State of Iowa v. Shewarence D. Gibbs

IN THE COURT OF APPEALS OF IOWA

No. 22-0006
Filed January 11, 2023

STATE OF IOWA,
Plaintiff-Appellee,

vs.

SHEWARENCE D. GIBBS,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Russell G. Keast,

District Associate Judge.

The defendant appeals his convictions of assault causing bodily injury

(domestic abuse with penalty enhanced) and harassment in the third degree.

DISTRICT COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN

PART; CASE REMANDED WITH DIRECTIONS.

Martha J. Lucey, State Appellate Defender, and Josh Irwin, Assistant

Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.

Considered by Vaitheswaran, P.J., Ahlers, J., and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023).
2

BLANE, Senior Judge.

I. Introduction.

The State charged Shewarence Gibbs with assault causing bodily injury

(domestic abuse with penalty enhanced) in violation of Iowa Code section

708.2A(3)(b) (2021), and harassment in the first degree in violation of Iowa Code

sections 708.7(1)(b) and 708.7(2)(a)(1). He pled not guilty, and trial was held on

November 22 and 23, 2021. The jury returned guilty verdicts, on count I, for assault

causing bodily injury (domestic abuse with penalty enhanced),1 and, on count II,

for the lesser-included offense of harassment in the third degree.2 After the court

denied Gibbs’ motion for new trial, it sentenced him to 150 days jail, with all but

thirty days suspended, a two-year term of supervised probation, fines of $855 on

count I and $105 on count II, a crime services surcharge of 15%, and a domestic

abuse surcharge of $90.

Gibbs appeals his convictions. He argues the district court erred by

excusing a potential juror for cause when the State did not establish a qualifying

basis, denying Gibbs’ motion for mistrial based on the prosecutor’s comments

during closing argument, submitting a verdict-urging instruction to the jury, and

applying the wrong standard in denying Gibbs’ motion for new trial. We affirm in

part, reverse in part, and remand with directions.

As this appeal concerns primarily issues involving trial proceedings, the

background facts and proceedings will be set forth under each division.

1 Gibbs stipulated to his prior conviction for domestic abuse assault and imposition
of the enhancement.
2 The supreme court granted Gibbs’ application for discretionary review of this

simple misdemeanor conviction. See Iowa Code § 814.6(2)(d).
3

II. Analysis.

A. Excusing potential juror.

During jury selection, a potential juror disclosed he had been represented

by Gibbs’ defense counsel seven years earlier on a charge of domestic abuse

assault, which was resolved by a guilty plea. The State moved to strike for cause

based on “the prior relationship with [defense counsel] and the important nature of

that representation” and the potential juror’s “reservations about being able to find

guilty or not guilty in a case like this similar to the situation of his own.” Defense

counsel resisted arguing that the potential juror said he would render a verdict and

would “do his best to be a good juror.” The court granted the State’s motion

because of defense counsel’s representation of the potential juror in a similar case

that gave rise to “familiarity [which] would create a prejudice to the State at the

onset and justify the challenge for cause.”3

We review a district court’s ruling on a challenge for cause for abuse of

discretion. State v. Jonas, 904 N.W.2d 566, 570–71 (Iowa 2017). “An abuse

occurs when the trial court exercises its discretion ‘on grounds or for reasons

clearly untenable or to an extent clearly unreasonable.’” State v. Tipton, 897

N.W.2d 653, 690 (Iowa 2017) (citation omitted). The district court enjoys broad

discretion in making such rulings because trial judges must rule on juror

disqualification “on the spot and in real time.” Jonas, 904 N.W.2d at 574. We

3 Although the potential juror also stated reservations about finding a person “guilty
or not guilty” in a domestic abuse case like his own and discomfort at “sealing [the
defendant’s] fate, him going to jail or not going to jail,” the court ultimately rested
its decision on the juror’s familiarity with defense counsel. So we do not discuss
his additional statements.
4

review the interpretation of Iowa Rule of Criminal Procedure 2.18 for errors at law.

State v. Mootz, 808 N.W.2d 207, 214 (Iowa 2012).

