IN THE COURT OF APPEALS OF IOWA
No. 19-1919
Filed January 12, 2022
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TYJUAN LEVELL TUCKER,
Defendant-Appellant.
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Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.
Tyjuan Tucker appeals a jury’s guilty conviction for possession of a
controlled substance—marijuana—with intent to deliver. AFFIRMED.
Andy Dunn and Jessica Donels of Parrish Kruidenier Dunn Boles Gribble
Gentry Brown Bergmann & Messamer LLP, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered by Bower, C.J., and Vaitheswaran and Schumacher, JJ.
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VAITHESWARAN, Judge.
A jury found Tyjuan Tucker guilty of possession of a controlled substance
(marijuana) with intent to deliver. See Iowa Code §124.401(1)(d) (2018). On
appeal, Tucker challenges: (1) the sufficiency of the evidence supporting the jury’s
finding of guilt; (2) the district court’s determination that the underrepresentation of
African-Americans in the jury pool was not due to “systematic exclusion” in the
jury-selection process; (3) his trial attorney’s failure to present expert testimony on
the “systematic exclusion” issue; (4) the district court’s exclusion of documents
relating to a prior settlement; and (5) the district court’s exclusion of portions of a
body camera video of his arrest.
I. Sufficiency of the Evidence
The jury was instructed that the State would have to prove the following
elements of possession of marijuana with intent to deliver:
1. On or about July 28, 2018, the defendant, Tyjaun L. Tucker
knowingly possessed marijuana.
2. The defendant knew that the substance possessed was
marijuana.
3. The defendant possessed the substance with the specific
intent to deliver it.
The jury was further instructed “the defendant’s specific intent . . . is seldom
capable of direct proof.”
A reasonable juror could have found the following facts. Des Moines police
officers cut through the parking lot of a fast-food restaurant. According to one of
the officers, they noticed two vehicles “parked not in parking spots,” which
immediately caught their attention. “[A] female . . . was standing at the driver’s
side of a green Sebring.” The officers observed “some sort of an exchange, just
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the hand in the window” but “could not observe what was actually exchanged.”
The driver of the Sebring, later identified as Tucker, made “eye contact” with the
officers and “immediately exit[ed] the parking lot,” cutting in front of an SUV and
forcing the driver of that vehicle to brake.
The officers stopped the Sebring. Their subsequent interactions were
captured on an officer’s body camera. One of the officers asked Tucker to step
out of the vehicle. He patted Tucker down and asked if he had been “smoking
marijuana earlier.” Tucker said he had not. The officer continued the search,
reaching for Tucker’s groin area. Tucker pulled away, screamed for help, and
yelled, “why are you grabbing me?” multiple times. Additional officers arrived. One
of them pulled a small plastic bag containing “about an ounce” of marijuana from
Tucker’s underwear. Tucker’s car was searched, and a wad of cash totaling $650
was discovered in the center console. The large amount of cash could have led a
reasonable juror to find that Tucker possessed the marijuana with the specific
intent to deliver the substance. See State v. Adams, 554 N.W.2d 686, 692 (Iowa
1996) (“Intent may be inferred form the manner of packaging the drugs, from large
amounts of unexplained cash, as well as from the quantity of drugs.” (citations
omitted)).
There was certainly evidence from which a jury could have reached a
contrary finding, including Tucker’s unsolicited assertion that the cash was part of
a $6800 settlement he “just got,” the absence of additional packaging materials or
a scale inside the vehicle, and the relatively small amount of marijuana in his
possession. But the “plausibility of explanations” was within the jury’s purview.
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State v. Williams, 695 N.W.2d 23, 28 (Iowa 2005). Substantial evidence supported
the jury’s finding of guilt. See State v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014).
II. Systematic Exclusion
Tucker argues he “was denied the right to a jury drawn from a fair cross-
section of the community in violation of Article I, § 10” of the Iowa Constitution. He
had the burden to
establish a prima facie violation of the fair-cross-section requirement
by showing:
(1) that the group alleged to be excluded is a “distinctive”
group in the community; (2) that the representation of this
group in venires from which juries are selected is not fair and
reasonable in relation to the number of such persons in the
community; and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection
process.
State v. Lilly, 930 N.W.2d 293, 299 (Iowa 2019) (quoting State v. Plain, 898 N.W.2d
801, 822 (Iowa 2017)).
Tucker maintains “[t]he first two prongs under the test in Lilly were
undisputed.” The State concedes “[t]he first prong of Lilly is met because Tucker
is alleging underrepresentation and systematic exclusion of a distinctive group:
African-Americans.” The State also agrees “Tucker satisfied prong #2 of Lilly—the
representation of African-Americans in this pool was more than one standard
deviation below the average level, given the prevalence of African-Americans
among Polk County residents who were eligible for jury service.” The appeal turns
on the third prong—proof of systematic exclusion.
