Opinion
No. 2-635 / 02-0019.
Filed December 11, 2002.
Appeal from the Iowa District Court for Hancock County, JOHN S. MACKEY, Judge.
The State appeals the district court's decision vacating the first-degree murder conviction of applicant and ordering a new trial. REVERSED, VERDICT REINSTATED.
Thomas J. Miller, Attorney General, Thomas Andrews, Assistant Attorney General, and Karen Kaufman, County Attorney, for appellant.
David Dutton and Carolyn Rafferty of Dutton, Braun, Staack Hellman, P.L.C., Waterloo, for appellee.
Heard by SACKETT, C.J., and VAITHESWARAN and EISENHAUER, JJ.
The State appeals from the district court's decision vacating the first-degree murder conviction of applicant Robert C. Richey and ordering a new trial. The State contends the postconviction court erred in vacating the murder conviction because the challenged conduct (1) was not prosecutorial misconduct, (2) did not affect the outcome of the trial, and (3) was procedurally defaulted. Applicant's claims all stem from allegations of ineffective assistance of counsel. We reverse the order granting a new trial and reinstate the verdict.
The conviction was affirmed on appeal. State v. Richey, No. 97-0088 (Iowa Ct.App. February 25, 1998).
On May 8, 1996 the victim, Don Larkin, was found dead in his home in Garner, Iowa. He had been shot in the back of his head by what appeared to be a shotgun fired through a dining room window. Larkin at the time was dating applicant's former wife, and applicant had only learned of that fact shortly before the murder. There was evidence at trial that applicant was upset about the relationship between Larkin and his former wife and had indicated to several other people he was out to get Larkin. Applicant's former wife testified she saw someone driving a pickup truck that she thought was the applicant near Garner at about 8:20 on the evening of the murder. The murder was determined to have happened shortly before the 9:40 p.m. call to 911. The applicant's fingerprints were found on a ledge in the area where the shotgun was fired. There were injuries to applicant's left hand and his cheek that a witness testified were consistent with shooting a shotgun. Shoes found some time after the murder in applicant's barn and marked with his name were consistent with those that made a footprint beneath the window from where the shot that killed the victim came. Applicant contended he was at home in Garner, drunk, when the shooting occurred. Police who were sent to applicant's home in Britt found applicant standing in his kitchen at 10:05 p.m., about twenty-five minutes after the 911 call following the murder.
In his opening statement the prosecutor made a number of statements indicating the victim was a fine man, a hard worker, a single father, and that he participated in local government and in chamber of commerce endeavors. The prosecutor made statements that the applicant was an alcoholic, a jealous man, and told the jury they would find from the evidence that applicant was the killer. The prosecutor also held a 12-gauge shotgun in his hand in opening statement. The gun was seized from the applicant's home after the murder and admitted into evidence at trial, but was never identified as the murder weapon. The actual murder weapon was not found. Applicant contended the references to the victim in essence as a saint in opening statement by the prosecutor and the defendant as a bad guy and holding the shotgun while doing so, constituted prosecutorial misconduct.
The postconviction court found appellate counsel was ineffective in not raising prosecutorial misconduct on appeal and that when considering the totality of circumstances surrounding the trial there was a reasonable probability applicant would have received a new trial had the issue of prosecutorial misconduct been raised on direct appeal. The postconviction court further found that applicant showed by a preponderance of the evidence a different result would have been obtained on appeal had the issue been raised.
The district court concluded in part:
The prosecutor came out of the starting blocks in his opening statement repeatedly characterizing the victim as more or less a model citizen. There can be no other reason to portray a victim as such but to garner sympathy from and inflame the passions of the jury. To place the imprimatur of the State upon the character of the victim and simultaneously cast the applicant as his murderer and killer while brandishing a shotgun in full view of the jury, in the view of this court, constitutes misconduct, placed applicant at a substantial disadvantage, and, therefore, denied applicant a fair trial.
The postconviction court said:
While the evidence of applicant's guilt was strong, it was not as overwhelming as the stigma placed upon the applicant from the very outset of trial by the prosecutor. It would seem that the constrictions placed upon a prosecutor in the conduct of his office at trial should be even more strictly adhered to when evidence of a defendant's guilt is strong, for, fearing no repercussions, the natural temptation to exceed those bounds would go largely unchecked by the prosecutor himself.
