Opinion
No. 04-0223.
March 31, 2005.
Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.
The State appeals from the court's order granting Phuoc Nguyen's postconviction relief application. REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, John P. Sarcone, County Attorney, and George Karnas and Joe Weeg, Assistant County Attorneys, for appellant.
Jeffrey Mains, of Mains Law Office, Des Moines, for appellee.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
I. Background Facts Proceedings
Phuoc Nguyen was charged with first-degree murder for his role in the shooting death of Monty Thomas outside of The Cloud bar in Des Moines on July 15, 1998. Nguyen denied any involvement, claiming he was the victim of mistaken identity. On direct examination Nguyen testified:
COUNSEL: You've heard people testify that you were at The Cloud bar area on July 15, 1998, with Thanh Dao, and Mr. Dao was trying to buy drugs. Are they wrong?
NGUYEN: Of course they are wrong, because, I wasn't there at all.
COUNSEL: You heard Elgin Byron testify that he saw you in the car that drove away from the shooting. Is he wrong?
NGUYEN: Of course he is wrong. I was staying home and did not drive a car anywhere.
On cross-examination the prosecutor, without objection, inquired as follows:
PROSECUTOR: And you heard [Rodney Martin] testify that, in addition to seeing you with Thanh Dao by The Cloud Lounge on Forest Avenue about a half hour before Monty Thomas was killed, that he also recognized you from having gone to North High?
NGUYEN: I heard that.
PROSECUTOR: Is he wrong or is he lying?
NGUYEN: I am not saying he was lying, but I think he was mistaken because I wasn't there.
. . . .
PROSECUTOR: Was Elgin Byron mistaken, or was he lying, about seeing you drive in the car at the scene of the shooting?
NGUYEN: I did not say that he lie, but I am sure that he was mistaken because he saw me earlier driving that car and when he saw that car, he thought I would be the driver of that car.
. . . .
PROSECUTOR: Do you think Deb Doherty is mistaken about seeing Thanh Dao in the car?
NGUYEN: I wouldn't know if she said that she saw him then he was there, maybe he was there.
. . . .
PROSECUTOR: Is [Owen Smith] lying or is he mistaken?
NGUYEN: I didn't say he was lying, but I am sure that he's mistaken because he said something about a guy wearing the necklace with something but I never had anything like that on me.
. . . .
PROSECUTOR: Is Mr. Gray mistaken about what he testified to?
NGUYEN: I didn't say he was mistaken, he wrote [the license plate number] down, so he must have seen it.
Nguyen also supported his misidentification defense with expert testimony concerning the unreliability of eyewitness identification evidence.
Nguyen was convicted as charged. On direct appeal we rejected his challenge to the sufficiency of the evidence supporting his conviction and affirmed the trial court's judgment. State v. Nguyen, No. 99-1444 (Iowa Ct.App. March 13, 2002).
Nguyen subsequently filed an application for postconviction relief, claiming he was denied effective assistance of trial and appellate counsel. Specifically, Nguyen argued trial counsel was ineffective in the following particulars: failing to object to the prosecutor's misconduct in questioning him about the credibility of other witnesses; allowing him to testify at trial; and in failing to file a motion for new trial. Nguyen further argued appellate counsel was ineffective in failing to raise the first two issues on direct appeal. Nguyen's misconduct theory was based on the prosecutor's earlier recited cross-examination.
The postconviction trial court concluded that the prosecutor's "were they lying or mistaken" questions were the type of misconduct expressly condemned in State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003), and Nguyen's attorney had an essential duty to object to the prosecutor's questions. The trial court also found:
The cross-examination of the Defendant by the prosecutor in this matter which forced the Petitioner to call five witnesses liars sought to discredit the Defendant and bolster the State's case as to the most important evidence at trial. The impression left with the jury was that the Petitioner was calling each and every identification witness a liar. This had the effect of making the Defendant out to be a liar, a person of bad character, and would have the effect to inflame the jurors against the Defendant.
Based on these findings the trial court concluded that Nguyen was denied effective assistance of counsel, reversed his conviction, and ordered a new trial. In a subsequently entered ruling on posttrial motions, the trial court determined Nguyen's trial counsel was also ineffective in failing to move for a new trial based on the prosecutor's misconduct.
On appeal, the State raises the following issues for review:
I. WHETHER THE DISTRICT COURT ERRED IN FINDING THE PETITIONER'S TRIAL COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTORIAL MISCONDUCT?
II. WHETHER THE DISTRICT COURT ERRED IN IMPLICITLY FINDING THE PETITIONER'S APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO RAISE A CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL BASED UPON COUNSEL'S FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT?
III. WHETHER THE DISTRICT COURT ERRED IN FINDING THE PETITIONER'S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A MOTION FOR NEW TRIAL?II. Standard of Review
Ordinarily postconviction proceedings are law actions. Collins v. State, 588 N.W.2d 399, 401 (Iowa 1998). When a constitutional claim is implicated, appellate review is de novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).
