IN THE COURT OF APPEALS OF IOWA
No. 16-2195
Filed July 18, 2018
TRAMARUS DEONTE DIXON,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Bradley J.
Harris, Judge.
Applicant appeals from the denial of his application for postconviction relief.
REVERSED AND REMANDED.
Thomas A. Hurd of Glazebrook & Hurd, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee State.
Considered by Danilson, C.J., and Mullins and McDonald, JJ.
2
MCDONALD, Judge.
Tramarus Dixon was charged with two counts of robbery in the first degree.
He was convicted on one count and was acquitted of the other. On direct appeal,
this court affirmed his conviction. See State v. Dixon, No. 12-1873, 2013 WL
6405781, at *1–3 (Iowa Ct. App. Dec. 5, 2013). In this case, Dixon appeals from
the denial of his application for postconviction relief.
The facts and circumstances surrounding the offense were set forth in our
prior opinion:
Waterloo resident Melvin Sickels was walking his dog on the
night of January 26, 2009, when a car parked by the Motel 6 on
Logan Avenue raised his suspicions. He watched two men exit the
back seat, cross the street, and go into the motel, while the driver
waited in the car. The third man stood outside the car for a little while
and then returned to the driver’s seat. Sickels “called the police to
see if they’d come check and just see if everything was ok.” While
on the phone with the police, he saw two men run from the motel and
jump into the car, which sped east on Ralston Road.
About the same time Waterloo Police Officer Lisa Campbell
was driving by the Motel 6 on her way to work. She saw a car parked
at the corner of Logan Avenue and Ralston Road and noticed its
brake lights came on. When she later looked at a photograph of the
Dixon’s car, she believed the lights looked the same.
Joel Johnson was working the front desk of the Motel 6 that
night. At 10:15 p.m. two men entered the motel wearing masks over
their faces and pointed a gun at him. Johnson, who was very familiar
with guns, identified the weapon as a 9 millimeter semiautomatic
black handgun with a silver handle. The two men hopped over the
counter. One held the gun behind Johnson’s head and instructed
him to open the cash drawer. Johnson said the motel generally
keeps less than $200 on hand. The two men stuffed the money from
the drawer into bank deposit bags, each of which was labeled with a
motel employee’s name. The robbers then asked Johnson where
the safe was. When Johnson told them the motel did not have a
safe, the armed man struck him on the side of the head with the gun.
The two robbers then ran out of the motel with the money. Johnson
called 911.
When the police arrived, Johnson gave them a physical
description of the two men. Johnson first described the shorter of
the two men, recalling he wore blue jeans, a black sweatshirt, a red
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mask, and Nike sneakers with a blue and black insignia on them.
Johnson described the armed man as taller, wearing a blue mask, a
dark pullover sweatshirt, blue jeans, and Nike sneakers. Johnson
said both robbers wore blue gloves on their hands.
Sickels told police the car which caught his attention was a
dark colored four-door sedan. Officer Campbell said the car she saw
matched Sickels’s description. Police searched the surrounding
neighborhoods for the sedan. Officer Aaron McClelland followed
Ralston Road and then took Lakeside Street to Niles Street where
another officer had discovered a light blue glove discarded in the
intersection.
Officer McClelland spotted a blue Chevy Lumina parked in the
4000 block of Niles Street. McClelland questioned the three
occupants of the Lumina but did not find any evidence of the robbery.
Parked in the nearby driveway of 4039 Niles, Officer McClelland
noticed a green Pontiac Bonneville. He touched the car’s hood and
found it still warm to the touch. When McClelland shined his
flashlight into the Bonneville, he saw a semiautomatic handgun in
plain view on the back seat.
The driver of the Lumina also directed the officers to the house
at 4039 Niles. When Officer McClelland and Sergeant Monty Frana
knocked on the door, it was answered by an elderly woman named
Annie Davis. Davis, who is Dixon’s grandmother, initially told the
police no one else was in her house. When the officers told Davis
about the robbery and seeing the gun in the Bonneville, she said:
“I’m going to tell you the truth. They’re in the back bedroom.”
