IN THE COURT OF APPEALS OF IOWA

No. 19-1883

Filed March 17, 2021

STATE OF IOWA,

Plaintiff-Appellee,

vs.

STEVE ARMSTED,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Clinton County, John Telleen, Judge.

Steve Armsted appeals following his convictions for two counts of murder 

in the first degree. CONDITIONALLY AFFIRMED AND REMANDED.

Scott M. Wadding of Sease & Wadding, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney 

General, for appellee.

Heard by May, P.J., and Greer and Schumacher, JJ.
2

MAY, Presiding Judge.

The State accused Steve Armsted of killing Kevin Lambert and Steven Cox. 

A jury convicted Armsted of two counts of murder in the first degree. On appeal, 

Armsted argues: (1) there was insufficient evidence to establish the elements of 

first-degree murder; (2) the district court abused its discretion by admitting autopsy 

photographs; and (3) the district court erred by denying Armsted’s request for 

additional time to collect and present evidence of systematic exclusion of African 

Americans in the jury-selection process. We conditionally affirm and remand for 

further proceedings detailed below.

I. Facts and Prior Proceedings

On March 6, 2017, Kevin Lambert and Steven Cox were discovered dead

in their home. Lambert was in a chair in the living room. Cox was on his bed in 

his bedroom. It appeared that Cox’s bedroom door had been forced open.

Lambert and Cox suffered violent deaths. Autopsies revealed that each 

man received a single stab wound to the heart. Both men also suffered blunt-force 

injury to the left side of their heads, which could have rendered them unconscious.1

Investigators obtained security camera footage from neighbors. Based on 

the footage and Lambert and Cox’s phone records, investigators believed they

were killed on the morning of March 5. Autopsy results were consistent with a time 

of death between 2:00 a.m. and 3:00 a.m. on March 5.

 

1 Other circumstances could have been involved. Lambert’s “blood alcohol content 

was over four times the legal limit and the presence of cocaine was also detected 

in his system.” Cox’s “blood alcohol content was over three times the legal limit.”
3

Security camera footage showed a person leaving Lambert and Cox’s home 

at approximately 3:00 a.m. on March 5. The person walked down a nearby alley.

In that same alley, investigators found a knife in a recycling bin. Lambert 

and Cox’s blood was on the knife. Lambert and Cox’s stab wounds were 

consistent with the type of knife found in the alley.

Investigators found Lambert and Cox’s wallets in their home. Both were 

devoid of any cash.

Investigators began looking into possible suspects. They learned that Steve 

Armsted was homeless but had been sleeping at Lambert and Cox’s home. 

Armsted made a number of phone calls on their landline from March 2 to March 4. 

During that time, Armsted asked two individuals for $25 to $30 so that he could 

stay at Lambert and Cox’s home over the weekend of March 4–5.

2

DNA evidence also connected Armsted to Lambert and Cox’s home. A hat 

was found in the living room. Armsted’s DNA was present on the hat. Plus,

Armsted was seen wearing the hat immediately prior to the murders. Armsted’s 

DNA was also found on a cigarette butt. The hat and cigarette butt were both 

found next to Lambert’s deceased body.

On the morning of March 5, Latoya Coleman met Armsted in the alley 

behind her home. Coleman was on her way to get drugs. Armsted joined 

Coleman, giving her $50 in cash for his share. After obtaining their drugs, they 

returned to Coleman’s house. Coleman later testified that, when they got back to 

her house, Armsted was not acting like his usual self. She said Armsted became 

 

2 March 4, 2017, was a Saturday.
4

“panicky, jumping up to look out the window.” And Armsted worried aloud that the

police were coming. According to Coleman, Armsted “kept running in the kitchen, 

running anywhere and hiding under the couch and looking out the window, [saying] 

they were out there, they were coming.” After Armsted left, Coleman noticed 

bleach was missing from her laundry room.

Two days later, on March 7, Armsted called his ex-girlfriend, Alfredia 

Canady, “sound[ing] terrified, crying, scared.” Armsted asked Canady if she would 

give him a ride to the bus station so he could return to Mississippi, where Armsted 

used to work in a meat packing plant. Armsted told Canady that he was “in trouble” 

and that “he would be spending the rest of his life in jail.” He also “said he probably 

wouldn’t talk to [Canady] any more” and “if he was to go to Mississippi they would 

bring him back here and that’s when he would spend the rest of his life in jail.”

