Opinion
No. 03-1769.
March 16, 2005.
Appeal from the Iowa District Court for Dubuque County, Robert J. Curnan, Judge.
Craig Bowman appeals the denial of his postconviction relief application. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, Fred McCaw, County Attorney, and Ralph Potter, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
A jury found Craig Bowman guilty of second-degree kidnapping, terrorism, and assault while participating in a felony, in connection with the detention of his girlfriend's acquaintance. Iowa Code §§ 710.1, 710.3, 708.6, 708.3 (1999). On direct appeal, our court affirmed his judgment and sentences. See State v. Bowman, No. 00-1015 (Iowa Ct.App. Dec. 12, 2001). Bowman then filed an application for postconviction relief seeking to have his convictions set aside. Following an evidentiary hearing, the district court denied the application.
On appeal from the postconviction relief ruling, Bowman contends: (1) juror misconduct infected the trial, (2) trial and postconviction relief counsel were ineffective in failing to challenge the prosecutor's request to have Bowman comment on the truthfulness of State witnesses, and (3) trial counsel was ineffective in failing to bring a claimed conflict of interest with his attorney to the attention of the trial court.
I. Juror Misconduct
After the trial and direct appeal, Bowman discovered that, during his trial, one of the jurors met his cousin, Russell Bowman. At the time of the chance meeting, the juror did not realize the two Bowmans were related, as he only knew Russell Bowman by his first name. The juror spoke to Russell about the trial. This conversation forms the basis of Bowman's allegation of juror misconduct.
The State concedes this claim is the proper subject of a postconviction relief action. See Iowa Code § 822.2(4) (allowing a claim for postconviction relief based on "evidence of material facts, not previously presented and heard, that requires vacation of the conviction").
Russell Bowman's characterization of the conversation with the juror changed over time. Initially, Russell testified by deposition that he asked the juror what he had been up to. The juror replied, "right now I'm in a jury trial." Russell inquired, "Is that the Bowman trial?" The juror said it was. Russell then asked "how . . . the trial was going." The juror responded, "Well, so far I think he's guilty." Russell testified this conversation took place on the second or third day of trial.
At the postconviction relief hearing a year later, and over the State's objection, Russell changed his testimony. He stated this conversation took place after the first day of trial rather than on the second or third day of trial. He also claimed the juror said "[t]he guy is guilty" rather than "so far I think he's guilty."
The district court initially received this evidence subject to the State's objection, but later sustained the objection. The court reasoned:
The specific change in the language the juror is said to have used and the now-specific corrected memory of the witness gives to the Court some credibility problems with this testimony. Further, it appears to the Court that the State's Rule 5.606(b) objection was well taken. Under that rule, the juror would be precluded from such testimony and under that rule, any statement by the juror concerning a matter about which his testimony would be precluded is not admissible. The statement as testified to several times and originally in the deposition, in any event did not reflect a prior determination by a juror.
Bowman contends Iowa Rule of Evidence 5.606( b) pertaining to the admissibility of juror statements, does not mandate exclusion ofthis juror's statements. He also contends the juror's claimed pre-determination of guilt deprived him of his "constitutional right to an impartial jury." We conclude rule 606( b) is controlling and, accordingly, find it unnecessary to address Bowman's constitutional argument. Our review of the court's evidentiary ruling is for an abuse of discretion. State v. Wells, 629 N.W.2d 346, 352 (Iowa 2001).
Rule 606( b) states:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other jurors' mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his emotional processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning matter about which he would be precluded from testifying be received for these purposes.
This rule prohibits impeachment of a verdict based on the internal workings of the jury, but allows impeachment if external pressures affected the verdict. Lund v. McEnerney, 495 N.W.2d 730, 733 (Iowa 1993). In other words, "[j]urors would be competent to testify only to extraneous prejudicial information or outside influence which was brought to bear on the jury." Ryan v. Arneson, 422 N.W.2d 491, 495 (Iowa 1988); see also U.S. v. Caldwell, 83 F.3d 954, 956 (8th Cir. 1996) (requiring presentation of "evidence of juror misconduct that is not barred by the rule of juror incompetence and is sufficient to establish grounds recognized as adequate to overturn the verdict"). This rule applies equally to third-party testimony regarding a juror's statement. Caldwell, 83 F.3d at 956. The juror's statement here does not speak to "extraneous prejudicial information or outside influence." Ryan, 422 N.W.2d at 495. Instead, it speaks to the juror's "emotional processes." Iowa R. Evid. 606( b). Notably, Russell Bowman testified that he and the juror did not discuss the case further after the juror's comment that he thought Bowman was guilty. See Doe v. Johnston, 476 N.W.2d 28, 34-35 (Iowa 1991) (finding cartoon brought into jury room depicting judge telling jury, "There's no provision for guiltyish," was extraneous matter appropriately considered on motion for new trial, but finding improper consideration of juror affidavits for purpose of assessing cartoon's influence on individual jurors) We conclude the juror's statements are not competent evidence. See Caldwell, 83 F.3d at 956 (finding no abuse of discretion in district court's exclusion of juror comments that "I've heard all of this I need to hear" and "this is just a bunch of crap"); U.S. v. Oshatz, 715 F. Supp. 74, 76 (S.D.N.Y. 1989) (finding inadmissible post-verdict statement by juror that she went along with verdict because she did not want to "rock the boat" with other jurors anxious to end deliberations). Therefore, the district court did not abuse its discretion in sustaining the State's objection to these statements.
