Opinion
No. 5-890 / 04-1666
Filed February 1, 2006
Appeal from the Iowa District Court for Lee County (South), David B. Hendrickson, Judge.
A defendant appeals his conviction by the district court. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, Michael Short, County Attorney, and Bruce C. McDonald, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Glenn Peterson appeals his conviction following a jury trial for sexual abuse in the second degree, a violation of Iowa Code sections 709.1(1) and 709.3(1) (2003), claiming ineffective assistance of counsel. We affirm.
I. Background Facts and Proceedings.
The charges in this case arose from a sexual incident between the defendant Peterson and a casual high school acquaintance, Hope Dade. Peterson was charged with sexually assaulting Dade in an alleyway at knifepoint. Peterson's defense at trial was that the sexual contact was consensual. Peterson testified and also presented testimony by Kenneth Sackman that the victim only knew about the knife because she had seen it in Peterson's sock earlier that day. In addition to the victim's testimony, the State's case included evidence of an injury to the victim's knuckles allegedly caused by the knife, injuries sustained by Peterson as the victim attempted to flee, as well as Peterson's inconsistent statements about the incident. Following a jury trial, Peterson was convicted of sexual abuse in the second degree. He now appeals, asserting ineffective assistance of trial counsel.
II. Ineffective Assistance of Counsel.
We review claims of ineffective assistance of counsel de novo. State v. Philo, 697 N.W.2d 481, 485 (Iowa 2005). To prevail on these claims, the defendant must show that his trial counsel failed to perform an essential duty and that prejudice resulted from this failure. State v. McCoy, 692 N.W.2d 6, 14 (Iowa 2005) (citation omitted). Failing to perform an essential duty means counsel's performance fell outside the normal range of competency. Id. Trial counsel has no duty to raise an issue that has no merit. State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996). Failure to demonstrate either element is fatal to a claim of ineffective assistance. State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).
A. Alleged Instances of Prosecutorial Misconduct- Graves Violation.
The basis of Peterson's ineffective assistance claims are assertions his trial counsel failed to lodge an objection or request a mistrial following instances of alleged prosecutorial misconduct during the trial and at closing argument. To prevail on a claim of prosecutorial misconduct, a defendant must establish that misconduct occurred and that he was so prejudiced by the misconduct that he was deprived of a fair trial. See State v. Bowers, 656 N.W.2d 349, 355 (Iowa 2002). Peterson first asserts that his trial counsel provided ineffective assistance by failing to object to certain questioning of a defense witness, Kenneth Sackman. Sackman testified that he had seen the victim pull down Peterson's sock outside of a gas station prior to the sexual assault, revealing the knife. The prosecutor then engaged in the following questioning:
Q: Mr. Sackman, for what crime are you incarcerated? A: Sex offender.
Q: Were you celled out at the jail with the defendant over here? A: Yes.
Q: And that's when he put you up to telling this story about the sock, didn't he? A: No, I —
Q: Do you understand you're under oath today, son? A: Yes.
Q: Do you understand it's a crime to lie under oath? A: Yes.
The prosecutor's line of questioning appeared to be an improper attempt to convey to the jury that the witness and the defendant had conspired to concoct a perjured defense. See Graves, 668 N.W.2d at 873-74 (stating that "unfairly questioning the defendant simply to make the defendant look bad in front of the jury regardless of the answer given is not consistent with the prosecutor's primary obligation to seek justice, not simply a conviction"). However, the questioning continued with the prosecutor asking Sackman detailed questions pertaining to the alleged knife-in-sock scenario, including the likelihood that Sackman and other witnesses could have seen or heard what transpired between Peterson and Dade, which could in turn support Peterson's version of the events. Sackman's testimony about the knife was insignificant to the crucial aspect of the case, which was the sexual contact between Peterson and Dade and whether it was consensual or not. The insinuation therefore that Sackman and Peterson were both giving false testimony was quickly dissipated with the prosecutor's continued questioning. Compare id. at 873 (holding "were-they-lying" questions of a witness, including the defendant, about the testimony of other witnesses are improper under any circumstances). In the context of this questioning, we do not conclude defense counsel breached an essential duty by not objecting to the prosecutor's conduct.
Even if the prosecutor's questions of Sackman could be construed as misconduct, we would find no due process violation as Peterson's claim on appeal does not specify that he was convicted because of any prosecutorial misconduct that "prejudiced, inflamed or misled the jurors so as to prompt them to convict the defendant for reasons other than the evidence. . . ." Id. at 877. "It is the prejudice resulting from misconduct, not the misconduct itself, that entitles a defendant to a new trial." State v. Piper, 663 N.W.2d 894, 913 (Iowa 2003). To make this determination we consider the following five factors:
(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.
Graves, 668 N.W.2d at 869 (citations omitted).