The State first argues that applicant's appellate counsel was not ineffective in failing to raise the issue of prosecutorial misconduct. The State advances that applicant's appellate attorney testified he found no errors at the trial level where the applicant could show the necessary level of prejudice, nor did he find any instances where the State's attorney committed prosecutorial misconduct. The State argues this shows that the applicant's appellate counsel did no more than make a strategic choice. The State further argues that appellate lawyers are presumed to have chosen the issue on which they are most likely to succeed and that appellate counsel has no duty to raise every non-frivolous issue.
We typically review postconviction relief proceedings on error. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001); Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). Where the applicant asserts claims of a constitutional nature, our review is de novo. Osborn, 573 N.W.2d at 920. Thus, we review claims of ineffective assistance of counsel de novo. Ledezma, 626 N.W.2d at 141 (citations omitted). We give weight to the lower court's findings concerning witness credibility. Id.; Taylor v. State, 352 N.W.2d 683, 687 (Iowa 1984).
To prevail on a claim of ineffective assistance of counsel, the applicant must demonstrate both ineffective assistance and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Both elements must be proven by a preponderance of the evidence. State v. Ramirez, 616 N.W.2d 587, 593 (Iowa 2000). Both elements do not always need to be addressed. If the claim lacks prejudice, it can be decided on that ground alone without deciding whether the attorney performed deficiently. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699. To establish his attorney was ineffective, the applicant must demonstrate the attorney performed below the standard demanded of a reasonably competent attorney. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-65, 80 L.Ed.2d at 693-94. An attorney's performance is measured against "prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. There is a presumption the attorney performed competently. Strickland, 46 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95; State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000). The claim is scrutinized in light of the totality of the circumstances. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-65, 80 L.Ed.2d at 693-94; State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000); State v. Lockheart, 410 N.W.2d 688, 695 (Iowa Ct.App. 1987). The inquiry is transformed into an individual fact-based analysis. Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct. 1495, 1512, 146 L.Ed.2d 389, 46 (2000); Ledezma, 626 N.W.2d at 142.
The sole issue raised on applicant's direct appeal was that the district court erred in overruling the motion to suppress statements applicant made prior to his arrest as he was too intoxicated to know what he was doing. In challenging appellate counsel's effectiveness, applicant points out that appellate counsel had practiced one year with the Appellate Defender's Office and had briefed from five to ten class "A" felony cases and had never prosecuted or defended a murder case at the time he filed applicant's brief. The applicant argues that the appellate attorney did not omit arguing on appeal prosecutorial misconduct as a trial strategy, rather appellate counsel did not even consider it. The attorney's testimony indicates that he doesn't recall briefing the issue of prosecutorial misconduct and in reviewing the transcript no bells or whistles went off that directed him to raise the issue. Furthermore, he appeared to be of the opinion that these claims should be raised in postconviction proceedings rather than on direct appeal. The question becomes whether on this record appellate counsel should have raised an issue of prosecutorial misconduct and trial counsel's ineffectiveness in failing to raise it.
Prosecutors have a dual function. They must prosecute with vigor and diligence, and, at the same time, be alert to assure the defendant a fair trial. State v. Webb, 244 N.W.2d 232, 233 (Iowa 1976); State v. Morris, 227 N.W.2d 150, 153 (Iowa 1975). It is not always easy to strike a proper balance between the two. The duty to see the latter is protected without undue interference with the former rests originally in the sound discretion of the trial court. Webb, 244 N.W.2d at 332; Morris, 227 N.W.2d at 150; State v. Vickroy, 205 N.W.2d 748, 750 (Iowa 1973).
Lawyers should avoid making statements before a jury which tend to prejudice a defendant's right to a fair trial. Webb, 244 N.W.2d at 332. However, it is not a prosecutor's misconduct which entitles defendant to a new trial; it is the prejudice which results therefrom and which prevents the trial from being a fair one. See State v. Hall, 235 N.W.2d 702, 712 (Iowa 1975); State v. Emery, 230 N.W.2d 521, 525 (1975); Morris, 227 N.W.2d at 153; State v. Hanson, 225 N.W.2d 343, 348 (Iowa 1975).
Ordinarily a finding of prejudice results from persistent efforts to inject prejudicial matter before the jury. Webb, 244 N.W.2d at 332. However, prejudice may result from isolated prosecutorial misconduct. Id.