The officers entered and in the back bedroom found three
men identified as Jamarus Wise, Tramarus Dixon, and Orentheo
Campbell. The police discovered a fourth man, Malcolm Leflore, in
the bathroom, where he told police he was hiding because he
possessed marijuana. In patting down Wise, police found $215. The
officers failed to secure the cash, leaving it on the bed in the back
bedroom where Dixon remained separated from his companions.
During the investigation, police allowed Antoinette Davis,
Dixon’s mother, into the house to assist her elderly mother, Annie
Davis. Antoinette told the police Dixon suffered a knee injury and the
pain caused him to pass out, though no one else saw this occur.
Police allowed Antoinette to take her son to the hospital. After
Antoinette and Dixon left the back bedroom of the house, police
could not locate the $215 seized from Wise.
The State presented evidence that Dixon did not go straight
to the hospital. While he left the house around midnight, he did not
arrive at the emergency room until 1:04 a.m. According to hospital
records, he checked himself out against medical advice at 1:57 a.m.
without receiving any treatment. The hospital records also showed
Dixon’s home address was not 4039 Niles. Around 4 a.m., Dixon
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came to the police station where he was interviewed for about forty
minutes.
In their search of the Davis home, officers found a blue latex
glove in a box in the living room which was “identical” to the glove
found in the street on the route from the motel. They also found a
black hooded sweatshirt in the back bedroom, as well as a pair of Air
Jordan athletic shoes which appeared to have been tossed down the
basement steps. The police obtained a search warrant for the
Bonneville, which was registered to Dixon’s mother. Inside the car
officers found the handgun, blue latex gloves, a black hat, and other
clothing. They also located Dixon’s school ID, cell phone, bank
statement, and insurance records inside the car.
The police found four empty deposit bags matching the ones
taken from the Motel 6 in a garbage container just north of the Davis
home. In addition, police brought Johnson to the house, where he
identified Wise as one of the men who robbed him.
Analysts with the Iowa Division of Criminal Investigation (DCI)
found the tread from the Bonneville’s tires to be consistent with tracks
left in the snow outside the Motel 6. They also found a shoeprint
from the area where the sedan was parked outside of the motel and
determined it was left by a shoe of similar size and tread as the Air
Jordan shoes found in the basement of 4039 Niles.
Id. at *13.
Following this court’s affirmance of his conviction, Dixon filed an application
for postconviction relief. In his application, Dixson asserted numerous claims of
ineffective assistance of counsel. We choose to focus on one of those claims. In
his application, Dixon contended his counsel provided constitutionally deficient
representation in failing to challenge for cause a juror who demonstrated the
inability to afford Dixon the presumption of innocence and to render a verdict on
the evidence presented. The postconviction court denied the claim. The court
found:
Applicant alleges that trial counsel was ineffective for failing
to request that two jurors be removed for cause. Both jurors made
comments during jury selection that they believed defendant should
present evidence tending to prove that he is not guilty. One juror
specifically stated that because defendant was late for trial, the
burden shifted to that defendant.
5
Trial counsel testified at hearing for post-conviction relief that
when jurors make similar statements to those made by the jurors in
question in this case, he questions those jurors before the other
prospective jurors in an attempt to make an example of their
statements. A review of the record in this matter shows that trial
counsel did question the proposed jurors regarding their statements.
These jurors were later removed by trial counsel through the use of
strikes.
This court finds that the trial strategy employed by trial counsel
was reasonable under the prevailing professional norms considering
the circumstances. Post-conviction relief is not appropriate given the
actions of trial counsel.
The defendant and the State agree the district court erred in finding both of the
jurors were removed via the exercise of peremptory strikes. The defendant and
the State agree one of the challenged jurors, juror M.H., did in fact serve on the
jury. They disagree, however, on whether Dixon has a viable claim of ineffective
assistance of counsel.
We review ineffective-assistance claims de novo. See State v. Straw, 709
N.W.2d 128, 133 (Iowa 2006). Generally, to establish a claim of ineffective
assistance of counsel a defendant must show “(1) his trial counsel failed to perform
an essential duty, and (2) this failure resulted in prejudice.” Id. The defendant
must prove both elements by a preponderance of the evidence. See State v.
