IN THE COURT OF APPEALS OF IOWA
No. 20-1537 Filed April 13, 2022
RAMON DEMETRIUS HARPER, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Bradley J.
Harris, Judge.
Ramon Harper appeals the denial of his application for postconviction relief.
AFFIRMED.
Gina Messamer of Parrish Kruidenier Dunn Gentry Brown Bergmann &
Messamer L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney
General, for appellee State.
Heard by May, P.J., and Schumacher and Badding, JJ. 2
BADDING, Judge.
Ramon Harper was convicted of attempted murder, willful injury, going
armed with intent, and flight to avoid prosecution after he beat a man at a
convenience store that had multiple surveillance cameras. According to Harper,
the plan at trial was to argue “it wasn’t me.” But in defense counsel’s closing
argument, counsel conceded: “That was Mr. Harper. There’s no doubt about it
and we agree to that.”
In his application for postconviction relief, Harper claimed this concession
deprived him of his right to control his own defense at trial. He additionally claimed
that (1) the composition of the jury panel violated his right to a jury drawn from a
fair cross-section of the community; (2) the State engaged in purposeful racial
discrimination in jury selection; and (3) his trial counsel was ineffective. On the
State’s motion, the district court dismissed Harper’s fair-cross-section claim and,
after a hearing, denied his application in all other respects. Harper challenges
those rulings on appeal. For the reasons explained below, we affirm.
I. Background Facts and Proceedings
In November 2009, Domonique Turner was brutally attacked with a rubber
mallet at a convenience store in Waterloo. He suffered repeated blows to the head
until several bystanders stepped in to stop the attack. The attacker fled the scene,
leaving behind a badly beaten Turner, who was airlifted to the hospital for
emergency neurosurgery. The store’s surveillance system captured much of the
incident, including the assault and the attacker leaving in a silver getaway car.
From the video footage and witness descriptions, Waterloo police deduced that 3
the suspect was a black male, heavyset, between five feet six and eight inches tall,
and in his mid-twenties to early thirties.
In trying to identify the suspect, investigators interviewed numerous
individuals, including Harper’s then-girlfriend, Thorsha Gary, who became a key
witness for the State. During her interview, Gary revealed she had been at the
convenience store with Harper on the day of the assault. She said she drove him
there in a silver car because she thought “he needed to put gas in the car.” But
according to Gary, Harper went inside the store for “only a couple of minutes”
before returning to the car and telling her, “Bitch, drive.” Gary stated that after she
heard about the attack, she suspected Harper had something to do with it. After
being shown a still image of the assailant by the investigators, Gary commented,
“That’s him hitting the boy.” When asked to elaborate, she pinpointed Harper by
name. At trial, Turner also identified Harper as the person in the surveillance video,
which was admitted into evidence and played for the jury.
In April 2010, Harper was arrested in Atlanta, Georgia, on a warrant for
attempted murder. In his interview with investigators, Harper denied any
involvement in the brutal assault on Turner. When informed of the video footage,
Harper maintained his innocence, declaring: “I was not the one who hit him.” He
was ultimately charged with attempt to commit murder, willful injury, going armed
with intent, and flight to avoid prosecution. Harper pleaded not guilty.
Continuing with his “it wasn’t me” defense, Harper filed a motion in limine
requesting “no testimony be allowed as to the statements of law enforcement
officers that they believe [he] is the person shown in the [surveillance] video.” The
motion stated, “Said testimony invades the province of the jury in making a 4
determination as to whether or not the person in the video is in fact [him].” After
hearing arguments from both sides, the district court granted the motion, relying
on the prosecutor’s assurance that he would not ask any law enforcement
witnesses “if based solely upon the video they think that person is Mr. Harper.”
The two-week jury trial began in November 2011. Harper’s trial counsel did
not give an opening statement, choosing instead to argue a theory of the case for
the first time during closing arguments. In an apparent effort to avoid a conviction
for attempted murder, the most serious charge, trial counsel conceded that Harper
was the assailant but argued that he lacked the specific intent to kill. Counsel went
on to say that, in his opinion, the evidence showed Harper was, at most, guilty of
assault causing serious injury (a lesser included offense of willful injury). The jury
found Harper guilty of all charges.
Harper appealed his conviction for attempted murder, arguing only that
there was “insufficient evidence he specifically intended to cause the death of
Turner.” State v. Harper, No. 12-0781, 2013 WL 3830193, at *1 (Iowa Ct. App.