Tucker contends he “met his burden under the ‘systematic exclusion’ prong
to show that the disparate representation within the jury pool was a result of the
court administration[‘]s jury management practices.” He points to the State’s use
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of only “two sources—voter registration and driver’s licenses—to form the jury
pool” and asserts minorities have lower rates of participation in both. Tucker
highlights the supreme court’s statement that jury management practices may
amount to systematic exclusion as well as a scholarly article cited by the court.
See Lilly, 930 N.W.2d at 307–08 (citing 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, 790–91 (2011)).
The court did indeed discuss jury management practices in Lilly but
stressed that “the challenger must tie the disparity to a particular practice” and “the
defendant must prove that the practice has caused systematic
underrepresentation.” Id. The court quoted the following portion of Hannaford-
Agor’s article, which underscored the need for expert testimony:
Litigants alleging a violation of the fair cross section requirement
would still have to demonstrate that the underrepresentation was the
result of the court’s failure to practice effective jury system
management. This would almost always require expert testimony
concerning the precise point of the juror summoning and qualification
process in which members of distinctive groups were excluded from
the jury pool and a plausible explanation of how the operation of the
jury system resulted in their exclusion. Mere speculation about the
possible causes of underrepresentation will not substitute for a
credible showing of evidence supporting those allegations.
Id. (emphasis added) (quoting Hannaford-Agor, 59 Drake L. Rev. at 790–91). It is
clear, then, that a recitation of existing jury management practices is insufficient to
establish systematic exclusion.
The district court afforded Tucker’s attorney “the opportunity to put on any
proof of evidence or expert testimony” on the third prong. Counsel declined, citing
the “inherent, practical problems for an indigent defendant” to “hire experts under
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a court-appointed case.” Counsel made his systematic exclusion argument “solely
based upon the fact that we use two sources for our jury pool.”
The district court found insufficient “evidence to prove” systematic
exclusion. “[B]ased on the lack of evidence,” the court “overrule[d] the objection”
to the composition of the jury pool and proceeded to trial.
On our de novo review of the record, we agree Tucker failed to tie Iowa’s
use of the two lists to systematic underrepresentation of a minority group. See
Lilly, 930 N.W.2d at 308. We affirm the district court’s ruling on the systematic
exclusion prong of the “fair cross section” requirement.
III. Ineffective Assistance—Failure to Present Expert Testimony
Tucker argues his trial attorney was ineffective in failing to present expert
testimony on whether jury management practices resulted in systematic exclusion
of African-Americans from the jury pool. He is foreclosed from raising this
ineffective-assistance-of-counsel claim on direct appeal. See Iowa Code § 814.7
(stating effective July 1, 2019—before Tucker was sentenced—an ineffective-
assistance-of-counsel claim “shall not be decided on direct appeal from the
criminal proceedings”); State v. Treptow, 960 N.W.2d 98, 108 (Iowa 2021)
(concluding “[t]here is no due process right to present claims of ineffective
assistance of counsel on direct appeal”).
IV. Exclusion of Settlement Documents
During trial, the prosecutor moved to exclude “a settlement statement and
other records” “just . . . handed” to her by Tucker’s attorney. She cited the “pretty
strict discovery process” including reciprocal discovery that took place months
earlier. The prosecutor explained, “The State has gotten no notice of this, no
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opportunity to deal with this, to look into the validity of any of it.” Tucker’s attorney
pointed out the proposed exhibit was “merely documentation to . . . rebut the
accusation that these were drug funds and not from legitimate means.”
The district court excluded the documents. The court reasoned:
Mr. Tucker did not comply with the State’s application for reciprocal
discovery within 14 days of the order . . . . [The case] has been
pending for a long time. A continuance does not seem appropriate.
The disclosure of these documents on the second day of trial, without
allowing the State to prepare for those documents, it appears to
violate the rule. . . . There’s nothing that prohibits Mr. Tucker from
testifying about the settlement. But to submit those documents . . .
would impact our whole process of authentication, identification, and
preparation . . . . This is an important trial. This appears to be unfair
surprise.
On appeal, Tucker argues “[t]he erroneous exclusion of [his] settlement
documents as a discovery sanction denied [him] the opportunity to put on a
defense in violation of the Fifth Amendment [of the United States Constitution] and
Article I, § 10 [of the Iowa Constitution].” Because the constitutional component of
the argument was neither raised nor decided, we decline to consider it. See In re
C.W., No. 19–1658, 2020 WL 564825, at *4 (Iowa Ct. App. Feb. 5, 2020) (citing
Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002)). We simply review the
propriety of exclusion as a discovery sanction.
