State of Iowa v. Tyjuan Levell Tucker

• Court: Supreme Court of Iowa
• Decided: December 2, 2022
• Docket: 19-1919
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA

No. 19–1919

Submitted September 15, 2022—Filed December 2, 2022

STATE OF IOWA,

Appellee,

vs.

TYJAUN LEVELL TUCKER,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, William P. Kelly,

Judge.

A defendant appeals a criminal conviction, claiming the district court

wrongfully excluded evidence under Iowa Rule of Evidence 5.106 (rule of

completeness) and Iowa Rule of Criminal Procedure 2.14(6)(c) (discovery

sanction). DECISION OF COURT OF APPEALS AND DISTRICT COURT

JUDGMENT AFFIRMED.

Christensen, C.J., delivered the opinion of the court, in which Waterman,

Mansfield, and McDonald, JJ., joined. McDermott, J., filed a dissenting opinion,

in which Oxley, J., joined. May, J., took no part in the consideration or decision

of the case.

Jessica Donels (argued) and Andrew Dunn of Parrish Kruidenier Dunn

Gentry Brown Bergmann & Messamer L.L.P., Des Moines, for appellant. 2

Thomas J. Miller, Attorney General, and Louis S. Sloven (argued),

Assistant Attorney General, for appellee. 3

CHRISTENSEN, Chief Justice.

In this case, the defendant appeals his conviction for possession of a

controlled substance with intent to deliver in violation of Iowa Code section

124.401(1)(d) (2018). The defendant states five alternative grounds for his

appeal. He claims violations of his state constitutional right to a jury drawn from

a fair cross section of the community and his right to effective assistance of

counsel. He also claims the district court wrongfully excluded exculpatory

evidence in two separate instances. Finally, he claims the jury convicted him

based on insufficient evidence.

The court of appeals affirmed the conviction in all respects. On further

review, we also affirm the conviction and conclude that Iowa Rule of Evidence

5.106 and the common law doctrine of completeness cannot trump Iowa Rule of

Evidence 5.402, which states irrelevant evidence is not admissible.

I. Background Facts and Proceedings.

Two Des Moines police officers pulled over Tyjaun Tucker on July 28,

2018, at about 10:42 p.m. Before the stop, the officers drove past Tucker, seated

in his stationary car, exchanging something with a woman standing at his open

car window. When Tucker noticed the police, he immediately drove out of the

parking lot, pulling in front of oncoming traffic and nearly causing an accident.

The officers then followed and stopped Tucker’s car. Officer Garrett, one of the

two officers, wore a bodycam that recorded the stop.

During the stop, the officers smelled marijuana. Tucker had no driver’s

license and claimed he had lost it earlier that day. The officers detained Tucker, 4

restrained his hands, and searched his car. They discovered $650, mostly

denominated in $100 bills, in the car’s center console. The officers also searched

Tucker’s person. When they noticed something hidden in his pants, he launched

into an obscenity-laced outburst. He started to run away, scream for help, shout

at the officers to get off of him, and accuse them of both fighting him for no

reason and setting him up. Tucker also repeatedly asked why the officers were

“grabbing” him. The object in Tucker’s pants turned out to be one ounce of

marijuana hidden in his underwear.

The State later charged Tucker by trial information for possession of a

controlled substance with intent to deliver. Iowa Code § 124.401(1)(d). The State

formally requested reciprocal discovery no less than three times between

October 17, 2018, and December 28, 2018. Upon the State’s motion, on

January 3, 2019, the district court ordered Tucker to exchange reciprocal

discovery within fourteen days. A trial was set for June 3.

On that day, the parties appeared before the district court to discuss

pretrial matters. After unsuccessful plea negotiations, jury selection began.

Tucker challenged the jury pool’s composition on the grounds that it did not

represent a fair cross section of the community, leading the trial court to analyze

the jury pool’s racial composition under the three-pronged test outlined in State

v. Lilly, 930 N.W.2d 293, 298–308 (Iowa 2019).

The parties disagreed about the third prong, whether the county’s jury

selection processes systematically excluded African-Americans from the jury

pool. They agreed that Tucker, who is African-American, is a member of a 5

distinctive group in the community. They also agreed the number of African-

Americans in the jury pool fell short of the community’s population of jury-

eligible African-Americans by more than one standard deviation. With resistance

from the State, the district court continued the trial so Tucker could obtain

expert testimony or other evidence for the third prong. See id. at 299 (citing State

v. Plain, 898 N.W.2d 801, 821 (Iowa 2017)) (setting out the three prongs as

originally outlined by the United States Supreme Court in Duren v. Missouri, 439

U.S. 357, 364 (1979)). Discussion was also held on the record with Tucker’s

lawyer about the names of two local fair-cross-section experts who might be

called as expert witnesses for the third prong.

The rescheduled trial commenced on August 19, with a new jury pool.

Tucker again made a fair-cross-section challenge under Lilly. As before, the

parties agreed the first prong of Lilly was satisfied, so the district court proceeded

to the second prong, calculating the standard deviation of the number of African-

Americans in the jury pool relative to the proportion of African-Americans in Polk

County. Of the 245 jurors in the jury pool, 9 were African-American. Given that

5.4% of the Polk County population were jury-eligible African-Americans, the

court determined the jury pool underrepresented African-Americans by a

standard deviation factor of 1.19, which satisfied the second prong.

The district court then considered the third Lilly prong. Tucker argued the

jury selection process caused systematic underrepresentation of African-

Americans because the county relied on voter registration and driver’s license

records. Statistically speaking, Tucker claimed that “minorities sign up for 6

licenses at a lower rate and also register to vote at a lower rate.” To support this

argument, he cited one law review article, Paula Hannaford-Agor, Systematic

Negligence in Jury Operations: Why the Definition of Systematic Exclusion in Fair

Cross Section Claims Must Be Expanded, 59 Drake L. Rev. 761 (2011). He did not

put on expert testimony due to “practical problems.” He explained he could not

hire a court-appointed expert until he had a basis to do so, and he could not

know if he had a basis to hire an expert until the jury pool appeared in the

courthouse.

The district court ultimately determined Tucker failed to satisfy the third

Lilly prong. It reasoned Tucker did not explain how using information from

sources other than voter identification and driver’s license records would

increase minority jury representation. It also reasoned Tucker did not prove the

jury selection processes systematically excluded racial minorities. The parties

then proceeded to jury selection and empaneled a jury. The court ordered Tucker

multiple times to stand when the jury first entered the courtroom, but Tucker

refused. He told the court he was hurt and could not stand, despite the fact he

had stood moments earlier without any difficulty.

During trial, Tucker lodged various objections to the district court’s

evidentiary rulings. Two of these objections are relevant in this appeal. First, on

the afternoon of the second day of trial, which ended up being the final day of

the State’s case, Tucker sought to introduce documentary evidence of a

settlement payout he received from the QuikTrip Corporation. The documentary 7

evidence included a settlement statement from a law firm,1 a contract releasing

Tucker’s claims against QuikTrip, various professional invoices, and other

documents. Tucker intended to use these documents to demonstrate the $650

cash found in his car did not come from drug sales. However, Tucker had not

shared any of these settlement documents with the State during reciprocal

discovery. For that reason, the district court prohibited Tucker from introducing

them under Iowa Rule of Criminal Procedure 2.14(3). The court, however, did

allow Tucker to testify about the settlement but, upon a motion in limine from

the State, ordered him not to mention the settlement documents. In return, the

State agreed not to call attention to the fact Tucker introduced no documents

proving the settlement.

