Opinion
No. 5-585 / 04-1809
Filed December 7, 2005
Appeal from the Iowa District Court for Black Hawk County, Stephen C. Clarke, Judge.
Dewayne Campbell appeals from his judgment and conviction for robbery in the first degree, in violation of Iowa Code section 711.1 and 711.2 (2003). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Greta Truman, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kimberly A. Griffith, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Zimmer, J., and Brown, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
Dewayne Campbell appeals from his judgment and conviction for robbery in the first degree. He contends his trial counsel was ineffective for (1) failing to object to prosecutorial misconduct involving his prior convictions and other evidence, (2) failing to request curative or limiting jury instructions regarding the prior convictions and other character evidence, and (3) failing to make a motion for a new trial. We affirm Campbell's judgment and conviction and preserve the ineffective assistance claims for further development of the record in possible post-conviction relief proceedings.
Background Facts and Proceedings.
On the morning of March 10, 2004, Campbell entered a Sears store in Waterloo, Iowa, placed a computer in his cart, and walked out of the store without paying for the computer. Campbell went to his car in the parking lot and attempted to place the computer in his back seat. Several Sears employees had witnessed Campbell's departure with the unpaid merchandise and were giving chase to Campbell's vehicle. One employee, Gordon Syzmanski, approached the car and attempted to remove the computer box from the open door. During this time, Campbell had abandoned attempts to fit the box fully in the car and had taken the driver's seat and started the car. Campbell yelled something at Syzmanski and placed the car in reverse. The open door to the backseat struck Syzmanski in the side, leaving a bruise. Campbell stopped to place the car in drive, and Syzmanski again tried to retrieve the computer. He could not do so before Campbell drove away. This incident was also witnessed by Syzmanski's fellow Sears employees, Jeremy Patterson and Karla McNelly, and partially videotaped by surveillance cameras.
The State filed a trial information charging Campbell with robbery in the first degree in violation of Iowa Code sections 711.1 and 711.2 (2003). A jury trial resulted in a verdict of guilty of robbery in the first degree. The district court sentenced Campbell to a term of imprisonment not to exceed twenty-five years, with a mandatory minimum of seventeen and one-half years. Campbell now appeals his judgment and conviction.
I. Scope of Review.
Because a claim of ineffective assistance of counsel implicates constitutional rights, our review is de novo. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999).
II. Ineffective Assistance of Counsel.
The defendant must overcome a strong presumption of his counsel's competence. State v. Nucaro, 614 N.W.2d 856, 858 (Iowa Ct.App. 2000). He has the burden of proving (1) his attorney's performance fell below "an objective standard of reasonableness," and (2) that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To prove Strickland prejudice, the defendant must prove a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Although postconviction claims should ordinarily be first decided by the district court, we may decide ineffective assistance claims on direct appeal if the appeal record demonstrates that the defendant cannot prevail on a claim as a matter of law. State v. Martinez, 679 N.W.2d 620, 625-26 (Iowa 2004). Trial counsel is not under a duty to raise a meritless issue, State v. Griffin , 691 N.W.2d 734, 737 (Iowa 2005), nor will we second-guess a reasonable trial strategy as ineffective assistance. Fullenwider v. State, 674 N.W.2d 73, 75 (Iowa 2004).
A. Prosecutorial Misconduct.
Campbell argues that trial counsel was ineffective for failing to raise and object to prosecutorial misconduct during trial. Campbell's allegations of misconduct relate to the prosecutor questioning him on prior convictions, his then-present incarceration, his employment history, and allegations by the prosecutor that Campbell was lying.
Prosecutorial misconduct is shown when (1) there is misconduct, and (2) the defendant was so prejudiced by the misconduct "as to deprive the defendant of a fair trial." State v. Anderson, 448 N.W.2d 32, 33 (Iowa 1989). It is not the prosecutor's misconduct that entitles a defendant to a new trial, but rather any resulting prejudice that prevents the trial from being a fair one. State v. Wilkins, 693 N.W.2d 348, 352 (Iowa 2005). In determining prejudice the court looks at several factors "within the context of the entire trial." Id. We consider (1) the severity and pervasiveness of the misconduct; (2) the significance of the misconduct to the central issues in the case; (3) the strength of the State's evidence; (4) the use of cautionary instructions or other curative measures; and (5) the extent to which the defense invited the misconduct. State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003) (citations omitted).
