IN THE COURT OF APPEALS OF IOWA

No. 20-1537

Filed April 13, 2022

RAMON DEMETRIUS HARPER,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Bradley J. 

Harris, Judge.

Ramon Harper appeals the denial of his application for postconviction relief. 

AFFIRMED.

Gina Messamer of Parrish Kruidenier Dunn Gentry Brown Bergmann & 

Messamer L.L.P., Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney 

General, for appellee State.

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

BADDING, Judge.

Ramon Harper was convicted of attempted murder, willful injury, going 

armed with intent, and flight to avoid prosecution after he beat a man at a 

convenience store that had multiple surveillance cameras. According to Harper, 

the plan at trial was to argue “it wasn’t me.” But in defense counsel’s closing 

argument, counsel conceded: “That was Mr. Harper. There’s no doubt about it 

and we agree to that.” 

In his application for postconviction relief, Harper claimed this concession 

deprived him of his right to control his own defense at trial. He additionally claimed 

that (1) the composition of the jury panel violated his right to a jury drawn from a 

fair cross-section of the community; (2) the State engaged in purposeful racial 

discrimination in jury selection; and (3) his trial counsel was ineffective. On the 

State’s motion, the district court dismissed Harper’s fair-cross-section claim and, 

after a hearing, denied his application in all other respects. Harper challenges 

those rulings on appeal. For the reasons explained below, we affirm. 

I. Background Facts and Proceedings

In November 2009, Domonique Turner was brutally attacked with a rubber 

mallet at a convenience store in Waterloo. He suffered repeated blows to the head 

until several bystanders stepped in to stop the attack. The attacker fled the scene, 

leaving behind a badly beaten Turner, who was airlifted to the hospital for 

emergency neurosurgery. The store’s surveillance system captured much of the 

incident, including the assault and the attacker leaving in a silver getaway car. 

From the video footage and witness descriptions, Waterloo police deduced that 
3

the suspect was a black male, heavyset, between five feet six and eight inches tall, 

and in his mid-twenties to early thirties. 

In trying to identify the suspect, investigators interviewed numerous 

individuals, including Harper’s then-girlfriend, Thorsha Gary, who became a key 

witness for the State. During her interview, Gary revealed she had been at the 

convenience store with Harper on the day of the assault. She said she drove him 

there in a silver car because she thought “he needed to put gas in the car.” But 

according to Gary, Harper went inside the store for “only a couple of minutes” 

before returning to the car and telling her, “Bitch, drive.” Gary stated that after she 

heard about the attack, she suspected Harper had something to do with it. After 

being shown a still image of the assailant by the investigators, Gary commented,

“That’s him hitting the boy.” When asked to elaborate, she pinpointed Harper by 

name. At trial, Turner also identified Harper as the person in the surveillance video, 

which was admitted into evidence and played for the jury. 

In April 2010, Harper was arrested in Atlanta, Georgia, on a warrant for 

attempted murder. In his interview with investigators, Harper denied any 

involvement in the brutal assault on Turner. When informed of the video footage, 

Harper maintained his innocence, declaring: “I was not the one who hit him.” He 

was ultimately charged with attempt to commit murder, willful injury, going armed 

with intent, and flight to avoid prosecution. Harper pleaded not guilty.

Continuing with his “it wasn’t me” defense, Harper filed a motion in limine 

requesting “no testimony be allowed as to the statements of law enforcement 

officers that they believe [he] is the person shown in the [surveillance] video.” The 

motion stated, “Said testimony invades the province of the jury in making a 
4

determination as to whether or not the person in the video is in fact [him].” After 

hearing arguments from both sides, the district court granted the motion, relying

on the prosecutor’s assurance that he would not ask any law enforcement 

witnesses “if based solely upon the video they think that person is Mr. Harper.” 

The two-week jury trial began in November 2011. Harper’s trial counsel did

not give an opening statement, choosing instead to argue a theory of the case for 

the first time during closing arguments. In an apparent effort to avoid a conviction 

for attempted murder, the most serious charge, trial counsel conceded that Harper 

was the assailant but argued that he lacked the specific intent to kill. Counsel went 

on to say that, in his opinion, the evidence showed Harper was, at most, guilty of 

assault causing serious injury (a lesser included offense of willful injury). The jury 

found Harper guilty of all charges. 

Harper appealed his conviction for attempted murder, arguing only that 

there was “insufficient evidence he specifically intended to cause the death of 

Turner.” State v. Harper, No. 12-0781, 2013 WL 3830193, at *1 (Iowa Ct. App. 

