Opinion
No. 5-579 / 04-1512
Filed October 12, 2005
Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire, Judge.
Anthony McGee appeals his judgment and sentence for third-degree sexual abuse and false imprisonment, claiming ineffective assistance of counsel arising out of prosecutorial misconduct. AFFIRMED.
Linda Del Gallo, State Appellate Defender and Theresa R. Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, William E. Davis, County Attorney, and Donald E. Frank, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Hecht and Vaitheswaran, JJ.
Anthony McGee appeals his judgment and sentence for third-degree sexual abuse. He contends his attorney was ineffective in failing to object to the prosecutor's cross-examination of him and to statements made during closing argument. We affirm.
I. Background Facts and Proceedings
The following facts are undisputed. McGee met seventeen-year-old Allen at a mall. The two struck up a conversation and ended up "hanging out" with some of Allen's friends. Two nights later, McGee invited Allen over to his hotel room. Allen went. The two went out for some time and then returned to McGee's hotel room.
At this point, the testimony diverges. McGee stated that he and Allen discussed masturbation and decided to masturbate on separate beds. He testified he went to the bathroom and, when he came out, Allen was already in his boxer shorts. According to him, both acted voluntarily and neither had physical contact with the other.
Allen, in contrast, testified that McGee asked him if he was interested in hanging out in his boxer shorts. Allen said no, told McGee he was uncomfortable, and got up to leave. McGee pushed Allen onto a bed and said he was not leaving. He also told Allen to undress down to his boxer shorts. Allen complied. Meanwhile, McGee got under the covers of one of the beds and appeared to masturbate. He then kneeled in the space next to the bed on which Allen was seated and continued to masturbate. Finally, he reached into Allen's boxer shorts and stroked Allen's penis twice. After this episode, McGee told Allen to get dressed and to watch his step, as there was semen on the carpet between the beds.
Allen and his parents reported the incident to police. The police arrested and questioned McGee at the police station, with a video camera running. During the interview, McGee denied that anything sexual occurred with Allen.
Police later obtained a search warrant for McGee's hotel room. They discovered semen on the carpet between the beds, as Allen had described. DNA from this sample essentially matched McGee's DNA.
The State charged McGee with third-degree sexual abuse and false imprisonment. Iowa Code §§ 709.4(1), 902.8, 710.7 (2003). A jury found McGee guilty of both charges and the district court imposed sentence.
II. Ineffective Assistance of Counsel Claims
McGee raises the following two ineffective-assistance-of-counsel claims based on claimed prosecutorial misconduct: (A) "the prosecutor improperly cross-examined him concerning the truthfulness of other witnesses," and (B) "the prosecutor improperly disparaged the character of the defendant and defense counsel during closing arguments." McGee contends his attorney was ineffective in failing to object to this conduct.
To prevail, McGee must show a failure to perform an essential duty and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695 (1984). We find the record adequate to consider these claims. State v. Stewart, 691 N.W.2d 747, 750 (Iowa Ct.App. 2004). As they are grounded in the Constitution, our review is de novo. Id. A. Cross-Examination
In State v. Graves, 668 N.W.2d 860 (Iowa 2003), the Iowa Supreme Court held that a prosecutor's tactics of asking the defendant whether another witness was lying "is incompatible with the duties of a prosecutor." 668 N.W.2d at 873. McGee argues that the prosecutor in his case used these tactics on several occasions.
1.
The prosecutor asked McGee to comment on the testimony of another witness named Zellmer concerning alcohol consumption. The dialogue was as follows:
Q. Okay. And we agree that Mr. Zellmer is of legal age to drink? A. Yes.
Q. And my question to you is, do you have any explanation for why Mr. Zellmer would not tell the truth and deny drinking when he's not doing anything wrong? A. To me, probably because that's his friend's apartment and they're not supposed to have alcohol in there. That's my assumption. I don't — I don't know.
Q. You don't know, do you? A. I can't explain why he would say that.
Q. I didn't think you could.
The State concedes the prosecutor was essentially asking McGee whether Zellmer lied. This type of question is improper under Graves. Id. at 668.
Assuming McGee's attorney breached an essential duty in failing to object to this line of questioning, we nevertheless cannot find Strickland prejudice. The questioning concerned a collateral issue; whether Zellmer drank alcohol was neither temporally nor factually related to the charges against McGee. Those charges focused on Allen's complaint that McGee performed a sex act on Allen against his will.
The State's evidence on this charge was strong. Allen's trial testimony, summarized above, was essentially consistent with what he told witnesses immediately after the incident. Additionally, a videotape of the police interview with McGee was admitted into evidence and highlighted several changes in McGee's version of events. During the interview, for example, McGee adamantly denied that any sexual activity occurred. At trial, McGee testified "[t]hings did transpire" in the hotel room, and both he and Allen masturbated. In addition to this evolving story of what transpired in the hotel room, the State presented DNA evidence essentially corroborating Allen's version of events.
Given the strength of the State's evidence against McGee, we conclude there was no reasonable probability that this concededly problematic line of questioning would have changed the outcome.