On March 8, police arrested Armsted on an unrelated charge. They 

collected the clothing he was seen wearing on the evening of March 4. His jeans 

had a hole in the left pant leg and had been stained with bleach. But neither the

hole nor the bleach stains can be seen in the footage from March 4—the day before

Lambert and Cox were murdered.

A drop of blood was also found inside Armsted’s tennis shoe. There was 

not enough to make a DNA profile.

In an interview with law enforcement, Armsted was shown photographs 

from the crime scene. The interviewing agent testified that after he laid one of the 

photographs down, he 

pointed out various items that were depicted . . . for example, there’s

a remote control, a can, a magnifying glass and, [Lambert], [but] the 
5

one thing you are focusing on right now is what you left after you 

killed these two guys and that’s your hat and [Armsted] replied, yeah.

After showing Armsted a photograph taken from the security camera footage 

outside Lambert and Cox’s home, Armsted “looked at that picture and there was a 

pause and [Armsted] said, that ain’t me.” Then, the agent showed Armsted “the 

photograph of the knife to show him that [they] found the murder weapon and he 

replied words to the effect, that wasn’t me that did it, I don’t care what you came 

up with.” At the end of the interview, the agent told “Armsted that he wasn’t being 

charged at that moment in time but eventually he would be charged with two counts 

of murder” and Armsted “said, okay.”

The State charged Armsted with two counts of first-degree murder for the 

deaths of Lambert and Cox.

Prior to jury selection, Armsted asked the district court to discharge the jury 

panel and grant him additional time to prove “the racial makeup of this jury panel 

is inadequate.” The district court denied Armsted’s request.

During trial, Armsted objected to the admission of autopsy photographs. He 

argued the photographs were “duplicative” and unfairly prejudicial. The district 

court overruled Armsted’s objection and admitted the photographs.

A jury found Armsted guilty as charged. Armsted now appeals.

II. Analysis

On appeal, Armsted challenges: (1) the sufficiency of the evidence; (2) the 

admission of autopsy photographs; and (3) the makeup of the jury venire.
6

A. Sufficiency of the Evidence

We begin with Armsted’s challenges to the sufficiency of the evidence 

supporting his convictions for murder in the first degree. He claims the evidence 

is insufficient to establish his identity as the murderer, malice aforethought, and 

premeditation and deliberation.3

Under Iowa law, we will “uphold a verdict if substantial evidence supports 

it.” State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005); see State v. Kelso-Christy, 

911 N.W.2d 663, 666 (Iowa 2018) (“We review the sufficiency of the evidence for 

correction of errors at law.”). Evidence is “substantial if it would convince a rational 

fact finder the defendant is guilty beyond a reasonable doubt.” State v. Meyers, 

799 N.W.2d 132, 138 (Iowa 2011). “We view the evidence in the light most 

 

3 The jury was instructed as follows:

Under [c]ount I, the State must prove all of the following 

elements of [m]urder in the [f]irst [d]egree:

1. On or about the 5th day of March, 2017, the [d]efendant 

stabbed Kevin Lambert.

2. Kevin Lambert died as a result of being stabbed.

3. The [d]efendant acted with malice aforethought.

4. The [d]efendant acted willfully, deliberately, 

premeditatedly, and with a specific intent to kill Kevin Lambert.

If the State has proved all of the elements, the [d]efendant is 

guilty of [m]urder in the [f]irst [d]egree. If the State has failed to prove 

any one of the elements, the [d]efendant is not guilty of [m]urder in 

the [f]irst [d]egree and you will then consider the charge of [m]urder 

in the [s]econd [d]egree explained in Instruction N[umber] 27.

The jury instructions given for count II are the same as above, except they list 

Steven Cox in place of Kevin Lambert. Armsted did not object to the elements of 

the first-degree murder marshalling instructions. “Where, as here, the jury was 

instructed without objection, the jury instruction becomes law of the case for the 

purposes of reviewing the sufficiency of the evidence.” State v. Banes, 910 

N.W.2d 634, 639 (Iowa Ct. App. 2018) (citing State v. Canal, 773 N.W.2d 528, 530 

(Iowa 2009) (“[Defendant] did not object to the instructions given to the jury at trial. 

Therefore, the jury instructions become the law of the case for purposes of our 

review of the record for sufficiency of the evidence.”)).
7

favorable to the State, including all legitimate inferences and presumptions that 

may fairly and reasonably be deduced from the record.” State v. Soboroff, 798 

N.W.2d 1, 5 (Iowa 2011). We make no distinction between direct and 

circumstantial evidence. See Kelso-Christy, 911 N.W.2d at 668 (“Direct and 

circumstantial evidence are equally probative.” (citation omitted)).