July 24, 2013).1 This court affirmed. Id. at *2. Several months later, Harper filed 

a pro se application for postconviction relief. After multiple changes of counsel,

Harper’s fifth court-appointed attorney filed an amended and supplemental

application, raising ineffective-assistance-of-trial-counsel claims, a fair-crosssection claim, and a Batson challenge.2

 

1 A letter to Harper from his appellate attorney shows that Harper flagged trial 

counsel’s concession of guilt as an issue. This issue was apparently not pursued 

on direct appeal because, according to Harper, his appellate attorney told him that 

was something he had to raise in a postconviction-relief action.

2 See Batson v. Kentucky, 476 U.S. 79, 80 (1986) (“[T]he Equal Protection Clause 

forbids the prosecutor to challenge potential jurors solely on account of their race 
5

A week before the postconviction-relief hearing was scheduled to begin, 

Harper requested a continuance until the supreme court decided Thongvanh v. 

State, 938 N.W.2d 2 (Iowa 2020) on further review. Harper flagged Thongvanh as 

being potentially “dispositive to [his] fair cross-section claim,” noting the relevant

issue to be decided in that case was whether State v. Plain, 898 N.W.2d 801 (Iowa 

2017), which abrogated the exclusive use of the absolute disparity test as a means 

of proving underrepresentation, applied retroactively to cases on collateral review.

The answer to that question would dictate whether Harper could use other 

statistical methods to prove his fair-cross-section claim under the more defendantfriendly rule announced in Plain. Over the State’s resistance, the district court 

granted the continuance. 

In January 2020, our supreme court decided that Plain’s new rule did “not 

apply retroactively to cases on collateral review” nor “to convictions that were 

already final at the time” Plain was decided. Thongvanh, 938 N.W.2d at 16. On 

that basis, the State moved to dismiss Harper’s fair-cross-section claim, which the 

district court granted. The court reasoned that Thongvanh precluded Harper from 

relitigating his fair-cross-section claim based on changes in the law that occurred 

after his conviction became final on collateral review. The remaining claims 

proceeded to a hearing via videoconferencing in September, all of which were 

denied. Harper now appeals. 

 

or on the assumption that black jurors as a group will be unable impartially to 

consider the State’s case against a black defendant.”). 
6

II. Scope and Standards of Review 

“We generally review a district court’s denial of an application for 

postconviction relief for errors at law.” Doss v. State, 961 N.W.2d 701, 709 (Iowa 

2021). But because Harper’s application alleged ineffective assistance of counsel 

and constitutional violations, we review his claims de novo. See Goode v. State, 

920 N.W.2d 520, 524 (Iowa 2018). 

We review rulings on a motion to dismiss for correction of errors of law. 

Thongvanh, 938 N.W.2d at 8. We will affirm the district court’s grant of a motion 

to dismiss if “the petition’s allegations are taken as true yet fail to state a claim 

upon which relief may be granted.” Id. 

III. Analysis 

A. Fair-Cross-Section Claim

We begin with Harper’s argument that the district court erred in dismissing 

his fair-cross-section claim based on its conclusion that Plain did not apply 

retroactively to his case. In reaching that conclusion, the court found Thongvanh

instructive, if not controlling, as do we. 

In Plain, the supreme court announced a new rule for evaluating 

constitutional fair-cross-section claims—“Parties challenging jury pools on the 

ground that they are unrepresentative may base their challenges on multiple 

analytical models” such as the absolute disparity, comparative disparity, and 

standard deviation tests. 898 N.W.2d at 827, holding modified by State v. Lilly, 

930 N.W.2d 293, 302 (Iowa 2019). In doing so, the court ruled that “it is no longer 

appropriate to rely exclusively upon the absolute disparity test as an indicator of 
7

representativeness.” Id. at 826 (overruling State v. Jones, 490 N.W.2d 787, 792–

93 (Iowa 1992)). 

But at the time of Harper’s trial, absolute disparity was the exclusive test 

used in this state for deciding fair-cross-section claims. As a result, when Harper 

objected to the composition of the jury panel during his criminal trial, the district 

court overruled the objection on the basis that the absolute disparity in the county 

where he was tried did not meet the threshold for proving a prima facie fair-crosssection violation under the federal and state constitutions. The prosecutor had 

successfully dispelled Harper’s constitutional argument by pointing out in rebuttal 

that the total African American population in Black Hawk County was “between 8 

and 9 percent,” which meant the absolute disparity between the percentage of 

African Americans in the community and the percentage of the group in the jury 

panel would never be considered unconstitutional. See Jones, 490 N.W.2d at 793 

(noting “underrepresentation of as much as ten percent” did not establish a 

violation of the Sixth Amendment fair-cross-section requirement (citing Swain v. 

