Wright-Bey v. State
444 N.W.2d 772
Iowa Ct. App.
1989
Check Treatment

*1 of counsel ineffective assistance tion of WRIGHT-BEY, merit. this issue is also without

based on Duane Eddie Applicant-Appellant, claim of ineffec Defendant’s VI. counsel is of trial based tive assistance Iowa, Resister-Appellee. STATE regard preserve error failure counsel’s misconduct, ing prosecutorial double No. 88-17. third-degree kidnapping in jeopardy, Appeals Iowa. struction, lack an instruction on intent to commit sexual abuse assault with May bodily injury issues. have with no alleged to be the first three errors found However, last merit.

without insuffi

ground, present find record a claim ineffective

cient to determine of counsel based failure

assistance Davis, 328

preserve error. 301, 308 Defendant’s upheld prejudice to a

conviction without claim of ineffective assist

postconviction based on the lesser-includ

ance of counsel issue.

ed instruction

AFFIRMED.

SCHLEGEL, P.J., concurs.

SACKETT, J., specially concurs.

SACKETT, Judge concurring). (specially

I I and II of the agree with Division opinion. specially

I Division III. The concur guilty kidnap- not found

defendant was I find

ping degree. in the third therefore prejudice and I would

he has shown inflammatory it sub-

reject his claim added charges

stance to Division be- specially

I concur with IV preserved. I find error

cause V. concur with Division

challenge jury was made to selection procedure. persons

Two postconvic- testified proceedings. tion Defendant’s trial attor- ney testified in his and the behalf former County Attorney Black Hawk who handled defendant’s trial testified for the State. report also introduced the of an investigator who had identified the race of thirty-two persons jurors. as drawn attorney Defendant’s trial testified he had been involved in criminal defense work County Hawk During since 1975. Waterloo, Stephen Rapp, applicant- for J. some of that he was involved to an appellant. degree extensive other and at times he was Miller, Gen., Atty. Thomas J. Sarah J. involved degree to a lesser in the defense Gen., Coats, Lemke, Atty. Asst. and Scott persons charged with criminal offenses. County Atty., resister-appellee. Asst. for represented He had defendants in at least three murder trials and had considerable SCHLEGEL, P.J., Considered cases, involvement in including other SACKETT, JJ., HAYDEN and but number of A Class felonies. the course decided en banc. exposure his to the criminal County, only Black Hawk he was aware of SACKETT, Judge. time as juror one when a black served a criminal trial and the black served as postconvic- from denial juror had a in the Black brother Hawk tion relief the claim we address of defen- County Attorney’s office. Based on his dant, man, denied black he was effective observations, opinion it was his the Black assistance of counsel his trial at- County Attorney’s office would use torney challenge the per- failed to State’s strikes to strike its black emptory challenges which excluded the panel. He were on the further testi- blacks persons from the two nonwhite many fied there were not as blacks on panel. Because find defendant has panels as are seen on streets and in failed to meet his if the He testified stores. nonwhites challenge had there was a been made rea- stricken from defendant’s were probability outcome of his sonable trial object. he felt it was not fair different, would have been we affirm his conviction. county attorney The former testified he generally kept notes on selection but Defendant in tried and convict- 1984 was his on the selection of this *3 challenge to of with the State Missouri’s a he years and said had several seven about exclude peremptory challenges use of to all juries. on served cases where blacks panel a petit jury black from at 79, Kentucky, 476 U.S. In Batson v. first-degree murder Garrett’s 1712, 1716-17, 96-98, 106 90 L.Ed.2d S.Ct. of determined the dictates Swain court (1986), Supreme 69, the U.S. 87-88 clearly applicable and articulated the prima a establishes a defendant determined burden a defendant carries under Swain discriminatory of case selection facie said: (1) the panel where defendant Swain, a defendant can make Under out a cogni member him or herself a shown prima purposeful case of discrimi- facie Parti group, racial see Castaneda v. zable proof prosecutor per- nation on that the 1280, 1272, da, S.Ct. 430 U.S. 97 system peremptory-challenge verted the (1977), (2) 498, 510,1280 the and 51 L.Ed.2d by challenges “to using his exclude peremptory attorney has exercised State's wholly from the ‘for reasons blacks challenges to from remove particu- to the outcome of unrelated race. Once members defendant’s trial,’ deny or lar case on ‘the showings, the has made these participate right opportunity same has the to come forward with State justice enjoyed administration of ” explanation challenging a neutral population.’ by white Batson v. State, 387 315 Saadiq In v. N.W.2d 79, 1712, 476 106 S.Ct. Kentucky, U.S. 1986), (Iowa applied Iowa court 1720, L.Ed.2d 69 90 quoting of Batson remanded dictates Swain, 224, at 85 S.Ct. at 838. hearing to for a determine trial court require nevertheless does not an Swain prosecutor pur did or prosecutor’s

