State of Iowa v. Maurice Sylvester Green Sr.

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IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0029
                             Filed February 24, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MAURICE SYLVESTER GREEN SR.,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, James D. Birkenholz,

District Associate Judge.



      Maurice Green appeals his conviction for domestic abuse assault, third or

subsequent offense. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik and Mary A. Triick,

Assistant Attorneys General, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.
                                        2



BOWER, Judge.

      Maurice Green appeals his conviction for domestic abuse assault,

claiming the district court improperly denied his Batson challenge and erred in

overruling his hearsay objection. We affirm.

      On August 29, 2014, the State charged Green with assault while

displaying a dangerous weapon, in violation of Iowa Code section 708.2(3)

(2013).   The State amended the trial information in November to add the

additional charge of domestic abuse assault, third or subsequent offense, in

violation of Iowa Code section 708.2A(4).       The charges stemmed from an

incident in July where it was reported Green had assaulted members of his family

while also holding a knife. A jury trial was held on November 17, and Green was

found guilty of the offense of domestic abuse assault.          The district court

sentenced Green to a term of imprisonment not to exceed five years and

assessed a fine. Green now appeals.

      We review constitutional challenges de novo. State v. Kern,
831 N.W.2d

149, 164
(Iowa 2013). We review the court’s evidentiary rulings for an abuse of

discretion. State v. Tyler,
867 N.W.2d 136, 152
(Iowa 2015).

      Green claims the district court improperly denied his Batson challenge,

because the State could not show a race-neutral reason for using a preemptory

challenge to exclude an African-American juror. See Batson v. Kentucky,
476

U.S. 79
, 96–97 (1986) (noting the defendant must “first establish a prima facie

case of purposeful discrimination in selection” of the jury panel, then “the burden

shifts to the State to come forward with a neutral explanation for challenging
                                         3



black jurors”); see also State v. Griffin,
564 N.W.2d 370, 375
(Iowa 1997) (same).

Here, Green has failed to establish a prima facie case of “purposeful

discrimination.” Batson,
476 U.S. 79 at 96
. Green has been unable to show the

“facts and relevant circumstances raise an inference” the State excluded the juror

due to her race.
Id.
Even if Green had established a prima facie case, the State

has met its burden of presenting a “neutral explanation” for the exclusion of an

African-American juror. Upon our de novo review, we affirm the district court’s

denial of Green’s Batson challenge.

      Green also claims the district court abused its discretion by admitting the

testimony of the officer who responded to the 911 call placed during Green’s

assault.   Green claims this testimony contained inadmissible hearsay.         The

officer testified about statements one of the victims made to the officer shortly

after he arrived at the scene of the assault. We find the district court did not

abuse its discretion in allowing the testimony, since the statements made to the

officer fall into the “excited utterance” exception to our hearsay rule. See Iowa R.

Civ. P. 5.803(1); see also State v. Atwood,
602 N.W.2d 775, 782
(Iowa 1999)

(“Obviously, an excited utterance must be made under the influence of the

excitement of the incident rather than upon reflection or deliberation.”). While the

“excited utterance exception” was not raised by the State below, we may

disregard our error preservation rules “when the error claimed involve[s] rulings
                                          4



admitting evidence or not admitting evidence.” DeVoss v. State,
648 N.W.2d 56
,

62–63 (Iowa 2002).1

       We affirm on appeal without further opinion pursuant to Iowa Court Rule

21.26(1)(a), (b), (c), and (e).

       AFFIRMED.




1
  Since we have found the police officer’s testimony was admissible, the State did not
violate the principles established in State v. Turecek.
456 N.W.2d 219, 225
(Iowa 1990)
(“The State is not entitled under rule [5.607] to place a witness on the stand who is
expected to give unfavorable testimony and then, in the guise of impeachment, offer
evidence which is otherwise inadmissible. To permit such bootstrapping frustrates the
intended application of the exclusionary rules which rendered such evidence
inadmissible on the State’s case in chief.”); see also State v. Tompkins,
859 N.W.2d
631, 639
(Iowa 2015) (“When a witness’s hearsay statement is admissible to prove the
truth of the matter asserted, there is no Turecek violation.”).