Second, pursuant to Iowa Rule of Evidence 5.106, Tucker sought to play

for the jury an unedited version of Officer Garrett’s bodycam video during his

case-in-chief. The State had previously shown the edited version during its

examination of Officer Garrett. The unedited footage showed one officer telling a

second officer that a third officer, who was not present, had once shot Tucker.

In contrast, both the edited and unedited footage showed Tucker telling officers,

“I’m the one Scarlet shot right here down here on M.L.K.” Tucker specifically

wanted the jury to know he had been shot by a police officer, claiming that fact

was relevant to the reason the police stopped him and the reason he has

problems with law enforcement.

1The law firm of Tucker Law Office represented Tucker in his case against QuikTrip. Tucker and his attorneys at Tucker Law Office happen to share the same last name. They are not related. 8

The district court did not allow Tucker to play the unedited footage. As a

general matter, the district court supported “the idea that the jury should be

able to see everything and anything that happened” during the traffic stop.

Nevertheless, the court determined the fact a police officer once shot Tucker was

not relevant to the charge of possession with intent to deliver. The court also

thought the officer’s statements posed hearsay, character evidence, and rule

5.403 problems. While the court would not permit Tucker to show the unedited

footage during his case-in-chief, the court did say it would have required the

State to show the unedited footage during the State’s case-in-chief when Officer

Garrett testified, if asked to do so under the completeness doctrine. The court

then ordered Tucker not to mention either being shot by a police officer or the

existence of unedited bodycam video.

Tucker took the witness stand during the trial. He testified he was in a

fast-food parking lot on the night of July 28, 2018, and the police followed him

when he drove away. He said the police had no reason to initiate a traffic stop

and accused the police of withholding video evidence that would prove him right.

He repeatedly testified the State had unedited bodycam video that it was not

presenting. Tucker agreed the officers claimed to smell marijuana, but he denied

having any when asked. He said there was video of officers putting marijuana in

his car. When his lawyer asked why he believed the police planted marijuana in

his car, Tucker responded, “I was shot by the police[,] . . . a detective here in

Des Moines.” The State objected to Tucker’s multiple references to unedited

bodycam video and the testimony that a detective shot him. The district court 9

granted motions to strike this testimony pursuant to its ruling on the State’s

motion in limine.

Tucker’s lawyer then asked to discuss legal matters with the court, outside

the jury’s presence. The court excused the jury and spoke with Tucker and his

lawyer. It cautioned Tucker not to violate the motion in limine rulings again.

Tucker defended his actions by stating he was keeping his oath to give the whole

truth. The court then repeated its instruction to respect the motions in limine.

The jury returned to the courtroom, and Tucker’s attorney began to ask

questions about the QuikTrip settlement. When asked about the amount of the

settlement, Tucker said he had submitted paperwork proving the settlement but

the court would not show it to the jury. The court sustained objections from the

State and admonished the jury to disregard. Tucker concluded his direct

examination by saying he used the settlement to buy a car the day the police

stopped him and the $650 that the police found was the remainder.

On cross-examination, Tucker again declared the marijuana was not his

and he had no idea where it came from. He maintained the unedited video would

show how the marijuana “mysteriously” came to be found on him. The State

asked whether he had meant to imply police planted the marijuana on him.

Tucker responded “planted” might be the wrong word, but he was not sure what

word to use because “people don’t want to hear that police do those types of

things.” 10

On August 21, the jury convicted Tucker as charged, and he timely

appealed. We transferred his case to the court of appeals, which affirmed the

conviction. Tucker applied for further review, which we granted.

II. Standard of Review.

Our standard of review for constitutional claims is de novo. State v.

Williams, 929 N.W.2d 621, 628 (Iowa 2019) (citing Plain, 898 N.W.2d at 810).

“Evidentiary rulings are generally reviewed for abuse of discretion.” State v.

Tipton, 897 N.W.2d 653, 690 (Iowa 2017) (citing State v. Buenaventura, 660

N.W.2d 38, 50 (Iowa 2003); State v. Spargo, 364 N.W.2d 203, 209 (Iowa 1985)).

We review insufficient evidence claims for errors at law. State v. Dalton, 674

N.W.2d 111, 116 (Iowa 2004) (citing State v. Spies, 672 N.W.2d 792, 796 (Iowa

2003)). We do not review claims of ineffective assistance of counsel on direct

appeal. Iowa Code § 814.7 (2022); State v. Tucker, 959 N.W.2d 140, 152–53 (Iowa

2021).

III. Analysis.

Tucker presents two constitutional arguments and three evidentiary

grounds for his appeal. On the constitutional front, he initially claims a violation

of his right under the Iowa Constitution to have his jury drawn from a fair cross

section of Polk County. He also claims ineffective assistance of trial counsel.

Tucker then makes three evidentiary arguments. First, Tucker argues the district

court abused its discretion under Iowa Rule of Criminal Procedure 2.14(6)(c) by

excluding the QuikTrip settlement documents as a discovery sanction. Second,

Tucker argues the district court abused its discretion under the rule of 11

completeness and Iowa Rule of Evidence 5.106 by denying his request to show

the jury an unedited version of Officer Garrett’s bodycam video. Finally, Tucker

disputes the sufficiency of the evidence against him.

A. The Right to a Jury Drawn from a Fair Cross Section of the

Community. Tucker first claims a violation of his right to a jury drawn from a

fair cross section of the community under article I, section 10 of the Iowa

Constitution. See Lilly, 930 N.W.2d at 300–01. As in the court of appeals and the

district court below, Tucker’s claim turns on the third Lilly prong—causation.

See State v. Veal, 930 N.W.2d 319, 328 (Iowa 2019) (“[T]he defendant must prove

‘causation,’ that is, that the underrepresentation actually resulted from a

particular feature or features of the jury selection system.” (quoting Lilly, 930

N.W.2d at 306)).

We agree with the court of appeals and district court. Tucker failed to

causally connect any systematic underrepresentation of African-Americans in

his jury pool to any of Polk County’s jury selection processes. This failure

occurred even though the district court continued the trial so Tucker could

obtain evidence of systematic exclusion. After almost three months, Tucker

returned for trial with a single law review article that concluded racial minorities

register to vote and obtain driver’s licenses at disproportionately low rates. That

correlation by itself, cited from a decade-old law review article, fails to prove Polk

County’s jury selection processes caused systematic exclusion.

B. Ineffective-Assistance-of-Counsel Claims on Direct Appeal. Tucker

argues his trial counsel was ineffective for failing to secure testimony from a fair- 12

cross-section expert. This claim is not properly before us, as the court of appeals

recognized. Claims of ineffective assistance of counsel must now be raised in the

first instance on postconviction review. Iowa Code § 814.7; see also, e.g., State

v. Treptow, 960 N.W.2d 98, 103–08 (Iowa 2021) (upholding section 814.7 against

separation of powers, due process, and equal protection challenges). Accordingly,

we do not consider Tucker’s ineffective-assistance claim at this time. He must

wait to bring any claims of ineffective assistance in an application for

postconviction relief. See Iowa Code § 814.7.

C. Iowa Rule of Criminal Procedure 2.14 and the Settlement

Documents. Tucker next argues that, as a discovery sanction, the district court

wrongfully excluded documents evidencing his settlement payout from QuikTrip.