Alabama, 380 U.S. 202, 208–09 (1965))). 

That was the unfortunate reality until Plain abrogated the exclusive use of 

the absolute disparity test. See 898 N.W.2d at 825 (“The shortcoming of the 

absolute disparity formula is demonstrated by the fact that African-Americans do 

not represent more than ten percent of the population in any county in Iowa.”). 

Plain was decided four years after Harper’s conviction became final. Our supreme 

court has since made clear that “Plain does not apply retroactively to cases on 

collateral review.” Thongvanh, 938 N.W.2d at 16. Thongvanh is controlling. 
8

Still, Harper tries to distinguish his case from Thongvanh based on a 

footnote in which the supreme court ostensibly left open the question of “how a 

ruling that Plain is retroactive would be applied to the case where the defendant 

made a contemporaneous objection.” Id. at 15 n.5. He asserts that, unlike 

Thongvanh, he did object to the composition of the jury panel at trial, thereby 

preserving his challenge for later proceedings. As a result, Harper argues, Plain’s 

new rule should apply retroactively to his case. We disagree with that logic. 

As the State points out, Harper did not challenge the exclusive use of the 

absolute disparity test at trial or attempt to prove the alleged underrepresentation 

of African Americans on his jury panel using any other statistical method.3 He 

instead made a general objection that a jury panel consisting of only one African 

American did not afford him “a fair representation of his peers.” Harper is not now 

entitled to a second bite at the apple just because the law has changed since then. 

This is especially so when Harper bases his fair-cross-section claim on alternative

methods that were never presented to the district court. To hold otherwise would

be inconsistent with the spirit of Thongvanh, which found “the need for finality of 

judgments” outweighed the consideration “that the composition of jury pools can 

 

3 This is not to say that Harper could not have raised an ineffective-assistance 

claim related to his trial counsel’s failure to pursue those other options. Indeed, in 

its ruling on the State’s motion to dismiss, the postconviction court reserved 

counsel’s “alleged failure to adequately advance a fair-cross-section claim” for later 

determination so that an adequate record could be developed. But at the 

evidentiary hearing that followed, Harper did not raise this issue so the court did 

not rule on it. We accordingly decline to consider the claim on appeal. See 

Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012) (“It is a fundamental doctrine 

of appellate review that issues must ordinarily be both raised and decided by the 

district court before we will decide them on appeal.” (quoting Meier v. Senecaut, 

641 N.W.2d 532, 537 (Iowa 2002))). 
9

have real-world effects.” Id. at 15. Under the absolute disparity test that was the 

law at the time Harper’s conviction became final, his claim failed as a matter of 

law. See Hall v. State, No. 20-1183, 2021 WL 4304242, at *2 (Iowa Ct. App. 

Sept. 22, 2021). 

For the same reason, we reject Harper’s alternative argument that this court 

should hold “there is room to apply Plain retroactively under the Iowa Constitution.” 

This identical issue was raised and decided in Thongvanh, which we have already 

determined is controlling. See 938 N.W.2d at 16 (rejecting argument that Plain 

should apply retroactively under “the Iowa Constitution’s due process and equal 

protection guarantees”). We are not free to overrule controlling supreme court 

precedent. State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990). Thus,

we affirm the postconviction court’s dismissal of the fair-cross-section claim. 

B. Concession of Guilt

We now turn to what we consider to be Harper’s strongest claim for 

relief: that his trial counsel infringed on his “right not to admit guilt” by conceding

he was the assailant during closing argument without his consent. Harper argues 

his counsel’s unilateral concession of guilt amounted to structural error under 

McCoy v. Louisiana, 138 S. Ct. 1500, 1506 (2018), entitling him “to automatic 

reversal without a showing of prejudice.” Because Harper raised this argument for 

the first time in postconviction-relief proceedings, the district court found it was 

barred by Iowa Code section 822.8 (2013),

4 although the court then proceeded to 

 

4 Section 822.8 provides:

All grounds for relief available to an applicant under this 

chapter must be raised in the applicant’s original, supplemental or 

amended application. Any ground . . . not raised, or knowingly, 
10

deny the claim on the merits as well. Determining whether the claim is barred by 

section 822.8 would require us to wade into the murky waters of whether, as 

Harper argues, “a McCoy claim is, in essence, an ineffective-assistance-ofcounsel claim.”5

 See Allison v. State, 914 N.W.2d 866, 888 (Iowa 2018) 

(explaining the bar of section 822.8 can be avoided if counsel ineffectively fails to 

raise a claim at trial or on appeal); see also Iowa Code § 814.7 (codifying the 

appellate practice of preserving ineffective-assistance claims for postconvictionrelief proceedings). We elect to bypass that question because, like the district

court, we find Harper’s claim fails on its merits. 

