Opinion
No. 5-833 / 04-1444
Filed December 21, 2005
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.
Defendant appeals his convictions for second-degree murder and first-degree robbery. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, John Sarcone, County Attorney, and James Ward and Stephanie Cox, Assistant County Attorneys, for appellee.
Considered by Zimmer, P.J., Miller, J., and Hendrickson, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
I. Background Facts Proceedings
During October 2003, Michael Roach was staying with Shanta Smith in Des Moines. In the late evening on October 21, after Smith and Roach had sex, Smith informed Roach that another man, Johnathan Ellis, was coming to pick her up and that he needed to leave. When Ellis arrived, Roach asked if Ellis could give him a ride to his aunt's house, and Ellis agreed.
The three drove to the aunt's house, but she did not appear to be home. Smith testified that Roach, who was sitting in the backseat, pulled out a gun and demanded money from Ellis. He also demanded that Smith drive. Smith drove them to the home where Ellis lived with his fiancée, Dorothy Johnson, his child, and her children. From the car, Ellis called Johnson and asked her to look in his nightstand for an envelope with money. Within a few minutes he called again, asking whether she had found the money. He called a third time, stating a woman would come up to the porch to get the money. Johnson was unable to find an envelope containing money.
Shortly after midnight on October 22, Ellis and Roach entered the house and went upstairs. Johnson remained downstairs. She testified that after about three minutes she heard a gunshot, so she ran to a neighbor's house to call the police. Roach ran out of the house, and he and Smith drove off in Ellis's car. When police officers arrived they found Ellis had been fatally shot. The officers did not find any guns or illegal drugs in the home. The found about $3.25 in cash.
Police officers discovered Smith near Ellis's car, and she admitted to her participation in the events. Roach was apprehended in Kansas City a few days later. He admitted shooting Ellis, but stated he was acting in self-defense. Roach gave several different stories about what happened. Roach was charged with first-degree murder and first-degree robbery.
Smith pled guilty to second-degree robbery, and agreed to testify against Roach.
At the trial, Roach stated that he grew up in a violent neighborhood in Chicago, and he had been shot three times in the past. He stated he had a fear of getting shot again. Roach testified that during the car ride he agreed to buy marijuana from Ellis, and this was the reason he went into Ellis's home. Roach testified that when they were upstairs Ellis crouched down, and he thought Ellis was getting a gun, so he shot him. Roach presented the expert testimony of Charles Camp, a psychotherapist, to show that he suffered from post-traumatic stress disorder, and that his perceptions were affected by his mental condition.
A jury found Roach guilty of murder in the second degree, in violation of Iowa Code sections 707.1 and 707.3 (2003), and robbery in the first degree, in violation of sections 711.1 and 711.2. The district court denied Roach's motion for a new trial. Roach was sentenced to a term of imprisonment not to exceed fifty years on the second-degree murder charge, and a term of imprisonment not to exceed twenty-five years on the robbery charge, to be served concurrently. Roach appeals.
II. Mistrial
Prior to trial, Roach filed a motion in limine asking that evidence of his previous convictions should be excluded. He also asked to exclude evidence that he was on probation at the time these crimes were committed. The district court determined a conviction in June 2003 for operating a motor vehicle without the owner's consent was admissible as an impeachable offense under Iowa Rule of Evidence 5.609. Roach testified to this conviction on direct examination.
During the trial, Roach denied that he came to Des Moines to be with Smith, or that he was jealous of her relationship with Ellis. The State attempted to impeach Roach by having him read a previous statement he gave police officers which stated:
So she and my mother been arranging that when I got out she was gonna make sure that I got with her so I can come down here to be with her. All the time I come down here to be with her.
After this statement, Roach made a motion for a mistrial, arguing that the phrase, "when I got out," violated the ruling on the motion in limine because it referred to the fact that he came to Des Moines after he got out of jail in Illinois. The district court denied the motion, stating:
When I reflect on the evidence of this case, I'm going to deny the motion for a mistrial. I'm not happy that that question was asked. However, it's already in the record on direct examination that he has been convicted of a crime. This statement in itself doesn't refer to any particular crime, so I think the prejudicial effect is lessened, and also it doesn't mention that he was on probation, which was ruled inadmissible under the limine ruling. I think that under the circumstances that we have in this case, that does lessen the prejudicial value of that statement, and I think it's not sufficiently prejudicial that I am going to declare a mistrial.