July 24, 2013).1 This court affirmed. Id. at *2. Several months later, Harper filed
a pro se application for postconviction relief. After multiple changes of counsel,
Harper’s fifth court-appointed attorney filed an amended and supplemental
application, raising ineffective-assistance-of-trial-counsel claims, a fair-cross-
section claim, and a Batson challenge.2
1 A letter to Harper from his appellate attorney shows that Harper flagged trial counsel’s concession of guilt as an issue. This issue was apparently not pursued on direct appeal because, according to Harper, his appellate attorney told him that was something he had to raise in a postconviction-relief action. 2 See Batson v. Kentucky, 476 U.S. 79, 80 (1986) (“[T]he Equal Protection Clause
forbids the prosecutor to challenge potential jurors solely on account of their race 5
A week before the postconviction-relief hearing was scheduled to begin,
Harper requested a continuance until the supreme court decided Thongvanh v.
State, 938 N.W.2d 2 (Iowa 2020) on further review. Harper flagged Thongvanh as
being potentially “dispositive to [his] fair cross-section claim,” noting the relevant
issue to be decided in that case was whether State v. Plain, 898 N.W.2d 801 (Iowa
2017), which abrogated the exclusive use of the absolute disparity test as a means
of proving underrepresentation, applied retroactively to cases on collateral review.
The answer to that question would dictate whether Harper could use other
statistical methods to prove his fair-cross-section claim under the more defendant-
friendly rule announced in Plain. Over the State’s resistance, the district court
granted the continuance.
In January 2020, our supreme court decided that Plain’s new rule did “not
apply retroactively to cases on collateral review” nor “to convictions that were
already final at the time” Plain was decided. Thongvanh, 938 N.W.2d at 16. On
that basis, the State moved to dismiss Harper’s fair-cross-section claim, which the
district court granted. The court reasoned that Thongvanh precluded Harper from
relitigating his fair-cross-section claim based on changes in the law that occurred
after his conviction became final on collateral review. The remaining claims
proceeded to a hearing via videoconferencing in September, all of which were
denied. Harper now appeals.
or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.”). 6
II. Scope and Standards of Review
“We generally review a district court’s denial of an application for
postconviction relief for errors at law.” Doss v. State, 961 N.W.2d 701, 709 (Iowa
2021). But because Harper’s application alleged ineffective assistance of counsel
and constitutional violations, we review his claims de novo. See Goode v. State,
920 N.W.2d 520, 524 (Iowa 2018).
We review rulings on a motion to dismiss for correction of errors of law.
Thongvanh, 938 N.W.2d at 8. We will affirm the district court’s grant of a motion
to dismiss if “the petition’s allegations are taken as true yet fail to state a claim
upon which relief may be granted.” Id.
III. Analysis
A. Fair-Cross-Section Claim
We begin with Harper’s argument that the district court erred in dismissing
his fair-cross-section claim based on its conclusion that Plain did not apply
retroactively to his case. In reaching that conclusion, the court found Thongvanh
instructive, if not controlling, as do we.
In Plain, the supreme court announced a new rule for evaluating
constitutional fair-cross-section claims—“Parties challenging jury pools on the
ground that they are unrepresentative may base their challenges on multiple
analytical models” such as the absolute disparity, comparative disparity, and
standard deviation tests. 898 N.W.2d at 827, holding modified by State v. Lilly,
930 N.W.2d 293, 302 (Iowa 2019). In doing so, the court ruled that “it is no longer
appropriate to rely exclusively upon the absolute disparity test as an indicator of 7
representativeness.” Id. at 826 (overruling State v. Jones, 490 N.W.2d 787, 792–
93 (Iowa 1992)).
But at the time of Harper’s trial, absolute disparity was the exclusive test
used in this state for deciding fair-cross-section claims. As a result, when Harper
objected to the composition of the jury panel during his criminal trial, the district
court overruled the objection on the basis that the absolute disparity in the county
where he was tried did not meet the threshold for proving a prima facie fair-cross-
section violation under the federal and state constitutions. The prosecutor had
successfully dispelled Harper’s constitutional argument by pointing out in rebuttal
that the total African American population in Black Hawk County was “between 8
and 9 percent,” which meant the absolute disparity between the percentage of
African Americans in the community and the percentage of the group in the jury
panel would never be considered unconstitutional. See Jones, 490 N.W.2d at 793
(noting “underrepresentation of as much as ten percent” did not establish a
violation of the Sixth Amendment fair-cross-section requirement (citing Swain v.