The United States Supreme Court recognized a criminal defendant’s 

“constitutional right to conduct his own defense” in Faretta v. California, 422 U.S. 

806, 819 (1975). While not expressly stated in the Bill of Rights, the Court

 

voluntarily, and intelligently waived in the proceeding that resulted in 

the conviction or sentence, or in any other proceeding the applicant 

has taken to secure relief, may not be the basis for a subsequent 

application, unless the court finds a ground for relief asserted which 

for sufficient reason was not asserted or was inadequately raised in 

the original, supplemental, or amended application.

5

In Krogmann v. State, 914 N.W.2d 293, 322–34 (Iowa 2018), our supreme court 

emphasized the importance of distinguishing “between claims of ineffective 

assistance of counsel and other claims based on the Sixth Amendment (and article 

I, section 10 of the Iowa Constitution) . . . such as the right to conduct one’s own 

defense.” Accord McCoy, 138 S. Ct. at 1510–11 (“Because a client’s autonomy, 

not counsel’s competence, is in issue, we do not apply our ineffective-assistanceof-counsel jurisprudence . . . to McCoy’s claim.”). But the Krogmann court then 

noted that while the applicant’s claim was “couched in terms of ineffective 

assistance of counsel,” the “underlying claim” was that he was prevented “from 

being the master of his own defense in violation of the Sixth Amendment and the 

Iowa Constitution” under the McCoy line of cases. 914 N.W.2d at 318. Relying on 

that underlying “master of his own defense” claim, the court concluded that a 

“showing of Strickland prejudice” was not required in postconviction proceedings 

“involving an unpreserved structural error at trial that is challenged via an 

ineffective-assistance claim.” Id. at 322–25. Krogmann did not address the 

applicability of section 822.8 to the claim before it. 
11

determined that “the right to self-representation—to make one’s own defense 

personally” was rooted in the Sixth Amendment and, more specifically, the right to 

counsel. Faretta, 422 U.S. at 819. The Court reasoned that because the right to 

defend is personal, even when the defendant makes a decision “ultimately to his 

own detriment, his choice must be honored.” Id. at 834.

Given the inherent tension between a defendant’s right to conduct his own 

defense and his right to the assistance of counsel, the Supreme Court clarified the 

scope of these guarantees in Florida v. Nixon, 543 U.S. 175, 189–92 (2004). Nixon 

faced a possible death sentence after refusing to plead guilty to four felony 

charges, including first-degree murder. Nixon, 543 U.S. at 180–81. Based on his 

experience in capital defense, Nixon’s attorney believed the best strategy for Nixon 

to avoid the death penalty was to concede guilt at trial in order to receive leniency 

from the court at the penalty phase. Id. at 181. Despite being informed of this 

strategy, “Nixon was generally unresponsive”—“[h]e never verbally approved or 

protested” his attorney’s proposal. Id. Making a judgment call, Nixon’s attorney 

admitted Nixon caused the death of the victim during his opening statement. Id.

at 182. 

On direct appeal, Nixon’s appellate counsel argued trial counsel “had 

rendered ineffective assistance by conceding Nixon’s guilt without obtaining 

Nixon’s express consent.” Id. at 185. Following a remand for further development 

of the record on the consent issue, Nixon unsuccessfully sought postconviction 

relief. On appeal from those proceedings, the Florida Supreme Court reversed 

Nixon’s convictions and remanded for a new trial on the ground that counsel’s 

performance was presumed deficient because counsel conceded guilt without 
12

obtaining Nixon’s affirmative consent. Id. at 186. In reversing that decision, the 

United States Supreme Court held: “When counsel informs the defendant of the 

strategy counsel believes to be in the defendant’s best interest and the defendant 

is unresponsive, counsel’s strategic choice is not impeded by any blanket rule 

demanding the defendant’s explicit consent.” Id. at 192. In rejecting the 

presumption of deficient performance applied below, the Court noted counsel’s 

strategy under these circumstances was subject to the traditional Strickland 

standard. Id.; see Strickland v. Washington, 466 U.S. 668, 687 (1984).