Tucker’s brief frames the settlement documents’ exclusion as both a violation of

his state and federal constitutional rights and an abuse of district court

discretion. We begin by considering whether Tucker preserved error on the

constitutional aspects of this claim.

Litigants may not raise issues—including constitutional issues—for the

first time in an appeal. State v. Mitchell, 757 N.W.2d 431, 435 (Iowa 2008) (citing

State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997)). We follow this familiar and

fundamental rule for many reasons. For one thing, the rule helps “ensure that

the opposing party and the district court are alerted to an issue at a time when

corrective action can be taken or another alternative pursued.” Top of Iowa Coop.

v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000) (en banc). In addition,

well-reasoned appellate decisions depend on “the benefit of developed arguments 13

on both sides and lower court opinions squarely addressing the question.” Yee

v. City of Escondido, 503 U.S. 519, 538 (1992) (citing Lytle v. Household Mfg.,

Inc., 494 U.S. 545, 552 n.3 (1990)); see also Meier v. Senecaut, 641 N.W.2d 532,

537 (Iowa 2002) (citing Yee, 503 U.S. at 538).

Here, we agree with the court of appeals that Tucker did not preserve error

on the constitutional dimension of this claim. Tucker failed to lodge any

constitutional objections. Once the State motioned to exclude the settlement

documents, Tucker’s attorney sought to excuse the late disclosure and

concluded by saying, “I don’t think it would be appropriate to exclude these

documents. Mr. Tucker has a right to put a defense on, and we would ask you

to overrule the state’s motion.” This statement does not adequately preserve error

for constitutional claims, just as a claim that a statute is unconstitutional is not

specific enough to preserve error. See State v. Hernandez-Lopez, 639 N.W.2d 226,

234 (Iowa 2002) (“[A] party challenging the constitutionality of a statute must

alert the court to what specific constitutional provisions are allegedly

compromised by the statute.”). Neither Tucker nor his lawyer specified which

constitutional rights were purportedly violated; they did not mention the State

or Federal Constitutions either. Tucker’s vague reference to the right to put on a

defense is insufficiently specific to preserve error on a claim under the Fifth

Amendment to the United States Constitution or article I, section 10 of the Iowa

Constitution.

At the same time, there are simply no rulings by the district court on any

constitutional issues that might inhere in its discovery sanctions. See Meier, 641 14

N.W.2d at 537. Neither did it consider constitutional concerns in its ultimate

reasoning about the settlement documents: only the rules of evidence and

criminal procedure were referred to in the court’s ruling. The trial was the right

time to raise any constitutional issue because the district court could have taken

corrective action. Tucker’s failure to raise a constitutional objection during the

trial, which prevented the district court from taking corrective action, belies the

existence of a constitutional violation. As a result, Tucker did not adequately

preserve error, so we decline to consider whether the discovery sanctions violated

his rights under the Fifth Amendment or article I, section 10. See Mitchell, 757

N.W.2d at 435 (refusing to consider a due process claim that the district court

never decided).

We therefore evaluate this claim as a challenge to the district court’s

evidentiary rulings. Tucker believes the district court improperly excluded

documentary evidence that he received a cash settlement from a lawsuit against

QuikTrip. He acknowledges he failed to provide the State with copies of the

documents in violation of the reciprocal discovery order and only presented the

evidence on the State’s final day of its case-in-chief. However, he insists the

district court abused its discretion by choosing to exclude the evidence instead

of admitting the evidence or granting a continuance. He argues the settlement

documents should have been admitted because they were relevant, reliable, and

only slightly prejudicial to the State.

Discovery rules and procedures for criminal cases are set out in the Iowa

Rules of Criminal Procedure. See generally Iowa R. Crim. P. 2.14 (outlining rules 15

for depositions, reciprocal discovery, continuing duties to disclose, and

regulating discovery). Importantly, the rules of criminal procedure are not

suggestions. Just as the rules of civil procedure “have the force and effect of

statute,” Van Gundy v. Van Gundy, 56 N.W.2d 43, 46 (Iowa 1952) (citing Hubbard

v. Marsh, 32 N.W.2d 67, 68 (Iowa 1948)), so do the rules of criminal procedure.

See Iowa Code chapter 813 (incorporating the rules of criminal procedure directly

into the Iowa Code). If a party violates a discovery rule or order, the court enjoys

the discretion to allow discovery, continue the proceedings, bar undisclosed

evidence, or fashion “such other order as it deems just under the circumstances.”

Iowa R. Crim. P. 2.14(6)(c).

Four considerations may guide district courts in exercising this discretion:

(1) the reason for the violation, (2) any prejudice that results from the violation,

(3) the feasibility of potential discovery sanctions, and (4) other pertinent facts

and circumstances. State v. Veal, 564 N.W.2d 797, 810–11 (Iowa 1997),

overruled in part on other grounds by State v. Hallum, 585 N.W.2d 249 (Iowa

1998), vacated by Hallum v. Iowa, 527 U.S. 1001 (1999); see also State v. Brown,

397 N.W.2d 689, 698 (Iowa 1986) (en banc) (using the four considerations to

affirm a district court’s decision not to exclude witness testimony after a

discovery violation); State v. Thompkins, 318 N.W.2d 194, 197–98 (Iowa 1982)

(setting out the four considerations later used in State v. Brown and State v.

Veal); cf. State v. Babers, 514 N.W.2d 79, 82 (Iowa 1994) (affirming a district

court ruling that considered merely a discovery violation’s circumstances and

resulting prejudice); State v. Froning, 328 N.W.2d 333, 337–38 (Iowa 1982) 16

(explaining district courts may consider the reasons for the violation and the

extent of the prejudice).

In this case, our analysis of the four considerations leads us to conclude

the district court did not abuse its discretion. Applying the Veal considerations,

we determine none weigh in Tucker’s favor.

On the first consideration, we conclude Tucker has not adequately justified

his failure to disclose the settlement documents. Throughout the pretrial

proceedings, Tucker violated both his initial and continuing reciprocal discovery

obligations to the State. See Iowa R. Crim. P. 2.14(2)–(3), (5).

In the year leading up to the trial, the State requested reciprocal discovery

multiple times. Tucker did not reciprocate with the settlement documents on any

of those occasions. When the court ordered reciprocal discovery in January

2019, Tucker failed to comply. Had Tucker been in jail, perhaps that failure

would be more understandable. But he was not. The record shows Tucker was

not in custody between September 12, 2018, and August 21, 2019. On the

morning of the original trial date, the parties made an extensive record about

Tucker’s decision to decline a plea agreement because he believed the State could

not prove he had intent to distribute. Even though the trial was scheduled to

start that day and the issue of intent loomed large, Tucker still did not disclose

the settlement documents. After the continuance for the fair-cross-section

question, Tucker continued to keep the documents close to his chest until the

final day of the State’s case-in-chief. 17

If Tucker believed the settlement documents were so important to his

defense and to attacking the State’s evidence of intent, we do not understand

why his trial attorney knew nothing about them until the second afternoon of a

three-day trial. Even more, Tucker’s brief admits fault for violating reciprocal

discovery obligations but also claims the violation resulted from “the shuffling of

files” across Tucker’s many attorneys.

We do not attribute Tucker’s failure to malice, as the dissent suggests we

do. Rather, we believe neither malice nor incompetence justify a failure to comply

with discovery rules. In light of these repeated failures to disclose the settlement

documents, we determine Tucker did not adequately justify his discovery

violation.