2.
McGee next argues the prosecutor committed misconduct during cross-examination by asking him to explain why Allen had difficulty reporting the incident to his parents and testifying at trial. For example, he engaged in the following dialogue with McGee:
Q. Okay. Do you have — Can you explain to the jury if what you say about what happened between the two of you is true, why he was crying during his testimony? A. I can't explain it. In depositions he didn't cry, and then today he cried or yesterday he cried.
The State again concedes that, although the prosecutor did not directly ask McGee whether Allen was lying, this type of question might have required McGee to comment on Allen's veracity. See Graves, 668 N.W.2d at 872-73 ("It is also unreasonable to expect the defendant to sift through the variables of human communication to offer an alternative explanation for contradictions in witnesses' testimony."). We conclude this line of questioning served no purpose other than to malign McGee. Defense counsel breached an essential duty in failing to object but, for the reasons discussed above, we are not persuaded that McGee established Strickland prejudice.
3.
In a variant of the previous argument, McGee next argues the prosecutor's questioning evolved into disparaging insinuations that McGee was lying at trial as he had lied to the police. He cites the following dialogue as an example:
Q. You want this jury to believe that even though you're the one that lied, then every time there's a discrepancy between what the State's witness said and what you said, you're the one now telling the truth; is that correct? . . . You want the jury to believe that your version is the truth? A. Yes.
Q. Even though you lied to the police? A. Yes.
Graves does not rule out questioning about discrepancies in a defendant's statements or discrepancies among statements. 668 N.W.2d at 873. This line of questioning did more than highlight discrepancies. The prosecutor prefaced many of his questions with "if what you are saying is true . . ." and concluded some of his questions with phrases such as "that was one of the lies you told the police." This type of conduct was condemned in Graves, an opinion that was filed well before trial in this matter. See Graves, 668 N.W.2d at 872-73.
Nonetheless, for the reasons stated previously, we agree with the State that Strickland prejudice was not established.
B. Closing Arguments
During closing arguments, a prosecutor may argue the reasonable inferences and conclusions to be drawn from the evidence, but the prosecutor may not express his or her personal beliefs. Graves, 668 N.W.2d at 874. Specifically, "it is improper for a prosecutor to call the defendant a liar, to state the defendant is lying, or to make similar disparaging comments." Id. at 876; see also State v. Werts, 677 N.W.2d 734, 739 (Iowa 2004) (holding prosecutor violated "duty to keep record free of undue denunciations or inflammatory utterances").
McGee asserts the prosecutor violated these precepts in several respects. We will address each in turn.
1.
During the main portion of his closing argument, the prosecutor stated, "Does the defendant's version make any sense? That's what you have to decide in determining who to believe in this case." He continued,
[N]ow every time there's a discrepancy between what a State's witness said and what you say, because you don't like what the State's witness said — He's asking you to believe him. He's asking you to believe him. Well, don't do it. Don't do it.
These statements do not amount to prosecutorial misconduct, as they were "legitimate inferences from the evidence." 668 N.W.2d at 874.
2.
During rebuttal argument, the prosecutor read a portion of Allen's deposition transcript which was not in evidence in order to rebut language cited by defense counsel during his argument. We agree with McGee that the prosecutor acted improperly in citing to testimony that was not in the record. See Graves, 668 N.W.2d at 875. However, the prosecutor's conduct did not prejudice McGee because Allen testified on the very issue that was the subject of the unadmitted deposition testimony. Additionally, the strength of the State's evidence, as discussed above, renders it reasonably improbable that the outcome would have changed as a result of this conduct.
3.
During rebuttal argument, the prosecutor commented on McGee's veracity several times. For example, he stated, "Whether you believe the State's witnesses or whether you believe the defendant, defendant's the only one that lied, and he admitted it." He also stated:
Just go back and go through carefully what the evidence is and decide if you believe what your common sense and what makes sense as to what happened, whether that version is from the State's witnesses, [Allen], or whether it's from this man who lies to the police and then comes in here and has an answer for everything. Smooth talker. That isn't an impression I'm trying to give you. You saw it yourself. You saw it on the tape. He's got an answer for everything. He doesn't tell the truth by his own admissions.
The prosecutor then stated defense counsel ought to be ashamed of himself for putting "the blame on the victim."
McGee concedes the prosecutor could properly refer to his admission that he lied to police. He argues the balance of the quoted statements unfairly disparaged McGee and his defense attorney. We agree, but conclude Strickland prejudice was not established.
III. Conclusion
Because our review is de novo, we have considered whether the "errors" cumulatively and in light of the "totality of the evidence" resulted in prejudice to McGee. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. While we are troubled by the number of conceded Graves violations, we cannot conclude that, absent the errors, the jury "would have had a reasonable doubt respecting guilt." Id. at 695, 104 S. Ct. at 2068-69, 80 L. Ed. 2d at 698. Cutting to the chase, this verdict had "overwhelming record support." Id. For that reason, we affirm McGee's judgment and sentence.