The applicant contends that with proper objection the jury would not have heard from the prosecutor in opening statement that (1) the victim was hard working and successful; (2) the victim held a position of responsibility; (3) the victim was the primary care parent for two young boys; (4) the victim was a responsible man, who provided a good home for his sons; (5) the victim was a successful worker; (6) the victim was a concerned father; (7) the victim was a caring and giving member of his community; (8) the victim devoted time to public service; (9) the victim was a member of the city council; (10) the victim was president of the Garner Chamber of Commerce; (11) the victim was a busy, hardworking man; (12) the victim was a volunteer; (13) the victim was a city leader; (14) the victim was a caring person; (15) the victim gave respect; (16) the victim never expected anything back; (17) the victim's boys were number one; (18) the victim tucked his boys in bed and told them he loved them and he said he would have to find out where their college dorms were because he would probably still be tucking them in; (19) the victim was into church; and (20) the victim went above and beyond doing things for the church and the community. Applicant contends these comments, together with showing the jury a picture of the victim returning from church with his two sons, with proper objections at trial would have been stricken.
The applicant further argues that the prosecutor's references to this evidence about the victim's good character were made more egregious by comments made to show applicant was of bad character. He argues the prosecutor during his opening statement and throughout the trial in describing applicant used defamatory terms such as (1) killer, (2) murderer, (3) malingerer, (4) liar, (5) alcoholic, (6) mentally ill; (7) dangerous, (8) violent, and (9) a window peeper, in describing applicant.
Applicant's trial attorney admitted applicant was an alcoholic in opening statement.
The defendant also contends that contributing to the prosecutor's misconduct was the fact he sought to hold a 12-guage shotgun during his opening statement. Applicant further advances that the prosecutor went on to say there was evidence after the murder that applicant had a high powered weapon loaded and when arrested the applicant pointed the weapon at officer and applicant knew the arrest was coming because he knew what he had done. Applicant contends the prosecutor improperly used the shotgun, taken from the applicant's home, before the jury and suggested it was the murder weapon when the actual murder weapon was not found. The State contends this was not misconduct on the part of the prosecutor as the shotgun was admitted into evidence.
Applicant contends he has shown prejudice as the case against him was not strong. He points out he worked for the Iowa Department of Transportation for twenty-nine years and was a long-time resident of Britt, Iowa, and had no history of violence. His only prior arrest was for drunk driving when he was sixteen years of age. He said two teens saw a pickup leaving the scene of the shooting that was not similar to his pickup. Records show he purchased one-half gallon of whiskey in Britt on the night of the murder at 9 p.m. and the Britt police chief confirmed he was home at 10:05 p.m. Applicant also contends the only evidence linking him to the crime was his two fingerprints, which he eventually claimed he left while peeking in the victim's window several days earlier, though at the time of his arrest he denied having been on the victim's premises.
We agree with the trial court's assessment that the prosecutor's portrayal of the victim was intended to generate sympathy and inflame the passions of the jury, yet our inquiry here must focus on prejudice to the applicant. First, were the prosecutor's remarks so prejudicial as to keep applicant from receiving a fair trial. See Webb, 244 N.W.2d 332; Emery, 230 N.W.2d 525.
Second, was applicant prejudiced by counsel's failure to challenge the remarks. The State contends the evidence against the applicant is so strong that we must answer both questions in the negative and we agree.
The evidence introduced at trial shows (1) applicant was upset about the relationship between his former wife and the victim; (2) applicant told his daughter he had a bullet reserved for the victim; (3) a pickup driven away from the scene just after the murder was identified by one witness as similar to a photograph of the pickup owned by applicant; (4) it takes eighteen minutes and five seconds to drive at the legal rate of speed from the victim's home to applicant's home; (5) the webbing on the applicant's left hand was injured as was his left cheek when he was taken for questioning hours after the murder, and there was testimony that these injuries were consistent with the recoil of an awkwardly held shotgun; (6) though applicant initially denied being outside the victim's home, fingerprints taken from the ledge of the dining room window from where the victim was shot were of applicant's right thumb and middle finger; (7) while applicant later contended he had been at the home earlier, the fingerprints did not appear weathered; (8) applicant had the victim's name, address and telephone number in his wallet and a note with the victim's name near his telephone both in applicant's handwriting; and (9) shoes consistent with footprints from where the shooter stood were found in applicant's barn and were marked with applicants name.
While we do not disagree with the district court's concerns about the prosecutor's opening statement, we find the evidence against applicant was so strong that he is unable to show a reasonable probability that but for the challenged remarks of the prosecutor there would have been a different verdict. We reverse the district court on this issue.
Applicant further contends, among other things, that trial counsel was ineffective in failing to preserve an alibi defense, to file a motion in limine to preclude evidence of the victim's good character and his bad, to object to Dr. Thomas Bennett offering an opinion on ballistics that exceeded the doctor's area of expertise, and for appellate counsel to waive the errors on direct appeal. This district court did not address these issues in its ruling. These claims do not support granting a new trial for applicant has failed to show the required prejudice.