III. Ineffective Assistance of Counsel
To establish a claim of ineffective assistance of counsel, Nguyen has the burden to prove the following: (1) counsel failed in an essential duty and (2) prejudice resulted therefrom. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Ledezma, 626 N.W.2d at 142; State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). In proving the first element, Nguyen faces a strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second element is satisfied if a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct.App. 1994).
An ineffective assistance of counsel claim fails if a defendant fails to establish either element. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). Both of the elements must be established by a preponderance of the evidence. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). There is a strong presumption of competence and reasonable professional judgment. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
As noted earlier, Nguyen's ineffective assistance of counsel claim is based on counsel's failure to object to the prosecutor's misconduct during Nguyen's cross-examination. Prosecutorial misconduct that denies a defendant a fair trial is a violation of due process. State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003) (citing State v. Piper, 663 N.W.2d 894, 913 (Iowa 2003)). The two elements of a due process claim based on prosecutorial misconduct are proof of the misconduct and resulting prejudice. Id. The pivotal issue, therefore, is whether Nguyen was denied a fair trial as the result of the prosecutor's misconduct. The State concedes the "were-they-lying" questions amounted to prosecutorial misconduct.
The remaining question is "whether there is a reasonable probability the prosecutor's misconduct prejudiced, inflamed, or mislead the jurors so as to prompt them to convict the defendant for reasons other than the evidence introduced at trial and the law as contained in the court's instructions." Id. at 877. In making this determination we consider (1) the severity and pervasiveness of the misconduct; (2) the significance of the misconduct to the central issues; (3) the strength of the State's evidence; (4) the use of cautionary instructions; and (5) the extent to which the defense invited the misconduct. Id.
Based on our de novo review of the record, we believe the significance of the prosecutor's misconduct has been overstated. As noted earlier, Nguyen's defense was premised on the unreliability of the eyewitnesses' identification testimony implicating him in Thomas's murder. Although the prosecutor's were-they-lying-or-mistaken questions were objectionable, the resulting answers were consistent with Nguyen's claim that the State's witnesses mistakenly identified him as the driver of the car. Moreover, the record indicates that, aside from the foregoing exchange, there were no further questions, implications, or arguments that Nguyen or any witness was lying. We find the prosecutor's misconduct here far less egregious than that condemned in Graves. Id. at 867-81 (discussing prosecutor's comments during closing argument).
Lastly, we note the strength of the State's case against Nguyen. On direct appeal we described the evidence as follows.
Witness testimony linked Nguyen to the incident before, during and after the shooting. The testimony of Rodney Martin placed Dao and a man who looked like Nguyen at The Cloud shortly before the shooting. While the man resembling Nguyen remained in the driver's seat of the car parked near the bar, Dao and a third individual solicited drugs from Martin. Martin testified Dao was beaten and robbed following the unsuccessful cocaine purchase, and Nguyen and the third person drove away from the bar. Confirming this testimony, Owen Smith described a conversation he had with Nguyen while Dao was in the alley attempting to purchase drugs. Smith testified he spoke to Nguyen for ten to fifteen minutes before Nguyen left the scene.
Nguyen was also recognized as the driver of the car that arrived at The Cloud transporting the armed participants in the shooting. Elgin Byron, a teller at the local bank where Nguyen was a regular customer, identified Nguyen as the driver of the car involved in the shooting. He recalled the black Mitsubishi Nguyen drove to the bar on the day in question as the same car Nguyen had brought to the bank on prior occasions. Shawn Duncan, who also observed the black automobile, identified Dao as an occupant of the car who fired a gun in his direction. Similarly, David Gray witnessed Dao shooting from the black car. Gray noted the car's license plate number, which matched that of the car Nguyen and Dao were arrested in later that evening.
After the shooting, law enforcement officers observed a black Mitsubishi matching the description of the vehicle and license plate number given by eyewitnesses to the crime. Upon stopping the car, they arrested its driver, Nguyen, and the vehicle's backseat passenger, Dao. Two bullet holes in the vehicle's trunk were of a size consistent with the .45 caliber casings found outside The Cloud. The man who loaned the black Mitsubishi to Nguyen testified the first time he noticed the trunk bullet holes was upon recovering his car from police after Nguyen's arrest. Lastly, Nguyen made an incriminating statement regarding his involvement in the shooting. An officer testified upon telling Nguyen he was being arrested for his role in The Cloud homicide, Nguyen replied "all he did was drive the car."
In view of the strength of the State's case, we conclude that the prosecutor's misconduct did not "prompt [the jury] to convict the defendant for reasons other than the evidence introduced at trial and the law as contained in the court's instructions." See id. at 877. Because Nguyen failed to establish the requisite prejudice in support of his ineffective assistance claim, we reverse the decision of the trial court awarding Nguyen a new trial, and remand for entry of a judgment dismissing Nguyen's application for postconviction relief.
Our resolution of this issue is dispositive, and we accordingly need not address the other issues raised on appeal.
REVERSED AND REMANDED.