Gibbs argues rule 2.18(5) lists the grounds to excuse a potential juror for

cause and neither prior representation by the defendant’s attorney nor previously

being charged with a similar crime constitute cause to excuse a potential juror

under rules 2.18(5)(k) and (m). The State contends the record supports the court

excusing the panelist for cause under rule 2.18(5)(k), excusing jurors who have

already formed an opinion.4

There appears to be conflicting authority on whether the challenge should

have been granted. Compare State v. Wright, 182 N.W. 385 (Iowa 1921) (trial

court did not err in overruling a challenge for cause where it appeared on

examination by defendant’s counsel that juror was a client of one of the attorneys

for the prosecution, and was then in his employ, although defendant’s peremptory

challenges were already exhausted) and State v. Hatter, 381 N.W.2d 370 (Iowa

Ct. App. 1985) (trial court should have sustained challenge for cause in

prosecution for first-degree kidnapping and sexual abuse to juror who was rape

victim, even though juror did not clearly file criminal complaint so as to be subject

4 Rule 2.18(5) provides a “challenge for cause may be made . . . for any of the
following cases” and includes:
k. Having formed or expressed such an opinion as to the guilt
or innocence of the defendant as would prevent the juror from
rendering a true verdict upon the evidence submitted on the trial[, or]
....
m. Because the juror is a defendant in a similar indictment, or
complainant against the defendant or any other person indicted for a
similar offense.
5

to challenge for cause under rule [Iowa Court Rule § 813.2, then rule 17.5(m)]

permitting challenge to complainant on similar offense.).

Still, a defendant must not only establish the court erred in granting a motion

to excuse for cause, but must also prove such ruling prejudiced the defendant.

Summy v. City of Des Moines, 708 N.W.2d 333, 339 (Iowa 2006), overruled on

other grounds by Alcala v. Marriott Int’l Inc., 880 N.W.2d 699, 708 n.3 (Iowa 2016)

(“We do not presume prejudice when the erroneous exclusion of a juror occurs.”).

To establish prejudice Gibbs must show that a juror who was not impartial and

competent was empaneled instead of the excused venireman. Id. (“A party

claiming prejudice must establish that the resulting jury was not impartial and

competent . . . . Prejudice from the erroneous exclusion of a juror will not be

presumed.”). Our court has applied this holding in numerous cases. See, e.g.,

State v. Booker, No 20-1551, 2022 WL 468725, at *4 (Iowa Ct. App. Feb. 16,

2022); State v. McCunn, No. 19-1649, 2022 WL 468736, at *7–8 (Iowa Ct. App.

Feb. 16, 2022) (“After [State v.] Neuendorf [509 N.W.2d 743, 747 (Iowa 1993)], the

presumption of prejudice no longer applies; the defendant must show (1) an error

in the court’s ruling on the challenge for cause; and (2) either (a) the challenged

juror served on the jury, or (b) the remaining jury was biased as a result of the

defendant’s use of all of the peremptory challenges.”(citation omitted)); State v.

Morrow, No. 14-2126, 2016 WL 3003355, at *3 (Iowa Ct. App. May 25, 2016).

Gibbs fails to show the requisite prejudice.

Recognizing this is the case, Gibbs takes his argument one step further.

Citing Mootz, he argues, “This Court should reconsider that [prejudice] approach”

and asks the court to “hold that prejudice results when a district court erroneously
6

dismisses a potential juror for cause, because the State is effectively granted more

power than the defendant to shape the jury through the use of peremptory strikes.”

However, we have found, “As an intermediate appellate court . . . we must follow

the precedents of the Iowa Supreme Court.” State v. Beck, 854 N.W.2d 56, 64

(Iowa Ct. App. 2014). Gibbs has not established the prejudice requirement and

thus has not established an abuse of discretion by the trial court.

B. Motion for mistrial.

During closing argument, the prosecutor argued that Gibbs had not called

witnesses to corroborate his testimony of what happened. Defense counsel

objected that the argument impermissibly shifted the burden of proof, and the court

sustained the objection. When argument resumed the prosecutor again pointed

to the lack of corroborating testimony. Gibbs’ counsel objected a second time.