From there, the Supreme Court addressed the issue on which Harper bases 

his claim for relief: “whether it is unconstitutional to allow defense counsel to 

concede guilt over the defendant’s intransigent and unambiguous objection.” 

McCoy, 138 S. Ct. at 1507. In answering yes, the Court reasoned that while 

counsel may have reasonably believed that admitting guilt was the best strategy 

given the possible death sentence, counsel’s concession over McCoy’s strenuous 

and express objections violated McCoy’s “protected autonomy right” under the 

Sixth Amendment. Id. at 1511. Such violation constitutes a structural error

requiring a new trial. Id. Emphasizing the constitutional underpinning, the Court 

declared: “When a client expressly asserts that the objective of ‘his defence’ is to 

maintain innocence of the charged criminal acts, his lawyer must abide by that 

objective and may not override it by conceding guilt.” Id. at 1509.

Against that backdrop, Harper contends the circumstances here are akin to

those in McCoy. He relies on his own testimony at the postconviction-relief hearing 

to support his claim that his trial counsel’s concession of guilt without his consent 

amounted to structural error. The State, on the other hand, discredits Harper’s 
13

testimony as “self-serving” and argues Harper cannot prove a violation under 

McCoy in any event because “he never objected or complained” about his 

counsel’s concession in the district court. We find the State’s position more 

convincing. 

As we see it, Harper’s argument boils down to this: he did not consent to 

his trial counsel’s concession of guilt; he did not want to concede guilt; and 

therefore his trial counsel’s unilateral decision to do so anyway amounted to 

structural error. There are two problems with this line of reasoning. First, given 

the inadequacy of the trial record as already discussed, the only evidence 

presented by Harper on this issue is his own uncorroborated testimony.6 Having 

reviewed the transcripts from Harper’s criminal trial and the transcript from the 

postconviction-relief hearing, we agree with the State that the testimony is selfserving. 

As the State points out, Harper was no shrinking violet during the trial court 

proceedings. He filed several pro se requests for a new attorney and was not shy 

about speaking up during pretrial hearings. Tellingly, after the trial was over, 

Harper did raise an issue about his attorney’s performance with the district court—

but it wasn’t about the concession of guilt. Instead, when given the chance to say 

something at the hearing on his motion for a new trial, Harper focused on counsel’s 

failure to inform him about a plea offer from the State. And at the sentencing while 

exercising his right of allocution, Harper questioned the court: “I would like to 

 

6 Because Harper’s trial counsel passed away in the early stages of the 

postconviction-relief proceeding, we have no record of counsel’s thought 

processes or corroboration for Harper’s side of the story. 
14

understand how I didn’t . . . get a new trial . . . just for the simple fact that my lawyer 

didn’t tell me about the deal that was offered before the trial.” We accordingly view 

Harper’s testimony at the postconviction hearing that his counsel “took it upon 

himself to admit my guilt when he knew that wasn’t my trial strategy” with some 

skepticism. This is especially so considering the various other statements Harper 

made at the postconviction hearing suggesting that what he viewed as “trial 

strategy” was merely an expectation that his counsel would “go to trial to prove 

that it wasn’t [him].” On this bare-bones record, we cannot draw the inferences 

that Harper urges. 

The second problem is that Harper’s claim does not fit within the parameters 

of the Supreme Court’s structural-error analysis on which he seeks relief. The 

McCoy Court set the stage for its decision by contrasting the facts of Nixon with 

the facts before it. Id. at 1505. In doing so, the Court signaled that the pertinent 

inquiry in the context of an alleged violation of a defendant’s protected autonomy 

right is whether the defendant “adamantly objected” to the admission of guilt or, 

inversely, neither objected nor consented. See id. The Court in McCoy took pains 

to describe the nature of the objection in the case before it, describing McCoy’s 

objections to any concession of guilt as “vociferous,” “adamant[],” “intransigent,” 

“unambiguous,” “repeated,” “intractable,” “strenuous,” and “insistent.” Id. at 1505, 

1507, 1510, 1512. Nothing close appears in the record before us. 

