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holding the defendant “has not proved both elements of a meritorious due process claim”
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No. 4-833 / 03-1953
Filed February 9, 2005
Appeal from the Iowa District Court for Black Hawk County, Alan L. Pearson, Judge.
The defendant-appellant, Keith Carey, appeals from the judgment and sentence imposed, following a jury trial, for willful injury causing serious injury and going armed with intent. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kim Griffith, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Mahan and Hecht, JJ.
The defendant-appellant, Keith Carey, appeals from the judgment and sentence imposed, following a jury trial, for willful injury causing serious injury and going armed with intent. He contends trial counsel was ineffective in failing to object to repeated instances of prosecutorial misconduct and in not obtaining a jury instruction on provocation. We affirm.
Background facts and proceedings.
An altercation occurred between the defendant and a neighbor, Anthony VonMoore. VonMoore suffered several defensive wounds, apparently from a knife. The defendant claimed he was attacked by VonMoore. He said VonMoore hit him in the face knocking him down and then hit him repeatedly in the head and held him down with a foot on his chest. The defendant complained of facial and rib injuries from the attack by the victim. The defendant said VonMoore came into his house later and drew the knife when the defendant grabbed him. The defendant claimed he disarmed VonMoore and that's when VonMoore received the cuts. In contrast, VonMoore claimed he was attacked by the defendant with a knife after a comment about money. VonMoore suffered a cut above his eye and several cuts on his hands, including one that cut a tendon and another that severed an artery and nerve. VonMoore had a blood alcohol content of 0.273 when tested at the hospital. The defendant had a blood alcohol content of 0.197 when tested at the hospital.
Credibility question.
Because the defendant and VonMoore were the only witnesses to the altercation, credibility was an important issue at trial. The doctor who examined the defendant testified he found no injuries on the defendant from an altercation except perhaps a subconjunctival hematoma in the defendant's left eye. When cross-examining the defendant about his complaints of injuries, the prosecutor asked, "So you're saying the doctor lied; is that what you're telling us?"
Prior bad acts.
During direct examination the defendant was asked about knocking his daughter down when she called 911. He responded, "It's all a blur — I mean — it's — Natalie says I knocked her down. I don't remember knocking her down. I just don't. I don't see why I would knock her down. Hell, she's my daughter." On cross examination, the following interchange occurred between the prosecutor and the defendant, leading up to an admission the defendant had choked his daughter in 2000:
Q. And you said that you've never hurt her before, that you wouldn't hurt her. Is that what you said? A. I never said anything to that whatsoever, ma'am.
Q. No, on direct when Mr. Metcalf was asking you if you knocked her down, didn't you say you would never hurt her, you never hurt her before? A. No, I did not say that, ma'am.
Q. You didn't say that? So you would hurt her? A. Let's put it like this, ma'am. I — I — I try to be the best parent I can.
Q. That's not the question. Would you hurt her?Closing arguments.
In closing arguments, the prosecutor made a number of questionable statements. She referred to the defendant choking his daughter in 2000 as she was "choked in an attack that included a knife." There was no evidence of a knife. She said of the altercation at issue that the daughter "was there." "She knows what happened, and she knows the defendant is the one that was at fault." The daughter testified she did not see or hear anything concerning the altercation. The defendant also claims the prosecutor challenged his credibility and vouched for the credibility of other witnesses in the following instances in closing arguments:
No one supports anything the defendant says, not even his own daughters.
The defendant and Anthony were good friends. Their relation was not cautious as the defendant said. The defendant said he really didn't know him.
Not true.
Mr. VonMoore wasn't wearing a coat. Somehow the defendant wants to tell you that somehow he's wearing this coat, he's hiding a knife.
That's absolutely not true.
The defendant put on an act for the officers when the officers arrived in his attempt to show how injured he was. He didn't have a seizure and he wasn't injured. Then without warning he became violent and aggressive, threatening Officer Zubak that he would get him or something to that effect. Sounds really familiar; doesn't it? At that point in time, though, just didn't have a knife to get Zubak with as he had Mr. VonMoore.
Now he comes up with this ridiculous story. Also, a person that's telling the truth doesn't need to skirt around the issue. The question — questions that were straight forward, you couldn't get him to answer anything directly.
In the reverse Anthony VonMoore's statements have been the same from May 14 to Investigator Moller to Mr. Metcalf and to you. That's because the truth, the truth always remains constant. The lies that the defendant told you are the constantly changing ones that change with the ebb and flow as to how things are going at the time. But there's no legal excuse for his behavior at all. There's none in those instructions for you to find as an excuse for the defendant's behavior. None. And you know Mr. VonMoore is telling the truth. You know he is. Because he doesn't have any motive in here to try to get this defendant convicted of any crime. Because you heard him, he's here because he's subpoenaed.