whether reasons inquiry into ju any partic- posely exercising challenges discriminate case, pre- holding at that a Saadiq, N.W.2d 329. ular instead ror. 387 prosecutor sumption exists that recognizes find and we challenges to obtain a using the State’s 222, applicable of Batson are at the dictates 380U.S. impartial fair challenge. Kentucky, presumption at 837. That 85 S.Ct. Griffith 314, 716, 328, 708, 107 S.Ct. overcome may be systematically exclud- 649, prosecution has deter court petit juries period applica ed blacks the rule in was mined Batson 837-38, time, 223-24, at at 85 S.Ct. id. litigation pending direct that was on ble to cannot, Swain, under but a defendant final yet or was not state or federal review equal-protection an violation establish 30, April decided on Batson was “solely proof prosecutor’s use on Lane, 489 U.S. Teague v. 1986. See also challenges to strike black peremptory 1060, -, 109 S.Ct. the defendant’s own trial.” at filed in case (1989). Procedendo Kentucky, Griffith 1985, following denial December 93 L.Ed.2d 649 appeal Iowa of defendant’s Garrett, added). (emphasis F.2d at 511 therefore, governed This appeal, Court. case, earlier by the dictates of an Swain Additionally, a can raise an Alabama, purposeful if he discrimination inference prosecutor county in the Saadiq,1 or she shows the (1965), unlike “in case after the issue of the trial was held at where the circumstances, whatev- on direct whatever was not addressed er and whoever the defendant the crime May peal until 1986. postconviction appeal relief. Saadiq of direct was a consolidation petition for denial of a from the be,” responsible juries has been in Black Hawk the victim have been qualified practically removal of blacks who had nonexistent. for the cause, challenges for the re- survived Having found few nonwhites to have petit sult that blacks ever served panels in served on Black Hawk Coun- Swain, juries. atU.S. at ty, whether we must decide defendant has 837,13 L.Ed.2d at 774. shown this exclusion is the result of the examining challenge, systematic defendant’s we State’s exclusion of nonwhites Swain, used over a time. start with impartial to obtain a fair and its strikes 837-38, 13 L.Ed.2d at *4 Swain, 222, 380 at S.Ct. at 85 argues 774-75. The State defendant has 837,13 L.Ed.2d at 773. Defendant over- only not because the exclusion of two non- panel presumption must the State whites from the did not pat- come the show a show from tern. systematically excluded blacks has Swain, 380 juries time. by excluding The State the two non- 223-24, 85 at 13 U.S. at S.Ct. whites excluded all the minorities. When at 774. Defendant contends he L.Ed.2d there two panel, are nonwhites on a by showing through his trial has done this very signifi- the two nonwhites is attorney Hawk the Black changes panel cant because it a from attorney’s office to strike all County panel minority representation with to a argues The State