Alabama, 380 U.S. 202, 208–09 (1965))).
That was the unfortunate reality until Plain abrogated the exclusive use of
the absolute disparity test. See 898 N.W.2d at 825 (“The shortcoming of the
absolute disparity formula is demonstrated by the fact that African-Americans do
not represent more than ten percent of the population in any county in Iowa.”).
Plain was decided four years after Harper’s conviction became final. Our supreme
court has since made clear that “Plain does not apply retroactively to cases on
collateral review.” Thongvanh, 938 N.W.2d at 16. Thongvanh is controlling. 8
Still, Harper tries to distinguish his case from Thongvanh based on a
footnote in which the supreme court ostensibly left open the question of “how a
ruling that Plain is retroactive would be applied to the case where the defendant
made a contemporaneous objection.” Id. at 15 n.5. He asserts that, unlike
Thongvanh, he did object to the composition of the jury panel at trial, thereby
preserving his challenge for later proceedings. As a result, Harper argues, Plain’s
new rule should apply retroactively to his case. We disagree with that logic.
As the State points out, Harper did not challenge the exclusive use of the
absolute disparity test at trial or attempt to prove the alleged underrepresentation
of African Americans on his jury panel using any other statistical method.3 He
instead made a general objection that a jury panel consisting of only one African
American did not afford him “a fair representation of his peers.” Harper is not now
entitled to a second bite at the apple just because the law has changed since then.
This is especially so when Harper bases his fair-cross-section claim on alternative
methods that were never presented to the district court. To hold otherwise would
be inconsistent with the spirit of Thongvanh, which found “the need for finality of
judgments” outweighed the consideration “that the composition of jury pools can
3 This is not to say that Harper could not have raised an ineffective-assistance claim related to his trial counsel’s failure to pursue those other options. Indeed, in its ruling on the State’s motion to dismiss, the postconviction court reserved counsel’s “alleged failure to adequately advance a fair-cross-section claim” for later determination so that an adequate record could be developed. But at the evidentiary hearing that followed, Harper did not raise this issue so the court did not rule on it. We accordingly decline to consider the claim on appeal. See Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012) (“It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal.” (quoting Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002))). 9
have real-world effects.” Id. at 15. Under the absolute disparity test that was the
law at the time Harper’s conviction became final, his claim failed as a matter of
law. See Hall v. State, No. 20-1183, 2021 WL 4304242, at *2 (Iowa Ct. App.
Sept. 22, 2021).
For the same reason, we reject Harper’s alternative argument that this court
should hold “there is room to apply Plain retroactively under the Iowa Constitution.”
This identical issue was raised and decided in Thongvanh, which we have already
determined is controlling. See 938 N.W.2d at 16 (rejecting argument that Plain
should apply retroactively under “the Iowa Constitution’s due process and equal
protection guarantees”). We are not free to overrule controlling supreme court
precedent. State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990). Thus,
we affirm the postconviction court’s dismissal of the fair-cross-section claim.
B. Concession of Guilt
We now turn to what we consider to be Harper’s strongest claim for
relief: that his trial counsel infringed on his “right not to admit guilt” by conceding
he was the assailant during closing argument without his consent. Harper argues
his counsel’s unilateral concession of guilt amounted to structural error under
McCoy v. Louisiana, 138 S. Ct. 1500, 1506 (2018), entitling him “to automatic
reversal without a showing of prejudice.” Because Harper raised this argument for
the first time in postconviction-relief proceedings, the district court found it was
barred by Iowa Code section 822.8 (2013),4 although the court then proceeded to
4 Section 822.8 provides: All grounds for relief available to an applicant under this chapter must be raised in the applicant’s original, supplemental or amended application. Any ground . . . not raised, or knowingly, 10
deny the claim on the merits as well. Determining whether the claim is barred by
section 822.8 would require us to wade into the murky waters of whether, as
Harper argues, “a McCoy claim is, in essence, an ineffective-assistance-of-
counsel claim.”5 See Allison v. State, 914 N.W.2d 866, 888 (Iowa 2018)
(explaining the bar of section 822.8 can be avoided if counsel ineffectively fails to
raise a claim at trial or on appeal); see also Iowa Code § 814.7 (codifying the
appellate practice of preserving ineffective-assistance claims for postconviction-
relief proceedings). We elect to bypass that question because, like the district
court, we find Harper’s claim fails on its merits.
