IN THE COURT OF APPEALS OF IOWA

No. 22-0698

Filed March 29, 2023

STATE OF IOWA,

Plaintiff-Appellee,

vs.

STONEY ROCK GIFFORD,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Webster County, Kurt L. Wilke 

(motion for bond reduction), Jennifer Miller (application for depositions), and 

Thomas J. Bice (fair-cross-section challenge and trial), Judges.

The defendant challenges the district court’s denial of his fair-cross-section 

challenge and his requests to reduce his pre-trial bond and depose non-listed 

witnesses; he also alleges prosecutorial misconduct. AFFIRMED. 

Francis Hurley, Des Moines, for appellant.

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

General, for appellee.

Considered by Vaitheswaran, P.J., and Greer and Chicchelly, JJ.
2

GREER, Judge.

A jury convicted Stoney Gifford of first-degree robbery, intimidation with a 

dangerous weapon with intent, going armed with intent, and possession of a 

firearm by a felon. Gifford appeals, claiming (1) the district court abused its 

discretion in denying his request to reduce his bond prior to trial; (2) he should 

have been allowed to depose eight members of law enforcement who were not 

listed as witnesses by the State; (3) the court wrongly denied his fair-cross-section 

challenge to the jury pool for underrepresentation of Hispanic potential jurors;

1 and 

(4) prosecutorial misconduct deprived him of his right to a fair trial. 

I. Discussion.

A. Request for Bond Reduction.

In August 2020, the State filed a criminal complaint charging Gifford with 

first-degree robbery. A warrant issued for Gifford’s arrest, and he was taken into 

custody pending trial. A $50,000 cash bond was required for his release. Gifford 

moved for bond review, asking the court to reduce his bond to $25,000 cash or 

surety. The State resisted. After a hearing in October, the district court denied 

Gifford’s request.

Gifford challenges the denial, arguing the district court abused its discretion 

because he “had stable family ties and employment[ and] offered to submit to 

supervision.” See Iowa Code § 811.2(2) (2020) (listing considerations to be taken 

1 Gifford has used “Latino” and “Hispanic” interchangeably in making his fair-crosssection claim. We consistently use “Hispanic” in this opinion. See Hispanic, 

Merriam-Webster, https://www.merriam-webster.com/dictionary/Hispanic (last 

visited Mar. 24, 2023) (listing one of the definitions of “Hispanic” as “of, relating to, 

or being a person of Latin American descent and especially of Cuban, Mexican, or 

Puerto Rican origin living in the U.S.”).
3

into account when determining conditions of release). But, as the State points out, 

Gifford’s challenge to the denial of his request to reduce his bond is now moot. 

See State v. Briggs, 666 N.W.2d 573, 576 (Iowa 2003) (“[The defendant’s] 

arguments based on the propriety of her bail became moot after . . . [she] was 

found guilty. Any decision we issue relating to cash only bail will have no further 

effect on her at this point of time.”). So, we will not consider it. Id. (“As a rule, we 

do not decide appeals in which ‘the issue becomes nonexistent or academic and, 

consequently, no longer involves a justiciable controversy.’” (citation omitted)).

Insofar as Gifford raises a constitutional argument about our bail system

more generally, he did not raise this issue to the district court, so it is not preserved 

for our review. See In re Det. of Anderson, 895 N.W.2d 131, 138 (Iowa 2017) (“In 

order for error to be preserved, the issue must be both raised [to] and decided by 

the district court.”); see also State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) 

(“The rule of error preservation applies with equal strength to constitutional 

issues.”). We do not consider this issue further. 

B. Depositions of Non-Witnesses.

Relying on Iowa Rule of Criminal Procedure 2.13(2), Gifford sought to 

depose eight police officers who were not listed as witnesses by the State; the rule

provides: 

Whenever the interests of justice and the special 

circumstances of a case make necessary the taking of the testimony 

of a prospective witness not included in rule 2.13(1)[2] or 2.13(3),[3]

2 Rule 2.13(1) allows a defendant to “depose all witnesses listed by the state on 

the indictment or information or notice of additional witnesses in the same manner 

and with like effect and with the same limitations as in civil actions except as 

otherwise provided by statute and these rules.”