Likewise, the second consideration also favors the State. Tucker’s

discovery violation clearly prejudiced the State because it was not allowed

sufficient time to scrutinize the settlement documents, prepare to cross-examine

Tucker about the evidence, line up rebuttal witnesses, or formulate evidentiary

arguments, such as whether the evidence was hearsay, needlessly cumulative,

or confusing.

More importantly, the prejudice to the State would not have been easily

cured. It would have taken significant time to investigate the settlement

documents and the claims surrounding them. For example, the State might have

needed to investigate why Tucker’s newly purchased car already had license

plates, as shown in Officer Garrett’s bodycam video. It might have investigated

how Tucker purchased a car without a driver’s license since he stated it was lost 18

when he was pulled over. It also might have investigated how much the car cost

because if it cost more than $3,275 (the amount he received after costs were

subtracted from his settlement), his argument that the $650 was from his

settlement might raise an eyebrow. Additionally, the State might have also

investigated whether Tucker ever made a bank withdrawal in an amount

sufficient to pay for the car.2

These many unknowns reveal yet another way the settlement documents

would have prejudiced the State. They created significant mini-trial concerns.

Questions about the documents’ authenticity could easily have misled the jury

and confused the issues before it. See Iowa R. Evid 5.403. After all, the

settlement documents did not truly prove how Tucker came to possess $650

cash. The jury could believe Tucker received the QuikTrip settlement yet still

conclude the $650 came from drug transactions in light of the evidence

presented at trial and Tucker’s own testimony.

In comparison, several factors mitigate the prejudice that exclusion

brought on Tucker. The court allowed the jury to hear evidence about Tucker’s

QuikTrip settlement multiple times. Officer Garrett’s bodycam video included

statements by Tucker about his recent settlement. Officer Garrett testified

2The dissent takes issue with the fact these specific questions of fact are mentioned in the majority opinion because the State never mentioned them at trial. We see no problem with considering them, and we do not “conjure” them up here for the first time. The State mentioned some of them in oral argument, and it is free to do so because the discovery sanction issue was adequately preserved for our review. See Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012) (citing Jensen v. Sattler, 696 N.W.2d 582, 585 (Iowa 2005); Meier, 641 N.W.2d at 540) (“If the court’s ruling indicates that the court considered the issue and necessarily ruled on it, even if the court’s reasoning is ‘incomplete or sparse,’ the issue has been preserved.”). Parties to an appeal frequently make novel arguments on preserved issues. Indeed, such arguments are at the heart of appellate advocacy and the purpose of oral argument. 19

Tucker told him about the settlement during the traffic stop, and Tucker himself

testified about the settlement. The prosecutor also promised not to call attention

to Tucker’s failure to support his settlement testimony with documentary

evidence.

If the settlement documents had “tide-shifting potential,” as the dissent

claims, then it is only fair to presume the State deserved sufficient time to

counter them. Contrary to the claim by Tucker’s lawyer, which the dissent

quotes, it would take more than “five seconds” for the State to marshal rebuttal

evidence and witnesses. The State would need a longer continuance, not a

shorter one. And the district court, in its discretion, did not want to grant a

continuance. True, other judges might have made a different call. But differences

of opinion do not amount to abuses of discretion. See State v. Belken, 633 N.W.2d

786, 796 (Iowa 2001) (citing State v. Gates, 306 N.W.2d 720, 725 (Iowa 1981))

(“Generally, we defer to the trial court on discovery matters, absent an abuse of

discretion, because the trial court is in the best position to determine whether

prejudice resulted.”).

Third, we agree with the district court that other discovery sanctions were

not feasible. It is not clear whether a continuance would have helped remedy the

State’s prejudice. A short continuance would not have given the State time to

meaningfully investigate Tucker’s claims, yet a longer continuance might have

required a mistrial, which would be unfair when the fault lay with Tucker. In the

end, the district court chose a reasonable course. In its discretion, the court 20

issued a tailored evidentiary ruling that allowed the trial to proceed, excluded

the settlement documents, and allowed Tucker to testify about them.

Discretion means the district court may choose one among many

acceptable alternatives, so long as its choices are not clearly untenable or

unreasonable. State v. McKinley, 860 N.W.2d 874, 878 (Iowa 2015); see

Thornberry v. State Bd. of Regents, 186 N.W.2d 154, 161 (Iowa 1971) (“[W]e have

repeatedly held, ‘abuse of discretion’ means no discretion to do what was done.”).

Here, the district court reasonably concluded it would have been highly

inefficient to continue the trial. Tucker’s case had been pending for some time,

and the court did not want to disrupt a half-complete jury trial, especially one

that the district court thought was very important and had already been

continued because of Tucker’s fair-cross-section challenge. These efficiency

concerns are not clearly untenable or unreasonable. See State v. Clark, 814

N.W.2d 551, 564 (Iowa 2012) (affirming a district court’s decision not to continue

a trial when surprise evidence arose three days before the trial was set to start).

Fourth, we emphasize that the district court’s exclusion order was tailored.

The district court did not ban any or all evidence of the lawsuit settlement.

Tucker may not have been allowed to introduce the settlement documents, but

he was permitted to testify about the settlement itself. And the district court

allowed the jury to see and hear the bodycam video in which Tucker told police

the $650 came from a lawsuit settlement. We hardly think such a tailored order

sent “the exclusionary guillotine blade falling.” 21

Contrary to the dissent’s suggestion, we have not lowered our guard to

abuses of discretion to effectively automate affirmance of the district court. We

poured over the record and scrutinized the law’s application to these facts. The

outcome merely recognizes that abuses of discretion are uncommon. See

Hoekstra v. Farm Bureau Mut. Ins., 382 N.W.2d 100, 108 (Iowa 1986) (“[A]n abuse

of discretion is rarely found.”); Sullivan v. Chi. & Nw. Transp. Co., 326 N.W.2d

320, 324 (Iowa 1982) (“We have been slow to find an abuse of discretion.”).

The dissent believes the district court abused its discretion by not

pursuing alternatives to exclusion. In its view, alternatives to exclusion “would

seem to pose little obstacle” or “likely could have been completed quickly.” But

this view overlooks the daily realities district court judges face. Indeed, it fails to

consider all the other proceedings on their calendars, the lawyers’ schedules,

court reporter availability, and the demands of trial on the jurors’ time and

personal lives.

We reject the notion that the district court abused its discretion because

it could have paused the trial and summoned a legal secretary to the courthouse

in the middle of a trial. Stopping the trial to summon a surprise witness during

trial is unusual and extraordinary. It is something you might see in a courtroom

television drama, but it is not something the law requires district court judges to

do. If the district court abused discretion here, then district courts in similar

circumstances will effectively be required to pause trials because other remedies,

which are inefficient uses of court resources and jurors’ time, might be only

slightly inconvenient in the eyes of an appellate judge. 22

Last, the dissent’s citations to federal caselaw are not persuasive. Two of

the cases involve admitting evidence, not excluding it. United States v. Jumaev,

20 F.4th 518, 546–50 (10th Cir. 2021); United States v. Michalik, 5 F.4th 583,

590–91 (5th Cir. 2021). These cases affirmed district courts that admitted

untimely evidence. Jumaev, 20 F.4th at 550; Michalik, 5 F.4th at 591. However,

a more relevant federal case, not cited by the dissent, affirmed a trial court’s

ruling to exclude evidence that a criminal defendant failed to timely disclose

during reciprocal discovery. United States v. Wills, 40 F.4th 330, 337–39 (5th Cir.