The United States Supreme Court recognized a criminal defendant’s
“constitutional right to conduct his own defense” in Faretta v. California, 422 U.S.
806, 819 (1975). While not expressly stated in the Bill of Rights, the Court
voluntarily, and intelligently waived in the proceeding that resulted in the conviction or sentence, or in any other proceeding the applicant has taken to secure relief, may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application. 5 In Krogmann v. State, 914 N.W.2d 293, 322–34 (Iowa 2018), our supreme court
emphasized the importance of distinguishing “between claims of ineffective assistance of counsel and other claims based on the Sixth Amendment (and article I, section 10 of the Iowa Constitution) . . . such as the right to conduct one’s own defense.” Accord McCoy, 138 S. Ct. at 1510–11 (“Because a client’s autonomy, not counsel’s competence, is in issue, we do not apply our ineffective-assistance- of-counsel jurisprudence . . . to McCoy’s claim.”). But the Krogmann court then noted that while the applicant’s claim was “couched in terms of ineffective assistance of counsel,” the “underlying claim” was that he was prevented “from being the master of his own defense in violation of the Sixth Amendment and the Iowa Constitution” under the McCoy line of cases. 914 N.W.2d at 318. Relying on that underlying “master of his own defense” claim, the court concluded that a “showing of Strickland prejudice” was not required in postconviction proceedings “involving an unpreserved structural error at trial that is challenged via an ineffective-assistance claim.” Id. at 322–25. Krogmann did not address the applicability of section 822.8 to the claim before it. 11
determined that “the right to self-representation—to make one’s own defense
personally” was rooted in the Sixth Amendment and, more specifically, the right to
counsel. Faretta, 422 U.S. at 819. The Court reasoned that because the right to
defend is personal, even when the defendant makes a decision “ultimately to his
own detriment, his choice must be honored.” Id. at 834.
Given the inherent tension between a defendant’s right to conduct his own
defense and his right to the assistance of counsel, the Supreme Court clarified the
scope of these guarantees in Florida v. Nixon, 543 U.S. 175, 189–92 (2004). Nixon
faced a possible death sentence after refusing to plead guilty to four felony
charges, including first-degree murder. Nixon, 543 U.S. at 180–81. Based on his
experience in capital defense, Nixon’s attorney believed the best strategy for Nixon
to avoid the death penalty was to concede guilt at trial in order to receive leniency
from the court at the penalty phase. Id. at 181. Despite being informed of this
strategy, “Nixon was generally unresponsive”—“[h]e never verbally approved or
protested” his attorney’s proposal. Id. Making a judgment call, Nixon’s attorney
admitted Nixon caused the death of the victim during his opening statement. Id.
at 182.
On direct appeal, Nixon’s appellate counsel argued trial counsel “had
rendered ineffective assistance by conceding Nixon’s guilt without obtaining
Nixon’s express consent.” Id. at 185. Following a remand for further development
of the record on the consent issue, Nixon unsuccessfully sought postconviction
relief. On appeal from those proceedings, the Florida Supreme Court reversed
Nixon’s convictions and remanded for a new trial on the ground that counsel’s
performance was presumed deficient because counsel conceded guilt without 12
obtaining Nixon’s affirmative consent. Id. at 186. In reversing that decision, the
United States Supreme Court held: “When counsel informs the defendant of the
strategy counsel believes to be in the defendant’s best interest and the defendant
is unresponsive, counsel’s strategic choice is not impeded by any blanket rule
demanding the defendant’s explicit consent.” Id. at 192. In rejecting the
presumption of deficient performance applied below, the Court noted counsel’s
strategy under these circumstances was subject to the traditional Strickland
standard. Id.; see Strickland v. Washington, 466 U.S. 668, 687 (1984).
From there, the Supreme Court addressed the issue on which Harper bases
his claim for relief: “whether it is unconstitutional to allow defense counsel to
concede guilt over the defendant’s intransigent and unambiguous objection.”