Iowa Rule of Criminal Procedure 2.14(6)(c) states the court may “prohibit
the party from introducing any evidence not disclosed.” Review of an exclusion
ruling under this rule is for an abuse of discretion. See State v. Schuler, 774
N.W.2d 294, 297 (Iowa 2009).
As Tucker pointed out, the documents he sought to introduce would have
bolstered his claim that the large amounts of cash found in his vehicle were not
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drug proceeds or funds used to purchase drugs. But, as the district court noted,
Tucker was free to testify to the source of the money. In fact, he did so, stating he
injured himself and received a settlement “two days prior to being pulled over.” He
said he cashed the check, bought a car with a portion of the proceeds, and placed
the leftover money in the center console of his car. A portion of the body camera
video introduced at trial included Tucker’s statement about the source of the cash.
And one of the officers at the scene agreed Tucker mentioned receipt of a
settlement. In short, the jury was privy to Tucker’s explanation notwithstanding the
court’s exclusion of the settlement documents. See State v. Belken, 633 N.W.2d
786, 796 (Iowa 2001) (stating “undisclosed evidence that was merely cumulative”
was less likely to be prejudicial).
On the other side of the coin, the belated offer of the documents prejudiced
the State. The lynchpin of the “intent to deliver” portion of the State’s charge was
the cash. The State had no opportunity to modify its trial strategy in light of the
documents or gather evidence to counter the possible admission of the
documents. See id. (examining a prejudice claim “in the context of its effect on . . .
trial strategy.”).
We conclude the district court did not abuse its discretion in excluding the
settlement documents.
V. Exclusion of Entire Body Camera Video
The State offered a portion of the body camera video as an exhibit. Tucker
objected, arguing the “rule of completeness” required introduction of the entire
recording. The district court overruled the objection.
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Tucker now argues the State used his negative on-camera reaction to infer
he was “distributing marijuana.” In his view, the district court should have admitted
the entire footage to provide an alternate explanation for his reaction, specifically
that he was previously shot by a police officer. Tucker frames his argument as a
constitutional violation, an issue that was not preserved. We will review the issue
under our evidentiary rules.
Rule 5.106, described as the rule of completeness, states, “[i]f a party
introduces all or part of a[] . . . recorded statement, an adverse party may require
the introduction, at that time, of any other . . . recorded statement that in fairness
ought to be considered at the same time.” “[T]he rule of completeness may trump
the ordinarily applicable rules of evidence. Yet, the rule cannot be simply used as
an ‘end run around the usual rules of admissibility.’” State v. Huser, 894 N.W.2d
472, 509 (Iowa 2017) (citation omitted). “[A]ll relevant evidence, [including
statements offered under rule 5.106, is] subject to the rule 5.403 balancing test
that compares the probative value of the statements to their danger of unfair
prejudice and confusing the jury.” State v. Davis, No. 13–1099, 2014 WL 5243343,
at *7 (Iowa Ct. App. Oct. 15, 2014).
The district court found the evidence of minimal probative value. The court
stated Tucker’s discussion of the shooting as well as the officers’ discussion did
not raise “a fact of consequence in dealing with drug possession.” In the court’s
words, “I do not see how talking about an officer shooting, how that tends to make
a fact of consequence more or less probable.” The court also concluded the
evidence “could lead the jury to a conclusion on an improper basis.” The court
stated, “that’s one of the things that we try to keep out so that the jury can stay
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focused on the facts at hand, on the case at hand, and to really focus in on the
elements that the State has alleged that Mr. Tucker has done in this case.”
We discern no abuse of discretion in the district court’s ruling. Introduction
of evidence relating to an independent interaction with police could have led the
jury to confuse the issues. See State v. Buman, 955 N.W.2d 215, 221 (Iowa 2021);
State v. Walker, 935 N.W.2d 874, 878 (Iowa 2019); State v. Einfeldt, 914 N.W.2d
773, 784 (Iowa 2018). The evidence also may have resulted in a trial within a trial.
See State v. Smith, No. 18–1500, 2020 WL 1307693, at *2 (Iowa Ct. App. Mar. 18,
2020). And if the purpose of introducing the evidence was to evoke sympathy, as
the district court found, that purpose was improper. See State v. Delaney, 526
N.W.2d 170, 175 (Iowa Ct. App. 1994) (“We look . . . to whether the evidence has
an undue tendency to suggest a decision on an improper basis, appeals to the
sympathies of the jury, or otherwise might cause the jury to base their decision on
something other than the relevant legal propositions.”). We affirm the district
court’s exclusion of the full body camera video.
Tucker’s judgment for possession of marijuana with intent to deliver is
affirmed.
AFFIRMED.
State of Iowa v. Tyjuan Levell Tucker
Combined Opinion