2022).

Additionally, the third federal case cited by the dissent differs from

Tucker’s case in an important way. In United States v. Gray-Burriss, the D.C.

Circuit decided a district court abused its discretion in excluding exculpatory

evidence as a discovery sanction. 791 F.3d 50, 56–58 (D.C. Cir. 2015). But the

district court excluded the evidence for all purposes, including impeachment and

refreshing recollections. Id. at 57–58. In this way, the district court’s sanction

exceeded what Federal Rule of Criminal Procedure 16 allows. Id. In Tucker’s

case, the district court order complied with the text of Iowa Rule of Criminal

Procedure 2.14(6)(c) in all respects. And not only does rule 2.14(6)(c) explicitly

authorize exclusion in this case, but our caselaw also permits the district court

to exercise discretion in imposing a proper sanction. See, e.g., Belken, 633

N.W.2d at 794–97 (Iowa 2001).

D. Iowa Rule of Evidence 5.106 and the Unedited Bodycam Video.

Next, Tucker disputes the district court’s ruling to show the jury an abbreviated 23

version3 of Officer Garrett’s bodycam video. Tucker’s brief again raises

unpreserved constitutional challenges to the district court’s ruling on this point.

Consequently, and for the reasons cited in the preceding section, we evaluate

this claim as a challenge to the district court’s evidentiary rulings. See Segura,

889 N.W.2d at 219–20 (citing Meier, 641 N.W.2d at 537).

Tucker asserts the jury should have seen the entire bodycam video under

Iowa Rule of Evidence 5.106. He argues the jury saw footage of him yelling and

protesting while police searched his person, which made him look guilty, without

seeing the portion of the recording in which one officer says Tucker was once

shot by the police. Fairness, Tucker says, requires that the jury ought to have

seen the whole video.

Iowa Rule of Evidence 5.106 codified the common law doctrine of

completeness. See State v. Huser, 894 N.W.2d 472, 507 (Iowa 2017) (“The Iowa

rule is broader than the federal counterpart in Federal Rule of Evidence 106,

which applies only to all or part of writing or recorded statement. The Iowa rule

allows admission of ‘any other . . . conversation’ that meets the rule’s

requirements.”) (omission in original) (quoting Iowa R. Evid. 5.106(a)). Unlike

most evidence rules, rule 5.106 is a rule of inclusion, not exclusion. Compare

Iowa R. Evid. 5.106(a) (“[A]n adverse party may require the introduction . . . of

any other . . . act, declaration, conversation, writing, or recorded statement that

3Overall, Officer Garrett’s bodycam video was almost forty-three minutes long. The State removed approximately three minutes and five seconds of content from the video. The removed footage showed one officer identifying Tucker to another officer by saying Tucker is the man that a third officer (not present) shot. Also, the removed footage included inconsequential scenes of officers “standing around and waiting.” 24

in fairness ought to be considered at the same time.”), with id. r. 5.403 (“The

court may exclude relevant evidence if its probative value is substantially

outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading

the jury, undue delay, wasting time, or needlessly presenting cumulative

evidence.”).

Fundamentally, rule 5.106’s purpose is to prevent a party—particularly

the party that presents evidence first—from misleading juries with partial or

incomplete evidence. That evidence may take the form of actions, declarations,

conversations, writings, or recorded statements. Id. r. 5.106(a). But see Fed. R.

Evid. 106 (extending the rule of completeness only to writings and recorded

statements, not to oral statements). Rule 5.106 achieves this purpose by

accelerating the timing of a party’s right to introduce evidence. See Iowa R. Evid.

5.106. More specifically, rule 5.106 allows a second litigant to introduce

alongside supposedly partial or incomplete evidence some additional evidence

“that in fairness ought to be considered at the same time.” Id. Otherwise, the

jury would be unable to hear the additional evidence until either cross-

examination or the second litigant’s case-in-chief, which would be unfair to the

second litigant.

For example, in State v. Austin, we upheld a district court’s decision to use

rule 5.106 to admit an interview recording of a child sex abuse victim. 585

N.W.2d 241, 243–44 (Iowa 1998). The criminal defendant—the first litigant—had

used a summary of the interview, provided by the state before trial, to cross-

examine and impeach the victim. Id. Even though the defendant did not 25

introduce the summary or the interview recording itself, the state—the second

litigant—successfully invoked rule 5.106 to demand the entire interview

recording be admitted into evidence for the sake of fairness. Id. We also

emphasized the district court wields significant discretion in deciding whether

rule 5.106 applies in a particular circumstance. See id. at 244 (“The court was

well within its discretion in allowing introduction of the videotaped interview.”).

Beyond the acceleration or timing aspect of rule 5.106, it is not clear

whether the rule authorizes the admission of otherwise inadmissible evidence.

See Huser, 894 N.W.2d at 508–09 (“There is the question of whether rule 5.106

serves primarily a timing function or a trumping function.”). On that question,

we have simply said that “the rule cannot be simply used as an ‘end run around

the usual rules of admissibility.’ ” Id. at 509 (quoting United States v. Castro-

Cabrera, 534 F. Supp. 2d 1156, 1161 (C.D. Cal. 2008)). To resolve Tucker’s case

today we do not need to settle the precise contours of rule 5.106’s potential power

to authorize the admission of otherwise inadmissible evidence.

As an initial matter, we seriously doubt whether rule 5.106 even applies

in this instance. We see no incomplete or misleading evidence here that needs to

be contextualized or completed. The statement that another officer once shot

Tucker does not complete any statements or conversations in the video. In fact,

the statement, in context, comes off like a non sequitur because the officer who

said it was not responding to a question or statement by anyone else. Rather, he

was speaking, unprompted, to another officer who had just arrived at the scene.

In that context, we fail to see how the statement is one “that in fairness ought to 26

be considered at the same time” as the rest of the bodycam video. Iowa R. Evid.

5.106(a).

Yet even if the rule did apply here, Tucker could not use rule 5.106 to

introduce irrelevant evidence. Neither rule 5.106 nor the common law doctrine

of completeness can trump the fundamental rule that irrelevant evidence is not

admissible. In other words, litigants simply may not use rule 5.106 or the

doctrine of completeness to circumvent relevance. Irrelevant evidence will not

further the purpose of rule 5.106 and its common law counterpart because

evidence that has no tendency to make a consequential fact more or less

probable cannot possibly supply additional information that will stop partial or

incomplete evidence from misleading or confusing the jury.

Here, we see no reason to reverse the district court’s decision to exclude

the unedited bodycam video. While reasonable minds could disagree about the

shooting’s relevance, the district court appears to have believed the impact of

previously being shot by the police would not selectively manifest itself only once

law enforcement discovered drugs during a pat-down. From that perspective, the

court concluded Tucker began yelling for help and resisting being searched

about exactly when the officers noticed a suspicious object in his

undergarments, which turned out to be marijuana, not because a police officer

once shot him. Moreover, even if the district court decided the shooting was

relevant, it was not an abuse of discretion for the district court to exclude

evidence of the shooting because “its probative value is substantially outweighed

by a danger of . . . unfair prejudice.” Iowa R. Evid. 5.403. 27

The record ultimately reinforces our conclusions. It appears Tucker raised

rule 5.106 merely to dodge the rules of evidence and the district court’s motion

in limine rulings, not to allegedly admit additional bodycam video that, in

fairness, had to be admitted to cure would-be deficiencies in the edited footage.