McCoy, 138 S. Ct. at 1507. In answering yes, the Court reasoned that while
counsel may have reasonably believed that admitting guilt was the best strategy
given the possible death sentence, counsel’s concession over McCoy’s strenuous
and express objections violated McCoy’s “protected autonomy right” under the
Sixth Amendment. Id. at 1511. Such violation constitutes a structural error
requiring a new trial. Id. Emphasizing the constitutional underpinning, the Court
declared: “When a client expressly asserts that the objective of ‘his defence’ is to
maintain innocence of the charged criminal acts, his lawyer must abide by that
objective and may not override it by conceding guilt.” Id. at 1509.
Against that backdrop, Harper contends the circumstances here are akin to
those in McCoy. He relies on his own testimony at the postconviction-relief hearing
to support his claim that his trial counsel’s concession of guilt without his consent
amounted to structural error. The State, on the other hand, discredits Harper’s 13
testimony as “self-serving” and argues Harper cannot prove a violation under
McCoy in any event because “he never objected or complained” about his
counsel’s concession in the district court. We find the State’s position more
convincing.
As we see it, Harper’s argument boils down to this: he did not consent to
his trial counsel’s concession of guilt; he did not want to concede guilt; and
therefore his trial counsel’s unilateral decision to do so anyway amounted to
structural error. There are two problems with this line of reasoning. First, given
the inadequacy of the trial record as already discussed, the only evidence
presented by Harper on this issue is his own uncorroborated testimony.6 Having
reviewed the transcripts from Harper’s criminal trial and the transcript from the
postconviction-relief hearing, we agree with the State that the testimony is self-
serving.
As the State points out, Harper was no shrinking violet during the trial court
proceedings. He filed several pro se requests for a new attorney and was not shy
about speaking up during pretrial hearings. Tellingly, after the trial was over,
Harper did raise an issue about his attorney’s performance with the district court—
but it wasn’t about the concession of guilt. Instead, when given the chance to say
something at the hearing on his motion for a new trial, Harper focused on counsel’s
failure to inform him about a plea offer from the State. And at the sentencing while
exercising his right of allocution, Harper questioned the court: “I would like to
6 Because Harper’s trial counsel passed away in the early stages of the postconviction-relief proceeding, we have no record of counsel’s thought processes or corroboration for Harper’s side of the story. 14
understand how I didn’t . . . get a new trial . . . just for the simple fact that my lawyer
didn’t tell me about the deal that was offered before the trial.” We accordingly view
Harper’s testimony at the postconviction hearing that his counsel “took it upon
himself to admit my guilt when he knew that wasn’t my trial strategy” with some
skepticism. This is especially so considering the various other statements Harper
made at the postconviction hearing suggesting that what he viewed as “trial
strategy” was merely an expectation that his counsel would “go to trial to prove
that it wasn’t [him].” On this bare-bones record, we cannot draw the inferences
that Harper urges.
The second problem is that Harper’s claim does not fit within the parameters
of the Supreme Court’s structural-error analysis on which he seeks relief. The
McCoy Court set the stage for its decision by contrasting the facts of Nixon with
the facts before it. Id. at 1505. In doing so, the Court signaled that the pertinent
inquiry in the context of an alleged violation of a defendant’s protected autonomy
right is whether the defendant “adamantly objected” to the admission of guilt or,
inversely, neither objected nor consented. See id. The Court in McCoy took pains
to describe the nature of the objection in the case before it, describing McCoy’s
objections to any concession of guilt as “vociferous,” “adamant[],” “intransigent,”
“unambiguous,” “repeated,” “intractable,” “strenuous,” and “insistent.” Id. at 1505,
1507, 1510, 1512. Nothing close appears in the record before us.
What complicates this case above all else is that there is simply no evidence
that Harper and his counsel ever discussed trial strategy, let alone had “intractable
disagreements about the fundamental objective of [Harper’s] representation.” See
id. at 1510. At most, we have a record that shows Harper and his counsel were 15
on the same page about denying Harper’s identity in the surveillance video up until
the close of all the evidence. While this might suggest that counsel changed or
developed the trial strategy after the State’s case-in-chief and therefore had a duty
to discuss it with Harper in advance, see Nixon, 543 U.S. at 189, that does not
translate into a McCoy violation. See, e.g., United States v. Felicianosoto, 934
F.3d 783, 787 (8th Cir. 2019) (rejecting McCoy claim where the record did not
reflect that the defendant “made any ‘express statements of [his] will to maintain
innocence’ in response to his attorney’s concessions, either to his counsel or the
court” (citing McCoy, 138 S. Ct. at 1509)); People v. Bernal, 256 Cal. Rptr. 3d 269,
275 (Cal. Ct. App. 2019) (interpreting McCoy to “require express disagreement
with counsel for a claimed constitutional violation to have merit in this context” and
finding no such violation where the record did not show the defendant “instructed
counsel not to concede guilt on the relevant charges in closing argument, nor did
he ask to replace appointed counsel because of disagreement over trial strategy”).