1. Identity

We first address whether the State provided sufficient evidence to establish 

Armsted was the killer. Armsted emphasizes the lack of (1) “DNA evidence to 

establish a connection between Armsted and the victims”; (2) witnesses to the 

crimes; and (3) motive. Even so, substantial evidence suggested Armsted was the 

murderer. The district court summarized the record this way:

There is more than adequate circumstantial evidence that if 

believed could support a reasonable jury in finding the defendant 

guilty of murder in the first degree. I will not restate all of it but the 

video evidence of the defendant being at the [victim’s] house 

consistent with a time of death, the defendant using the victim’s 

landline to call his friends and ex-girlfriend, the defendant telling 

Ms. Canady that if I get caught, I’ll go to jail for the rest of my life. 

The knife being found along the route that would be consistent with 

defendant leaving the home. The defendant’s blue jeans with the 

hole in it unexplained, that hole not being there previously in the 

videos but after the time of death of the victims, the hole in [his] blue 

jeans with the blue jeans smelling like bleach.

There was just a myriad, small bits of circumstantial evidence 

which when considered together do—would—especially when 

viewed in the light most favorable to the State justify a reasonable 

jury in finding the defendant guilty of murder in the first degree.

We agree with the district court and conclude the State presented sufficient 

evidence for the jury to determine Armsted killed Lambert and Cox. See Meyers,

799 N.W.2d at 138.
8

2. Malice aforethought, premeditation, and deliberation

Armsted also argues that, even if there was sufficient evidence to show his 

involvement in these deaths, there was no evidence of malice aforethought, 

premeditation, or deliberation. But the State contends these arguments were not 

preserved below. We agree with the State.

In general, “[c]ounsel does not preserve error on a sufficiency-of-evidence

issue when counsel makes a general motion for judgment of acquittal but fails to 

identify specific elements of the charge not supported by the evidence.” State v. 

Albright, 925 N.W.2d 144, 150 (Iowa 2019). Here, Armsted’s motion for acquittal 

focused exclusively on identity—who was the killer. His motion did not address 

any other “specific elements of” the first-degree murder charges. See id. In fact,

counsel told the court that Armsted was not challenging other elements. Counsel 

explained: “Specifically at issue here, your Honor, are not the individual elements 

of either murder in the first degree or any of its lesser and included offenses but 

the issue of identification.” (Emphasis added.) Given this record, we cannot find 

Armsted preserved error as to his current arguments about the specific elements 

of malice aforethought, premeditation, and deliberation.

Armsted suggests that, “[t]o the extent Armsted’s counsel failed to preserve 

error, the Court should review the issue under the framework of an ineffectiveassistance-of-counsel claim.” Under Iowa Code section 814.7 (2019), however, 

Armsted’s ineffective-assistance claims can only be addressed through an action 

for “postconviction relief pursuant to chapter 822,” not through this direct appeal.4

 

4

In State v. Macke, the supreme court held this restriction does “not apply to a 

direct appeal from a judgment and sentence entered before July 1, 2019.” 933 
9

B. Admission of Autopsy Photographs

Next, Armsted contends the district court abused its discretion by admitting 

four autopsy photographs of Lambert and six autopsy photographs of Cox. “[W]e 

generally review evidentiary rulings for abuse of discretion.” State v. Helmers, 753

N.W.2d 565, 567 (Iowa 2008). “An abuse of discretion 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)

(quotation marks and citations omitted).

Armsted claims the district court should have excluded the photographs 

under Iowa Rule of Evidence 5.403. It authorizes the district court to “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.” Iowa R. Evid. 5.403. 

This balancing of probative value against competing dangers is a classic “judgment 

call on the part of the trial court.” State v. Rodriquez, 636 N.W.2d 234, 240 (Iowa 

2001). As one learned treatise explains:

Analyzing and weighing the pertinent costs and benefits [of 

admitting evidence] is no trivial task. Wise judges may come to 

differing conclusions in similar situations (or the same conclusions in 

different situations). . . . Accordingly, much leeway is given trial 

judges who must fairly weigh probative value against probable 

dangers. On the theory that the trial judge is best situated to make 

these judgments as the case unfolds, the standard of review on 

appeal—“abuse of discretion”—is highly deferential. That a different 

outcome would have been more appropriate is not sufficient.