The edited footage was not in itself incomplete or partial such that it misled or

even confused the jury. In fact, even the edited footage contained a statement by

Tucker that someone named Scarlet shot him. In addition, the district court

believed Tucker wanted to introduce irrelevant evidence to elicit sympathy from

the jury or else show he has had prior interactions with law enforcement. We

give deference to the district court’s opinion about his motivations because it

observed Tucker, his attitude, demeanor, and body language throughout the

proceedings.

E. Sufficiency of the Evidence. Finally, Tucker claims there was

insufficient evidence for the jury to infer he had intent to deliver a controlled

substance under Iowa Code section 124.401(1)(d). Like the court of appeals, we

disagree. A rational jury could have found Tucker intended to deliver a controlled

substance. See State v. Brown, 569 N.W.2d 113, 115 (Iowa 1997) (citing State v.

Robinson, 288 N.W.2d 337, 339 (Iowa 1980)) (“In a sufficiency-of-the-evidence

challenge we review all the evidence to determine whether a rational trier of fact

could have found the defendant guilty beyond a reasonable doubt.”); see also

State v. Adams, 554 N.W.2d 686, 692 (Iowa 1996) (explaining the importance of

circumstantial evidence and inferences to prove intent). 28

The State offered a variety of evidence showing intent to deliver. Police

officers saw Tucker exchanging something with a woman in a fast-food parking

lot at about 10:30 p.m. They uncovered an amount of cash consistent with

mid-level drug dealing (mostly denominated in large bills) and found hidden in

Tucker’s underwear a quantity of marijuana consistent with mid-level drug

dealing. They also found no items for personal marijuana use. Moreover, a

rational jury could have disbelieved Tucker’s testimony that the $650 cash came

from a lawsuit settlement. Indeed, Tucker exhausted his credibility as a witness.

In front of the jury, he disobeyed multiple court orders to stand up,

manufactured a specious reason for not standing, and repeatedly defied the

district court’s motion in limine rulings. And while Tucker’s phone did not reveal

evidence of drug sales and the police found no scales or packing materials, the

jury could still have reasonably believed the weight of evidence favored guilt.

IV. Conclusion.

We affirm Tucker’s conviction for the reasons set forth in this opinion.

DECISION OF COURT OF APPEALS AND DISTRICT COURT JUDGMENT

AFFIRMED.

Waterman, Mansfield, and McDonald, JJ., join this opinion. McDermott,

J., files a dissenting opinion, in which Oxley, J., joins. May, J., takes no part. 29

#19–1919, State v. Tucker

McDERMOTT, Justice (dissenting).

Tucker argues that the district court abused its discretion when it refused

to permit him to present documents about his recent personal injury settlement

to the jury. Evidence of that settlement, he insists, would have offered the jury a

reasonable—and critical—explanation for why he had $650 in cash with him,

from a source other than the sale of drugs. What’s more, the documents would

not have required the jury to rely on Tucker’s own claims about the existence of

the settlement.

From my review of the record in this case, I agree with him. Because I

believe that the district court abused its discretion in excluding Tucker’s

settlement documents, I respectfully dissent and would remand for a new trial

in which the jury would get to see the settlement documents.

Tucker was charged with two crimes: possession of marijuana, and

possession with intent to distribute marijuana. The State’s evidence can fairly be

summarized as follows: (1) Tucker, while seated in his car, exchanged something

with a woman standing outside his window; (2) when Tucker noticed a police car

nearby, he tried to speed away; (3) after stopping Tucker’s car, police found a

single ounce of marijuana in his underwear; and (4) Tucker had $650 cash in

the car’s center console.

Tucker’s guilt on the possession charge seems indisputable; it was in his

underwear. But the possession with intent to distribute charge is a different

matter. The facts I just recited strike me as quite thin to prove beyond a 30

reasonable doubt Tucker’s intent to distribute marijuana. None of these facts

alone suffices to prove that charge. To find Tucker guilty of the distribution

charge requires, at minimum, that the jury draw several inferential

conclusions—including particularly that the $650 cash in his car came from a

drug sale. Officer Garrett testified at trial that he didn’t see what had been

exchanged at the window and couldn’t say whether Tucker might have sold drugs

or purchased them. His best hunch was that Tucker was the buyer and not the

seller. (Bodycam footage captured Garrett saying, “I’m pretty sure he just bought

it.”). The police found no evidence of packaging, weighing, or any other indicia

that often accompany drug distribution. A search of Tucker’s cell phone revealed

no evidence of drug dealing.

Against this backdrop, we consider the district court’s ruling to deny

Tucker’s attempt to introduce the settlement documents. Under the rules of

criminal procedure, defendants may seek from the State discovery materials

(documents, photos, and other tangible items) that the State intends to use at

trial or that are necessary to the preparation of the defense. Iowa R. Crim. P.

2.14(2). If the court requires the State to produce these materials, then the State

may request “reciprocal discovery” of the same sorts of materials from the

defendant. Id. at 2.14(3). In this case, the district court granted the State’s

application for reciprocal discovery and ordered Tucker to provide any such

materials before the trial.

On the second day of trial, defense counsel notified the prosecutor that he

intended to introduce a law firm’s settlement statement and enclosures as 31

evidence of Tucker’s personal injury settlement. The enclosures included an

image of a check written to Tucker for $3,923.68.

The settlement statement, signed by Tucker, is dated two days before the police

arrested him. Tucker claimed that he’d cashed the settlement check and that the

$650 was what remained of the funds after buying a car.

The State never received the documents before trial and objected to

defense counsel’s attempt to introduce them beyond the reciprocal discovery

deadline. The prosecutor argued to the district court initially that the documents

lacked foundation and that the State received “no notice of this, no opportunity

to deal with this, to look into the validity of it.”

In response, Tucker’s trial counsel, Jesse Macro, informed the court that

Tucker had provided the documents to a lawyer who had previously represented

him in the case. That prior lawyer failed to forward the documents to Macro when

he took over Tucker’s representation. Macro explained that he’d received the

settlement statement by email that morning from a secretary at the law firm that 32

represented Tucker in his personal injury case. Macro argued that the

documents presented no unfair surprise to the State and that good cause existed

to introduce them despite the reciprocal discovery violation because the State

had notice of the settlement from the moment police encountered Tucker. “This

information and the name of the lawyer comes up at the end of one of the officer’s

videos,” Macro argued, with even “one of the officers . . . talking about it.” Indeed,

at that point in the trial a police officer had already testified that Tucker told him

the $650 was from a settlement.

In response to the State’s argument about an inability to authenticate the

settlement statement, Macro said: “If the State wants to verify it, literally it took

me about five seconds to do it at lunchtime. I’m willing to -- I’m sure the secretary

is more than willing to confirm that she e-mailed it to me.” Preventing Tucker

from presenting the documents to the jury, Macro insisted, would imperil his

client’s “right to put a defense on.”

The prosecutor responded that although Macro may not have had it, the

defendant himself had known about the settlement statement for months, and

“[i]f it’s going to be an exhibit, it needed to be provided to the State in order for

the State to be able to verify the authenticity of it, to verify and to be able to -- or

to prepare for that.” The prosecutor pressed that there was no lesser remedy

“available to the Court other than exclusion.”