blacks. panel minority representation. with no not meet burden because defendant’s panel, When there are few minorities on a particularly did not deal with evidence significant it is when even one is stricken. county attorney tried cases Having determined the two strikes were defendant. prosecuted significant of the because absence -of mi- panel, norities on the we must consider the county look at conduct of the We in our panel composition assessment. County in attorney’s office in Black Hawk the di- operates The office under total. in the trial Defendant raised court a sec- county attorney. Iowa rection See ond assistance claim ineffective based on (1987). county attor- Code 331.756 attorney’s § challenge his trial failure to the one in whom official discretion ney is County the Black Hawk are and power vested his assistants comply changes auditor failed to made supervision under his direction. operate chapter in- in 1976 Iowa Acts 1235 which population base from which creased The State next contends we should dis- panels Cooper chosen. See v. testimony trial count of defendant’s 917, State, 379 N.W.2d attorney testimony because his does not thought changes to further as- Said specific cases. We find refer to from sure a defendant drawn attorneys testifying substan- each has had representative cross section of the commu- with criminal tial contacts trials systematically which did not nity and a named attorney Neither Hawk segment society. exclude identifiable or specific trial where nonwhites served 527, Louisiana, 522, Taylor See v. We find their were stricken 690, L.Ed.2d S.Ct. testimony very men to be similar. Both (1975); Oregon, Apodaca recognize nei- are credible witnesses. We 1634, 32 specific Identifying ther has named cases. (1972). coun- jurors on other Black Hawk nonwhite argued identity has this issue on ty panels is difficult. The racial Defendant only peal only preserve the issue for further members here was learned panel federal court. investigator had made contact review after an persons Iowa court in juror recognizes Cooper, and/or a with each testimony juror. each From the who knew 918-19, rejected defendant Coo- N.W.2d attorneys per’s the use of the incorrect we determine situations contention of a procedure nonwhites have served criminal for selection required always County happy a reversal of his I’m them see Cooper get did not address conviction. Id. struck State, know, of racial imbalance dismissed you always, issue it ‘there it Cooper’s because he showed goes.’ than prejudice nothing more violation inquiry Our does end here. A Cooper, statute. claim raised on Swain direct The defendant has not asked us to 318-19. cannot for the first in collat be raised time of racial consider on the issue imbalance proceedings eral unless defendant can County of Black Hawk to follow the failure prejudice show cause for the default and statutory directives. Lane, resulting Teague therefrom. See met determine -, -, pattern in Black burden of also excluding 72, 87-91, Wainright Sykes, service in case after case. criminal 2497, 2507-2509, 608- except in rare cases minorities are We find *5 Defendant contends the issue challenges.2 peremptory stricken on was not raised at trial because his trial has not rebutted pre- counsel was not effective. In order to permis- constitutionally genuine, offered a a claim vail on of ineffective assistance of taking reason trial-related sible specific counsel defendant must show a act jury panel. off defendant’s nonwhites “(1) failed omission where counsel to fact, Garrett, F.2d at 511. the State perform duty, (2) prejudice an essential taking no reason for has offered Miles, resulted therefrom.” State v. off.3 233-34 recog- making this determination we prejudice, To establish population nize this state includes a probabili must show there is a reasonable percentage of minorities. relatively small ty, errors, unprofessional but counsel’s in a scarcity of minorities contributes proceeding the result would have large part jury pan- their to absence Washing been different. Strickland in rural particularly els areas of ton, 668, 694, 2052, 2068, however, County, Black Hawk has state. (1984). A reasonable Falls and Waterloo and the cities of Cedar probability probability is a to un sufficient significant there number of non- in the dermine confidence outcome. Id. County. A black whites in minority in this is a member of argue Defendant does nor he jury state. A chosen to decide his fate attempted to but for the failure to establish racially dis- should not harbor or exercise object to the nonwhite criminatory prejudices toward him. The jurors the result have differ- would been prejudices may be is chances such overt ent. Defendant failed meet second significantly lessened when prong of a claim of assistance ineffective represents backgrounds. diverse of counsel. We therefore must affirm the conviction. attorney bluntly sum-

Defendant’s trial need for nonwhite marized the recognize in this jury case is a nonwhite when he said: predates Kentucky, Batson v. (black (1986), they jurors) do L.Ed.2d 69 [A]nd pear, always happy to see These at least I’m State, N.W.2d at 917. Cooper rep- them, stops minority the overt racism which greater which result cases should Waterloo, nig- ‘Well the trust we we still have panels. We on resentation ger it.’ When there is a must have done nonwhites greater involvement see will that, say so can’t black on panels in problem magnified by one of the Obviously, 3. The reason advanced was investigator jurors who she have told the general panels of absence from language problem. off of a been taken minority population Because of our small show there is a probability reasonable proceeding result of the may have to take additional affirmative would have been Furthermore, different. minority representation majority steps to assure al- lows the limitation of v. Kentucky, jury panels, particularly where a nonwhite Griffith 314, 318, litigant. We are a is a defendant or state to hold that the courts have lauded their fair treat- whose apply Batson doctrine cannot retroactively. sensitivity ment of minorities and to the problems strong minorities.4 Our histo- if, I submit that the U.S. vigilance. ry of fairness demands constant recognized Court has in Batson v. Ken- tucky,