3 Rule 2.13(3) deals with the defendant’s witnesses; it requires:
4

for use at trial, the court may upon motion of a party and notice to the 

other parties order that the testimony of the witness be taken by 

deposition . . . . For purposes of this subsection, special 

circumstances shall be deemed to exist and the court shall order that 

depositions be taken only upon a showing of necessity arising from 

either of the following:

(1) The information sought by way of deposition cannot 

adequately be obtained by a bill of particulars or voluntary 

statements.

(2) Other just cause necessitating the taking of the deposition.

Iowa R. Crim. P. 2.13(2)(a). 

In his application, Gifford described his need for the depositions as follows:

The witnesses identified below are law enforcement officers 

who arrived at the scene of the alleged crime or were involved in the 

investigation, interviewed witnesses, and allegedly searched for the 

suspect that is now alleged to be the Defendant. In reviewing 

discovery provided by the State, it appears that over fifty people were 

investigated, interviewed, or information derived from or about during 

the investigation of this matter. The officers sought had varying 

levels of involvement in said investigations, likely with each procuring 

and learning different aspects of the investigation.

The State resisted, claiming Gifford failed to meet his burden and that the State 

was still in the process of complying with a discovery request, which—when 

completed—would provide Gifford with “reports and/or body camera footage that 

will account for 6 of the 8 officer’s involvement in the investigation.” 

At a hearing on the application, Gifford reiterated that he needed to depose 

the officers to find out what each one’s “role in this investigation was, who they 

At or before the time of the taking of a deposition by a defendant 

under rule 2.13(1) or 2.13(2), the defendant shall file a written list of 

the names and addresses of all witnesses expected to be called for 

the defense (except the defendant and surrebuttal witnesses), and 

the defendant shall have a continuing duty before and throughout 

trial promptly to disclose additional defense witnesses. Such 

witnesses shall be subject to being deposed by the state.
5

talked to, what was said to them, [which] would lead to other witnesses.” The State 

responded, 

[D]efense counsel coming in here and saying we would like to talk to 

these people is [not] enough. There has to be a showing that the 

information that he can obtain would be pertinent and relevant to the 

case and not able to be found through any other mechanism. In this 

case the defense counsel hasn’t reviewed body camera footage and 

reports. I certainly don’t think it’s fair to come in here and say he 

can’t find that through any other mechanism.

Relying on State v. Webb, 309 N.W.2d 404 (Iowa 1981) and other cases, the court 

denied Gifford’s motion.

Gifford challenges this ruling on appeal. He seeks to distinguish his case 

from Webb, arguing that while the defendant in Webb “merely speculated that the 

witnesses might have information that might support his alibi,” he “set out detailed 

foundation for the specific information [he] was seeking and why it was needed 

and how it would prejudice him if he were denied.” We review discovery rulings 

for an abuse of discretion. Webb, 309 N.W.2d at 413. “Error in the administration 

of discovery rules is not reversible absent a demonstration that the substantial 

rights of the defendant were prejudiced.” Id. (citation omitted). 

Gifford argues that discovery rules should be liberally construed, but “when 

construing our discovery rules and statutes in criminal cases, [our supreme court 

has] been scrupulous not to broaden discovery beyond the plain language of the 

rules or statutes.” State v. Rainsong, 807 N.W.2d 283, 287 (Iowa 2011). And a 

defendant’s broad claim that persons not listed by the State may have information 

to aid in his defense does not meet the standards of rule 2.13(2). See id.; see also 

State v. Wagner, 410 N.W.2d 207, 213 (Iowa 1987) (“A defendant who makes no 

showing the evidence hoped to be obtained will be material and favorable to his or 
6

her defense has no right to compulsory process and has failed to demonstrate 

‘special circumstances’ as required by [now rule 2.13(2)].”). Especially here, where 

Gifford had yet to complete discovery and had not reviewed the body camera

footage and reports of the officers he claimed to need to depose. See Iowa R. 

Crim. P. 2.13(2)(b) (allowing for depositions of unlisted individuals when just cause 

necessitates the taking of the deposition). Further, Gifford did not renew his 

request for the depositions after receiving those discovery materials.

Plus, even if the district court should have allowed the depositions under 

rule 2.13(2), Gifford makes no argument how the alleged error prejudiced his 

substantial rights. Receiving the remedy he requests—having his conviction set 

aside and a new trial granted—requires “a demonstration that” his “substantial 

rights . . . were prejudiced.” Webb, 309 N.W.2d at 413; see also Wagner, 410 

N.W.2d at 213 (affirming district court when the defendant “list[ed] a number of 

persons who witnessed the uprising, [but] he point[ed] to nothing definitive in the 

record that suggests their testimony would be material or favorable to his defense. 