The court excused the jury, and Gibbs’ counsel moved for a mistrial. The court

confirmed its earlier ruling that it was “inappropriate for the State to comment on

the lack of evidence produced by the defendant” but denied the motion for mistrial

stating, “the comments are minimal and the Court will address those comments

with the jury and remind the jury the burden remains on the State the entire time.”

The prosecutor asked if he could argue that there was no evidence corroborating

Gibbs’ testimony, and the court responded that “[t]he State may comment on the

evidence that is presented before the jury. The State may not comment on the

evidence the defendant did not present.” When the jury returned, the prosecutor

said “[a]s I was saying, in this case there’s no other evidence that corroborates

that story. All we have is his word.”
7

We note that Gibbs’ counsel neither objected to this last comment by the

prosecutor nor renewed his motion for mistrial. Therefore, our review at this time

is limited to what transpired leading up to the court’s ruling on defense counsel’s

motion for mistrial. State v. Krogmann, 804 N.W.2d 518, 526 (Iowa 2011) (“Based

on the exchange quoted above, the district court had no reason to believe that

[defendant] wanted anything further done with respect to the prosecutor’s improper

question.”).

Trial courts have broad discretion in ruling on claims of prosecutorial

misconduct and we review such rulings for an abuse of discretion. State v. Plain,

898 N.W.2d 801, 810–11 (Iowa 2017). We review denials of a mistrial and the

giving of a cautionary instruction for an abuse of discretion. Id. at 816.

Gibbs contends the prosecutor’s statements constituted either misconduct

or error, which mandated a mistrial, and the trial court erred in finding the

comments were not prejudicial in denying his motion for mistrial. The district court

held that the prosecutor’s two burden-shifting comments were improper. State v.

Hanes, 790 N.W.2d 545, 556 (Iowa 2010) (“It is improper for the State to shift the

burden to the defense by suggesting the defense could have called additional

witnesses.”).

Assuming the prosecutor’s conduct was objectionable, to be a basis for

mistrial the conduct must be “so prejudicial that its effect upon the jury could not

be erased by the trial court’s admonition.” State v. Christensen, 929 N.W.2d 646,

659 (Iowa 2019). The conduct must be “so prejudicial as to deprive the defendant

of a fair trial.” State v. Bowers, 656 N.W.2d 349, 355 (Iowa 2002) (quoting State

v. Anderson, 448 N.W.2d 32, 33 (Iowa 1989)). In determining prejudice, we look
8

at several factors within the context of the entire trial. We consider “(1) the severity

and pervasiveness of the misconduct; (2) the significance of the misconduct to the

central issues in the case; (3) the strength of the State’s evidence; (4) the use of

cautionary instructions or other curative measures; and (5) the extent to which the

defense invited the misconduct.” State v. Graves, 668 N.W.2d 860, 877 (Iowa

2003).

In weighing the Graves factors, only the first four apply here. The trial judge

found the prosecutor’s objected-to comments in closing arguments to be “minimal,”

thus not severe or pervasive, or significant to the central issue. The State’s

evidence was supported by two other witnesses in addition to the complaining

witness. Finally, the court gave a curative instruction to the jury that emphasized

“the burden remains on the State the entire time” neutralizing the prosecutor’s

argument. Under this record, we find that Gibbs received a fair trial. The trial court

properly addressed the situation and determined a curative jury instruction

resolved the matter. We find no abuse of discretion.

C. Submission of a verdict-urging instruction to the jury.

After two and one-half hours of deliberations, the jury sent a note to the

court that it was deadlocked and had no hope of reaching a unanimous verdict.

The court proposed a verdict-urging instruction commonly called an “Allen

charge.”5 The State agreed while Gibbs’ counsel objected. The court overruled

the objection, submitted to the jury the verdict-urging instruction, and the jury

returned its guilty verdicts.

