State of Iowa v. Tyjuan Levell Tucker ( 2022 )

IN THE SUPREME COURT OF IOWA
No. 19–1919
Submitted September 15, 2022—Filed December 2, 2022
STATE OF IOWA,
Appellee,
vs.
TYJAUN LEVELL TUCKER,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, William P. Kelly,
Judge.
A defendant appeals a criminal conviction, claiming the district court
wrongfully excluded evidence under Iowa Rule of Evidence 5.106 (rule of
completeness) and Iowa Rule of Criminal Procedure 2.14(6)(c) (discovery
sanction). DECISION OF COURT OF APPEALS AND DISTRICT COURT
JUDGMENT AFFIRMED.
Christensen, C.J., delivered the opinion of the court, in which Waterman,
Mansfield, and McDonald, JJ., joined. McDermott, J., filed a dissenting opinion,
in which Oxley, J., joined. May, J., took no part in the consideration or decision
of the case.
Jessica Donels (argued) and Andrew Dunn of Parrish Kruidenier Dunn
Gentry Brown Bergmann & Messamer L.L.P., Des Moines, for appellant.
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Thomas J. Miller, Attorney General, and Louis S. Sloven (argued),
Assistant Attorney General, for appellee.
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CHRISTENSEN, Chief Justice.
In this case, the defendant appeals his conviction for possession of a
controlled substance with intent to deliver in violation of Iowa Code section
124.401(1)(d) (2018). The defendant states five alternative grounds for his
appeal. He claims violations of his state constitutional right to a jury drawn from
a fair cross section of the community and his right to effective assistance of
counsel. He also claims the district court wrongfully excluded exculpatory
evidence in two separate instances. Finally, he claims the jury convicted him
based on insufficient evidence.
The court of appeals affirmed the conviction in all respects. On further
review, we also affirm the conviction and conclude that Iowa Rule of Evidence
5.106 and the common law doctrine of completeness cannot trump Iowa Rule of
Evidence 5.402, which states irrelevant evidence is not admissible.
I. Background Facts and Proceedings.
Two Des Moines police officers pulled over Tyjaun Tucker on July 28,
2018, at about 10:42 p.m. Before the stop, the officers drove past Tucker, seated
in his stationary car, exchanging something with a woman standing at his open
car window. When Tucker noticed the police, he immediately drove out of the
parking lot, pulling in front of oncoming traffic and nearly causing an accident.
The officers then followed and stopped Tucker’s car. Officer Garrett, one of the
two officers, wore a bodycam that recorded the stop.
During the stop, the officers smelled marijuana. Tucker had no driver’s
license and claimed he had lost it earlier that day. The officers detained Tucker,
4
restrained his hands, and searched his car. They discovered $650, mostly
denominated in $100 bills, in the car’s center console. The officers also searched
Tucker’s person. When they noticed something hidden in his pants, he launched
into an obscenity-laced outburst. He started to run away, scream for help, shout
at the officers to get off of him, and accuse them of both fighting him for no
reason and setting him up. Tucker also repeatedly asked why the officers were
“grabbing” him. The object in Tucker’s pants turned out to be one ounce of
marijuana hidden in his underwear.
The State later charged Tucker by trial information for possession of a
controlled substance with intent to deliver. Iowa Code § 124.401(1)(d). The State
formally requested reciprocal discovery no less than three times between
October 17, 2018, and December 28, 2018. Upon the State’s motion, on
January 3, 2019, the district court ordered Tucker to exchange reciprocal
discovery within fourteen days. A trial was set for June 3.
On that day, the parties appeared before the district court to discuss
pretrial matters. After unsuccessful plea negotiations, jury selection began.
Tucker challenged the jury pool’s composition on the grounds that it did not
represent a fair cross section of the community, leading the trial court to analyze
the jury pool’s racial composition under the three-pronged test outlined in State
v. Lilly, 930 N.W.2d 293, 298–308 (Iowa 2019).
The parties disagreed about the third prong, whether the county’s jury
selection processes systematically excluded African-Americans from the jury
pool. They agreed that Tucker, who is African-American, is a member of a
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distinctive group in the community. They also agreed the number of African-
Americans in the jury pool fell short of the community’s population of jury-
eligible African-Americans by more than one standard deviation. With resistance
from the State, the district court continued the trial so Tucker could obtain
expert testimony or other evidence for the third prong. See id. at 299 (citing State
v. Plain, 898 N.W.2d 801, 821 (Iowa 2017)) (setting out the three prongs as
originally outlined by the United States Supreme Court in Duren v. Missouri, 439
U.S. 357, 364 (1979)). Discussion was also held on the record with Tucker’s
lawyer about the names of two local fair-cross-section experts who might be
called as expert witnesses for the third prong.
The rescheduled trial commenced on August 19, with a new jury pool.
Tucker again made a fair-cross-section challenge under Lilly. As before, the
parties agreed the first prong of Lilly was satisfied, so the district court proceeded
to the second prong, calculating the standard deviation of the number of African-
Americans in the jury pool relative to the proportion of African-Americans in Polk
County. Of the 245 jurors in the jury pool, 9 were African-American. Given that
5.4% of the Polk County population were jury-eligible African-Americans, the
court determined the jury pool underrepresented African-Americans by a
standard deviation factor of 1.19, which satisfied the second prong.
The district court then considered the third Lilly prong. Tucker argued the
jury selection process caused systematic underrepresentation of African-
Americans because the county relied on voter registration and driver’s license
records. Statistically speaking, Tucker claimed that “minorities sign up for
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licenses at a lower rate and also register to vote at a lower rate.” To support this
argument, he cited one law review article, Paula Hannaford-Agor, Systematic
Negligence in Jury Operations: Why the Definition of Systematic Exclusion in Fair
Cross Section Claims Must Be Expanded, 59 Drake L. Rev. 761 (2011). He did not
put on expert testimony due to “practical problems.” He explained he could not
hire a court-appointed expert until he had a basis to do so, and he could not
know if he had a basis to hire an expert until the jury pool appeared in the
courthouse.
The district court ultimately determined Tucker failed to satisfy the third
Lilly prong. It reasoned Tucker did not explain how using information from
sources other than voter identification and driver’s license records would
increase minority jury representation. It also reasoned Tucker did not prove the
jury selection processes systematically excluded racial minorities. The parties
then proceeded to jury selection and empaneled a jury. The court ordered Tucker
multiple times to stand when the jury first entered the courtroom, but Tucker
refused. He told the court he was hurt and could not stand, despite the fact he
had stood moments earlier without any difficulty.
During trial, Tucker lodged various objections to the district court’s
evidentiary rulings. Two of these objections are relevant in this appeal. First, on
the afternoon of the second day of trial, which ended up being the final day of
the State’s case, Tucker sought to introduce documentary evidence of a
settlement payout he received from the QuikTrip Corporation. The documentary
7
evidence included a settlement statement from a law firm,1 a contract releasing
Tucker’s claims against QuikTrip, various professional invoices, and other
documents. Tucker intended to use these documents to demonstrate the $650
cash found in his car did not come from drug sales. However, Tucker had not
shared any of these settlement documents with the State during reciprocal
discovery. For that reason, the district court prohibited Tucker from introducing
them under Iowa Rule of Criminal Procedure 2.14(3). The court, however, did
allow Tucker to testify about the settlement but, upon a motion in limine from
the State, ordered him not to mention the settlement documents. In return, the
State agreed not to call attention to the fact Tucker introduced no documents
proving the settlement.