Also, Mr. Metcalf wants to suggest to you that something else happened. Nothing else happened other than what Mr. VonMoore and the witnesses that came in here and testified told you. It didn't happen the way the defendant said it did. That was a bunch of baloney. That was bogus. Others saw and corroborated what Mr. VonMoore said . . . You know Mr. VonMoore is not lying. So he wasn't going in and out of the guy's house at all.
So look at the evidence. Is there really anything to support what the defendant is saying to you? Anything? And ask yourselves why on earth would you believe anything the defendant says.
Do you really believe that? He says, hey, I wasn't drinking at all that day. Natalie and Liz said they were. They even went to the store at about 5 or 6 and got alcohol. Of course he was drinking. What games are (sic) the defendant playing with you?
Come on. And then when he's out there Mr. VonMoore sucker punches him as he says? That sucker punching didn't happen. Mr. VonMoore was getting high was getting intoxicated, he was drinking. He wasn't over beating up the defendant.
Nothing in this case supports the defendant's story. Nothing. Natalie and Liz's testimony calls their own father's testimony false and untrue. Liz said no problem. Didn't you hear the defendant? The defendant said throughout the day the problem seemed to be with Liz. Natalie only came into it way at the end. But Liz seemed to be the problem all day because when she'd been coming over with the daughter she was saying stuff about this big problem with Mr. VonMoore. Liz said there was no problem when she testified. None. He should have sent some letters to her.
And in this case it's obvious who came with the knife. Look at all of the evidence. Now if the defendant got the knife from Mr. VonMoore as he said, no one is that good in trying to get a knife from another person that's trying to attack you and not getting an injury. When he got the knife, as he said, from Mr. VonMoore, if you notice he didn't sustain one cut, bruise, nothing. That's probably the only person in history that's been successful in not sustaining an injury in defending themselves.
(Emphasis added).
Discussion.
Two elements must be established to show the ineffectiveness of defense counsel: (1) trial counsel failed to perform an essential duty, and (2) this omission resulted in prejudice. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). A defendant's inability to prove either element is fatal. In re C.M., 652 N.W.2d 204, 207 (Iowa 2002).
If the record on appeal shows . . . that the defendant cannot prevail on such a claim as a matter of law, we will affirm the defendant's conviction without preserving the ineffective-assistance-of-counsel claims. Conversely, if the record on appeal establishes both elements of an ineffective-assistance claim and an evidentiary hearing would not alter this conclusion, we will reverse the defendant's conviction and remand for a new trial.
State v. Martinez, 679 N.W.2d 620, 625-26 (Iowa 2004) (quoting State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003)) (citations and internal quotation marks omitted).
Our supreme court recently addressed at length the analysis of alleged prosecutorial misconduct in the context of an ineffective-assistance-of counsel claim:
In analyzing the defendant's ineffective-assistance-of-counsel claim, our first step is to assess whether the record demonstrates, as a matter of law, the existence or absence of a meritorious due process violation. Thus, we must consider whether the prosecutor was guilty of misconduct in the particulars identified by [the defendant] and whether the record shows [he] was prejudiced, i.e., denied a fair trial.
If the record is insufficient to make this determination, we must preserve the defendant's ineffective-assistance claim for a fuller development of the pertinent facts. If, however, the record shows that either element is lacking as a matter of law, we will affirm [his] conviction without preserving his due process claim for a later postconviction relief action. Finally, if both elements of [his] due process claim are established as a matter of law, [the defendant] will have proved that the assertion of such a claim at the time of the prosecutor's misconduct would have had merit.
If it is determined that defense counsel failed to raise a meritorious issue, we must then consider whether an attorney performing within the range of normal competency would have made an objection and/or requested a mistrial. If there is no possibility that trial counsel's failure to act can be attributed to reasonable trial strategy, then we can conclude the defendant has established that counsel failed to perform an essential duty. If trial counsel's conduct might be characterized as a reasonable trial tactic, then [the defendant's] ineffective-assistance claim must be preserved for trial in a possible postconviction relief action.
The final step of our analysis, should the defendant's claim survive to this point, will be to assess whether the record permits a determination of the prejudice prong of the ineffective-assistance claim. In this regard, we will examine whether there is a reasonable probability the outcome of the trial would have been different had trial counsel performed competently.