Iowa Rule of Criminal Procedure 2.14(6)(c) states that if a party fails to

comply with a discovery order, the court may order the delinquent party to turn

over the requested materials, grant a continuance of the trial, prohibit the party 33

from introducing the undisclosed evidence, or “enter such other order as it

deems just under the circumstances.” The district court found that Tucker failed

to timely provide the documents to the State under the reciprocal discovery order

and, citing to rule 2.14(6)(c), prohibited Tucker from introducing the exhibit at

trial. The district court noted that Tucker would not be prevented from testifying

about the settlement itself (although not about the settlement documents) if he

chose to testify.

The trial proceeded without the exhibit. Tucker ultimately took the stand

and testified about the settlement and his claim about the source of the $650.

The jury convicted him of possessing marijuana with the intent to distribute it.

Tucker argues in this appeal that the trial court erred in choosing to

exclude the exhibit over other options it possessed. In evaluating the appropriate

sanction for a party’s violation of a duty to timely turn over discovery materials,

“the trial court must consider: ‘(1) the circumstances surrounding the violation;

(2) the prejudice, if any, resulting from the violation; (3) the feasibility of curing

any prejudice; and (4) any other relevant consideration.’ ” State v. Veal, 564

N.W.2d 797, 811 (Iowa 1997) (quoting State v. Brown, 397 N.W.2d 689, 698 (Iowa

1986) (en banc)), overruled in part on other grounds by State v. Hallum, 585

N.W.2d 249 (Iowa 1998), vacated by Hallum v. Iowa, 527 U.S. 1001 (1999). The

majority opinion’s discussion of these four considerations strikes me as

incomplete, and the final tally seems to me far from the rout that the majority

presents. 34

As to the first consideration (the circumstances surrounding the violation),

although the disclosure was unquestionably late, there’s no evidence that the

settlement statement was intentionally withheld until trial. Late disclosure,

without more, isn’t enough to draw that conclusion. The court docket confirms

that several lawyers represented Tucker at different points in his case. Macro’s

statement that one of the prior lawyers dropped the ball in forwarding the

documents to Macro seems to me perfectly plausible. There is little in this record

to conclude the late disclosure was some strategic scheme to gain an unfair

advantage. As Hanlon’s Razor suggests, we should not attribute to malice that

which is adequately explained by incompetence.

And what’s more, the majority trains considerable fire on Tucker

personally for the failure to disclose. But there’s little to suggest that fault resides

with him. Tucker provided the documents to his prior lawyer, as he should have

done. Rebuking Tucker because his lawyer apparently bungled the transfer of

the file to another lawyer misplaces blame. Like most represented parties, Tucker

could reasonably have expected that his lawyers would successfully transfer his

file and handle turning over any documents, as necessary, that he had provided

them. The majority’s finding that Tucker has supplied inadequate justification

for the late disclosure both discounts too much and assumes too much. The

majority punctuates its analysis with the alarming assertion that “neither malice

nor incompetence justify a failure to comply with discovery rules,” evoking tones

of strict liability in an area in which, up to now, we’ve pursued a measured

consideration of the circumstances. 35

As to the second consideration (prejudice resulting from the violation), the

State argued very little at the district court hearing about any actual prejudice

that would result from the late disclosure. The majority surmises that the State

might have been prejudiced because it wouldn’t have had time to “scrutinize the

settlement documents, prepare to cross-examine Tucker about the evidence, line

up rebuttal witnesses, or formulate evidentiary arguments.” Or that prejudice

wouldn’t have been easily cured because “the State might have needed to

investigate why Tucker’s newly purchased car already had license plates” or “how

Tucker purchased a car without a driver’s license since he stated it was lost

when he was pulled over.” But the State, for its part, articulated none of these

concerns in its argument to the district court. It’s not for us on appeal to conjure

potential ways that the State might have been prejudiced when the State never

presented them to the district court.

As an initial matter, it could come as no surprise that Tucker would seek

to introduce evidence of his personal injury settlement to rebut the State’s

accusation that the $650 was drug proceeds. Tucker’s assertion that the money

came from a personal injury settlement was discussed at the initial traffic stop

that gives rise to this case. The discussion of the settlement, and even the name

of the lawyer that represented Tucker in that settlement, is memorialized in the

police video of his arrest. In the State’s case-in-chief, a police officer on direct

examination testified that Tucker mentioned the settlement check when

questioned about the source of the cash in his car. Perhaps conceding its own

prior knowledge of the personal injury settlement, the State centered its 36

argument to the district court on needing to exclude the late-disclosed exhibit

based on an inability to verify authenticity and lay foundation for its admission.

Although these concerns are important, the type of prejudice they created didn’t

present much of an obstacle to overcome.

On that subject, as to the third consideration (the feasibility of curing the

prejudice), remedies posing minimal disruption or delay to the trial were

available. Macro made clear that he received the settlement statement that

morning directly from a secretary at the law firm that issued it. For the State to

contact the secretary by phone at the law firm to verify the document’s

authenticity probably could have been completed in under an hour. The district

court could have paused the trial briefly to give the State time to authenticate it.

And since both the law firm and the courthouse were in the same city (Des

Moines), having the secretary come to court to lay foundation as custodian of the

settlement statement similarly would seem to pose little obstacle.

The settlement statement was a standard piece of correspondence of the

type commonly issued by a law firm to a client after a settlement and is a

business record excepted from hearsay exclusion under Iowa Rule of Evidence

5.803(6). See United States v. Vacca, 431 F. Supp. 807, 811–12 (E.D. Pa. 1977)

(holding that a settlement sheet prepared by a lawyer referring to the sale of

property and an associated canceled check made out to the defendant as a

finder’s fee had been properly admitted into evidence as a business record under

the federal counterpart (rule 803(6))). Testimony to establish foundation for the

document likely could have been completed quickly. In short, curing the 37

problems that the State noted because of the late disclosure—with a short

continuance and minimal hassle—appears to have been eminently feasible. See

Whitley v. C.R. Pharmacy Serv., Inc., 816 N.W.2d 378, 389 (Iowa 2012)

(describing a continuance as “a traditional remedy used by courts when evidence

is not disclosed until trial”).

And as to the fourth consideration (any other relevant consideration), we

have the tide-shifting potential of the settlement documents on the State’s intent-

to-distribute charge. The documents—and in particular, the enclosed check in

the amount of $3,923.68 made out to Tucker—were the only evidence beyond

Tucker’s own say-so available to support his claim about the source of the cash

in his car. As the court of appeals noted, this evidence contradicted the

“lynchpin” of the State’s case. It might well have negated in the jurors’ minds the

State’s key contention on the intent-to-distribute charge: that the $650 came

from a drug sale.

Tucker’s only tangible evidence to challenge the assumption about the

source of the cash was this exhibit. Tucker’s own credibility had already been

undermined by his testimony about the source of the ounce of marijuana in his

underwear. We could reasonably expect the law firm’s records to carry more

probative value with the jury than a defendant’s own uncorroborated, self-

serving testimony. See United States v. Gray-Burriss, 791 F.3d 50, 56

(D.C. Cir. 2015) (finding that the defendant’s defense to embezzlement charges

“would have been considerably strengthened by proof of an executed

agreement—signed by four union leaders—increasing his salary,” which the trial 38

court had suppressed). Tucker was prejudiced by the exhibit’s exclusion. The

majority opinion suggests no disagreement with Tucker’s claim that the

suppressed exhibit had potentially momentous probative value; indeed, it’s a

point implicitly conceded by the majority’s assertion that the State would have

needed time to load for bear to counter it.