Madsen, 813 N.W.2d 714, 723 (Iowa 2012). To show a breach of an essential
duty, the defendant must establish “the attorney performed below the standard
demanded of a reasonably competent attorney.” Ledezma v. State, 626 N.W.2d
134, 142 (Iowa 2001). The attorney’s performance is measured against “prevailing
professional norms,” and it is presumed the attorney performed competently. Id.
“Prejudice exists if there is a reasonable probability that, but for counsel’s
6
unprofessional errors, the result of the proceeding would have been different.”
Madsen, 813 N.W.2d at 727. “A reasonable probability means a substantial, not
just conceivable, likelihood of a different result.” Id. The failure to prove either
element is fatal to the claim. See State v. Graves, 668 N.W.2d 860, 869 (Iowa
2003).
In defense of the district court’s judgment, the State first contends Dixon did
not preserve this issue for appellate review. Specifically, the State contends Dixon
had an obligation to file a motion pursuant to Rule 1.904 to attempt to correct the
district court’s admittedly erroneous finding that juror M.H. did not serve on the
jury. We disagree. For the purposes of error preservation, “[i]f 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.”
Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012). Here, the district court
considered the issue presented. It just made an erroneous finding. While it might
have been advisable for the defendant to file a Rule 1.904 motion to give the district
court the opportunity to correct the finding, it was not necessary to preserve error.
We thus turn to the merits of the defendant’s claim.
We first consider whether Dixon proved his counsel breached a
fundamental duty in failing to challenge juror M.H. During the course of voir dire,
it became apparent juror M.H. had strong views regarding the burden of proof and
the defendant’s guilt. In particular, juror M.H. believed the defendant was guilty
unless the defendant proved otherwise. Juror M.H. held this belief because the
defendant returned a few minutes late from a recess.
7
Defense Counsel: So as a juror even if you felt that they did
everything they possibly could, there were some mistakes along the
way, but they just fell short and weren’t able to cross the gulf of
reasonable doubt, just because Mr. Dalrymple chose to prosecute
Mr. Dixon on behalf of the state, and just because you really like Mr.
Dalrymple, does that mean he somehow has to prove less to you?
Juror M.H.: No, he’s got to prove—you’ve got to do your part to prove
to me he’s not guilty where he has to prove he is.
The questioning continued:
Defense Counsel: Well you heard me ask [another
prospective juror], we had this conversation back and forth, we were
talking about whether or not Mr. Dixon has to prove anything and she
kind of responded to me well both of you have to prove something,
the state as well as Mr. Dixon. Juror M.H.: Well I agree. He has to
prove to you and you’ve got to prove to me that he is not guilty.
Q: Okay. A: And if you can’t do it, then he’s guilty in my book.
Q: Okay. A: I mean that’s the way my mind has always been.
Q: And I’m going to ask you the same question I asked [the
other prospective juror]. Okay? You may believe that as you sit
there in the chair right now; right? A: Right.
Q: And obviously you do because you just told me that; right?
But you took an oath. Do you remember standing up? A: But we’re
all not perfect, you have to remember that.
Q: I do remember that and I’ll get back to you. I’m glad you
pointed that out. A: No, like I said, you’ve got to prove and he’s got
to prove that he’s not guilty just like he has to prove to me he is.
Q: Okay. A: Until it’s proven it’s gonna sit where it is.
Q: Where’s that, where is it? A: Neutral right now.
Q: It’s neutral? What does that mean? A: Well I had my
opinions earlier.
Q: What are those? A: When he didn’t show up here at 1:00,
he was guilty as far as I was concerned then. Everybody else was
here; he should have been here, too.
Q: Okay. A: At that time. So now you’ve got to prove to me
he’s not.
Q: Because he was not here at the time when it started? A:
Yep.
Defense counsel returned to this conversation with M.H. on one other occasion.
