of Lewis:

       [The State] represented to me that he acknowledged that Deziaray
       Lewis did recant during her deposition. He will be putting her on
       the stand for the purpose of identifying Choroin Smith as a person
       who was on the porch at the time of the incident, and that he does
       not expect to get into any matter that she recanted on.

Following several days of testimony, the jury returned a verdict finding Smith

guilty on all three counts. Smith’s counsel filed a motion for a new trial asserting

the State had violated the in limine order. The court denied the motion, and

Smith was sentenced to a total term of incarceration of fifteen years. He now

appeals.

II. Scope and Standard of Review.

       We review de novo constitutional claims based on the improper use of

peremptory strikes, and we give “a great deal of deference to the district court’s

evaluation of credibility when determining the true motives of the attorney when

making strikes.” State v. Mootz, 808 N.W.2d 207, 214 (Iowa 2012). In addition,
                                         4


we review de novo challenges to the constitutional right to have a fair cross-

section of the community in the jury pool. State v. Plain, 898 N.W.2d 801, 810

(Iowa 2017). Our review of the district court’s decision on a motion for a new trial

is for abuse of discretion, see State v. Nitcher, 720 N.W.2d 547, 559 (Iowa 2006),

though our review of an alleged Turecek violation is for the correction of errors at

law, see State v. Wixom, 599 N.W.2d 481, 484 (Iowa Ct. App. 1999) (“[A]ll

Turecek hearsay violations are reviewed for errors at law.”).

III. Batson Challenge.

       Smith first claims the court erred in overruling his Batson challenge to the

State’s peremptory strike of an African-American juror during voir dire. The test

for determining whether the State has used peremptory strikes in a racially

discriminatory fashion is for the opponent of the challenge to first make out “a

prima facie case of racial discrimination (step one),” and then “the burden of

production shifts to the proponent of the strike to come forward with a race-

neutral explanation (step two)” and “[i]f a race-neutral explanation is tendered,

the trial court must then decide (step three) whether the opponent of the strike

has proved purposeful racial discrimination.” Mootz, 808 N.W.2d at 215 (citation

omitted).

       We doubt whether a prima facie case was established here in light of the

fact that the State struck only one African-American, and this does not by itself

raise “an inference of purposeful discrimination.” See State v. Knox, 464 N.W.2d

445, 448 (Iowa 1990) (noting merely showing the State used a peremptory

challenge to exclude the “sole” African-American juror did not alone satisfy a

prima facie case of discrimination); see also Mootz, 808 N.W.2d at 215 (“In
                                            5


determining whether the party objecting to the strike has made a prima facie

case of purposeful discrimination, the court may consider all relevant

circumstances, including a pattern of strikes against jurors of a particular race.”

(emphasis added)).       However, we acknowledge that “[t]he prima facie case

requirement . . . becomes moot when the party attempting to strike a juror offers

a race-neutral explanation for the peremptory challenge.” Mootz, 808 N.W.2d at

215.

       Here, the State asserted it struck the juror in question because of her

previous theft conviction and because she had a close relative that was

convicted of a crime and in prison. The State went on to explain that it had

struck all jurors with prior criminal convictions except those with alcohol-related

convictions because of the implication alcohol played in the current case and

also struck all those with family members in prison. The court accepted the

State’s race-neutral reasons, and denied the motion. We give deference to the

district court’s determination of the State’s credibility and find no abuse of

discretion in the court’s denial of Smith’s Batson challenge. Id. at 214.

IV. Fair Cross-Section.

       Next, Smith claims the jury pool of fifty-four people, of which only five were

African-American, did not represent a fair cross-section of the community. After

the jury was selected and impaneled,2 defense counsel stated: “Your Honor, with


2
 We doubt whether error was preserved in this case. “As a general rule, objections to
evidence must be raised at the earliest opportunity after the grounds for objection
become apparent.” State v. Johnson, 476 N.W.2d 330, 333 (Iowa 1991). The jury
pool’s racial composition would have been immediately apparent upon the
commencement of voir dire, yet defense counsel waited until after voir dire was
completed and the jury was sworn in to make the objection. See id. at 334 (“Defendant
had ample opportunity to view the jury panel during the jury selection process, but failed
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regard to the venire, there were only five African-Americans in the entire venire,

and so I would like to double check the basis upon which venire is drawn and

have that placed on the record.” In response the district court stated:

       [I]t is my count that there were fifty-four people on the original
       panel. Of that I had six African-Americans, and if it was five, it may
       be. But that would still be approximately ten percent which is equal
       to the population and certainly within the standard deviation which
       is allowed to be an acceptable panel.