He . . . made no showing their testimony would not merely duplicate that of other 

witnesses. Further, [he made] no claim regarding any prejudice that resulted from 

the court’s denial of discovery, nor is any prejudice apparent from this record”). 

We cannot say the district court committed a reversible error in denying 

Gifford’s request to depose the eight officers. 

C. Fair-Cross-Section Challenge.

In the days leading up to his January 2022 criminal trial, Gifford, who is 

Native American, challenged the makeup of the jury pool. See U.S. Const. 

amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a 
7

speedy and public trial, by an impartial jury of the State and district wherein the 

crimes shall have been committed.”); Iowa Const. art. I, § 10 (providing the right to 

“public trial by an impartial jury”); Taylor v. Louisiana, 419 U.S. 522, 530 (1975) 

(“We accept the fair-cross-section requirement as fundamental to the jury trial 

guaranteed by the Sixth Amendment and are convinced that the requirement has 

solid foundation.”). Gifford asserted a fair-cross-section violation due to the 

alleged underrepresentation of Hispanic potential jurors. 

The defendant has the burden to establish a prima facie violation of the faircross-section requirement, which requires 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.

Duren v. Missouri, 439 U.S. 357, 364 (1979); State v. Plain (Plain II), 969 N.W.2d 

293, 296 (Iowa 2022); State v. Lilly (Lilly I), 930 N.W.2d 293, 299 (Iowa 2019). 

In his written challenge filed with the district court, as to the second prong,

Gifford asserted: “Grace Zalenski has analyzed the jury pool for this jury trial. . . . 

Ms. Zalenski’s findings are that the pool for this trial is statistically under

representative of Latino/Hispanic Americans, with a Z-score of -1.4, meeting the 

one standard deviation threshold set in [Lilly I].” As to the third prong, he claimed, 

Zalenski’s statistical analysis is sufficient to satisfy the third prong. 

As noted in her report, “By definition, if some degree of underrepresentation in a jury pool is not due to chance, it is due to systemic 

bias.” Zalenski reviewed thirty-one jury pools from Webster County, 

Iowa using demographic reports for January 1, 2019 to January 4, 

2022. “The probability of drawing 26 pools that are 

underrepresentative of the Hispanic American/Latine group, by 

random chance alone, is 0.0000000000002776%.” 
8

(Internal citations omitted.)

At a later evidentiary hearing on the issue, Gifford explained that Zalenski 

was not available to testify; the parties agreed her resumé, completed statistical 

analysis, and a transcript from a different case in which she explained how she 

does the math and what data she compares would be admitted as exhibits. Gifford 

also introduced Iowa’s jury management policy from the state court administrator. 

In his argument, Gifford stated:

We are representing the issues that the math alone is a systemic 

problem and that the jury process done by the State and the Clerk of

Court here in Webster County . . . simply leads to an underrepresentation and that under-representation leads to not having a 

fair cross-section of the community.

The State called the Clerk of Court for Webster County; she testified about the 

processes used to summon potential jurors, what happens when people do not 

respond, the state-wide jury system, and how little the employees within the local 

clerk’s office can impact that system. 

In a written ruling, the district court denied Gifford’s fair-cross-section 

challenge,4 concluding Gifford failed to meet the third prong because “the matters 

objected to by [him] fall within the general category of ‘run of the mill’ matters.” 

4

In its ruling, the district court wrongly concluded that a defendant must be a 

member of the distinctive group of which the defendant is claiming 

underrepresentation to raise a fair-cross-section challenge under the Iowa 

Constitution. This misunderstanding seems to stem from our supreme court’s 

misstatement of the law in State v. Plain (Plain I), 898 N.W.2d 801 (Iowa 2017). In 

Plain I, the supreme court stated, “Under the first Duren prong, a defendant must 

establish membership in a distinctive group under community standards.” 898 

N.W.2d at 822. But Duren itself explicitly makes clear that membership is not a 

requirement, stating, “A criminal defendant has standing to challenge exclusion 

resulting in a violation of the fair-cross-section requirement, whether or not he is a 

member of the excluded class.” 439 U.S. at 359 n.1; see also Taylor, 439 U.S. at 
9

We review constitutional issues de novo. Plain I, 898 N.W.2d at 810. 