Defense Counsel: And you heard me have this discussion
with [another prospective juror], that even if you believe the law
should be as you interpret it, as [M.H.] interprets it, are you willing to
leave that outside the courtroom if the court instructs you and says
according to Iowa law the only party in this case that has the burden
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to prove anything is the prosecution? That’s what the law says.
That’s what I’m instructing you to do. Can you do that? . . . [M.H.],
would you be able to do that? Juror M.H.: I don’t know if I could. I’d
be willing to try it.
Q: Is it hard for you? A: I think it would be now.
Q: Because of what you – A: ‘Cause my mind has set the
other way. Earlier I was fine. But then again he might convince me,
I don’t know.
We conclude the defendant proved counsel breached a duty in failing to
challenge this juror for cause. A juror shall be removed for cause where the juror
has formed an opinion preventing the juror from rendering an impartial verdict upon
the evidence admitted at trial. See Iowa R. Crim. P. 2.18(5)(k). It is apparent juror
M.H. had formed an opinion regarding Dixon’s guilt that would prevent him from
rendering a verdict upon the evidence admitted at trial. Juror M.H. expressed his
belief the defendant was guilty in his book. In addition, to the extent the juror
indicated he would listen to the evidence, he expressed an inability to follow the
law, stating he presumed the defendant was guilty unless the defendant proved
otherwise. Under the circumstances, it is clear the juror should have been
removed for cause. See State v. Jones, 904 N.W.2d 566, 571 (Iowa 2017) (“On
the issue of disqualification of a juror for cause, there is authority for the proposition
that when a potential juror at the outset of voir dire expresses bias or prejudice
unequivocally, the potential juror should be disqualified for cause notwithstanding
later, generalized statements the potential juror could be fair.”); State v.
Farnsworth, No. 13-0401, 2014 WL 2884732, at *4 (Iowa Ct. App. June 25, 2014)
(holding the district court did not abuse its discretion in removing for cause juror
who could not follow the law regarding the burden of proof).
9
The State contends Dixon failed to prove trial counsel breached an essential
duty because counsel may have had strategic reasons for not challenging juror
M.H. for cause. It is well established that we will not find counsel ineffective if
counsel made a reasonable strategic decision to take or forego particular action.
See State v. Ondayog, 722 N.W.2d 778, 786 (Iowa 2006) (“[W]e will not reverse
where counsel has made a reasonable decision concerning trial tactics and
strategy, even if such judgments ultimately fail.”). There is no evidence this was a
strategic decision. Defense counsel testified he did not specifically recall the juror
at issue but stated it was possible that he might not have challenged this juror for
cause because defense counsel thought he was sufficiently rehabilitated or
because he might have been out of strikes. Neither of these explanations justifies
the failure to pursue a challenge for cause given the definitive nature of juror M.H.’s
statements about Dixon’s guilt. M.H. refused to accept a presumption of
innocence, indicated Dixon’s lateness pushed him to a presumption of guilt, and
admitted any change in his opinion would be difficult because “my mind has set
the other way.” Having a set mind on guilt or innocence is the very definition of
actual bias. See State v. Webster, 865 N.W.2d 223, 236 (Iowa 2015) (“Actual juror
bias occurs when the evidence shows that a juror, in fact, is unable to lay aside
prejudices and judge a case fairly on the merits.”). In addition, defense counsel’s
statement that he did not challenge this juror because he might have been out of
strikes demonstrates confusion on the issue and not an exercise of strategic
judgment. We thus reject the State’s contention that Dixon has not established his
trial counsel breached an essential duty.
10
We next address the issue of whether Dixon has established constitutional
prejudice. We begin our analysis by noting the fundamental importance of the right
to trial by an impartial jury and the processes in place to protect the right.
“The right to a trial by an impartial jury lies at the very heart of due
process.” Smith v. Phillips, 455 U.S. 209, 224 (1982) (Marshall, J.
dissenting). To protect the defendant’s right to trial by a fair and
impartial jury, we have in place an elaborate pretrial process to select
and empanel a fair and impartial jury. The prospective jurors must
be drawn from a fair cross-section of the community. See Smith, 455
U.S. at 226 (Marshall J., dissenting). The defendant may seek to
change the venue of his trial upon proof “that such degree of
prejudice exists in the county in which the trial is to be held that there
is a substantial likelihood a fair and impartial trial cannot be
preserved with a jury selected from the county.” Iowa R. Crim. P.