       There is a three-part test for determining whether the constitutional right to

an impartial jury has been violated by not having the jury drawn from a fair cross-

section of the community. See Duren v. Missouri, 439 U.S. 357, 364 (1979).

       [T]he defendant must show (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.

       There is no question in this case regarding the first element. With respect

to the second element, our supreme court recently issued an opinion wherein the

court overruled its prior case law that only one statistical test—absolute

disparity—was      used    to   determine       whether    the   distinctive   group     is

underrepresented in the jury pool. See Plain, 898 N.W.2d at 826. The court

ruled that defendants and the district courts may use “multiple analytical models”

“when determining whether jury pools comport with the Sixth Amendment



to object to it during this time . . . .”). However, as the district court ruled on Smith’s
objection to the jury pool, we choose to address the merits of the claim. See State v.
Taylor, 596 N.W.2d 55, 56 (Iowa 1999) (“We choose to pass [the defendant’s] serious
preservation-of-error problems and affirm on the merits.”).
                                         7

mandate of representativeness.” Id. at 827. Other methods mentioned by the

supreme court included comparative disparity and standard deviation. Id. at 822.

      In ruling on Smith’s motion, the district court in this case used only the

absolute disparity method of determining representativeness, as the Plain case

was issued after Smith’s trial.     However, we need not reverse this case as

underrepresentation cannot be demonstrated under any of the newly approved

methods. As noted in the Plain case, the composition of African-Americans in

Black Hawk County, where both Plain and Smith were tried, is 8.9%. Id. at 821.

A jury pool of fifty-four people containing five African-Americans represented

9.3% of the jury pool, making the absolute disparity negative 0.4 (the percentage

of African-Americans in the pool exceeded the percentage of African-Americans

in the county population).        Under the comparative disparity method, the

calculation amounts to a negative 4.4%.       As explained by Plain, the higher

comparative disparity percentage, the less representative the jury pool. Id. at

823. In addition, the jury pool composition compared to the county population fell

well within the standard deviation. See Castaneda v. Partida, 430 U.S. 482, 496

n.17 (1977) (articulating how to calculate the standard deviation and noting “if the

difference between the expected value and the observed number is greater than

two or three standard deviations, then the hypothesis that the jury drawing was

random would be suspect to a social scientist”).          Because Smith cannot

demonstrate underrepresentation in the jury pool for his case under any method

currently adopted by our state, he cannot establish the second element of the

Duren test. The court correctly denied his challenge to the jury pool.
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V. Turecek Violation.

       Finally, Smith asserts the State violated the court’s in limine order and

violated Turecek when eliciting testimony from Officer Brice Lippert regarding

whether Lewis was on the porch at the time of the shooting. Officer Lippert’s

testimony was not the subject of the motion in limine, defense counsel did not

object during trial to Officer Lippert’s testimony, and this testimony was not part

of defense counsel’s motion for a new trial. We agree with the State’s assertion

that Smith failed to preserve error on his claim that Officer Lippert’s testimony in

some way a violation of the order in limine or the holding in Turecek.         See

Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012) (noting for error to be

preserved the record must indicate “the court considered the issue and

necessarily ruled on it”).

       Even if error had been preserved, Smith’s claim on appeal has no merit.

The parties’ articulation of the agreement following the motion in limine was that

Lewis would testify that Smith was on the porch at the time of the incident. At

trial, Lewis testified she was on the porch with Smith, Green, and others, having

just paid for pizza at the time the shot was fired. Officer Lippert’s testimony that

Lewis was on the porch at the time of the shooting was cumulative to Lewis’s

own testimony and in no way impeached it.

VI. Conclusion.

       We find no constitutional violation in the State’s use of its peremptory

strike or the composition of the jury pool. In addition, we conclude Smith failed to

preserve error on his claim the State violated Turecek or the court’s in limine
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order. In light of these conclusions, we determine Smith is not entitled to a new

trial and affirm his conviction and sentence.

       AFFIRMED.