State v. Graves, 668 N.W.2d 860, 869-70 (Iowa 2003). Analysis of the prejudice prong as it relates to alleged prosecutorial misconduct requires evaluation of several factors because "it is the prejudice resulting from misconduct, not the misconduct itself that entitles a defendant to a new trial." Id. at 869 (quoting State v. Piper, 663 N.W.2d 894, 913 (Iowa 2003)).
In determining prejudice the court looks at several factors within the context of the entire trial. 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.
Id. (citations and internal quotation marks omitted).
Did the prosecutor's actions constitute misconduct? A. Credibility questions.
In Graves, our supreme court determined questions asking a defendant whether another witness lied are "incompatible with the duties of a prosecutor." State v. Graves, 668 N.W.2d at 873. The court held such questions "improper under any circumstances." Id. The State concedes asking the defendant if the doctor who examined him lied was a violation of Graves. B. Prior bad acts testimony.
The prosecutor incorrectly restated the defendant's testimony concerning his daughter, "I don't remember knocking her down. I just don't. I don't see why I would knock her down. Hell, she's my daughter." The prosecutor said, "And you said that you've never hurt her before, that you wouldn't hurt her." and then using that misstatement as the basis for questions, the prosecutor backed the defendant into a corner and elicited prior-bad-acts testimony that had no relevance to the case and only served to make the defendant look bad to the jury as a person with a propensity toward violence. See Iowa Rs. Evid. 5.401, 5.404(b).
C. Closing arguments.
In Graves, the supreme court analyzed similar remarks made in closing arguments, noting "Iowa has joined those jurisdictions holding it improper to call the defendant a liar." Graves, 668 N.W.2d at 876.
We conclude the prosecutor's actions were misconduct.
Did the prosecutor's misconduct result in such prejudice that the defendant did not receive a fair trial? A. Credibility question.
Although both sides agree the question was improper, we are unable to find any prejudice. The defendant deflected the question by replying that the doctor was operating from a set of notes. The defendant's own exhibit A belies his version of the alleged attack and supports the accuracy of the doctor's testimony. The exhibit describes "no evidence of any facial contusions, abrasions, or discoloration of the skin;" "no tenderness" over any of the facial bones; "no blood, only clear discharge" from the nose caused by a sinus infection; and no tenderness, pain, or complaints concerning abdominal, chest, or rib pain.
B. Prior bad acts.
The defendant's daughter, Natalie, testified he knocked her down when she was calling 911. The defendant stated he did not remember and didn't know why he would hurt his daughter. When the prosecutor asked the defendant "Would you hurt her?" he admitted choking her in 2000. The prosecutor used that admission of a prior bad act to point out the defendant had been violent before, but quickly moved on to the defendant's actions in the present case. The defendant had testified on direct he attacked VonMoore, tackled him, and wanted to break his neck. He repeated his statements about wanting to break VonMoore's neck on cross-examination. We cannot find that the prosecutor's mischaracterization of the defendant's testimony about hurting his daughter and the defendant's resulting admission of choking her in 2000 was sufficient to prejudice the defendant.
C. Closing arguments.
We listed above the prosecutor's statements concerning the untruthfulness of the defendant and the truthfulness of VonMoore and other witnesses. Graves set forth several questions for evaluating the propriety of similar statements in closing arguments:
(1) Could one legitimately infer from the evidence that the defendant lied? (2) Were the prosecutor's statements that the defendant lied conveyed to the jury as the prosecutor's personal opinion of the defendant's credibility, or was such argument related to specific evidence that tended to show the defendant had been untruthful? and (3) Was the argument made in a professional manner, or did it unfairly disparage the defendant and tend to cause the jury to decide the case based on emotion rather than upon a dispassionate review of the evidence?
Id at 874-75.
Much of the prosecutor's closing argument and rebuttal consists of comparing the testimony of the defendant with the testimony of others and with exhibits to show how the testimony of others was more consistent and fit the evidence. From those comparisons, one could legitimately infer that the defendant lied. Some of the prosecutor's comments, however, such as "Not true," "That's absolutely not true," "The lies that the defendant told you," "That was a bunch of baloney. That was bogus," appear to us to be improper personal opinions of the prosecutor about the defendant's credibility. In the context of more than twenty pages of closing argument and rebuttal, we cannot find these few improper comments would "tend to cause the jury to decide the case based on emotion rather than on a dispassionate review of the evidence." Id. at 875.