1 Robert P. Mosteller, McCormick on Evidence § 185 (8th ed. Jan. 2020 Update).

 

N.W.2d 226, 228 (Iowa 2019). But Armsted was sentenced in November 2019; so 

section 814.7 applies to Armsted.
10

Here Armsted argues the “probative value of the autopsy photographs was 

negligible [as i]t was undisputed that both Cox and Lambert died from a single stab 

wound to the heart region.” Moreover, Armsted contends, these photographs “of 

the decomposing lifeless bodies of the victims created substantial danger of the 

jury rendering their verdict on the emotional impact of the photographs rather than 

the facts.” And so, Armsted claims, the court was obliged to exclude the 

photographs.

We disagree. The district court carefully considered the photographs and 

the record as a whole. And the court appropriately balanced the benefits and costs 

of admitting the photographs. The court explained:

The court concludes that the photographs are clearly relevant. 

There may not be much dispute about the fact that the decedents 

were killed by knife wounds, I think they are relevant to show malice

aforethought, I think they are relevant as to—somewhat relevant at 

least in my mind that it appears from looking at the photographs that 

there’s a single stab wound each into the heart. There has been 

some testimony that the defendant was good with knives and the fact 

that there’s a single stab wound each at least arguably goes to sort 

of a planned attack, at least arguably in a way, as opposed to a knife

fight or controversy. It’s [also] consistent with, for instance, Mr. 

Lambert being asleep in his chair and stabbed or something. Of 

course I don’t know, that’s speculation, but I think it’s relevant to the 

cause of death, malice aforethought, premeditation perhaps and in 

terms of autopsy photos that I’ve seen, these are rather antiseptic, I 

might call them. These are not particularly gruesome compared to

certainly other crime scene photographs I’ve seen, they are rather 

antiseptic. I don’t think they are particularly inflammatory and I don’t 

think there’s so many of them that the State is trying to overwhelm 

the defense with many, many, many accident photos. It seems to be 

a fairly limited number and so the motion—probative value is not 

outweighed by the prejudicial effect, so the motion in limine is

overruled.

Based on our review of the record—including the photographs 

themselves—we conclude this ruling was well within the court’s discretion. So we 
11

decline to reverse. See State v. Brown, 397 N.W.2d 689, 700 (Iowa 1986) (holding

that where the pathologist “testified extensively with respect to the nature, extent,

and severity of [the victim’s] wounds,” the “autopsy photographs were relevant to

illustrate and explain [the pathologist’s] testimony” and noting “[m]urder is often a 

gruesome affair giving rise to equally gruesome evidence”).

C. Fair Cross-Section Claim 

Finally, we address Armsted’s claim that “the district court erred in denying 

[him] a recess to meaningfully evaluate a fair cross-section claim through fact 

investigation and expert testimony.” “We review constitutional questions de novo. 

This includes claims of systematic exclusion of a distinctive group from the jury 

pool . . . .” State v. Veal, 930 N.W.2d 319, 327 (Iowa 2019) (citation omitted). As 

our supreme court explained in State v. Plain:

[A] defendant can establish a prima facie violation of the fair crosssection 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.

898 N.W.2d 801, 821–22 (Iowa 2017) (quoting Duren v. Missouri, 439 U.S. 357, 

364 (1979)), holding modified by State v. Lilly, 930 N.W.2d 293 (Iowa 2019).

Armsted raised the fair cross-section issue at the beginning of voir dire. His 

counsel made this record:

[I]n this particular case the defendant is African American [and] the 

two victims are Caucasian or white. Of the eighty that are currently 

seated as prospective jurors . . . it appears only one individual . . . is 

of a minority status, he is Hispanic/Latino/Spanish origin. Of the 

eighty seated[,] none . . . indicate or identify their race as African 
12

American. I was advised informally before walking in here . . . 

perspective juror eighty-one is . . . African American. . . . I don’t 

know what the African American makeup is of Clinton County, I do 

not have that information, I believe someone in charge of the jury 

pool would have a better number as far as the number of African 

Americans in this community. Because again there are no African 

Americans listed, the only one potentially listed is [juror] eighty-one

and will not be reached by process of jury selection, I believe the 

racial makeup of this jury panel is inadequate and ask that the entire 

jury panel be discharged.

The State resisted, asserting Armsted failed to establish the third Plain element—

systematic exclusion of potential jurors based on their race in the jury-selection 

process. Defense counsel responded:

In order for us to establish [prong] three, we would have to 

show a pattern that’s revealed itself over a significant period of time. 