Second, pursuant to Iowa Rule of Evidence 5.106, Tucker sought to play
for the jury an unedited version of Officer Garrett’s bodycam video during his
case-in-chief. The State had previously shown the edited version during its
examination of Officer Garrett. The unedited footage showed one officer telling a
second officer that a third officer, who was not present, had once shot Tucker.
In contrast, both the edited and unedited footage showed Tucker telling officers,
“I’m the one Scarlet shot right here down here on M.L.K.” Tucker specifically
wanted the jury to know he had been shot by a police officer, claiming that fact
was relevant to the reason the police stopped him and the reason he has
problems with law enforcement.
1The law firm of Tucker Law Office represented Tucker in his case against QuikTrip.
Tucker and his attorneys at Tucker Law Office happen to share the same last name. They are
not related.
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The district court did not allow Tucker to play the unedited footage. As a
general matter, the district court supported “the idea that the jury should be
able to see everything and anything that happened” during the traffic stop.
Nevertheless, the court determined the fact a police officer once shot Tucker was
not relevant to the charge of possession with intent to deliver. The court also
thought the officer’s statements posed hearsay, character evidence, and rule
5.403 problems. While the court would not permit Tucker to show the unedited
footage during his case-in-chief, the court did say it would have required the
State to show the unedited footage during the State’s case-in-chief when Officer
Garrett testified, if asked to do so under the completeness doctrine. The court
then ordered Tucker not to mention either being shot by a police officer or the
existence of unedited bodycam video.
Tucker took the witness stand during the trial. He testified he was in a
fast-food parking lot on the night of July 28, 2018, and the police followed him
when he drove away. He said the police had no reason to initiate a traffic stop
and accused the police of withholding video evidence that would prove him right.
He repeatedly testified the State had unedited bodycam video that it was not
presenting. Tucker agreed the officers claimed to smell marijuana, but he denied
having any when asked. He said there was video of officers putting marijuana in
his car. When his lawyer asked why he believed the police planted marijuana in
his car, Tucker responded, “I was shot by the police[,] . . . a detective here in
Des Moines.” The State objected to Tucker’s multiple references to unedited
bodycam video and the testimony that a detective shot him. The district court
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granted motions to strike this testimony pursuant to its ruling on the State’s
motion in limine.
Tucker’s lawyer then asked to discuss legal matters with the court, outside
the jury’s presence. The court excused the jury and spoke with Tucker and his
lawyer. It cautioned Tucker not to violate the motion in limine rulings again.
Tucker defended his actions by stating he was keeping his oath to give the whole
truth. The court then repeated its instruction to respect the motions in limine.
The jury returned to the courtroom, and Tucker’s attorney began to ask
questions about the QuikTrip settlement. When asked about the amount of the
settlement, Tucker said he had submitted paperwork proving the settlement but
the court would not show it to the jury. The court sustained objections from the
State and admonished the jury to disregard. Tucker concluded his direct
examination by saying he used the settlement to buy a car the day the police
stopped him and the $650 that the police found was the remainder.
On cross-examination, Tucker again declared the marijuana was not his
and he had no idea where it came from. He maintained the unedited video would
show how the marijuana “mysteriously” came to be found on him. The State
asked whether he had meant to imply police planted the marijuana on him.
Tucker responded “planted” might be the wrong word, but he was not sure what
word to use because “people don’t want to hear that police do those types of
things.”
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On August 21, the jury convicted Tucker as charged, and he timely
appealed. We transferred his case to the court of appeals, which affirmed the
conviction. Tucker applied for further review, which we granted.
II. Standard of Review.
Our standard of review for constitutional claims is de novo. State v.
Williams, 929 N.W.2d 621, 628 (Iowa 2019) (citing Plain, 898 N.W.2d at 810).
“Evidentiary rulings are generally reviewed for abuse of discretion.” State v.
Tipton, 897 N.W.2d 653, 690 (Iowa 2017) (citing State v. Buenaventura, 660
N.W.2d 38, 50 (Iowa 2003); State v. Spargo, 364 N.W.2d 203, 209 (Iowa 1985)).
We review insufficient evidence claims for errors at law. State v. Dalton, 674
N.W.2d 111, 116 (Iowa 2004) (citing State v. Spies, 672 N.W.2d 792, 796 (Iowa
2003)). We do not review claims of ineffective assistance of counsel on direct
appeal. Iowa Code § 814.7 (2022); State v. Tucker, 959 N.W.2d 140, 152–53 (Iowa
2021).
III. Analysis.
Tucker presents two constitutional arguments and three evidentiary
grounds for his appeal. On the constitutional front, he initially claims a violation
of his right under the Iowa Constitution to have his jury drawn from a fair cross
section of Polk County. He also claims ineffective assistance of trial counsel.
Tucker then makes three evidentiary arguments. First, Tucker argues the district
court abused its discretion under Iowa Rule of Criminal Procedure 2.14(6)(c) by
excluding the QuikTrip settlement documents as a discovery sanction. Second,
Tucker argues the district court abused its discretion under the rule of
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completeness and Iowa Rule of Evidence 5.106 by denying his request to show
the jury an unedited version of Officer Garrett’s bodycam video. Finally, Tucker
disputes the sufficiency of the evidence against him.
A. The Right to a Jury Drawn from a Fair Cross Section of the
Community. Tucker first claims a violation of his right to a jury drawn from a
fair cross section of the community under article I, section 10 of the Iowa
Constitution. See Lilly, 930 N.W.2d at 300–01. As in the court of appeals and the
district court below, Tucker’s claim turns on the third Lilly prong—causation.
See State v. Veal, 930 N.W.2d 319, 328 (Iowa 2019) (“[T]he defendant must prove
‘causation,’ that is, that the underrepresentation actually resulted from a
particular feature or features of the jury selection system.” (quoting Lilly, 930
N.W.2d at 306)).
We agree with the court of appeals and district court. Tucker failed to
causally connect any systematic underrepresentation of African-Americans in
his jury pool to any of Polk County’s jury selection processes. This failure
occurred even though the district court continued the trial so Tucker could
obtain evidence of systematic exclusion. After almost three months, Tucker
returned for trial with a single law review article that concluded racial minorities
register to vote and obtain driver’s licenses at disproportionately low rates. That
correlation by itself, cited from a decade-old law review article, fails to prove Polk
County’s jury selection processes caused systematic exclusion.
B. Ineffective-Assistance-of-Counsel Claims on Direct Appeal. Tucker
argues his trial counsel was ineffective for failing to secure testimony from a fair-
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cross-section expert. This claim is not properly before us, as the court of appeals
recognized. Claims of ineffective assistance of counsel must now be raised in the
first instance on postconviction review. Iowa Code § 814.7; see also, e.g., State
v. Treptow, 960 N.W.2d 98, 103–08 (Iowa 2021) (upholding section 814.7 against
separation of powers, due process, and equal protection challenges). Accordingly,
we do not consider Tucker’s ineffective-assistance claim at this time. He must
wait to bring any claims of ineffective assistance in an application for
postconviction relief. See Iowa Code § 814.7.
C. Iowa Rule of Criminal Procedure 2.14 and the Settlement
Documents. Tucker next argues that, as a discovery sanction, the district court
wrongfully excluded documents evidencing his settlement payout from QuikTrip.