1. Prior Bad Acts Evidence.
Campbell contends the prosecutor committed misconduct by questioning him on his drug conviction and going into detail about his other convictions, questioning him on his incarceration prior to trial, and questioning on his employment history. It appears from the record Campbell's trial counsel pursued a strategy at trial that Campbell was a non-violent offender in his past criminal activity, and thereby giving reasonable doubt as to the specific intent required for robbery in the first degree. The record is not very clear or detailed on this strategy, however the prosecutor's questioning on Campbell's prior offenses, present incarceration, and employment history seem to relate directly to such a defense trial strategy. The strategy and allegations of ineffective assistance directly implicate the motives and reasoning of trial counsel, to which he has not had opportunity to respond. See State v. Tejeda, 677 N.W.2d 744, 752 (Iowa 2004) (holding that when the record is inadequate to decide an issue on direct appeal and trial counsel has not had opportunity to explain his actions, an ineffective assistance claim will be preserved for post-conviction proceedings). We find the record is not adequate to decide these issues on direct appeal, and therefore preserve them for review in possible further proceedings.
2. Comments on Campbell's Veracity.
Campbell lastly contends the prosecutor engaged in misconduct by characterizing his testimony as lies and implying he was lying on the stand. During cross examination the following exchanges occurred between the prosecutor and Campbell:
Q: Sir, I have your files right in front of me. A: I'm sure. You said —
Q: — which I studied last night. Have you seen them in years to know if your facts are right? A: You have my files. I'm the one that the file is about.
Q: And you haven't seen these files in years, have you? A: In all actuality, I haven't ever seen the files.
Q: And you're the one with the motivation today to lie, are you not? . . .
Q: Okay. Okay. Let's try that question again. Are you not sure what you were going to do that day or you just don't want to tell us the truth? A: No, I'm trying to tell you the truth. . . .
. . . .
Q: And Jeremy and Nancy were in the same vicinity that you were in when you took the HP computer, weren't they? A: From — I really can't say where Nancy was, but from what I read about the information that was given to me, it sounded like she says she walked past me.
Q: No, sir, that's not what I said. A: Okay. Well, I don't know what you want me to say.
Q: Well, I'd like you to tell the truth. A: That's what I'm trying to say but you won't give me a chance to do that.
While the last comment is an exhortation to "tell the truth," the first two exchanges clearly show denunciations of Campbell's veracity by the prosecutor. Our supreme court has recently found these types of questions by the prosecutor to be improper and amount to misconduct. State v. Graves, 668 N.W.2d 860, 873 (Iowa 2003). Graves specifically rejected the notion that objections to this type of questioning were not worth making or amounted to a reasonable trial strategy. Id. at 882; see also State v. Werts, 677 N.W.2d 734, 739 (Iowa 2004) (holding that the prosecutor violated the "duty to keep the record free of undue denunciations or inflammatory utterances").
However, Campbell also must establish prejudice from the misconduct, which prevented him from receiving a fair trial. Prejudice, on this issue, would hinge on the effect this misconduct would have had on Campbell's credibility. See Graves, 668 N.W.2d at 876-81. We are not prepared to conclude, based on this record, that the prosecutor's questions, as a matter of law, impeached Campbell's credibility to the extent he did not receive a fair trial. This misconduct must be considered together with the other allegations of misconduct in making such a determination. Id. We therefore also preserve this issue for possible further proceedings.
B. Request for Curative or Limiting Instructions.
Campbell also argues that his trial counsel was ineffective for failing to request curative or limiting jury instructions regarding the prior bad acts evidence. As we determined above, the record on possible prosecutorial misconduct, trial strategy, and evidence of Campbell's prior convictions and bad acts is inadequate to decide these questions on direct appeal. Likewise, the record as to curative or limiting instructions is not sufficient for us to consider this issue. We also preserve it for possible further proceedings.
C. Motion for a New Trial.
Campbell's final issue on appeal is that his trial counsel was ineffective for failing to make a motion for a new trial based on prejudice resulting from prosecutorial misconduct and the weight of the evidence does not support conviction of robbery in the first degree. As we found above, the record is inadequate on direct appeal to determine the underlying claim as to prosecutorial misconduct. Therefore, we likewise preserve Campbell's allegations of ineffective assistance as to a motion for new trial for further possible development of the record in a later proceeding.