Failing any one prong is sufficient to defeat a defendant’s fair-cross-section claim. 

Plain II, 969 N.W.2d at 297 (“We will begin our analysis on the third prong, since 

an inability to establish any one of the three Duren/Plain elements is fatal to a 

defendant’s fair-cross-section challenge.”). 

We begin our review at the third prong—considering whether Gifford 

established any underrepresentation was due to systematic exclusion of the group 

in the jury-selection process. Like he did to the district court, Gifford broadly claims 

any underrepresentation must be systemic due to the “small chance that the 

underrepresentation could be by chance.” In other words, Gifford uses the

statistical evidence needed to prove the second prong as a fait accompli of proving 

the third. But these are separate elements; the mere existence of 

526 (rejecting Louisiana’s claim that the male defendant could not object to the 

exclusion of women from his jury because “there is no rule that claims such as [the 

defendant] presents may be made only by those defendants who are members of 

the group excluded from jury service”). Moreover, Plain I does not involve a 

challenge under the Iowa Constitution. See Plain II, 969 N.W.2d at 296 (“In Plain 

I, we held that Plain hadn’t raised a claim under the Iowa Constitution in the district 

court.”). 

To clarify, Gifford may properly raise a fair-cross-section challenge under 

both the Iowa and United States Constitutions regarding the alleged 

underrepresentation of Hispanic potential jurors even though he is Native

American and not Hispanic. The distinction between the state and federal claims

is the threshold standard deviations that must be shown to obtain relief. Under the 

Iowa Constitution, one standard deviation is sufficient under the second prong. 

See Lilly I, 930 N.W.2d at 304 (holding, under article I, section 10 of the Iowa 

Constitution, a defendant establishes the underrepresentation prong by showing 

that the representation of a distinctive group in the jury pool falls below the 

representation in the eligible juror population by more than one standard 

deviation). But to succeed on a claim under the Sixth Amendment, the defendant 

must establish at least two standard deviations. See State v. Veal, 930 N.W.2d 

319, 329 (Iowa 2019) (recognizing the United States Supreme Court “seemingly 

endorsed two to three standard deviations as an appropriate threshold”). 
10

underrepresentation does not establish the causation element required for the third 

prong. See Lilly II, 969 N.W.2d at 797 (“[T]o establish the third prong a defendant 

must prove that the underrepresentation resulted from a particular feature (or 

features) of the jury selection system. The defendant, in other words, ‘must tie the 

disparity to a particular practice’ and show that the practice caused the systematic 

exclusion of the distinctive group in the jury selection process.’” (citations omitted)). 

Rather, 

[l]itigants alleging a violation of the fair cross section requirement . . . 

still have to demonstrate that the underrepresentation was the result 

of the court’s failure to practice effective jury system management. 

This [will] 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.

Lilly I, 930 N.W.2d at 307 (quoting Paula Hannaford-Agor, Systemic 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)). 

Because Gifford failed to establish the third prong of the prima facie 

challenge, we agree with the district court that his fair-cross-section claims fail. 

D. Alleged Prosecutorial Misconduct.

As a final point, Gifford alleges several instances of prosecutorial 

misconduct, which he claims deprived him of his right to a fair trial. In his appellate 

brief, Gifford admits he did not lodge contemporaneous objections to any of the 

conduct he now challenges; he first raised the issue in a post-trial motion. Gifford’s 

late challenge failed to preserve error for our review. See State v. Seltzer, 288 
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N.W.2d 557, 559 (Iowa 1980) (“Objections should be raised at the earliest time at 

which error became apparent in order to properly preserve error. Motion for new 

trial ordinarily is not sufficient to preserve error where proper objections were not 

made at trial.” (internal citation omitted)); see also Mitchell v. Cedar Rapids Comm. 

Sch. Dist., 832 N.W.2d 689, 695 (Iowa 2013) (“It is well-settled that a party fails to 

preserve error on new arguments or theories raised for the first time in a posttrial 

motion.”). 

We do not consider this issue further.

II. Conclusion.

Because Gifford’s challenge to the district court’s denial of his request for 

bond reduction is moot and he failed to preserve error on his allegations of 

prosecutorial misconduct, we do not consider either claim. We find no reversible 

error in the court’s denial of his application to depose eight non-listed witnesses or 

its denial of his fair-cross-section challenge. We affirm.

AFFIRMED.