II. Ineffective Assistance of Counsel — Prosecutorial Misconduct
On several occasions, the prosecutor asked Bowman whether certain State witnesses lied. The following exchanges are instructive:
Q. So when he testified that you brought the gun down in the shooter's position, he just made that all up, didn't he? A. He had to have because I didn't do it.
Q. Did you force Karla into that house that night? A. No, I did not.
Q. Did she lie when she said you did? A. Obviously she did.
Q. Did she lie when she said you threatened to kill her five or six times? A. Yes, she did.
. . .
Q. She just made up that whole elaborate story? A. I'm not accusing her of doing anything but it's on paper and it didn't happen so I'd have to say, yes.
. . .
Q. But you're saying she's lying about pretty much everything else that happened at your house? A. Was she was — it was a totally different situation.
. . .
Q. So when Karla and Missy and Theresa said she didn't want to go with you, that wasn't the truth either? A. All I can say, Mr. Potter, is that I reached my hand out, I said, let's go, honey, and they wouldn't — by they, I don't know who they were.
. . .
Q. Okay. In summary, Mr. Bowman, would it be fair to say that Karla Schwaegler got up here and told a lot of lies? A. She had to have because it didn't happen that way.
Bowman argues trial andpostconviction relief counsel were ineffective in failing to challenge this line of questioning. To prevail on an ineffective-assistance-of-counsel claim, a defendant must show (1) counsel breached an essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 690-92, 104 S. Ct. 2052, 2066-67, 80 L. Ed. 2d 674, 695-96 (1984).
The State concedes this claim may be asserted on appeal.
The Iowa Supreme Court recently found the type of questions propounded by the prosecutor to be improper. State v. Graves, 668 N.W.2d 860, 873 (Iowa 2003). Specifically, the court rejected the notion that objections to this type of questioning were not worth making or amounted to reasonable trial strategy. Id. at 882; see also State v. Werts, 677 N.W.2d 734, 739 (Iowa 2004) (holding prosecutor violated "duty to keep the record free of undue denunciations or inflammatory utterances"). The court relied on caselaw in existence at the time of this trial. Graves, 668 N.W.2d at 882. Therefore, the breach of duty prong was established.
The only remaining question is whether Bowman established Strickland prejudice. To prove prejudice, the applicant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
In Graves, the Court also examined whether the defendant established due process prejudice, but noted the Strickland analysis was similar. Graves, 668 N.W.2d at 883.
Unlike Graves, the evidence of Bowman's guilt was strong. Bowman and his girlfriend, Theresa Carey, went to two bars, argued, and eventually had a scuffle that ended with Bowman choking Carey. After this incident, Bowman went home. Carey refused to go with him. Instead, she left with Todd Williams, Karla Schwaegler, and Melissa Dakin. Carey asked them to help her retrieve her car from Bowman's home. Once there, Schwaegler walked over to Carey's car, with Williams not far behind. She got in and turned on the ignition. At that moment, she heard a gunshot. Schwaegler turned "immediately" and saw Bowman standing in the front yard with a gun. Williams, who was standing nearby, testified that Bowman stepped out of his house, "brought the handgun over his head with his right hand, pointed it at the car and fired the weapon." Before Schwaegler could get out of the car, Bowman came from the back. Schwaegler testified the gun "was pointed between my head and my shoulders." Bowman ordered Schwaegler into his house, with the gun pointed at her. Once inside, Bowman threatened to kill Schwaegler and repeatedly asked her to call Carey and "her buddies" in order to get them "over here." Bowman refused to allow Schwaegler to leave, saying "I can still use you yet."
The jury was instructed that the State would have to prove the following elements of second-degree kidnapping:
1. On or about the 30th day of July, 1999, the Defendant either confined Karla Schwaegler or removed Karla Schwaegler from one place to another.