2.11(10)(b); see Smith, 455 U.S at 227 (Marshall J., dissenting). The
parties may challenge the jury panel for any material departure from
the statutory requirements for drawing or returning the jury. See
Iowa R. Crim. P. 2.18(3). The parties are entitled to conduct voir dire
of the prospective jurors to determine whether they are qualified and
able to serve as jurors. See Iowa R. Crim. P. 2.18(6); Smith, 455
U.S. at 226 (Marshall, J., dissenting). The parties are entitled to
challenge and remove jurors for cause. See Iowa R. Crim. P.
2.18(5). The parties are entitled to peremptory strikes of other jurors.
See Iowa R. Crim. P. 2.18(9).
State v. Christensen, No. 17-0085, 2018 WL 1865353, at *8 (Iowa Ct. App. Apr.
18, 2018) (McDonald, J., dissenting).
When these processes fail and a biased juror is seated on the case, the
defendant’s right to trial by an impartial jury is compromised. This failure directly
affects the defendant’s interest in having a fair determination of guilt. See Patton
v. United States, 281 U.S. 276, 292 (1930) (“A constitutional jury means twelve
[persons] as though that number had been specifically named; and it follows that,
when reduced to eleven, it ceases to be such a jury quite as effectively as though
the number had been reduced to a single person.”), abrogated by Williams v.
Florida, 399 U.S. 78 (1970). This failure also undermines the public’s confidence
11
in the integrity of our trial processes. See State v. Teale, 135 N.W. 408, 410 (Iowa
1912) (“Confidence in the fairness and impartiality of each member of a jury, which
shall be sworn to try a man on a charge involving his life or liberty, is of the greatest
importance to the welfare of the state.”); see also Dyer v. Calderon, 151 F.3d 970,
983 (9th Cir. 1998) (“More is at stake here than the rights of petitioner; justice must
satisfy the appearance of justice. An irregularity in the selection of those who will
sit in judgment casts a very long shadow.”); Knox v. State, 29 A.3d 217, 223 (Del.
2011) (“[J]uror impartiality must be maintained not only in the interest of fairness
to the accused but also to assure the integrity of the judicial process.”). There is
thus little doubt that had defendant’s trial counsel unsuccessfully challenged this
juror for cause and raised the issue on direct appeal, the defendant would be
entitled to relief. See State v. Tillman, 514 N.W.2d 105, 108 (Iowa 1994) (stating,
on direct appeal, “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”).
However, this proceeding is not a direct appeal on a claim of error. This
proceeding is a collateral attack on the defendant’s conviction via a claim of
ineffective assistance of counsel. To establish an entitlement to relief on this
specific claim, the defendant must establish Strickland prejudice. This generally
requires the defendant to prove “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Graves, 668 N.W.2d at 882 (quoting Strickland v. Washington, 466 U.S. 668, 694
(1984)). Typically, this formulation requires proof that the outcome of the
12
proceeding—that is the determination of legal guilt or innocence—would have
been different. See id. The State contends there is overwhelming evidence of
Dixon’s guilt, and Dixon thus cannot establish a reasonable probability that the
result would have been different if juror M.H. had been removed for cause.
While the State’s argument has some appeal, we cannot agree the
defendant failed to establish constitutional prejudice. As a general rule, it is true
the defendant must establish a reasonable probability of a different outcome to
warrant relief on an ineffective-assistance claim. However, this is not true in all
circumstances. In certain circumstances, the deprivation of the right itself is
sufficient to establish an entitlement to relief. See Krogmann v. State, __ N.W.2d
__, __, No. 15-0772, 2018 WL 3084028, at *26 (Iowa 2018). We conclude the
error at issue in this proceeding is sufficient to establish Strickland prejudice and
an entitlement to relief.