Tucker’s brief frames the settlement documents’ exclusion as both a violation of
his state and federal constitutional rights and an abuse of district court
discretion. We begin by considering whether Tucker preserved error on the
constitutional aspects of this claim.
Litigants may not raise issues—including constitutional issues—for the
first time in an appeal. State v. Mitchell, 757 N.W.2d 431, 435 (Iowa 2008) (citing
State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997)). We follow this familiar and
fundamental rule for many reasons. For one thing, the rule helps “ensure that
the opposing party and the district court are alerted to an issue at a time when
corrective action can be taken or another alternative pursued.” Top of Iowa Coop.
v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000) (en banc). In addition,
well-reasoned appellate decisions depend on “the benefit of developed arguments
13
on both sides and lower court opinions squarely addressing the question.” Yee
v. City of Escondido, 503 U.S. 519, 538 (1992) (citing Lytle v. Household Mfg.,
Inc., 494 U.S. 545, 552 n.3 (1990)); see also Meier v. Senecaut, 641 N.W.2d 532,
537 (Iowa 2002) (citing Yee, 503 U.S. at 538).
Here, we agree with the court of appeals that Tucker did not preserve error
on the constitutional dimension of this claim. Tucker failed to lodge any
constitutional objections. Once the State motioned to exclude the settlement
documents, Tucker’s attorney sought to excuse the late disclosure and
concluded by saying, “I don’t think it would be appropriate to exclude these
documents. Mr. Tucker has a right to put a defense on, and we would ask you
to overrule the state’s motion.” This statement does not adequately preserve error
for constitutional claims, just as a claim that a statute is unconstitutional is not
specific enough to preserve error. See State v. Hernandez-Lopez, 639 N.W.2d 226,
234 (Iowa 2002) (“[A] party challenging the constitutionality of a statute must
alert the court to what specific constitutional provisions are allegedly
compromised by the statute.”). Neither Tucker nor his lawyer specified which
constitutional rights were purportedly violated; they did not mention the State
or Federal Constitutions either. Tucker’s vague reference to the right to put on a
defense is insufficiently specific to preserve error on a claim under the Fifth
Amendment to the United States Constitution or article I, section 10 of the Iowa
Constitution.
At the same time, there are simply no rulings by the district court on any
constitutional issues that might inhere in its discovery sanctions. See Meier, 641
14
N.W.2d at 537. Neither did it consider constitutional concerns in its ultimate
reasoning about the settlement documents: only the rules of evidence and
criminal procedure were referred to in the court’s ruling. The trial was the right
time to raise any constitutional issue because the district court could have taken
corrective action. Tucker’s failure to raise a constitutional objection during the
trial, which prevented the district court from taking corrective action, belies the
existence of a constitutional violation. As a result, Tucker did not adequately
preserve error, so we decline to consider whether the discovery sanctions violated
his rights under the Fifth Amendment or article I, section 10. See Mitchell, 757
N.W.2d at 435 (refusing to consider a due process claim that the district court
never decided).
We therefore evaluate this claim as a challenge to the district court’s
evidentiary rulings. Tucker believes the district court improperly excluded
documentary evidence that he received a cash settlement from a lawsuit against
QuikTrip. He acknowledges he failed to provide the State with copies of the
documents in violation of the reciprocal discovery order and only presented the
evidence on the State’s final day of its case-in-chief. However, he insists the
district court abused its discretion by choosing to exclude the evidence instead
of admitting the evidence or granting a continuance. He argues the settlement
documents should have been admitted because they were relevant, reliable, and
only slightly prejudicial to the State.
Discovery rules and procedures for criminal cases are set out in the Iowa
Rules of Criminal Procedure. See generally Iowa R. Crim. P. 2.14 (outlining rules
15
for depositions, reciprocal discovery, continuing duties to disclose, and
regulating discovery). Importantly, the rules of criminal procedure are not
suggestions. Just as the rules of civil procedure “have the force and effect of
statute,” Van Gundy v. Van Gundy, 56 N.W.2d 43, 46 (Iowa 1952) (citing Hubbard
v. Marsh, 32 N.W.2d 67, 68 (Iowa 1948)), so do the rules of criminal procedure.
See Iowa Code chapter 813 (incorporating the rules of criminal procedure directly
into the Iowa Code). If a party violates a discovery rule or order, the court enjoys
the discretion to allow discovery, continue the proceedings, bar undisclosed
evidence, or fashion “such other order as it deems just under the circumstances.”
Iowa R. Crim. P. 2.14(6)(c).
Four considerations may guide district courts in exercising this discretion:
(1) the reason for the violation, (2) any prejudice that results from the violation,
(3) the feasibility of potential discovery sanctions, and (4) other pertinent facts
and circumstances. State v. Veal, 564 N.W.2d 797, 810–11 (Iowa 1997),
overruled in part on other grounds by State v. Hallum, 585 N.W.2d 249 (Iowa
1998), vacated by Hallum v. Iowa, 527 U.S. 1001 (1999); see also State v. Brown,
397 N.W.2d 689, 698 (Iowa 1986) (en banc) (using the four considerations to
affirm a district court’s decision not to exclude witness testimony after a
discovery violation); State v. Thompkins, 318 N.W.2d 194, 197–98 (Iowa 1982)
(setting out the four considerations later used in State v. Brown and State v.
Veal); cf. State v. Babers, 514 N.W.2d 79, 82 (Iowa 1994) (affirming a district
court ruling that considered merely a discovery violation’s circumstances and
resulting prejudice); State v. Froning, 328 N.W.2d 333, 337–38 (Iowa 1982)
16
(explaining district courts may consider the reasons for the violation and the
extent of the prejudice).
In this case, our analysis of the four considerations leads us to conclude
the district court did not abuse its discretion. Applying the Veal considerations,
we determine none weigh in Tucker’s favor.
On the first consideration, we conclude Tucker has not adequately justified
his failure to disclose the settlement documents. Throughout the pretrial
proceedings, Tucker violated both his initial and continuing reciprocal discovery
obligations to the State. See Iowa R. Crim. P. 2.14(2)–(3), (5).
In the year leading up to the trial, the State requested reciprocal discovery
multiple times. Tucker did not reciprocate with the settlement documents on any
of those occasions. When the court ordered reciprocal discovery in January
2019, Tucker failed to comply. Had Tucker been in jail, perhaps that failure
would be more understandable. But he was not. The record shows Tucker was
not in custody between September 12, 2018, and August 21, 2019. On the
morning of the original trial date, the parties made an extensive record about
Tucker’s decision to decline a plea agreement because he believed the State could
not prove he had intent to distribute. Even though the trial was scheduled to
start that day and the issue of intent loomed large, Tucker still did not disclose
the settlement documents. After the continuance for the fair-cross-section
question, Tucker continued to keep the documents close to his chest until the
final day of the State’s case-in-chief.
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If Tucker believed the settlement documents were so important to his
defense and to attacking the State’s evidence of intent, we do not understand
why his trial attorney knew nothing about them until the second afternoon of a
three-day trial. Even more, Tucker’s brief admits fault for violating reciprocal
discovery obligations but also claims the violation resulted from “the shuffling of
files” across Tucker’s many attorneys.
We do not attribute Tucker’s failure to malice, as the dissent suggests we
do. Rather, we believe neither malice nor incompetence justify a failure to comply
with discovery rules. In light of these repeated failures to disclose the settlement
documents, we determine Tucker did not adequately justify his discovery
violation.