Given the circumstances of this case and the limited evidence offered, we
decline to find a structural error or presume prejudice based on counsel’s
concession of guilt.
C. Batson Challenge
Harper reprises a third constitutional argument, this one premised on the
Equal Protection Clause of the Fourteenth Amendment “and the constitutional
prohibition on exclusion of persons from jury service on account of race.” Batson,
476 U.S. at 91. He contends the prosecutor’s use of a peremptory challenge to
strike the only African American member on the jury panel violated his equal
protection rights. While our review of Harper’s Batson challenge is de novo, we 16
afford great deference to the district court’s credibility determinations when
considering “the true motives of the attorney when making strikes.” State v. Mootz,
808 N.W.2d 207, 214 (Iowa 2012).
A Batson challenge follows three steps. First, the defendant must make a
prima facie showing that the State used its peremptory challenges to exclude
prospective jurors on the basis of race. State v. Knox, 464 N.W.2d 445, 448 (Iowa
1990). Second, the burden then shifts to the State to provide “a clear and
reasonably specific and neutral explanation for the peremptory challenge.” Id. And
third, the court must decide whether purposeful discrimination exists based on the
reasons presented by State. Id.
The issue here is narrow in that Harper challenges only the postconviction
court’s determination of purposeful discrimination rather than the one reached by
the original trial court. According to Harper, the postconviction court erred in
finding the State provided a race-neutral reason for striking A.C., an African
American woman and the sole prospective juror who was of the same race as
Harper. In support, Harper points to the more developed record in the
postconviction proceeding, which reveals that the prosecutor in his criminal case
clarified some statements he made when articulating his race-neutral reasons
before the trial court.
At that time, the prosecutor offered two main reasons for striking A.C. from
the jury panel: (1) she was the only potential juror with “a prior domestic abuse
conviction”; and (2) she was the only one the prosecutor had personally
prosecuted while he was an assistant county attorney with the Black Hawk County
Attorney’s Office. He elaborated: 17
I remember prosecuting [A.C.’s] domestic abuse a few years ago. I struck her because this was obviously an assault-related case, I didn’t want anyone with assault convictions on the panel, nor anyone that I personally have prosecuted or frankly even that the office had prosecuted while I was there. It was because of the assault domestic abuse conviction that she was stricken.
Convinced by the prosecutor’s first explanation, the trial court overruled
Harper’s Batson challenge. The court reasoned that it was not improper for the
prosecutor “to strike a potential juror who ha[d] assaultive history and ha[d] a prior
conviction for assault, since this is an assault case.”
On postconviction relief, Harper claimed “the State violated [his] equal
protection and due process rights by providing false information to the court to
survive his Batson challenge.” The prosecutor was subpoenaed to testify at the
postconviction-relief hearing, where he admitted upon reviewing the relevant files
that he had made a mistake in stating A.C. had a prior conviction for domestic
abuse assault. The prosecutor reflected, “I have since discovered that that was
not accurate, it was negotiated down, but it began as a domestic abuse complaint.”
He also acknowledged that two other potential jurors had prior convictions as well,
although they were unrelated to any violent crimes. Plus, one of them had
disclosed a “bad personal incident” with the then-county attorney during voir dire,
yet still ended up serving on the jury.
Now on appeal, Harper argues the prosecutor’s misstatements
“undermine[d] a finding that the use of the peremptory challenge was race neutral.”
Even with the benefit of a fuller record, the postconviction court was not swayed
by Harper’s argument, and neither are we. “Unless a discriminatory intent is
inherent in the prosecutor’s explanation, the reason offered will be deemed race 18
neutral.” Hernandez v. New York, 500 U.S. 352, 360 (1991). Because the reasons
offered by the prosecutor were facially valid given the facts of Harper’s criminal
case and thus race neutral, we decline to disturb the postconviction court’s ruling.