Our court has long recognized exclusion of a criminal defendant’s evidence

as a sanction of last resort. In State v. Marchellino, we addressed a discovery

sanction against a criminal defendant under then-rule 12(3) (now rule 2.13(3)).

304 N.W.2d 252, 253 (Iowa 1981), superseded by rule, Iowa R. Crim. P. 12(4)

(now rule 2.13(4)), as recognized in State v. Babers, 514 N.W.2d 79 (Iowa 1994).

In that case, the defendant failed to notify the state of a witness that the defense

expected to call. Id. The district court refused to allow the witness to testify. Id.

We reversed the conviction and ordered a new trial, holding that excluding the

witness wasn’t an appropriate sanction, in part, because the rule at the time

didn’t specifically list exclusion as a sanction (rather, it gave the district court

discretion to “proceed ‘in any lawful manner’ ”). Id. at 256 (quoting Iowa R. Crim.

P. 29(2) (now rule 2.35(2))).

But we went further, warning against sanctions for discovery violations

that might impair a criminal defendant’s presentation of evidence:

The court should, after hearing, select an alternative which will encourage compliance with the rules, yet result in a minimum restraint on the presentation of evidence; radical surgery should not be performed on the defendant’s case if conservative therapy will bring about a cure. Because discovery standards are designed to implement, not to impede, fair and speedy determinations of cases, it is suggested “that the court should seek to apply sanctions which 39

affect the evidence at trial and the merits of the case as little as possible . . . .”

Id. at 257 (quoting Standards for Criminal Justice, Discovery and Procedure

Before Trial § 5.1, Commentary, at 108 (Am. Bar Ass’n 1970) [hereinafter ABA

Discovery and Procedure Standards]) (omission in original).

The sanction of exclusion in this type of case is best employed as a tool to

eliminate an improperly obtained advantage. A number of federal circuit courts

addressing challenges to excluded evidence under an analogous federal rule,

Federal Rule of Criminal Procedure 16, have said that excluding evidence for a

discovery violation in a criminal case should be reserved for instances of bad

faith or willful misconduct. For instance, in United States v. Michalik, 5 F.4th

583, 591 (5th Cir. 2021), the United States Court of Appeals for the Fifth Circuit

said that “where a party did not act with ‘an improper motive, it is rare to

sanction a party in a method as draconian as suppressing the evidence.’ ”

(quoting United States v. Ortiz, 213 F. App’x 312, 315 (5th Cir. 2007) (per

curiam)).

In United States v. Jumaev, 20 F.4th 518, 547 (10th Cir. 2021), the Tenth

Circuit observed: “[W]e have instructed that ‘[t]he court should impose the least

severe sanction that will accomplish prompt and full compliance with’ the

violated discovery requirement. ‘The preferred sanction is a continuance.’ ‘It

would be a rare case where, absent bad faith, a district court should exclude

evidence rather than continue the proceedings.’ ” (second alteration in original)

(citations omitted) (first quoting United States v. Gonzales, 164 F.3d 1285, 1292 40

(10th Cir. 1999); then quoting United States v. Golyansky, 291 F.3d 1245, 1249

(10th Cir. 2002)).

And in United States v. Gray-Burriss, the D.C. Circuit held that exclusion

of the defendant’s evidence “was too severe a sanction” even when disclosed well

past its due date, during the second week of trial. 791 F.3d at 56. The court

reached this conclusion because the evidence “was potentially a significant piece

of exculpatory evidence,” the government didn’t identify how it was prejudiced

by the defendant’s use of the exhibit, and the evidence was not withheld in bad

faith. Id. The majority attempts to distinguish Gray-Burriss because the trial

court in that case excluded the evidence for all purposes, while in this case

Tucker was only prevented from introducing the documents themselves. But this

misses the point.

Most relevant here, “although Rule 16 gives trial judges the option of suppressing evidence as a result of [a party’s] discovery violations[,] such a severe sanction would seldom be appropriate where . . . the trial court finds that [the party’s] violation did not result from its bad faith and that a less drastic remedy (such as a continuance) will mitigate any unfair prejudice.”

Id. at 55–56 (first and third alterations and omission in original) (quoting United

States v. Marshall, 132 F.3d 63, 70 (D.C. Cir. 1998)). An absence of bad faith

“takes on greater significance,” according to the court, “when, as here, the

evidence is exculpatory on its face and there is no showing of prejudice.” Id. at

56–57.

The majority stresses the deferential standard of review that applies to the

district court’s decision in this case. And indeed, on the continuum of standards

that a party must overcome to establish that a judge made an error, the “abuse 41

of discretion” standard undeniably falls on the hard-to-show end. But we

nonetheless maintain an obligation to carefully examine the district court’s

reasoning even when the court is granted a large dose of leeway in making a

decision. An appellate court can’t lower its guard and allow an abuse-of-

discretion standard to effectively automate an affirmance. Anything less risks

setting the line for a challenger to rise above in abuse-of-discretion challenges

by painting the line on the ceiling.

We generally confront the types of mistakes that we’ll tolerate in criminal

litigation aiming to minimize the prospect of a wrongful conviction. This choice

reflects, in some measure at least, the “fundamental value determination of our

society that it is far worse to convict an innocent man than to let a guilty man

go free.” Schlup v. Delo, 513 U.S. 298, 325 (1995) (quoting In re Winship, 397

U.S. 358, 372 (1970) (Harlan, J., concurring)).4 The process is designed, in many

significant respects, to err on the side of protecting innocence.5

To be sure, the rules of criminal procedure “are not suggestions,” as the

majority declares. But that statement obscures the sensitive task required in

4Oras Blackstone famously expressed this principle (with a much higher ratio): “[B]etter that ten guilty persons escape than that one innocent suffer.” 4 William Blackstone, Commentaries *358. 5For instance, in all state and federal courts, felony criminal convictions require a unanimous jury verdict. See Ramos v. Louisana, 140 S. Ct. 1390, 1402 (2020). In all criminal appeals, the basic principle prevails that defendants may appeal convictions, but the government may not appeal acquittals. See Fong Foo v. United States, 369 U.S. 141, 142–43 (1962) (per curiam); State v. Kessler, 213 N.W.2d 671, 672 (Iowa 1973) (per curiam). Unlike civil cases, in which lawyers pursue results advantageous to their own client, in criminal cases the primary duty of the government’s lawyer is not to convict, but “to seek justice within the bounds of the law.” Criminal Justice Standards for the Prosecution Function, Standard 3–1.2 (Am. Bar Ass’n 4th ed. 2017). Prosecutors are even obligated to coordinate with their own agents and other agencies to follow up on evidentiary leads even when they believe that the resulting information will harm their case. Id. Standard 3–5.4. Other examples abound. 42

this particular case. The late disclosure of a document doesn’t automatically

send the exclusionary guillotine blade falling. Proper application of the four

considerations that we require district courts to assess in deciding the sanction

in these circumstances is vital. And as we made clear over forty years ago in

Marchellino, the court’s choice of sanction in a criminal case should, whenever

possible, seek to “affect the evidence at trial and the merits of the case as little

as possible.” 304 N.W.2d at 257 (quoting ABA Discovery and Procedure

Standards § 5.1, Commentary, at 108).

The district court, in my view, failed in that task in this case, unreasonably

exercising its discretion to sanction Tucker with exclusion when less drastic

cures were available that would have permitted the jury to see and consider this

important exculpatory evidence. Because Tucker was prejudiced by the trial

court’s decision to exclude this evidence, he should be granted a new trial.

Oxley, J., joins this dissent.