Likewise, the second consideration also favors the State. Tucker’s
discovery violation clearly prejudiced the State because it was not allowed
sufficient time to scrutinize the settlement documents, prepare to cross-examine
Tucker about the evidence, line up rebuttal witnesses, or formulate evidentiary
arguments, such as whether the evidence was hearsay, needlessly cumulative,
or confusing.
More importantly, the prejudice to the State would not have been easily
cured. It would have taken significant time to investigate the settlement
documents and the claims surrounding them. For example, the State might have
needed to investigate why Tucker’s newly purchased car already had license
plates, as shown in Officer Garrett’s bodycam video. It might have investigated
how Tucker purchased a car without a driver’s license since he stated it was lost
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when he was pulled over. It also might have investigated how much the car cost
because if it cost more than $3,275 (the amount he received after costs were
subtracted from his settlement), his argument that the $650 was from his
settlement might raise an eyebrow. Additionally, the State might have also
investigated whether Tucker ever made a bank withdrawal in an amount
sufficient to pay for the car.2
These many unknowns reveal yet another way the settlement documents
would have prejudiced the State. They created significant mini-trial concerns.
Questions about the documents’ authenticity could easily have misled the jury
and confused the issues before it. See Iowa R. Evid 5.403. After all, the
settlement documents did not truly prove how Tucker came to possess $650
cash. The jury could believe Tucker received the QuikTrip settlement yet still
conclude the $650 came from drug transactions in light of the evidence
presented at trial and Tucker’s own testimony.
In comparison, several factors mitigate the prejudice that exclusion
brought on Tucker. The court allowed the jury to hear evidence about Tucker’s
QuikTrip settlement multiple times. Officer Garrett’s bodycam video included
statements by Tucker about his recent settlement. Officer Garrett testified
2The dissent takes issue with the fact these specific questions of fact are mentioned in
the majority opinion because the State never mentioned them at trial. We see no problem with
considering them, and we do not “conjure” them up here for the first time. The State mentioned
some of them in oral argument, and it is free to do so because the discovery sanction issue was
adequately preserved for our review. See Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012)
(citing Jensen v. Sattler, 696 N.W.2d 582, 585 (Iowa 2005); Meier, 641 N.W.2d at 540) (“If the
court’s ruling indicates that the court considered the issue and necessarily ruled on it, even if
the court’s reasoning is ‘incomplete or sparse,’ the issue has been preserved.”). Parties to an
appeal frequently make novel arguments on preserved issues. Indeed, such arguments are at the
heart of appellate advocacy and the purpose of oral argument.
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Tucker told him about the settlement during the traffic stop, and Tucker himself
testified about the settlement. The prosecutor also promised not to call attention
to Tucker’s failure to support his settlement testimony with documentary
evidence.
If the settlement documents had “tide-shifting potential,” as the dissent
claims, then it is only fair to presume the State deserved sufficient time to
counter them. Contrary to the claim by Tucker’s lawyer, which the dissent
quotes, it would take more than “five seconds” for the State to marshal rebuttal
evidence and witnesses. The State would need a longer continuance, not a
shorter one. And the district court, in its discretion, did not want to grant a
continuance. True, other judges might have made a different call. But differences
of opinion do not amount to abuses of discretion. See State v. Belken, 633 N.W.2d
786, 796 (Iowa 2001) (citing State v. Gates, 306 N.W.2d 720, 725 (Iowa 1981))
(“Generally, we defer to the trial court on discovery matters, absent an abuse of
discretion, because the trial court is in the best position to determine whether
prejudice resulted.”).
Third, we agree with the district court that other discovery sanctions were
not feasible. It is not clear whether a continuance would have helped remedy the
State’s prejudice. A short continuance would not have given the State time to
meaningfully investigate Tucker’s claims, yet a longer continuance might have
required a mistrial, which would be unfair when the fault lay with Tucker. In the
end, the district court chose a reasonable course. In its discretion, the court
20
issued a tailored evidentiary ruling that allowed the trial to proceed, excluded
the settlement documents, and allowed Tucker to testify about them.
Discretion means the district court may choose one among many
acceptable alternatives, so long as its choices are not clearly untenable or
unreasonable. State v. McKinley, 860 N.W.2d 874, 878 (Iowa 2015); see
Thornberry v. State Bd. of Regents, 186 N.W.2d 154, 161 (Iowa 1971) (“[W]e have
repeatedly held, ‘abuse of discretion’ means no discretion to do what was done.”).
Here, the district court reasonably concluded it would have been highly
inefficient to continue the trial. Tucker’s case had been pending for some time,
and the court did not want to disrupt a half-complete jury trial, especially one
that the district court thought was very important and had already been
continued because of Tucker’s fair-cross-section challenge. These efficiency
concerns are not clearly untenable or unreasonable. See State v. Clark, 814
N.W.2d 551, 564 (Iowa 2012) (affirming a district court’s decision not to continue
a trial when surprise evidence arose three days before the trial was set to start).
Fourth, we emphasize that the district court’s exclusion order was tailored.
The district court did not ban any or all evidence of the lawsuit settlement.
Tucker may not have been allowed to introduce the settlement documents, but
he was permitted to testify about the settlement itself. And the district court
allowed the jury to see and hear the bodycam video in which Tucker told police
the $650 came from a lawsuit settlement. We hardly think such a tailored order
sent “the exclusionary guillotine blade falling.”
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Contrary to the dissent’s suggestion, we have not lowered our guard to
abuses of discretion to effectively automate affirmance of the district court. We
poured over the record and scrutinized the law’s application to these facts. The
outcome merely recognizes that abuses of discretion are uncommon. See
Hoekstra v. Farm Bureau Mut. Ins., 382 N.W.2d 100, 108 (Iowa 1986) (“[A]n abuse
of discretion is rarely found.”); Sullivan v. Chi. & Nw. Transp. Co., 326 N.W.2d
320, 324 (Iowa 1982) (“We have been slow to find an abuse of discretion.”).
The dissent believes the district court abused its discretion by not
pursuing alternatives to exclusion. In its view, alternatives to exclusion “would
seem to pose little obstacle” or “likely could have been completed quickly.” But
this view overlooks the daily realities district court judges face. Indeed, it fails to
consider all the other proceedings on their calendars, the lawyers’ schedules,
court reporter availability, and the demands of trial on the jurors’ time and
personal lives.
We reject the notion that the district court abused its discretion because
it could have paused the trial and summoned a legal secretary to the courthouse
in the middle of a trial. Stopping the trial to summon a surprise witness during
trial is unusual and extraordinary. It is something you might see in a courtroom
television drama, but it is not something the law requires district court judges to
do. If the district court abused discretion here, then district courts in similar
circumstances will effectively be required to pause trials because other remedies,
which are inefficient uses of court resources and jurors’ time, might be only
slightly inconvenient in the eyes of an appellate judge.
22
Last, the dissent’s citations to federal caselaw are not persuasive. Two of
the cases involve admitting evidence, not excluding it. United States v. Jumaev,
20 F.4th 518, 546–50 (10th Cir. 2021); United States v. Michalik, 5 F.4th 583,
590–91 (5th Cir. 2021). These cases affirmed district courts that admitted
untimely evidence. Jumaev, 20 F.4th at 550; Michalik, 5 F.4th at 591. However,
a more relevant federal case, not cited by the dissent, affirmed a trial court’s
ruling to exclude evidence that a criminal defendant failed to timely disclose
during reciprocal discovery. United States v. Wills, 40 F.4th 330, 337–39 (5th Cir.