What complicates this case above all else is that there is simply no evidence 

that Harper and his counsel ever discussed trial strategy, let alone had “intractable 

disagreements about the fundamental objective of [Harper’s] representation.” See 

id. at 1510. At most, we have a record that shows Harper and his counsel were 
15

on the same page about denying Harper’s identity in the surveillance video up until 

the close of all the evidence. While this might suggest that counsel changed or 

developed the trial strategy after the State’s case-in-chief and therefore had a duty 

to discuss it with Harper in advance, see Nixon, 543 U.S. at 189, that does not 

translate into a McCoy violation. See, e.g., United States v. Felicianosoto, 934 

F.3d 783, 787 (8th Cir. 2019) (rejecting McCoy claim where the record did not 

reflect that the defendant “made any ‘express statements of [his] will to maintain 

innocence’ in response to his attorney’s concessions, either to his counsel or the 

court” (citing McCoy, 138 S. Ct. at 1509)); People v. Bernal, 256 Cal. Rptr. 3d 269, 

275 (Cal. Ct. App. 2019) (interpreting McCoy to “require express disagreement 

with counsel for a claimed constitutional violation to have merit in this context” and 

finding no such violation where the record did not show the defendant “instructed 

counsel not to concede guilt on the relevant charges in closing argument, nor did 

he ask to replace appointed counsel because of disagreement over trial strategy”). 

Given the circumstances of this case and the limited evidence offered, we 

decline to find a structural error or presume prejudice based on counsel’s 

concession of guilt. 

C. Batson Challenge 

Harper reprises a third constitutional argument, this one premised on the

Equal Protection Clause of the Fourteenth Amendment “and the constitutional 

prohibition on exclusion of persons from jury service on account of race.” Batson, 

476 U.S. at 91. He contends the prosecutor’s use of a peremptory challenge to 

strike the only African American member on the jury panel violated his equal 

protection rights. While our review of Harper’s Batson challenge is de novo, we 
16

afford great deference to the district court’s credibility determinations when 

considering “the true motives of the attorney when making strikes.” State v. Mootz, 

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

A Batson challenge follows three steps. First, the defendant must make a 

prima facie showing that the State used its peremptory challenges to exclude 

prospective jurors on the basis of race. State v. Knox, 464 N.W.2d 445, 448 (Iowa 

1990). Second, the burden then shifts to the State to provide “a clear and 

reasonably specific and neutral explanation for the peremptory challenge.” Id. And 

third, the court must decide whether purposeful discrimination exists based on the 

reasons presented by State. Id. 

The issue here is narrow in that Harper challenges only the postconviction 

court’s determination of purposeful discrimination rather than the one reached by 

the original trial court. According to Harper, the postconviction court erred in 

finding the State provided a race-neutral reason for striking A.C., an African 

American woman and the sole prospective juror who was of the same race as 

Harper. In support, Harper points to the more developed record in the 

postconviction proceeding, which reveals that the prosecutor in his criminal case 

clarified some statements he made when articulating his race-neutral reasons 

before the trial court. 

At that time, the prosecutor offered two main reasons for striking A.C. from 

the jury panel: (1) she was the only potential juror with “a prior domestic abuse 

conviction”; and (2) she was the only one the prosecutor had personally 

prosecuted while he was an assistant county attorney with the Black Hawk County

Attorney’s Office. He elaborated:
17

I remember prosecuting [A.C.’s] domestic abuse a few years ago. I 

struck her because this was obviously an assault-related case, I 

didn’t want anyone with assault convictions on the panel, nor anyone 

that I personally have prosecuted or frankly even that the office had 

prosecuted while I was there. It was because of the assault domestic 

abuse conviction that she was stricken. 

Convinced by the prosecutor’s first explanation, the trial court overruled 

Harper’s Batson challenge. The court reasoned that it was not improper for the 

prosecutor “to strike a potential juror who ha[d] assaultive history and ha[d] a prior 

conviction for assault, since this is an assault case.”

On postconviction relief, Harper claimed “the State violated [his] equal 

protection and due process rights by providing false information to the court to 

survive his Batson challenge.” The prosecutor was subpoenaed to testify at the

postconviction-relief hearing, where he admitted upon reviewing the relevant files 

that he had made a mistake in stating A.C. had a prior conviction for domestic 

abuse assault. The prosecutor reflected, “I have since discovered that that was 

not accurate, it was negotiated down, but it began as a domestic abuse complaint.”

He also acknowledged that two other potential jurors had prior convictions as well, 

although they were unrelated to any violent crimes. Plus, one of them had 

disclosed a “bad personal incident” with the then-county attorney during voir dire, 

yet still ended up serving on the jury. 

Now on appeal, Harper argues the prosecutor’s misstatements 

“undermine[d] a finding that the use of the peremptory challenge was race neutral.” 

Even with the benefit of a fuller record, the postconviction court was not swayed 

by Harper’s argument, and neither are we. “Unless a discriminatory intent is 

inherent in the prosecutor’s explanation, the reason offered will be deemed race 
18

neutral.” Hernandez v. New York, 500 U.S. 352, 360 (1991). Because the reasons 

offered by the prosecutor were facially valid given the facts of Harper’s criminal 

case and thus race neutral, we decline to disturb the postconviction court’s ruling. 