5That instruction is named after the United States Supreme Court case, Allen v.
United States, 164 U.S. 492 (1896).
9

“[W]e generally review a district court’s refusal to give a requested jury

instruction for errors at law; however, if the jury instruction is not required but

discretionary, we review for an abuse of discretion.” State v. Davis, 975 N.W.2d

1, 18 (Iowa 2022). As an “Allen charge” is not required, our review is for abuse of

discretion. Appellate review focuses on whether the giving of the verdict-urging

instruction was coercive under the context and circumstances based on “the

content of the verdict-urging instruction,” “the timing surrounding the verdict,” and

“responses from juror polling.” Id. Gibbs does not challenge the content. The jury

was not polled. His argument is to the timing.

Our supreme court has consistently upheld giving a verdict-urging

instruction. Most of the challenges have been to particularly coercive language,

which the court has weeded out. The “Allen charge” given in this case does not

contain the offensive language, and Gibbs does not challenge its content. Rather,

he argues the jury sent out its note to the judge that it was deadlocked after

deliberating from 10:30 a.m. to 1:00 p.m. The court held a hearing on the note at

1:36 p.m., and submitted the verdict-urging instruction. The jury returned its verdict

at 2:30 p.m., showing the jury deliberated for another forty-five or so minutes. This

would be about another third of the original time spent deliberating. We may

consider “the ratio of ‘the time spent in deliberation before, and the deliberation

after, such an instruction was given.’” Id. at 20 (quoting State v. Pierce, 159 N.W.

1050, 1054 (Iowa 1916)). The trial consisted of testimony from four witnesses that

took only part of one day to present and ten exhibits. The issues were not complex

or complicated. As the supreme court also noted in Davis, “timeframes as short

as forty-one minutes are sufficient indicia that the jury engaged in real deliberation
10

of the case” after the verdict-urging instruction. Id. at 19–20. Considering these

facts, we do not find that giving the verdict-urging instruction was coercive. The

court did not abuse its discretion in submitting that instruction to the jury.

D. Motion for new trial.

Gibbs filed a motion for new trial, asserting that “the verdict was contrary to

the law and evidence” and that he had not received a fair trial due to the

prosecutor’s statements during closing argument. At the hearing on the motion,

Gibbs’ counsel, in addition to the issues raised in the filed motion, argued the court

had erred by providing the jury with a verdict-urging instruction. The court denied

Gibbs’ motion for new trial stating “the evidence as presented to the jury did provide

substantial evidence upon which . . . the jury could enter verdicts of guilt in this

matter on all arguments made.” “[W]e review a claim that the district court failed

to apply the proper standard in ruling on a motion for new trial for errors at law.”

State v. Ary, 877 N.W.2d 686, 706 (Iowa 2016).

Gibbs argues that the district court in ruling on his motion for new trial

applied a substantial-evidence standard instead of the weight-of-the-evidence

standard. The weight-of-the-evidence analysis is broader than a sufficiency-of-

the-evidence analysis as “‘it involves questions of credibility and refers to a

determination that more credible evidence supports one side than the other.’”

State v. Maxwell, 743 N.W.2d 185, 193 (Iowa 2008) (quoting State v. Nitcher, 720

N.W.2d 547, 559 (Iowa 2006)).

The State concedes in its brief that the district court applied the incorrect

standard in addressing Gibbs’ motion for new trial and we “should reverse the

ruling on Gibbs’ weight-of-the-evidence challenge in his motion for new trial, and
11

remand for the district court to rule on that challenge by applying the weight-of-the-

evidence standard.” Upon our review, we agree with both Gibbs and the State and

remand to the district court to address Gibbs’ motion for new trial applying the

appropriate legal standard.

III. Conclusion.

The district court did not abuse its discretion in excusing a potential juror,

denying Gibbs’ motion for mistrial, and submitting a verdict-urging instruction to

the jury. But we do find an incorrect standard was used in ruling on Gibbs’ motion

for new trial and remand the case to the district court to address that motion

applying the correct weight-of-the-evidence standard.

DISTRICT COURT JUDGMENT AFFIRMED IN PART AND REVERSED

IN PART; CASE REMANDED WITH DIRECTIONS.