2022).
Additionally, the third federal case cited by the dissent differs from
Tucker’s case in an important way. In United States v. Gray-Burriss, the D.C.
Circuit decided a district court abused its discretion in excluding exculpatory
evidence as a discovery sanction. 791 F.3d 50, 56–58 (D.C. Cir. 2015). But the
district court excluded the evidence for all purposes, including impeachment and
refreshing recollections. Id. at 57–58. In this way, the district court’s sanction
exceeded what Federal Rule of Criminal Procedure 16 allows. Id. In Tucker’s
case, the district court order complied with the text of Iowa Rule of Criminal
Procedure 2.14(6)(c) in all respects. And not only does rule 2.14(6)(c) explicitly
authorize exclusion in this case, but our caselaw also permits the district court
to exercise discretion in imposing a proper sanction. See, e.g., Belken, 633
N.W.2d at 794–97 (Iowa 2001).
D. Iowa Rule of Evidence 5.106 and the Unedited Bodycam Video.
Next, Tucker disputes the district court’s ruling to show the jury an abbreviated
23
version3 of Officer Garrett’s bodycam video. Tucker’s brief again raises
unpreserved constitutional challenges to the district court’s ruling on this point.
Consequently, and for the reasons cited in the preceding section, we evaluate
this claim as a challenge to the district court’s evidentiary rulings. See Segura,
889 N.W.2d at 219–20 (citing Meier, 641 N.W.2d at 537).
Tucker asserts the jury should have seen the entire bodycam video under
Iowa Rule of Evidence 5.106. He argues the jury saw footage of him yelling and
protesting while police searched his person, which made him look guilty, without
seeing the portion of the recording in which one officer says Tucker was once
shot by the police. Fairness, Tucker says, requires that the jury ought to have
seen the whole video.
Iowa Rule of Evidence 5.106 codified the common law doctrine of
completeness. See State v. Huser, 894 N.W.2d 472, 507 (Iowa 2017) (“The Iowa
rule is broader than the federal counterpart in Federal Rule of Evidence 106,
which applies only to all or part of writing or recorded statement. The Iowa rule
allows admission of ‘any other . . . conversation’ that meets the rule’s
requirements.”) (omission in original) (quoting Iowa R. Evid. 5.106(a)). Unlike
most evidence rules, rule 5.106 is a rule of inclusion, not exclusion. Compare
Iowa R. Evid. 5.106(a) (“[A]n adverse party may require the introduction . . . of
any other . . . act, declaration, conversation, writing, or recorded statement that
3Overall, Officer Garrett’s bodycam video was almost forty-three minutes long. The State
removed approximately three minutes and five seconds of content from the video. The removed
footage showed one officer identifying Tucker to another officer by saying Tucker is the man that
a third officer (not present) shot. Also, the removed footage included inconsequential scenes of
officers “standing around and waiting.”
24
in fairness ought to be considered at the same time.”), with id. r. 5.403 (“The
court may 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.”).
Fundamentally, rule 5.106’s purpose is to prevent a party—particularly
the party that presents evidence first—from misleading juries with partial or
incomplete evidence. That evidence may take the form of actions, declarations,
conversations, writings, or recorded statements. Id. r. 5.106(a). But see Fed. R.
Evid. 106 (extending the rule of completeness only to writings and recorded
statements, not to oral statements). Rule 5.106 achieves this purpose by
accelerating the timing of a party’s right to introduce evidence. See Iowa R. Evid.
5.106. More specifically, rule 5.106 allows a second litigant to introduce
alongside supposedly partial or incomplete evidence some additional evidence
“that in fairness ought to be considered at the same time.” Id. Otherwise, the
jury would be unable to hear the additional evidence until either cross-
examination or the second litigant’s case-in-chief, which would be unfair to the
second litigant.
For example, in State v. Austin, we upheld a district court’s decision to use
rule 5.106 to admit an interview recording of a child sex abuse victim. 585
N.W.2d 241, 243–44 (Iowa 1998). The criminal defendant—the first litigant—had
used a summary of the interview, provided by the state before trial, to cross-
examine and impeach the victim. Id. Even though the defendant did not
25
introduce the summary or the interview recording itself, the state—the second
litigant—successfully invoked rule 5.106 to demand the entire interview
recording be admitted into evidence for the sake of fairness. Id. We also
emphasized the district court wields significant discretion in deciding whether
rule 5.106 applies in a particular circumstance. See id. at 244 (“The court was
well within its discretion in allowing introduction of the videotaped interview.”).
Beyond the acceleration or timing aspect of rule 5.106, it is not clear
whether the rule authorizes the admission of otherwise inadmissible evidence.
See Huser, 894 N.W.2d at 508–09 (“There is the question of whether rule 5.106
serves primarily a timing function or a trumping function.”). On that question,
we have simply said that “the rule cannot be simply used as an ‘end run around
the usual rules of admissibility.’ ” Id. at 509 (quoting United States v. Castro-
Cabrera, 534 F. Supp. 2d 1156, 1161 (C.D. Cal. 2008)). To resolve Tucker’s case
today we do not need to settle the precise contours of rule 5.106’s potential power
to authorize the admission of otherwise inadmissible evidence.
As an initial matter, we seriously doubt whether rule 5.106 even applies
in this instance. We see no incomplete or misleading evidence here that needs to
be contextualized or completed. The statement that another officer once shot
Tucker does not complete any statements or conversations in the video. In fact,
the statement, in context, comes off like a non sequitur because the officer who
said it was not responding to a question or statement by anyone else. Rather, he
was speaking, unprompted, to another officer who had just arrived at the scene.
In that context, we fail to see how the statement is one “that in fairness ought to
26
be considered at the same time” as the rest of the bodycam video. Iowa R. Evid.
5.106(a).
Yet even if the rule did apply here, Tucker could not use rule 5.106 to
introduce irrelevant evidence. Neither rule 5.106 nor the common law doctrine
of completeness can trump the fundamental rule that irrelevant evidence is not
admissible. In other words, litigants simply may not use rule 5.106 or the
doctrine of completeness to circumvent relevance. Irrelevant evidence will not
further the purpose of rule 5.106 and its common law counterpart because
evidence that has no tendency to make a consequential fact more or less
probable cannot possibly supply additional information that will stop partial or
incomplete evidence from misleading or confusing the jury.
Here, we see no reason to reverse the district court’s decision to exclude
the unedited bodycam video. While reasonable minds could disagree about the
shooting’s relevance, the district court appears to have believed the impact of
previously being shot by the police would not selectively manifest itself only once
law enforcement discovered drugs during a pat-down. From that perspective, the
court concluded Tucker began yelling for help and resisting being searched
about exactly when the officers noticed a suspicious object in his
undergarments, which turned out to be marijuana, not because a police officer
once shot him. Moreover, even if the district court decided the shooting was
relevant, it was not an abuse of discretion for the district court to exclude
evidence of the shooting because “its probative value is substantially outweighed
by a danger of . . . unfair prejudice.” Iowa R. Evid. 5.403.
27
The record ultimately reinforces our conclusions. It appears Tucker raised
rule 5.106 merely to dodge the rules of evidence and the district court’s motion
in limine rulings, not to allegedly admit additional bodycam video that, in
fairness, had to be admitted to cure would-be deficiencies in the edited footage.