See State v. Griffin, 564 N.W.2d 370, 375 (Iowa 1997) (noting the race-neutral 

explanation must be “related to the particular case to be tried” (quoting Batson, 

476 U.S. at 98)); see also State v. Veal, 930 N.W.2d 319, 334 (Iowa 2019)

(recognizing juror’s prior interaction with legal system constitutes a valid, raceneutral reason). 

D. Ineffective Assistance of Counsel 

Finally, we address a string of Harper’s ineffective-assistance claims with 

regard to his right to waive a jury trial and various evidentiary issues. In doing so, 

we apply the two Strickland prongs: (1) counsel’s breach of an essential duty and 

(2) prejudice. See 466 U.S. at 687. 

1. Failure to Inform of Right to Waive Jury Trial 

Harper argues he received ineffective assistance because his trial counsel 

failed to advise him of “his right to waive trial by jury and proceed to a bench trial.” 

He claims he suffered prejudice due to counsel’s failure because a bench trial 

would have been more favorable to him, given the “inconclusive” eyewitness 

testimony presented by the State. We disagree. Even if Harper had been informed 

of his right to waive a jury trial and exercised that right, he fails to “show a 

reasonable probability that the result of the trial would have been different.” See 

State v. Ambrose, 861 N.W.2d 550, 557 (Iowa 2015). 

After independently reviewing the record, we are not convinced that a bench 

trial would have yielded a different result. Harper suggests that a judge, rather 
19

than a jury, would have been better able to recognize the gaps in the various 

eyewitness identifications made at trial. But even assuming the eyewitness

identifications were “inconclusive” on their own, they were corroborated by other 

evidence to support a conviction. While unclear, Harper appears to be arguing, 

for instance, the fact that “Turner, the victim, was impeached,” should have 

discredited Turner’s testimony altogether. Yet, in our view, it had the opposite 

effect because it allowed the State to bring in rebuttal evidence explaining the 

inconsistencies in the testimony, which we will discuss later. More significantly, it 

is clear from the record that the State did not rely on Turner’s testimony for his 

eyewitness identification. Instead, he was called on to testify about what he 

remembered before and after his attack, the severity of his injuries, and Harper’s 

possible motive. The other witnesses mentioned by Harper were likewise more 

useful to the State’s case-in-chief than just their individual identifications. 

Viewing the record as a whole, Harper cannot show he was prejudiced by 

his trial counsel’s failure to inform him of his right to waive a jury trial. Thus, his 

ineffective-assistance claim fails. See id. at 556 (“We can resolve ineffectiveassistance-of-counsel claims under either prong of the analysis.”). 

2. Motion in Limine Ruling

Harper next argues his trial counsel was ineffective for failing “to object to 

inadmissible evidence,” namely the State’s crime scene technician’s testimony that 

repeatedly referred to the person in the surveillance video as “the defendant.” He 

asserts this testimony was objectionable as a violation of the district court’s motion 

in limine ruling prohibiting any law enforcement officers from identifying him as the 

person in the video. For counsel to have breached an essential duty on this 
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ground, the crime scene technician must have violated the motion in limine ruling

by referring to “the defendant.” We find the ruling was not violated. 

At the motion in limine hearing, the prosecutor was fully transparent with the 

trial court and the defense that members of law enforcement who were involved in 

Harper’s case were likely going to identify Harper as the assailant when describing 

what they discovered throughout the investigation. The prosecutor explained:

“[W]e’re talking about over the course of the investigation and the multiple witness 

statements and things of that nature, there may be times when the officers are 

going to say that’s clearly this individual given what we now know.” The court 

thought the prosecutor’s position was “fair enough” and narrowly ruled that no law 

enforcement witnesses could be asked to identify Harper in the surveillance video 

at trial. The prosecutor confirmed: “I don’t intend to ask anybody—any of the 

officers whether you watched the video; does that look like him to you?” 

