IN THE COURT OF APPEALS OF IOWA

No. 14-2126

Filed May 25, 2016

STATE OF IOWA,

Plaintiff-Appellee,

vs.

DALE D. MORROW JR.,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Des Moines County, Mary Ann 

Brown, Judge.

A defendant appeals his conviction for possession of cocaine with intent to 

deliver. AFFIRMED.

Curtis Dial of Law Office of Curtis Dial, Keokuk, for appellant.

Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney 

General, for appellee.

Considered by Tabor, P.J., and Bower and McDonald, JJ.
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TABOR, Presiding Judge.

Dale Morrow raises two issues in this appeal from his conviction for 

possession of crack cocaine with intent to deliver. First, he argues the district 

court wrongly granted the prosecutor’s motion to strike a potential juror for cause. 

Because Morrow did not secure a ruling from the district court on the juror 

challenge under Iowa Rule of Criminal Procedure 2.18(5)(k), he failed to 

preserve this claim for appeal. Second, he contends he received ineffective 

assistance of counsel because his trial attorney failed to seek a continuance to 

subpoena an absent witness. Because the record is inadequate to decide this 

issue, we preserve it for a possible postconviction proceeding.

Prior Proceeding. Morrow appeared for a jury trial in Des Moines County 

on October 7, 2014. The parties waived reporting of jury selection. But about 

forty minutes into the process, the court went on the record in chambers to 

address the prosecutor’s motion to strike potential juror N.D. Although the State 

was not exercising a peremptory challenge, the court stated it was giving defense 

counsel an opportunity for a “Batson1record.” The court noted that Morrow and 

N.D. were both African Americans.

The prosecutor recapped the exchange she had previously had with N.D. 

in which the potential juror indicated she was acquainted with Morrow but that 

their friendship would not necessarily affect N.D.’s judgment in the case. But 

N.D. also told the prosecutor N.D. knew Burlington Police Officer Blake 

Cameron, an expected witness for the State. N.D. explained Officer Cameron 

 

1

In Batson v. Kentucky, 476 U.S. 79, 89 (1986), the court held a prosecutor may not use 

peremptory strikes to challenge potential jurors solely on account of their race.
3

had carried out a drug raid at her house about one year earlier. N.D. 

acknowledged feeling biased against the police officer because of the raid on her 

house and said she didn’t know if she could overcome that bias when listening to 

the evidence. When questioned by defense counsel, N.D. said she would try to 

be fair to both sides if instructed to do so by the judge. But when the judge 

asked N.D. what she would do when Officer Cameron testified, N.D. replied: “I 

wouldn’t believe him.” The potential juror said she didn’t think she could set 

aside her opinion of the officer even if instructed to do so by the court.

At this point, the State argued it had met its burden to show N.D. should 

be removed for cause because she professed an inability to set aside her 

negative feelings concerning a key witness for the State. Defense counsel 

responded, “[I]t is rare to have black jurors sit on juries in Des Moines County, 

and I will share that my black clients in the past have expressed frustration” over 

that aspect of the system. Counsel continued, “[S]o we would certainly urge that 

black jurors only be removed from the panel for the most compelling reasons.” 

Defense counsel then argued N.D.’s answers were ambiguous and N.D. did state 

she believed she could be fair to both sides.

While defense counsel may have led the district court astray by inserting 

the issue of race, at the core of their arguments both parties seemed to be 

addressing a challenge for cause governed by rule 2.18(5)(k).

2 But the court 

superimposed the criteria from Batson and State v. Veal, 564 N.W.2d 797, 807 

 

2 A challenge to an individual juror may be made for the following causes: “k. Having 

formed or expressed such an opinion as to the guilt or innocence of the defendant as 

would prevent the juror from rendering a true verdict upon the evidence submitted on the 

trial.” Iowa R. Crim. P. 2.18(5)(k). 
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(Iowa 1997) governing peremptory challenges. The court stated the defense 

must first establish a prima facie case of purposeful discrimination by the State, 

and then the burden shifts to the State to provide a race-neutral reason for 

challenging the potential juror. The court agreed with defense counsel that it 

would be frustrating for African-American defendants not to have “members of 

their race on the jury.” Still, the court highlighted the unusual circumstance of 

potential juror N.D. having one of the investigating officers in Morrow’s case 

conduct a drug raid at her house within the past year. The court concluded 

N.D.’s “preconceived determination that Officer Cameron would not tell the truth 

is a race-neutral reason justifying [N.D.] being struck from this panel.”