First, the effects of counsel’s deficient performance are immeasurable.
The presence of a juror with demonstrated bias can never be found
harmless beyond a reasonable doubt. Jury deliberations are a black
box. We cannot know what effect the bias had on the biased juror
herself, nor can we know what influence the biased juror had on the
rest of the jury.
United States v. Gianakos, 415 F.3d 912, 933–34 (8th Cir. 2005) (Bright, J.,
dissenting). Such jury insulation is by design, yet it makes any subsequent
determination of error based on actual bias nearly impossible. See United States
v. Benally, 546 F.3d 1230, 1233 (10th Cir. 2008) (“Jury decision-making is
designed to be a black box . . . deliberately insulated from subsequent review.
Judges instruct the jury as to the law, but have no way of knowing whether the
jurors follow those instructions. . . . Juries are told to put aside their prejudices and
13
preconceptions, but no one knows whether they do so. Juries provide no reasons,
only verdicts.”), abrogated on other grounds by Pena-Rodriquez v. Colorado, 137
S.Ct. 855 (2017).
Second, an actually biased juror serving on a jury always results in
fundamental unfairness. That is, the trial mechanism itself is so fundamentally
flawed that our confidence in the outcome of the proceeding is undermined
regardless of the strength of the evidence. This principle is well established in
Iowa law. “If a potential juror expresses actual bias, ‘the law will not trust him’ to
be fair and impartial.” State v. Jonas, 904 N.W.2d 566, 572 (Iowa 2017) (quoting
Dyer, 151 F.3d at 984). See Teale, 135 N.W. at 410 (discussing fairness
considerations); State v. Arterburn, No. 13-0035, 2014 WL 1715061, at *9 (Iowa
Ct. App. Apr. 30, 2014) (“When a biased juror is impaneled, the fundamental
fairness of the proceedings is called into question, and a new trial is required.”).
Our sister states have reached a similar conclusion, holding that a
postconviction claimant establishes an entitlement to relief upon showing an
actually biased juror served on the jury. See, e.g., Perkins v. State, 144 So.3d
457, 472 (Ala. Crim. App. 2012) (“Because a defendant must demonstrate
prejudice in a [post-conviction] proceeding, post-conviction relief based on a
lawyer’s incompetence with regard to the composition of the jury is reserved for a
narrow class of cases where prejudice is apparent from the record, where a biased
juror actually served on the jury.”); Hall v. State, 212 So.3d 1001, 1015 (Fla. 2017)
(“In the postconviction context, we have held that a defendant must establish that
an actually biased juror sat on the jury to succeed on a claim of ineffective
assistance of counsel for failing to make a cause challenge.”); Carratelli v. State,
14
961 So.2d 312, 324 (Fla. 2007) (“Under Strickland, to demonstrate prejudice a
defendant must show that there is a reasonable probability-one sufficient to
undermine confidence in the outcome-that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. In the context of the denial
of challenges for cause, such prejudice can be shown only where one who was
actually biased against the defendant sat as a juror.”); McGuire v. State, 523
S.W.3d 556, 564 (Mo. Ct. App. 2017) (“[W]here defense counsel unreasonably
fails to strike an unqualified juror for cause, the post-conviction movant is entitled
to a presumption of Strickland prejudice.”).
Juror M.H. stated to defense counsel, “When [Dixon] did not show up here
at 1:00, he was guilty as far as I was concerned then.” Juror M.H. never wavered
from his view that Dixon was guilty unless proved otherwise. This is actual bias.
Dixon’s defense counsel did not identify any reasonable strategic decision to
forego a for-cause challenge to this juror. To the contrary, defense counsel
seemed to express confusion on the issue. The district court erred in finding this
juror did not serve on the jury; the State and the defendant agree on this. Juror
M.H.’s service on the jury resulted in actual prejudice to the defendant’s
fundamental right to be tried by a fair and impartial jury. We reverse the judgment
of the district court and remand this matter to vacate the defendant’s conviction.
Due to our resolution of this matter, we need not resolve any of Dixon’s other
claims of error.
REVERSED AND REMANDED.