The edited footage was not in itself incomplete or partial such that it misled or
even confused the jury. In fact, even the edited footage contained a statement by
Tucker that someone named Scarlet shot him. In addition, the district court
believed Tucker wanted to introduce irrelevant evidence to elicit sympathy from
the jury or else show he has had prior interactions with law enforcement. We
give deference to the district court’s opinion about his motivations because it
observed Tucker, his attitude, demeanor, and body language throughout the
proceedings.
E. Sufficiency of the Evidence. Finally, Tucker claims there was
insufficient evidence for the jury to infer he had intent to deliver a controlled
substance under Iowa Code section 124.401(1)(d). Like the court of appeals, we
disagree. A rational jury could have found Tucker intended to deliver a controlled
substance. See State v. Brown, 569 N.W.2d 113, 115 (Iowa 1997) (citing State v.
Robinson, 288 N.W.2d 337, 339 (Iowa 1980)) (“In a sufficiency-of-the-evidence
challenge we review all the evidence to determine whether a rational trier of fact
could have found the defendant guilty beyond a reasonable doubt.”); see also
State v. Adams, 554 N.W.2d 686, 692 (Iowa 1996) (explaining the importance of
circumstantial evidence and inferences to prove intent).
28
The State offered a variety of evidence showing intent to deliver. Police
officers saw Tucker exchanging something with a woman in a fast-food parking
lot at about 10:30 p.m. They uncovered an amount of cash consistent with
mid-level drug dealing (mostly denominated in large bills) and found hidden in
Tucker’s underwear a quantity of marijuana consistent with mid-level drug
dealing. They also found no items for personal marijuana use. Moreover, a
rational jury could have disbelieved Tucker’s testimony that the $650 cash came
from a lawsuit settlement. Indeed, Tucker exhausted his credibility as a witness.
In front of the jury, he disobeyed multiple court orders to stand up,
manufactured a specious reason for not standing, and repeatedly defied the
district court’s motion in limine rulings. And while Tucker’s phone did not reveal
evidence of drug sales and the police found no scales or packing materials, the
jury could still have reasonably believed the weight of evidence favored guilt.
IV. Conclusion.
We affirm Tucker’s conviction for the reasons set forth in this opinion.
DECISION OF COURT OF APPEALS AND DISTRICT COURT JUDGMENT
AFFIRMED.
Waterman, Mansfield, and McDonald, JJ., join this opinion. McDermott,
J., files a dissenting opinion, in which Oxley, J., joins. May, J., takes no part.
29
#19–1919, State v. Tucker
McDERMOTT, Justice (dissenting).
Tucker argues that the district court abused its discretion when it refused
to permit him to present documents about his recent personal injury settlement
to the jury. Evidence of that settlement, he insists, would have offered the jury a
reasonable—and critical—explanation for why he had $650 in cash with him,
from a source other than the sale of drugs. What’s more, the documents would
not have required the jury to rely on Tucker’s own claims about the existence of
the settlement.
From my review of the record in this case, I agree with him. Because I
believe that the district court abused its discretion in excluding Tucker’s
settlement documents, I respectfully dissent and would remand for a new trial
in which the jury would get to see the settlement documents.
Tucker was charged with two crimes: possession of marijuana, and
possession with intent to distribute marijuana. The State’s evidence can fairly be
summarized as follows: (1) Tucker, while seated in his car, exchanged something
with a woman standing outside his window; (2) when Tucker noticed a police car
nearby, he tried to speed away; (3) after stopping Tucker’s car, police found a
single ounce of marijuana in his underwear; and (4) Tucker had $650 cash in
the car’s center console.
Tucker’s guilt on the possession charge seems indisputable; it was in his
underwear. But the possession with intent to distribute charge is a different
matter. The facts I just recited strike me as quite thin to prove beyond a
30
reasonable doubt Tucker’s intent to distribute marijuana. None of these facts
alone suffices to prove that charge. To find Tucker guilty of the distribution
charge requires, at minimum, that the jury draw several inferential
conclusions—including particularly that the $650 cash in his car came from a
drug sale. Officer Garrett testified at trial that he didn’t see what had been
exchanged at the window and couldn’t say whether Tucker might have sold drugs
or purchased them. His best hunch was that Tucker was the buyer and not the
seller. (Bodycam footage captured Garrett saying, “I’m pretty sure he just bought
it.”). The police found no evidence of packaging, weighing, or any other indicia
that often accompany drug distribution. A search of Tucker’s cell phone revealed
no evidence of drug dealing.
Against this backdrop, we consider the district court’s ruling to deny
Tucker’s attempt to introduce the settlement documents. Under the rules of
criminal procedure, defendants may seek from the State discovery materials
(documents, photos, and other tangible items) that the State intends to use at
trial or that are necessary to the preparation of the defense. Iowa R. Crim. P.
2.14(2). If the court requires the State to produce these materials, then the State
may request “reciprocal discovery” of the same sorts of materials from the
defendant. Id. at 2.14(3). In this case, the district court granted the State’s
application for reciprocal discovery and ordered Tucker to provide any such
materials before the trial.
On the second day of trial, defense counsel notified the prosecutor that he
intended to introduce a law firm’s settlement statement and enclosures as
31
evidence of Tucker’s personal injury settlement. The enclosures included an
image of a check written to Tucker for $3,923.68.
The settlement statement, signed by Tucker, is dated two days before the police
arrested him. Tucker claimed that he’d cashed the settlement check and that the
$650 was what remained of the funds after buying a car.
The State never received the documents before trial and objected to
defense counsel’s attempt to introduce them beyond the reciprocal discovery
deadline. The prosecutor argued to the district court initially that the documents
lacked foundation and that the State received “no notice of this, no opportunity
to deal with this, to look into the validity of it.”
In response, Tucker’s trial counsel, Jesse Macro, informed the court that
Tucker had provided the documents to a lawyer who had previously represented
him in the case. That prior lawyer failed to forward the documents to Macro when
he took over Tucker’s representation. Macro explained that he’d received the
settlement statement by email that morning from a secretary at the law firm that
32
represented Tucker in his personal injury case. Macro argued that the
documents presented no unfair surprise to the State and that good cause existed
to introduce them despite the reciprocal discovery violation because the State
had notice of the settlement from the moment police encountered Tucker. “This
information and the name of the lawyer comes up at the end of one of the officer’s
videos,” Macro argued, with even “one of the officers . . . talking about it.” Indeed,
at that point in the trial a police officer had already testified that Tucker told him
the $650 was from a settlement.
In response to the State’s argument about an inability to authenticate the
settlement statement, Macro said: “If the State wants to verify it, literally it took
me about five seconds to do it at lunchtime. I’m willing to -- I’m sure the secretary
is more than willing to confirm that she e-mailed it to me.” Preventing Tucker
from presenting the documents to the jury, Macro insisted, would imperil his
client’s “right to put a defense on.”
The prosecutor responded that although Macro may not have had it, the
defendant himself had known about the settlement statement for months, and
“[i]f it’s going to be an exhibit, it needed to be provided to the State in order for
the State to be able to verify the authenticity of it, to verify and to be able to -- or
to prepare for that.” The prosecutor pressed that there was no lesser remedy
“available to the Court other than exclusion.”
Iowa Rule of Criminal Procedure 2.14(6)(c) states that if a party fails to
comply with a discovery order, the court may order the delinquent party to turn
over the requested materials, grant a continuance of the trial, prohibit the party
33
from introducing the undisclosed evidence, or “enter such other order as it
deems just under the circumstances.” The district court found that Tucker failed
to timely provide the documents to the State under the reciprocal discovery order
and, citing to rule 2.14(6)(c), prohibited Tucker from introducing the exhibit at
trial. The district court noted that Tucker would not be prevented from testifying
about the settlement itself (although not about the settlement documents) if he
chose to testify.