2. The Defendant did so with the specific intent to use Karla Schwaegler as a hostage.
3. The Defendant knew that he did not have the consent of Karla Schwaegler to do so.
4. The Defendant was armed with a dangerous weapon at the time that he confined or removed Karla Schwaegler.
The jury was instructed that the State would have to prove the following elements of terrorism:
1. On or about the 30th day of July, 1999, the Defendant shot a dangerous weapon at a motor vehicle which was occupied by Karla Schwaegler.
2. The .44 caliber magnum revolver was a dangerous weapon. You have been instructed that a .44 caliber magnum revolver is, by law, a dangerous weapon.
3. Karla Schwaegler actually experienced fear of serious injury and her fear was reasonable under the existing circumstances.
The jury was instructed the State would have to prove the following elements of assault while participating in a felony:
1. On or about the 30th day of July, 1999, the Defendant committed an assault on Karla Schwaegler as defined in Instruction No. 32.
2. At the time of the assault, the Defendant was participating in any of the following crimes: Kidnapping in the Second Degree, Kidnapping in the Third Degree, Terrorism with Intent or Terrorism as defined in Instruction Nos. 18, 19, 28, and 29.
Meanwhile, Williams contacted the police. After they arrived, Bowman stepped outside with a pistol, saw the officers, and went inside. He momentarily placed his gun down. Schwaegler took that opportunity to push Bowman out the door. He was arrested. When officers saw Schwaegler, she repeated several times, "Oh, my God, I can't believe I'm alive."
Bowman countered some of this testimony. He stated he left his house with a gun because he saw a big man in the vicinity. He said he shot the gun in the air in self-defense. He acknowledged moving toward Carey's car but stated he did so to determine why it was being taken by someone other than Carey. He denied threatening Schwaegler. He stated, "I never forced her anywhere. I asked her permission. She agreed to it, that's all I can really say."
Notwithstanding this contradictory evidence, the case did not turn on credibility as Graves did. The record contained several eye-witness accounts. These witnesses essentially corroborated Schwaegler's version of events.
In addition to the strength of the State's evidence, defense counsel mitigated the effect of the prosecutor's reference to lies and lying by engaging in the following exchange with Bowman on redirect examination:
Defense Counsel: Mr. Bowman, I know [the prosecutor's] been using the term did Karla Schwaegler lie. Is that maybe a bit strong in terms of terminology?
Bowman: Yes. I'm not accusing her of lying. I just think her perception and the mood she was in, the alcohol, she possibly didn't see things, you know, clearly.
Defense Counsel: So mistaken would probably be a better word?
Bowman: Yeah, much better.
Finally, unlike Graves, Bowman does not argue that the prosecutor compounded the prejudicial effect of his cross-examination by referring to him as a liar in closing argument.
On our de novo review of the record, we note that the prosecutor said the following in closing argument: "[Karla Schwaegler]'s not a liar. She's not delusional. And to acquit him on the kidnapping charge or the assault while participating in a felony charge, you're going to have to find she's a liar or delusional. . . . And to acquit him on the terrorism charge, you're going to have to find Todd Williams is a liar. . . ." While these and other references are similar to the language cited in Graves, we believe the prosecutor did not cross the line between permissible inferences from the evidence and an impermissible personal opinion that the defendant was lying.
For these reasons, we conclude Bowman did not establish a reasonable probability of a different outcome had trial counsel objected to the prosecutor's impermissible questions.
III. Conflict with Trial Counsel
Bowman did not get along with his trial attorney. Nine months before trial, he sent a letter to the court requesting assistance in obtaining "a court appointed private attorney." Bowman did not receive a response to this request. He did not pursue the matter with the court until after trial. Shortly before sentencing, he sent a lengthy letter to the court detailing his concerns with his trial attorney. The district court ruled, "to the extent that the letter requests that the Defendant be appointed different counsel at sentencing and that sentencing be continued to a later date, both of those requests are denied."
Bowman now claims his trial attorney was ineffective in ignoring "Applicant's numerous requests for new counsel" and in "refus[ing] to move to withdraw." He also claims the trial court, "[u]pon receipt of his request for new representation[,] should have conducted a formal hearing to inquire into the merits of Applicant's complaints."
The Iowa Supreme Court recently recognized that a court has a duty to inquire into a defendant's request for substitute counsel, where that request is based on an alleged breakdown in communication with current counsel. Statev. Tejeda, 677 N.W.2d 744, 750 (Iowa 2004). This duty was formally recognized only after trial and sentencing in this case. Therefore, we conclude trial counsel did not breach an essential duty in failing to bring this issue to the Court's attention. State v. Hepperle, 530 N.W.2d 735, 740 (Iowa 1995). For the same reason, we also conclude the district court did not have a formally recognized duty to spontaneously engage Bowman in a colloquy about the claimed breakdown in communication with his trial attorney.
IV. Disposition
We affirm the district court's denial of Bowman's application for postconviction relief.