Those resources are simply not generally made available to counsel 

particularly in advance of an individual trial. In order for [prong] three 

to be argued in this particular juncture we need a significant recess 

in order to have Clinton County . . . run those numbers.

. . . .

Additionally, in this supreme court’s analysis of the DuranPlain cases as applicable in Veal, for the defendant to prove that type 

of causation we are discussing, they have held that . . . run-of-themill jury management practices can under appropriate 

circumstances constituting systematic exclusion and that’s what we 

are arguing here today. That it is the run-of-the-mill jury 

management practices, nothing above and beyond that, we are 

alleging that the systematic exclusion that would meet prong three 

under Duran-Plain.

The court denied Armsted’s motion, finding “that the defense has failed to establish 

the third prong of the Duran test and State v. Plain.”

On appeal, Armsted asks us to remand so he can further develop the record 

on the fair cross-section issue. In response, the State concedes Armsted 

established the first and second prongs of his fair-cross section claim.5 Moreover, 

 

5 We rely on the State’s appellate brief. During oral argument, the State advised 

that, after reconsidering the math, it did not appear Armsted had established the 
13

the State notes that if we find “Armsted[] has preserved a substantive constitutional 

challenge to the district court’s refusal to grant a continuance/recess, [we] should 

conditionally affirm his convictions and remand to the district court for the 

development of the record.” See id. at 828 (“Defendants are entitled to access the 

information needed to enforce their constitutional right to a jury trial by a 

representative cross-section of the community.”); State v. Buchanan, No. 17-1713, 

2018 WL 6120044, at *2 (Iowa Ct. App. Nov. 21, 2018) (holding that “[b]ecause 

defendants are entitled to access the information necessary to enforce their right 

to a jury drawn from a fair cross-section of the community, we conclude the district 

court should have granted [defendant’s recess] request and allowed him to 

investigate the matter”).

Following the State’s lead, we have considered whether Armsted 

sufficiently preserved his challenge to the district court’s refusal to grant a 

continuance or recess. We conclude he did. Accordingly, we conditionally affirm 

Armsted’s convictions and remand to the district court so that Armstead can have 

an opportunity to develop the record on his fair-cross section claim. After the 

record is developed, the district court should determine whether Armsted’s 

constitutional right to a representative jury was violated. If it was, the court should

grant a new trial.

III. Conclusion

Armsted’s convictions for first-degree murder are supported by sufficient 

evidence. The district court did not abuse its discretion in admitting autopsy 

 

second element. The State may raise these concerns with the district court on 

remand.
14

photographs. So we conditionally affirm Armsted’s convictions. But we remand 

for the district court to provide Armsted a chance to investigate and present his fair 

cross-section claim.

CONDITIONALLY AFFIRMED AND REMANDED.

Schumacher, J., concurs; Greer, J., concurs specially.
15

GREER, Judge (concurring specially).

I concur in the majority opinion because of the concession by the State, but 

I write to highlight the practical dilemma playing out in cases across our state where 

a fair cross-section challenge is raised. Does a Plain/Duran challenge arise only 

after arriving at trial and surveying the jury so that a continuance to develop the 

argument becomes a matter of ordinary practice? How do trial courts resolve the 

tension between continuing a criminal trial to address the Plain/Duran prongs as 

opposed to requiring that the information to support the challenge be brought to 

the battle? After all, our common quest is for a fair trial and we now have a 

playbook to address an impartial jury challenge.

Our trial courts, prosecutors, and criminal defense litigators have struggled 

with the proper process to analyze an impartial jury challenge. In 2017, with the 

Plain “playbook” in hand, the case was remanded so the defendant could address 

a fair cross-section claim and the door was opened to county records useful to 

address the challenge. See State v. Plain, 898 N.W.2d 801, 828–29 (Iowa 2017). 

The “post-Plain world” “demanded significant changes in jury selection and 

management by judges, court administrators, jury managers, prosecutors and 

defense lawyers . . . .”6 Russell E. Lowell II & David S. Walker, Achieving Fair 

Cross-Sections on Iowa Juries in the Post-Plain World: the Lilly-Veal-Williams 

 

6

In Plain the defendant was denied access to the county’s information necessary 

to prove a prima facie case of the underrepresentation of a fair cross-section issue. 