See State v. Griffin, 564 N.W.2d 370, 375 (Iowa 1997) (noting the race-neutral
explanation must be “related to the particular case to be tried” (quoting Batson,
476 U.S. at 98)); see also State v. Veal, 930 N.W.2d 319, 334 (Iowa 2019)
(recognizing juror’s prior interaction with legal system constitutes a valid, race-
neutral reason).
D. Ineffective Assistance of Counsel
Finally, we address a string of Harper’s ineffective-assistance claims with
regard to his right to waive a jury trial and various evidentiary issues. In doing so,
we apply the two Strickland prongs: (1) counsel’s breach of an essential duty and
(2) prejudice. See 466 U.S. at 687.
1. Failure to Inform of Right to Waive Jury Trial
Harper argues he received ineffective assistance because his trial counsel
failed to advise him of “his right to waive trial by jury and proceed to a bench trial.”
He claims he suffered prejudice due to counsel’s failure because a bench trial
would have been more favorable to him, given the “inconclusive” eyewitness
testimony presented by the State. We disagree. Even if Harper had been informed
of his right to waive a jury trial and exercised that right, he fails to “show a
reasonable probability that the result of the trial would have been different.” See
State v. Ambrose, 861 N.W.2d 550, 557 (Iowa 2015).
After independently reviewing the record, we are not convinced that a bench
trial would have yielded a different result. Harper suggests that a judge, rather 19
than a jury, would have been better able to recognize the gaps in the various
eyewitness identifications made at trial. But even assuming the eyewitness
identifications were “inconclusive” on their own, they were corroborated by other
evidence to support a conviction. While unclear, Harper appears to be arguing,
for instance, the fact that “Turner, the victim, was impeached,” should have
discredited Turner’s testimony altogether. Yet, in our view, it had the opposite
effect because it allowed the State to bring in rebuttal evidence explaining the
inconsistencies in the testimony, which we will discuss later. More significantly, it
is clear from the record that the State did not rely on Turner’s testimony for his
eyewitness identification. Instead, he was called on to testify about what he
remembered before and after his attack, the severity of his injuries, and Harper’s
possible motive. The other witnesses mentioned by Harper were likewise more
useful to the State’s case-in-chief than just their individual identifications.
Viewing the record as a whole, Harper cannot show he was prejudiced by
his trial counsel’s failure to inform him of his right to waive a jury trial. Thus, his
ineffective-assistance claim fails. See id. at 556 (“We can resolve ineffective-
assistance-of-counsel claims under either prong of the analysis.”).
2. Motion in Limine Ruling
Harper next argues his trial counsel was ineffective for failing “to object to
inadmissible evidence,” namely the State’s crime scene technician’s testimony that
repeatedly referred to the person in the surveillance video as “the defendant.” He
asserts this testimony was objectionable as a violation of the district court’s motion
in limine ruling prohibiting any law enforcement officers from identifying him as the
person in the video. For counsel to have breached an essential duty on this 20
ground, the crime scene technician must have violated the motion in limine ruling
by referring to “the defendant.” We find the ruling was not violated.
At the motion in limine hearing, the prosecutor was fully transparent with the
trial court and the defense that members of law enforcement who were involved in
Harper’s case were likely going to identify Harper as the assailant when describing
what they discovered throughout the investigation. The prosecutor explained:
“[W]e’re talking about over the course of the investigation and the multiple witness
statements and things of that nature, there may be times when the officers are
going to say that’s clearly this individual given what we now know.” The court
thought the prosecutor’s position was “fair enough” and narrowly ruled that no law
enforcement witnesses could be asked to identify Harper in the surveillance video
at trial. The prosecutor confirmed: “I don’t intend to ask anybody—any of the
officers whether you watched the video; does that look like him to you?”