Based on this motion in limine ruling, we find nothing objectionable in the 

prosecutor’s questioning or the challenged testimony. While the crime scene 

technician did say “the defendant” throughout his testimony, his references were 

made in the specific context of the work he conducted during the initial 

investigation, which had included sweeping the crime scene and reviewing the 

surveillance footage. As the crime scene technician, he was naturally going to 

testify about his observations of all the evidence gathered during that process, 

including the video. Because the testimony did not violate the motion in limine 

ruling, Harper’s trial counsel could not have breached an essential duty in failing 

to object to the crime scene technician’s testimony on that basis. As a result, this 

ineffective-assistance claim also fails. 
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3. Bribery Testimony

Harper’s third contention relates to his trial counsel’s failure to object to 

testimony not included in the State’s minutes of evidence. He complains the

prosecutor improperly elicited surprise testimony that Turner was offered $10,000 

from Harper’s cousin to sign a “Voluntary Statement” stating, “I Domonique Turner 

have no clue who hit me . . . . Far as anything else goes I have no idea what 

the[y’re] talking about.” But because it was the defense that offered that statement 

into evidence in the first place to impeach Turner during cross-examination, the 

bribery testimony was admissible as rebuttal evidence. 

“Rebuttal evidence is that which explains, repels, controverts, or disproves 

evidence produced by the opposing party.” Carolan v. Hill, 553 N.W.2d 882, 889 

(Iowa 1996). And it is generally “confined to new matters first introduced by the 

opposing party.” Id. Given the district court’s “considerable discretion in admitting 

rebuttal evidence,” the admission of the challenged evidence must have been “a 

clear abuse of discretion” for us to predicate error. Id. We find no such abuse 

here. 

The record shows the bribery testimony was elicited by the prosecutor only 

after defense counsel had impeached Turner with the written statement 

purportedly signed and filed by Turner while Harper’s criminal case was pending. 

Because Turner gave inconsistent responses to defense counsel’s persistent

questioning about whether he remembered writing the statement, if at all, the 

prosecutor had reason to follow up on redirect examination and ask Turner 

whether the statement was made voluntarily. Notably, the prosecutor’s follow-up 

was brief and circumscribed to that purpose: “Did that offer of money affect in any 
22

degree what you said in those documents? Was it a factor that you were thinking 

about?” Turner replied, “It was.” This line of questioning was not improper. Nor 

were Turner’s responses inadmissible. Because the bribery testimony was proper 

rebuttal evidence put forth by the State, Harper’s trial counsel did not have an 

essential duty to object to its admission. Thus, we find no breach under the first 

Strickland prong. 

4. Inconsistent Statements

We turn to Harper’s fourth and final claim of ineffective assistance. He 

contends his trial counsel breached a duty to adequately impeach Gary, his 

then-girlfriend, with her inconsistent statements at trial. He concludes, “If the jury 

had been exposed to the impeachment evidence, there is a reasonable chance 

that the outcome of trial would have been different.” We disagree.

The record reveals that Harper’s trial counsel asked Gary several times on 

cross-examination if she recalled telling him during her deposition that she could 

not identify who the assailant was when initially questioned by investigators. But 

because that statement differed from what Gary had just described during her 

direct-examination, the jury could have pieced together the inconsistency without 

Gary confirming that was true. Thus, despite Gary’s inconclusive answers, 

counsel’s questioning was specific enough to flag the issue in front of the jury. Like 

the others, this claim is rejected for failure to establish counsel’s breach of an 

essential duty. 

Notwithstanding the above, Harper makes a final effort to obtain relief by 

arguing “the cumulative errors combined to deprive [him] of the right to a fair trial.” 

See Schrier v. State, 347 N.W.2d 657, 668 (Iowa 1984) (considering all
23

ineffective-assistance claims “individually and cumulatively” to determine whether 

reversal is warranted). “Where, as here, ‘the court is assessing multiple claims 

and assumes without deciding counsel breached an essential duty,’” as we did

with Harper’s claim regarding his right to waive a jury trial, “‘then the reviewing 

court should consider whether the assumed breaches, cumulatively, resulted in 

Strickland prejudice.’” Pantaleon v. State, No. 19-1254, 2021 WL 592928, at *4 

(Iowa Ct. App. Feb. 3, 2021) (quoting State v. Jones, No. 16-1828, 2018 WL 

1858296, at *7 (Iowa Ct. App. Apr. 18, 2018))); accord State v. Clay, 824 N.W.2d 

488, 501–02 (Iowa 2012).

We sidestepped the breach-of-duty question in relation to only one of 

Harper’s claims, which we concluded did not result in prejudice. Any breach that 

may have occurred with that claim does not undermine our confidence in the 

outcome, see Strickland, 466 U.S. at 694, so we reject the cumulative-error claim,

see Pantaleon, 2021 WL 592928, at *4; accord Clay, 824 N.W.2d at 501–02. 

IV. Conclusion

We affirm the denial of Harper’s application for postconviction relief.

AFFIRMED.