898 N.W.2d at 828 (“Defendants are entitled to access the information needed to 

enforce their constitutional right to a jury trial by a representative cross-section of 

the community. . . . To the extent Plain did not meet his prima facie case with 

respect to the third prong of the test, we conclude he lacked the opportunity to do 

so because he was not provided access to the records to which he was entitled.”).
16

Trilogy, 68 Drake L. Rev. 499, 511 (2020) (hereinafter Lowell & Walker). So, the 

lessons continued after our supreme court produced the trilogy of cases on the 

subject in 2019. See State v. Lilly, 930 N.W.2d 293 (Iowa 2019); State v. Veal, 

930 N.W.2d 319 (Iowa 2019); State v. Williams, 929 N.W.2d 621 (Iowa 2019).7

These three cases, particularly Lilly, aid the participants in framing the tough 

questions that occur in the analysis of the Plain/Duran prongs. And in Lilly, the 

court noted 

Because the parties did not have the benefit of these 

refinements to the Duren/Plain standards, we have decided today to 

follow the same course of action as in Plain. That is, we will remand 

this case to give Lilly a further opportunity to develop his arguments 

that his Sixth Amendment and article I, section 10 rights to an 

impartial jury were violated.

930 N.W.2d at 308 (emphasis added) (citation omitted). Now that parties have the 

benefit of the refinements, they arrive at the courthouse knowing the steps to prove 

the more difficult second and third prongs of the Plain/Duran test. See id. at 301–

08. The proof can include considerations of other earlier jury pools. Id. at 305. 

And as Lilly suggested, “[t]his 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.” 930 N.W.2d at 307.

 

7

In Lilly and Williams, defendants filed motions to challenge the jury panels in 

advance of trial. Lilly, 930 N.W.2d at 297; Williams, 930 N.W.2d at 627. In Veal, 

the court allowed the defendant extra time to develop the challenge. 930 N.W.2d 

at 326. The defendants in all three cases compared census data with jury data. 

Lilly, 930 N.W.2d at 297; Veal, 930 N.W.2d at 326 n.2; Williams, 930 N.W.2d at 

625.
17

In a 2018 case by one of the panels of our court, the State voiced concern 

over multiple and frequent continuances of the trial and our court said, “[T]he jurycomposition issue did not reveal itself until the morning of trial, at which time 

defense counsel recognized it and raised the issue.” State v. Buchanan, No. 17-

1713, 2018 WL 6120044, at *2 (Iowa Ct. App. Nov. 21, 2018) (remanding to 

address the third prong in Plain). Then in 2020, a Plain/Duran motion was denied 

when the defendant failed to establish in the record the racial makeup of jurors of 

the entire jury pool that day as opposed to only those jurors allocated to the 

defendant’s case.8 See State v. Wilson, 941 N.W.2d 579, 593 (Iowa 2020). 

Following the lead of Wilson, another panel of our court addressed a challenge to 

a fair composition of the jury pool claim by denying remand because the defendant 

provided no detail related to the racial makeup of the jury pool. See State v. Miller,

No. 19-0680, 2020 WL 7868232, at *2-3 (Iowa Ct. App. Dec. 16, 2020). Thus no 

prima facie showing was made to address either the second or third Plain/Duren

prongs. Id. So, now in 2021, with the county census information available and law 

providing guidance to address the Plain/Duran prongs going into a trial, should we 

now expect a developed argument for resolution? 

I do not have the answers, I just raise a practical problem for those with 

“boots on the ground”—trial judges and the lawyers.9 Recognizing the importance 

 

8 Wilson filed a motion noting two recent Polk County jury pool of 255 and 234 

potential jurors contained only eleven African American jurors each and four and 

seven Hispanic potential jurors respectively. Wilson suggested the court might 

randomly select Black and Hispanic jurors to address the disparity. But as to the 

record at trial, Wilson urged that of the one hundred potential jurors assigned to 

his trial, only three identified as African American and four as Hispanic.

9As has been pointed out: 
18

of an impartial jury, the process is important. Going forward, at a minimum, trial 

courts should start to expect a motion raising the potential fair cross-section issue 

and the county census information from which to start the discussion. 

 

The litigation reality is that the parties and the judge will not know the 

racial composition of a defendant’s own jury panel until jury service 

day. If defense counsel waits until the morning of the day of trial to 

determine whether there is a fair cross-section issue, it will almost 

always be too late to do the necessary discovery and be prepared to 

make an informed presentation. As a result, defense counsel must 

prepare the merits of the fair cross-section claim as to the aggregate 

date before seeing the jury panel in their client’s case.

Lowell & Walker, 68 Drake L. Rev. at 534 (footnote omitted).