Based on this motion in limine ruling, we find nothing objectionable in the
prosecutor’s questioning or the challenged testimony. While the crime scene
technician did say “the defendant” throughout his testimony, his references were
made in the specific context of the work he conducted during the initial
investigation, which had included sweeping the crime scene and reviewing the
surveillance footage. As the crime scene technician, he was naturally going to
testify about his observations of all the evidence gathered during that process,
including the video. Because the testimony did not violate the motion in limine
ruling, Harper’s trial counsel could not have breached an essential duty in failing
to object to the crime scene technician’s testimony on that basis. As a result, this
ineffective-assistance claim also fails. 21
3. Bribery Testimony
Harper’s third contention relates to his trial counsel’s failure to object to
testimony not included in the State’s minutes of evidence. He complains the
prosecutor improperly elicited surprise testimony that Turner was offered $10,000
from Harper’s cousin to sign a “Voluntary Statement” stating, “I Domonique Turner
have no clue who hit me . . . . Far as anything else goes I have no idea what
the[y’re] talking about.” But because it was the defense that offered that statement
into evidence in the first place to impeach Turner during cross-examination, the
bribery testimony was admissible as rebuttal evidence.
“Rebuttal evidence is that which explains, repels, controverts, or disproves
evidence produced by the opposing party.” Carolan v. Hill, 553 N.W.2d 882, 889
(Iowa 1996). And it is generally “confined to new matters first introduced by the
opposing party.” Id. Given the district court’s “considerable discretion in admitting
rebuttal evidence,” the admission of the challenged evidence must have been “a
clear abuse of discretion” for us to predicate error. Id. We find no such abuse
here.
The record shows the bribery testimony was elicited by the prosecutor only
after defense counsel had impeached Turner with the written statement
purportedly signed and filed by Turner while Harper’s criminal case was pending.
Because Turner gave inconsistent responses to defense counsel’s persistent
questioning about whether he remembered writing the statement, if at all, the
prosecutor had reason to follow up on redirect examination and ask Turner
whether the statement was made voluntarily. Notably, the prosecutor’s follow-up
was brief and circumscribed to that purpose: “Did that offer of money affect in any 22
degree what you said in those documents? Was it a factor that you were thinking
about?” Turner replied, “It was.” This line of questioning was not improper. Nor
were Turner’s responses inadmissible. Because the bribery testimony was proper
rebuttal evidence put forth by the State, Harper’s trial counsel did not have an
essential duty to object to its admission. Thus, we find no breach under the first
Strickland prong.
4. Inconsistent Statements
We turn to Harper’s fourth and final claim of ineffective assistance. He
contends his trial counsel breached a duty to adequately impeach Gary, his
then-girlfriend, with her inconsistent statements at trial. He concludes, “If the jury
had been exposed to the impeachment evidence, there is a reasonable chance
that the outcome of trial would have been different.” We disagree.
The record reveals that Harper’s trial counsel asked Gary several times on
cross-examination if she recalled telling him during her deposition that she could
not identify who the assailant was when initially questioned by investigators. But
because that statement differed from what Gary had just described during her
direct-examination, the jury could have pieced together the inconsistency without
Gary confirming that was true. Thus, despite Gary’s inconclusive answers,
counsel’s questioning was specific enough to flag the issue in front of the jury. Like
the others, this claim is rejected for failure to establish counsel’s breach of an
essential duty.
Notwithstanding the above, Harper makes a final effort to obtain relief by
arguing “the cumulative errors combined to deprive [him] of the right to a fair trial.”
See Schrier v. State, 347 N.W.2d 657, 668 (Iowa 1984) (considering all 23
ineffective-assistance claims “individually and cumulatively” to determine whether
reversal is warranted). “Where, as here, ‘the court is assessing multiple claims
and assumes without deciding counsel breached an essential duty,’” as we did
with Harper’s claim regarding his right to waive a jury trial, “‘then the reviewing
court should consider whether the assumed breaches, cumulatively, resulted in
Strickland prejudice.’” Pantaleon v. State, No. 19-1254, 2021 WL 592928, at *4
(Iowa Ct. App. Feb. 3, 2021) (quoting State v. Jones, No. 16-1828, 2018 WL
1858296, at *7 (Iowa Ct. App. Apr. 18, 2018))); accord State v. Clay, 824 N.W.2d
488, 501–02 (Iowa 2012).
We sidestepped the breach-of-duty question in relation to only one of
Harper’s claims, which we concluded did not result in prejudice. Any breach that
may have occurred with that claim does not undermine our confidence in the
outcome, see Strickland, 466 U.S. at 694, so we reject the cumulative-error claim,
see Pantaleon, 2021 WL 592928, at *4; accord Clay, 824 N.W.2d at 501–02.
IV. Conclusion
We affirm the denial of Harper’s application for postconviction relief.