Standard of Review and Error Preservation. The test to be applied in 

ruling on challenges for cause under rule 2.18(5)(k) is “whether the juror holds 

such a fixed opinion on the merits of the case that he or she cannot judge 

impartially the guilt or innocence of the defendant.” State v. Neuendorf, 509 

N.W.2d 743, 746 (Iowa 1993). We review a district court’s grant of a motion to 

strike a potential juror for cause under an abuse-of-discretion standard. See 

State v. Grove, 171 N.W.2d 519, 520 (Iowa 1969) (“Actually the trial court has 

considerable discretion in acting on challenges to prospective jurors.”); see also 

State v. Moore, 469 N.W.2d 269, 270 (Iowa Ct. App. 1991) (noting the State is 

entitled to same “fair opportunity” to present its case).

But in this case, the district court erroneously analyzed the motion to strike

N.D. as a Batson contest and not as a for-cause challenge under the rule. See 

United States v. Elliott, 89 F.3d 1360, 1364-65 (8th Cir. 1996) (“Batson applies 

only to peremptory strikes. We know of no case that has extrapolated the Batson
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framework to for-cause strikes. There is simply no legal basis for this argument,

which fails to recognize that peremptory strikes, for which no reasons need be 

given (absent a Batson challenge), are different from challenges for cause, which 

by definition require a showing of cause.”); but see State v. Riddley, 776 N.W.2d 

419, 431 (Minn. 2009) (acknowledging “a rare case” could arise where an 

extension of Batson might be appropriate if “the facts undoubtedly suggest that 

the prosecutor has challenged for cause a juror for racially discriminatory 

reasons, and the trial court has erred in granting the motion”). 

In concluding the prosecutor provided a “race-neutral reason” for striking 

N.D., the district court did not reach the question whether the State’s rationale 

met the criteria under the rule to challenge a potential juror for cause. See 

Batson, 476 U.S. at 97 (holding “prosecutor’s explanation need not rise to the 

level justifying exercise of a challenge for cause”). Because Morrow did not 

secure a ruling on the ground he advances on appeal, we have nothing to 

review. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“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.”).

No Abuse of Discretion. Even if we consider error to be preserved, we 

find no abuse of discretion in the court’s grant of the State’s request to strike 

potential juror N.D., who considered Morrow to be a friend and “would see him in 

passing many times during a week.” See Moore, 469 N.W.2d at 273 (upholding 

challenge for cause when juror was related to defendant by marriage and would 

occasionally have coffee with his mother). But even more critically, N.D. candidly 

told the court she felt biased against Officer Cameron because he had been 
6

involved in a drug raid of her house within the past year and she would not 

believe his testimony. She confirmed she would not be able to set aside her 

predisposition even if instructed by the court to do so. A person holding such a 

preconceived and rigid view of the veracity of a key witness could not judge 

impartially the guilt or innocence of the defendant and may be struck for cause. 

See Iowa R. Crim. P. 2.18(5)(k); see also State v. Faucher, 596 N.W.2d 770, 786

(Wis. 1999) (finding potential juror with strongly held beliefs that a witness was 

credible should have been struck for cause).

No Prejudice Shown. Even if the district court did abuse its discretion in 

allowing the State to strike juror N.D. for cause, Morrow does not assert how he 

was prejudiced by her removal from the pool of prospective jurors. Our court has 

not presumed prejudice from erroneous exclusion. See State v. Sandoval, No. 

05-0426, 2006 WL 3018152, at *3 (Iowa Ct. App. Oct. 25, 2006) (citing Summy v. 

City of Des Moines, 708 N.W.2d 333, 339 (Iowa 2006)). Rather, the defendant 

must show the court’s actions resulted in the seating of a partial juror. See id.;

see also Neuendorf, 509 N.W.2d at 746. Here, Morrow makes no such showing.

Ineffective Assistance of Counsel. Morrow also claims his trial attorney 

was remiss in not asking for a continuance to subpoena a witness by the name of 

Christal McClendon. Our review of his claim is de novo. State v. Oetken, 613 

N.W.2d 679, 683 (Iowa 2000). To prevail, he must show counsel failed to 

perform an essential duty and prejudice resulted. See Strickland v. Washington,

466 U.S. 668, 687 (1984).
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At the close of the defense case, counsel told the court he expected to call 

McClendon as a witness, but she did not appear at his office to accept service on 

the subpoena and she did not appear at the time designated for her trial 

testimony. On appeal, Morrow acknowledges we do not know what her 

testimony would have been. The State contends Morrow cannot show securing 

her testimony would have resulted in a reasonable probability of a different 

outcome given the evidence he was carrying $800 worth of crack cocaine and 

$672 in cash on his person when he was arrested. Morrow took the position at 

trial the drugs were for his personal use. 

Generally we preserve ineffective-assistance claims for postconviction 

proceedings. State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994). We may resolve 

such claims on direct appeal only if we have an adequate record. Id. We 

conclude this record is insufficient to address the witness issue and preserve it 

for possible postconviction proceedings.

AFFIRMED.