The trial proceeded without the exhibit. Tucker ultimately took the stand
and testified about the settlement and his claim about the source of the $650.
The jury convicted him of possessing marijuana with the intent to distribute it.
Tucker argues in this appeal that the trial court erred in choosing to
exclude the exhibit over other options it possessed. In evaluating the appropriate
sanction for a party’s violation of a duty to timely turn over discovery materials,
“the trial court must consider: ‘(1) the circumstances surrounding the violation;
(2) the prejudice, if any, resulting from the violation; (3) the feasibility of curing
any prejudice; and (4) any other relevant consideration.’ ” State v. Veal, 564
N.W.2d 797, 811 (Iowa 1997) (quoting State v. Brown, 397 N.W.2d 689, 698 (Iowa
1986) (en banc)), overruled in part on other grounds by State v. Hallum, 585
N.W.2d 249 (Iowa 1998), vacated by Hallum v. Iowa, 527 U.S. 1001 (1999). The
majority opinion’s discussion of these four considerations strikes me as
incomplete, and the final tally seems to me far from the rout that the majority
presents.
34
As to the first consideration (the circumstances surrounding the violation),
although the disclosure was unquestionably late, there’s no evidence that the
settlement statement was intentionally withheld until trial. Late disclosure,
without more, isn’t enough to draw that conclusion. The court docket confirms
that several lawyers represented Tucker at different points in his case. Macro’s
statement that one of the prior lawyers dropped the ball in forwarding the
documents to Macro seems to me perfectly plausible. There is little in this record
to conclude the late disclosure was some strategic scheme to gain an unfair
advantage. As Hanlon’s Razor suggests, we should not attribute to malice that
which is adequately explained by incompetence.
And what’s more, the majority trains considerable fire on Tucker
personally for the failure to disclose. But there’s little to suggest that fault resides
with him. Tucker provided the documents to his prior lawyer, as he should have
done. Rebuking Tucker because his lawyer apparently bungled the transfer of
the file to another lawyer misplaces blame. Like most represented parties, Tucker
could reasonably have expected that his lawyers would successfully transfer his
file and handle turning over any documents, as necessary, that he had provided
them. The majority’s finding that Tucker has supplied inadequate justification
for the late disclosure both discounts too much and assumes too much. The
majority punctuates its analysis with the alarming assertion that “neither malice
nor incompetence justify a failure to comply with discovery rules,” evoking tones
of strict liability in an area in which, up to now, we’ve pursued a measured
consideration of the circumstances.
35
As to the second consideration (prejudice resulting from the violation), the
State argued very little at the district court hearing about any actual prejudice
that would result from the late disclosure. The majority surmises that the State
might have been prejudiced because it wouldn’t have had time to “scrutinize the
settlement documents, prepare to cross-examine Tucker about the evidence, line
up rebuttal witnesses, or formulate evidentiary arguments.” Or that prejudice
wouldn’t have been easily cured because “the State might have needed to
investigate why Tucker’s newly purchased car already had license plates” or “how
Tucker purchased a car without a driver’s license since he stated it was lost
when he was pulled over.” But the State, for its part, articulated none of these
concerns in its argument to the district court. It’s not for us on appeal to conjure
potential ways that the State might have been prejudiced when the State never
presented them to the district court.
As an initial matter, it could come as no surprise that Tucker would seek
to introduce evidence of his personal injury settlement to rebut the State’s
accusation that the $650 was drug proceeds. Tucker’s assertion that the money
came from a personal injury settlement was discussed at the initial traffic stop
that gives rise to this case. The discussion of the settlement, and even the name
of the lawyer that represented Tucker in that settlement, is memorialized in the
police video of his arrest. In the State’s case-in-chief, a police officer on direct
examination testified that Tucker mentioned the settlement check when
questioned about the source of the cash in his car. Perhaps conceding its own
prior knowledge of the personal injury settlement, the State centered its
36
argument to the district court on needing to exclude the late-disclosed exhibit
based on an inability to verify authenticity and lay foundation for its admission.
Although these concerns are important, the type of prejudice they created didn’t
present much of an obstacle to overcome.
On that subject, as to the third consideration (the feasibility of curing the
prejudice), remedies posing minimal disruption or delay to the trial were
available. Macro made clear that he received the settlement statement that
morning directly from a secretary at the law firm that issued it. For the State to
contact the secretary by phone at the law firm to verify the document’s
authenticity probably could have been completed in under an hour. The district
court could have paused the trial briefly to give the State time to authenticate it.
And since both the law firm and the courthouse were in the same city (Des
Moines), having the secretary come to court to lay foundation as custodian of the
settlement statement similarly would seem to pose little obstacle.
The settlement statement was a standard piece of correspondence of the
type commonly issued by a law firm to a client after a settlement and is a
business record excepted from hearsay exclusion under Iowa Rule of Evidence
5.803(6). See United States v. Vacca, 431 F. Supp. 807, 811–12 (E.D. Pa. 1977)
(holding that a settlement sheet prepared by a lawyer referring to the sale of
property and an associated canceled check made out to the defendant as a
finder’s fee had been properly admitted into evidence as a business record under
the federal counterpart (rule 803(6))). Testimony to establish foundation for the
document likely could have been completed quickly. In short, curing the
37
problems that the State noted because of the late disclosure—with a short
continuance and minimal hassle—appears to have been eminently feasible. See
Whitley v. C.R. Pharmacy Serv., Inc., 816 N.W.2d 378, 389 (Iowa 2012)
(describing a continuance as “a traditional remedy used by courts when evidence
is not disclosed until trial”).
And as to the fourth consideration (any other relevant consideration), we
have the tide-shifting potential of the settlement documents on the State’s intent-
to-distribute charge. The documents—and in particular, the enclosed check in
the amount of $3,923.68 made out to Tucker—were the only evidence beyond
Tucker’s own say-so available to support his claim about the source of the cash
in his car. As the court of appeals noted, this evidence contradicted the
“lynchpin” of the State’s case. It might well have negated in the jurors’ minds the
State’s key contention on the intent-to-distribute charge: that the $650 came
from a drug sale.
Tucker’s only tangible evidence to challenge the assumption about the
source of the cash was this exhibit. Tucker’s own credibility had already been
undermined by his testimony about the source of the ounce of marijuana in his
underwear. We could reasonably expect the law firm’s records to carry more
probative value with the jury than a defendant’s own uncorroborated, self-
serving testimony. See United States v. Gray-Burriss, 791 F.3d 50, 56
(D.C. Cir. 2015) (finding that the defendant’s defense to embezzlement charges
“would have been considerably strengthened by proof of an executed
agreement—signed by four union leaders—increasing his salary,” which the trial
38
court had suppressed). Tucker was prejudiced by the exhibit’s exclusion. The
majority opinion suggests no disagreement with Tucker’s claim that the
suppressed exhibit had potentially momentous probative value; indeed, it’s a
point implicitly conceded by the majority’s assertion that the State would have
needed time to load for bear to counter it.
Our court has long recognized exclusion of a criminal defendant’s evidence
as a sanction of last resort. In State v. Marchellino, we addressed a discovery
sanction against a criminal defendant under then-rule 12(3) (now rule 2.13(3)).