Turning to the factors for determining prejudice set forth in Graves, we conclude the following. See id. at 869. The trial spanned three days with nearly 500 pages of testimony and more than thirty pages of closing arguments. We have noted one improper question, one misstatement of testimony, and a few personal remarks on the defendant's truthfulness. Within the context of the entire trial, the misconduct was neither severe nor pervasive. Although the improper question and the personal remarks in closing relate to the issue of the defendant's truthfulness, as noted above there was sufficient evidence and testimony from others from which the jury could infer the defendant was not telling the truth. Because defense counsel did not object, there were no cautionary instructions or other curative measures, but we do not believe they were necessary under the circumstances. The defense did not invite the misconduct.
From our review of these factors, we conclude the prosecutor's misconduct did not prevent the defendant from receiving a fair trial. Consequently there is no due process violation. The defendant has failed to demonstrate prejudice because of the prosecutor's actions. Because he has not proved both elements of a meritorious due process claim, under the analysis set forth in Graves, we reject the defendant's ineffective assistance of counsel claim and do not address whether defense counsel failed in an essential duty or whether any alleged failure prejudiced the defendant. See Graves, 668 N.W.2d at 869-70.
Jury instruction.
The defendant also claims the district court erred in not sufficiently instructing the jury on applicable law. Specifically, he contends the court should have given Iowa Uniform Criminal Jury Instruction 400.14 on provocation. At trial, the State objected to the defendant's request for this instruction. The district court determined the requested instruction was not supported by the evidence introduced at trial.
Iowa Criminal Jury Instruction 400.14 Provocation — Disproportionate Force. Concerning element number ____ of Instruction No. _____, though a person who provokes the sue of force against [himself] [herself] is not justified, there is an exception.
If the defendant provoked the use of force, but (name of victim) used force greatly disproportionate to the provocation and it was so great that the defendant reasonably believed [he] [she] was in imminent danger of death or injury, [he] [she] is not considered to have provoked the incident and [his] [her] acts would be justified.
We review the failure to give a requested instruction for an abuse of discretion. State v. Selestan, 515 N.W.2d 356, 358 (Iowa Ct.App. 1994). Moreover, any error in jury instructions must be prejudicial to warrant reversal. State v. Webb, 516 N.W.2d 824, 831 (Iowa 1994).
If we accept the defendant's version of the altercation, he did not provoke the attack, but rather was attacked first by VonMoore. If we accept VonMoore's version, he made some comments about money, was attacked by the defendant, and only tried to defend himself against a knife attack. Neither version supports an instruction the defendant provoked an attack by VonMoore or that VonMoore responded with "greatly disproportionate" force. We find no abuse of discretion in the district court's refusal to give the requested provocation instruction.
Substitute counsel.
The defendant claims substitute counsel was ineffective for failing to raise the ineffectiveness of trial counsel concerning the alleged prosecutorial misconduct, failure to object to prior bad acts testimony, and the failure to obtain the provocation jury instruction. As we have concluded the defendant's claim trial counsel was ineffective fails, substitute counsel cannot be ineffective for failing to raise a nonmeritorious claim.
AFFIRMED.
Mahan, J., concurs specially; Hecht, J. dissents.
I concur specially. I agree with the dissent that "the prosecutor's primary interest should be to see that justice is done, not to obtain a conviction." I also agree that the prosecutor crossed the line between zealous advocacy and misconduct on several occasions. The most troubling is the blatant and purposeful misstatement of the record concerning a knife. However, I agree with the majority that the defendant received a fair trial and, therefore, concur in the result.
I respectfully dissent. I begin by noting that this case involves an altercation between two intoxicated men. Each claimed the other had assaulted him while wielding a knife. Each claimed the other provoked the struggle during which VonMoore sustained several cuts. I conclude Carey was denied a fair trial as a consequence of prosecutorial misconduct, and that a new trial should be granted because of trial counsel's ineffectiveness.
The legal construct we must apply in this case was recently detailed in State v. Graves, 668 N.W.2d 860 (Iowa 2003), and need not be repeated here. The record documents numerous instances in which the prosecutor lost track of the notion that "the prosecutor's primary interest should be to see that justice is done, not to obtain a conviction." Id. at 870. Although her job certainly requires zealous advocacy, the prosecutor owes a duty to the accused to assure a fair trial by "complying with `the requirements of due process throughout the trial.'" Id. (quoting DeVoss v. State, 648 N.W.2d 56, 64 (Iowa 2002)).