AFFIRMED. 87-88 the effort to de- prosecutor’s practice termine the in all except Judges All concur difficult, surely cases too it is not SCHLEGEL, P.J., dissents; who require reasonable HABHAB, J., specially concurs. prove that had his objected counsel SCHLEGEL, Judge (dissenting). jury panel, resulting in a new and different applaud certainly I the conclusion jury, given any- that would have him that the de- its determination thing more than a fair Asking met the fendant has prove defendant to for the error pattern excluding in Black Hawk type his counsel he would agree from criminal service. acquitted beyond have been far his abili- *6 showing is in the that the accord with result, then, ty. The is that if such an Morris, holding in 815 F.2d 509 Garrett v. objection trial, is made at the defendant’s (8th Cir.1987), the court held that whereas, rights preserved, if his coun- prosecutor the that the is us- issue, fails to sel raise the challenges ing the State’s to obtain a fair requisite showing cannot make the and his “[b]y impartial jury be overcome rights type are forever lost. In this of prosecution system- that case, two-pronged test of Strickland is petit juries atically excluded blacks from inappropriate. of time.” Id. 380 U.S. at Lane, U.S.-,-, Teague In 223-24, 837-838, 13 L.Ed.2d 85 S.Ct. 1060,1072-1073, 109 S.Ct. 774-775. Supreme United States stand, courageous taking After this how- adopted philosophy of Justice ever, applies the States, well-known Mackey Harlan in v. United Miles, 344 N.W.2d 667, 689, test of State 28 L.Ed.2d 404 U.S. Strickland, Washington (1971): ‘sounder, adjudicating “It is in ha- 2052, 2068, generally apply petition, U.S. law beas proposition for the prevailing at the time a conviction became dispose if the defendant’s counsel was than to seek to of that even final [habeas] objection intervening wrong failing corpus to make the on the basis of ” changes.’ identify only He on to jury panel, the defendant has failed to went (deliv- judiciary first determined that freedom in this state state of the Iowa address 4. The McGiverin, everyone and when a slave was Honorable Arthur A. extended ered free; Iowa, person thereby Supreme brought became Court of here that Chief Justice of the seventy-third court ruled that a child could not joint of the In before a convention * * * 11, 1989.) assembly January refused admission to a common school 'be- general Last be color, nationality, religion 150-year year, cause of his or her we Iowans celebrated the anni- like;” judi- government. In our court became the first in versary of our territorial anniversary by admit a woman to the of the nation to law; cial branch commemorated upon years justice the court ruled that racial looking of back —150 public leading protecting accommodations vio- years nation in discrimination right equal protection briefly constitutional rights Let us consider lated the of our citizens. * * * many also have been other of the laws. There some of these decisions. justice years signing emancipation in Iowa over the that years prior hallmarks of Court, proclamation, in its are too numerous to mention. the Iowa general exceptions to his rule of nonre- I note the footnote at the end of the opinion troactivity majority, for cases collateral review of the and celebrate with actions). the majority history (habeas corpus excep- of Iowa’s second leader- ship in equal rights the field of explained here—is all its tion—relevant as fol- citizens. I would continue that same lead- lows: ership in grant this case and would applied A rule should be retroac- new trial, defendant a free from pall new requires the tively if it observance discrimination, by practices which di- that procedures implicit “those ... are right minish degrade to a fair trial and (Cita- ordered concept liberty.” his race. omitted.) tion I would reverse remand for a new at-, Teague, 489 103 L.Ed.2d at “concept of liberty” What is ordered HABHAB, Judge (specially concurring) subjected person to the discrimi- to a black I specially concur. natory practice preemptory chal- veniremen, lenge quite likely of all black concept

different than of ordered liber-

ty seated in to white front The need for a

all-white retroactive required

application Batson

case. notes postconvic- of first-degree ed murder. His No reasons could be located. were exclusively tion deals with the him offered for nonwhite parties procedure. selection any jurors. persons He did not recall agree process proceeded panel. in exercising He said thirty-two per- follows: The as names education, generally strikes he considered were No one sons drawn as was stability, prior legal difficulties knowl- for cause. The State had ten excused edge parties and witnesses. He said had ten strikes strikes. policy at the time of trial his office had no thirty-two persons panel, Of the on the serving on blacks Black Hawk nonwhites. nonwhite was a One ancestry of Korean and the second woman county attorney a black man. the ten State’s was asked about Two panels. were used the woman of He he never strikes to strike said knew having more their ancestry Korean and the black man. No of than four names Morris, (8th He 815 F.2d 509 any was in the In Garrett v. drawn one Cir.1987), the 8th circuit was confronted Attorney’s office