304 N.W.2d 252, 253 (Iowa 1981), superseded by rule, Iowa R. Crim. P. 12(4)
(now rule 2.13(4)), as recognized in State v. Babers, 514 N.W.2d 79 (Iowa 1994).
In that case, the defendant failed to notify the state of a witness that the defense
expected to call. Id. The district court refused to allow the witness to testify. Id.We reversed the conviction and ordered a new trial, holding that excluding the
witness wasn’t an appropriate sanction, in part, because the rule at the time
didn’t specifically list exclusion as a sanction (rather, it gave the district court
discretion to “proceed ‘in any lawful manner’ ”). Id. at 256 (quoting Iowa R. Crim.
P. 29(2) (now rule 2.35(2))).
But we went further, warning against sanctions for discovery violations
that might impair a criminal defendant’s presentation of evidence:
The court should, after hearing, select an alternative which will
encourage compliance with the rules, yet result in a minimum
restraint on the presentation of evidence; radical surgery should not
be performed on the defendant’s case if conservative therapy will
bring about a cure. Because discovery standards are designed to
implement, not to impede, fair and speedy determinations of cases,
it is suggested “that the court should seek to apply sanctions which
39
affect the evidence at trial and the merits of the case as little as
possible . . . .”
Id. at 257 (quoting Standards for Criminal Justice, Discovery and Procedure
Before Trial § 5.1, Commentary, at 108 (Am. Bar Ass’n 1970) [hereinafter ABA
Discovery and Procedure Standards]) (omission in original).
The sanction of exclusion in this type of case is best employed as a tool to
eliminate an improperly obtained advantage. A number of federal circuit courts
addressing challenges to excluded evidence under an analogous federal rule,
Federal Rule of Criminal Procedure 16, have said that excluding evidence for a
discovery violation in a criminal case should be reserved for instances of bad
faith or willful misconduct. For instance, in United States v. Michalik, 5 F.4th
583, 591 (5th Cir. 2021), the United States Court of Appeals for the Fifth Circuit
said that “where a party did not act with ‘an improper motive, it is rare to
sanction a party in a method as draconian as suppressing the evidence.’ ”
(quoting United States v. Ortiz, 213 F. App’x 312, 315 (5th Cir. 2007) (per
curiam)).
In United States v. Jumaev, 20 F.4th 518, 547 (10th Cir. 2021), the Tenth
Circuit observed: “[W]e have instructed that ‘[t]he court should impose the least
severe sanction that will accomplish prompt and full compliance with’ the
violated discovery requirement. ‘The preferred sanction is a continuance.’ ‘It
would be a rare case where, absent bad faith, a district court should exclude
evidence rather than continue the proceedings.’ ” (second alteration in original)
(citations omitted) (first quoting United States v. Gonzales, 164 F.3d 1285, 1292
40
(10th Cir. 1999); then quoting United States v. Golyansky, 291 F.3d 1245, 1249
(10th Cir. 2002)).
And in United States v. Gray-Burriss, the D.C. Circuit held that exclusion
of the defendant’s evidence “was too severe a sanction” even when disclosed well
past its due date, during the second week of trial. 791 F.3d at 56. The court
reached this conclusion because the evidence “was potentially a significant piece
of exculpatory evidence,” the government didn’t identify how it was prejudiced
by the defendant’s use of the exhibit, and the evidence was not withheld in bad
faith. Id. The majority attempts to distinguish Gray-Burriss because the trial
court in that case excluded the evidence for all purposes, while in this case
Tucker was only prevented from introducing the documents themselves. But this
misses the point.
Most relevant here, “although Rule 16 gives trial judges the option
of suppressing evidence as a result of [a party’s] discovery
violations[,] such a severe sanction would seldom be appropriate
where . . . the trial court finds that [the party’s] violation did not
result from its bad faith and that a less drastic remedy (such as a
continuance) will mitigate any unfair prejudice.”
Id. at 55–56 (first and third alterations and omission in original) (quoting United
States v. Marshall, 132 F.3d 63, 70 (D.C. Cir. 1998)). An absence of bad faith
“takes on greater significance,” according to the court, “when, as here, the
evidence is exculpatory on its face and there is no showing of prejudice.” Id. at
56–57.
The majority stresses the deferential standard of review that applies to the
district court’s decision in this case. And indeed, on the continuum of standards
that a party must overcome to establish that a judge made an error, the “abuse
41
of discretion” standard undeniably falls on the hard-to-show end. But we
nonetheless maintain an obligation to carefully examine the district court’s
reasoning even when the court is granted a large dose of leeway in making a
decision. An appellate court can’t lower its guard and allow an abuse-of-
discretion standard to effectively automate an affirmance. Anything less risks
setting the line for a challenger to rise above in abuse-of-discretion challenges
by painting the line on the ceiling.
We generally confront the types of mistakes that we’ll tolerate in criminal
litigation aiming to minimize the prospect of a wrongful conviction. This choice
reflects, in some measure at least, the “fundamental value determination of our
society that it is far worse to convict an innocent man than to let a guilty man
go free.” Schlup v. Delo, 513 U.S. 298, 325 (1995) (quoting In re Winship, 397
U.S. 358, 372 (1970) (Harlan, J., concurring)).4 The process is designed, in many
significant respects, to err on the side of protecting innocence.5
To be sure, the rules of criminal procedure “are not suggestions,” as the
majority declares. But that statement obscures the sensitive task required in
4Oras Blackstone famously expressed this principle (with a much higher ratio): “[B]etter
that ten guilty persons escape than that one innocent suffer.” 4 William Blackstone,
Commentaries *358.
5For instance, in all state and federal courts, felony criminal convictions require a
unanimous jury verdict. See Ramos v. Louisana, 140 S. Ct. 1390, 1402 (2020). In all criminal
appeals, the basic principle prevails that defendants may appeal convictions, but the government
may not appeal acquittals. See Fong Foo v. United States, 369 U.S. 141, 142–43 (1962) (per
curiam); State v. Kessler, 213 N.W.2d 671, 672 (Iowa 1973) (per curiam). Unlike civil cases, in
which lawyers pursue results advantageous to their own client, in criminal cases the primary
duty of the government’s lawyer is not to convict, but “to seek justice within the bounds of the
law.” Criminal Justice Standards for the Prosecution Function, Standard 3–1.2 (Am. Bar Ass’n 4th
ed. 2017). Prosecutors are even obligated to coordinate with their own agents and other agencies
to follow up on evidentiary leads even when they believe that the resulting information will harm
their case. Id. Standard 3–5.4. Other examples abound.
42
this particular case. The late disclosure of a document doesn’t automatically
send the exclusionary guillotine blade falling. Proper application of the four
considerations that we require district courts to assess in deciding the sanction
in these circumstances is vital. And as we made clear over forty years ago in
Marchellino, the court’s choice of sanction in a criminal case should, whenever
possible, seek to “affect the evidence at trial and the merits of the case as little
as possible.” 304 N.W.2d at 257 (quoting ABA Discovery and Procedure
Standards § 5.1, Commentary, at 108).
The district court, in my view, failed in that task in this case, unreasonably
exercising its discretion to sanction Tucker with exclusion when less drastic
cures were available that would have permitted the jury to see and consider this
important exculpatory evidence. Because Tucker was prejudiced by the trial
court’s decision to exclude this evidence, he should be granted a new trial.
Oxley, J., joins this dissent.