This record evidences numerous instances in which the prosecutor crossed the line between zealous advocacy and misconduct. Carey testified during his direct examination that he was angry with his daughter, Natalie, on the night of the incident because she called 911 to report VonMoore's injury. Carey also testified during direct examination that he had no recollection of acting out his anger against Natalie by "knocking her down" as she was making the telephone call. The prosecutor returned to this topic during Carey's cross-examination:
I do not include among these instances this question posed to Carey by the prosecutor during cross-examination:
Q. So you're saying the doctor lied; is that what you're telling us?
Our supreme court has clearly decided "were-they-lying" questions are improper under any circumstances. Graves, 668 N.W.2d at 873. Although Graves was not decided until a few days after Carey's trial concluded, there is evidence in this record tending to prove the prosecutor believed such questions were improper. This is evidenced by the following colloquy during Carey's direct exam:
Q. Now, there's been some testimony about [VonMoore and you] working for the same roofer?
A. Yeah, that — that was partially true, yes.
Q. What's wrong with that statement?
[Prosecutor]: Objection, Your Honor, now he's asking to comment upon another person's testimony . . .
. . .
[Defense counsel]: I can withdraw it.
The Court]: Another question.
Notwithstanding the prosecutor's apparent understanding that such questions were improper at the time of trial, because Graves had not yet been decided I do not include among the instances of this prosecutor's misconduct the question which asked Carey to state whether the State's medical witness had lied during the State's case in chief.
Q. And you said that you've never hurt [your daughter] before, that you wouldn't hurt her. Is that what you said?
A. I never said anything to that whatsoever, ma'am.
Q. No, on direct when [defense counsel] was asking you if you knocked her down, didn't you say you would never hurt her, you never hurt her before —
A. No, I did not say that, ma'am.
Q. You didn't say that? So you would hurt her?
A. Let's put it like this, ma'am. I — I — I try to be the best parent I can —
Q. That's not the question. Would you hurt her?
A. I have hurt her once but I — I wouldn't never consciously hurt her ever again.
Q. So you have hurt her before?
A. One time.
Q. You assaulted her; didn't you?
A. One time.
Q. Choked her?
A. Uh-huh, that's correct.
This testimony came in without objection by defense counsel. The prosecutor returned during closing argument to this evidence of Carey's prior bad act as she sought to discredit portions of the same daughter's testimony favorable to her father. The prosecutor urged the jury to "[k]eep in mind this is the daughter that was attacked by her father earlier, choked in an attack that included a knife, as the defendant said." This was a blatant misstatement of the record, as there was no evidence whatsoever in the record to support the prosecutor's claim that Carey previously assaulted his daughter while wielding a knife.
The prosecutor's closing argument repeatedly vouched for the truthfulness of the alleged victim, VonMoore, and characterized Carey's testimony as "lies," a "bunch of baloney," "bogus," and "ridiculous." "Iowa follows the rule that it is improper for a prosecutor to call the defendant a liar, to state the defendant is lying, or to make similar disparaging comments." Graves, 668 N.W.2d at 876. Prosecutorial vouching, denunciations, and inflammatory utterances have long been viewed as inconsistent with the duty of a prosecutor whose obligation is to avoid stating her opinion and to confine her arguments to the evidence. State v. Williams, 334 N.W.2d 742, 744 (Iowa 1983); accord State v. Martens, 521 N.W.2d 768, 772 (Iowa Ct.App. 1994) ("vouching for a witness may induce the jury to trust the judgment of the prosecutor rather than their view of the evidence since the prosecutor's opinion carries the imprimatur of the Government"). I conclude the prosecutor's argument was not made in a professional manner and was calculated to unfairly disparage Carey. I find trial counsel could not reasonably have concluded objections to the prosecutor's conduct were not worth making. Moreover, I cannot attribute trial counsel's failure to object to sound trial strategy. Thus, I would find his assistance ineffective. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) (prejudice prong of the test for ineffective assistance of counsel satisfied where error rises to a level "sufficient to undermine confidence in the outcome.")
Although I do not consider past instances of the prosecutor's conduct in my analysis of this case, I note that a panel of this court has previously found she engaged in deliberate prejudicial misconduct during a trial. See State v. Grey, No. 9-550 filed December 13, 1999.
Where the improper comments are directed at a critical issue, as here, the risk of undue prejudice is too great to justify, on any ground, trial counsel's failure to object. Graves, 668 N.W.2d at 882.
There were no witnesses to the altercation, and the jury's assessment of Carey's credibility was therefore crucial to the outcome. The prosecutor's prejudicial misconduct was of course focused on that crucial issue. Because I find my confidence in the outcome is undermined, I would reverse Carey's conviction and order a new trial.