The prosecutor's question about Peterson and Sackman contriving a story about the knife was isolated and brief, quickly moving to questions focusing on the details of Sackman's knowledge of the knife-in-sock scenario. No questions were asked of Sackman pertaining to the actual assault. The prosecutor did not use inflammatory language, such as calling this witness or the defendant a liar. The alleged fabrication concerned an extemporaneous issue — how the victim knew Peterson had a knife the day of the assault. This was not critical testimony as the State had additional evidence supporting Peterson's use of a knife, including photos of Dade's injuries, which she testified were caused when Peterson was wielding his knife at her as he pushed her into position to sexually assault her. Moreover, Peterson testified that he asked his then-girlfriend to "get rid" of the knife after the alleged assault and that he had lied to the police concerning the knife. To support the State's case that the incident was not consensual, Dade testified that she injured Peterson while resisting his assault by kicking him in the shin, causing him to bleed. The testimony of the police officers investigating the assault confirmed an injury to Peterson's leg the day of the assault. We therefore conclude that the prosecutor's brief allegation that Peterson and Sackman fabricated the account of the victim seeing Peterson's knife before the assault was not prejudicial to the defense in light of the other evidence supporting Peterson's conviction.
B. Closing Arguments.
Peterson also contends the prosecutor engaged in misconduct during closing arguments. Although closing arguments were not reported, Peterson's trial counsel did make a record before the district court, offering a bill of exceptions under Iowa Rule of Criminal Procedure 2.25. According to the record in the ruling on the motion for new trial, the district court acknowledged:
[D]efense counsel, in his final argument, admonished the jury of the seriousness of their role because, in essence, the State was asking them to convict the defendant of a Class B felony. The State did not object to this statement by defense counsel. The State, in rebuttal, however, did imply defense counsel was engaging in unfair tactics (not unethical, as the Court remembers) in an effort to convince them to return a verdict of not guilty. Defense counsel objected to this statement by the prosecutor and no further comments by the prosecutor in this regard were made. However, the State did go on to admonish the jury to take heed of the Court's instruction indicating their duty was to determine whether the defendant was guilty or not guilty and in the event of a guilty verdict, they had nothing to do with punishment.
The defense first addressed the topic of punishment by cautioning the jury that the defendant was faced with a class B felony. It is well-settled in Iowa that mention to the jury of the penalty or punishment faced by a defendant is irrelevant and improper as to guilt or innocence.
Penalties have nothing to do with the factual determination that a defendant did or did not commit a crime. As the Iowa Supreme Court has found: "The jury has no concern with the punishment which the law prescribes. Its function is to determine the fact question as to whether the defendant is guilty or not guilty."
State v. Hatter, 381 N.W.2d 370, 375 (Iowa Ct.App. 1985) (quoting State v. Purcell, 195 Iowa 272, 273, 191 N.W. 849, 850 (1923)). See also State v. Runyan, 599 N.W.2d 474, 481 (Iowa Ct. App. 1999) (reaffirming the impropriety of information regarding penalties faced by the defendant as prejudicial to the State's case). A prosecutor is allowed "some leeway when his remarks are provoked and are offered in retaliation to arguments for the accused." Wycoff v. State, 382 N.W.2d 462, 468 (Iowa 1986) (quoting State v. Wright, 309 N.W.2d 891, 893 (Iowa 1981)). Under the "doctrine of invited error," a litigant cannot complain of error which he has invited or to which he has assented, even as to an admittedly prejudicial comment erroneous under ordinary circumstances made by a prosecutor in response to the defendant's closing argument. State v. Hall, 235 N.W.2d 702, 727-28 (Iowa 1975); McCracken v. Edward D. Jones Co., 445 N.W.2d 375, 378 (Iowa Ct.App. 1989). We conclude the prosecutor's statement that defense counsel was engaging in unfair tactics was not misconduct but proper rebuttal to the defense's improper appeal to the jury's sympathy by invoking the seriousness of Peterson's possible punishment. As we conclude the prosecutor committed no misconduct during closing arguments, we do not reach the issue of prejudice resulting from the alleged prosecutorial misconduct on the issue.
III. Conclusion.
Peterson has failed to establish the necessary basis for a claim of prosecutorial misconduct as to questioning of Kenneth Sackman or the prosecutor's statements during closing arguments. His trial counsel was under no obligation to raise a meritless issue by either objecting or moving for a mistrial. See Rice, 543 N.W.2d at 888. Peterson has failed to demonstrate a breach of duty required by an ineffective assistance claim. We affirm his conviction.
AFFIRMED.
Eisenhauer, J., concurs; Sackett, C.J., concurs specially.
I concur with the majority in all respects except I believe the prosecutor's question, "And that's where he put you up to telling this story about the sock, didn't he?" was misconduct. That said, I concur with the majority because defendant has failed to show the necessary prejudice to show ineffective assistance of counsel.