The court ordered that Roach's answer should be stricken, and the jury was admonished to disregard the statement.
A district court has broad discretion in ruling on a motion for a mistrial. State v. Piper, 663 N.W.2d 894, 901 (Iowa 2003). Generally, when improper evidence is promptly stricken and the jury admonished to disregard it, the district court has not abused its discretion in denying a mistrial motion. State v. Jackson, 587 N.W.2d 764, 766 (Iowa 1998). Our supreme court has ruled:
Ordinarily the striking of improper testimony cures any error. Only in extreme instances where it is manifest that the prejudicial effect of the evidence on the jury remained, despite its exclusion, and influenced the jury is the defendant denied a fair trial and entitled to a [mistrial].
State v. Peterson, 189 N.W.2d 891, 896 (Iowa 1971) (citations omitted), overruled on other grounds by State v. Gorham, 206 N.W.2d 908 (Iowa 1973).
We determine this case does not present one of the extreme instances where striking the testimony and admonishing the jury did not cure the error. The phrase "when I got out" does not specifically tell the jury that Roach had been in jail. The phrase could have been referring to the time when Roach got out of the hospital after an extended stay caused by his third gunshot wound. It could also have referred to Roach getting out of his violent neighborhood in Chicago. Furthermore, Roach admitted to one conviction, and the jury could have assumed that he had been incarcerated for that crime. We conclude the phrase "when I got out" was not prejudicial, and the district court did not abuse its discretion in denying the motion for a mistrial.
III. Ineffective Assistance
Roach claims he received ineffective assistance because his trial counsel failed to object to certain statements made by the prosecutor during closing arguments. During closing arguments, defense counsel argued that the room where Ellis's body was found had been disrupted, and that fingerprint evidence could have shown who had touched the items in the room. Defense counsel argued:
We have no proof presented to you as to what happened in that room from the police that would be evidence that would be conclusive by fingerprints. Nothing has been presented, and it's the State's burden to present that proof to prove their case.
In response, the prosecutor argued:
This case took, what, three days of evidence? We had a little bit this morning. Three and a half days of evidence to give you. Do you think that that is all the evidence in this case? Do you think that that's all we did? Of course not. We heard testimony that there were other police officers there, other identification technicians, other detectives. We heard that there were fingerprints taken, lots of fingerprints from the car, from that room. The direct evidence is that you learned that fingerprints were taken from relevant areas in the house.
Now, we could have brought witnesses in — just use your common sense — to tell you where every one of those fingerprints are, and we could have tested every one of those fingerprints to find out whose they were, right? And if it was relevant, you would have heard about it either for us or against us, right? They have all the evidence that we have. They have seen everything we have.
Roach asserts that his defense attorney should have objected to these statements because the prosecutor engaged in misconduct by (1) asking the jury if they had heard all the evidence in the case, (2) making suggestions about evidence outside the record, and (3) stating that Roach shared the responsibility to introduce relevant evidence. Our review on this constitutional issue is de novo. Berryhill v. State, 603 N.W.2d 243, 244-45 (Iowa 1999). To prevail on a claim of ineffective assistance of counsel, a defendant must prove (1) his attorney failed to perform an essential duty and (2) prejudice resulted to the extent he was denied a fair trial. See State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
In order to prevail on a claim of prosecutorial misconduct, a defendant must show that misconduct occurred, and that the defendant was so prejudiced by the misconduct that the trial was not fair. Piper, 663 N.W.2d at 913. It is the prejudice resulting from the misconduct, not the misconduct itself, which would entitle a defendant to a new trial. State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003).
We do not look at a prosecutor's comments in isolation, but view them in the context in which they were made. State v. Bishop, 387 N.W.2d 554, 563 (Iowa 1986). "[I]f allegedly objectionable remarks are made in response to an opponent's argument, this will ordinarily obviate any impropriety that would otherwise exist." State v. Swartz, 601 N.W.2d 348, 353 (Iowa 1999). A prosecutor is permitted "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) (citation omitted).
Under the facts of this case we find the prosecutor did not engage in misconduct. The prosecutor clearly did not attempt to shift the burden to introduce evidence to Roach. The prosecutor stated, "I am the only one that has a burden. . . . He has no burden." Later the prosecutor stated, "We have the burden to prove this case." Moreover, the prosecutor's statements were made in response to defense counsel's argument the State failed to present all of the fingerprint evidence. Looking at the prosecutor's comments in context, we find no misconduct. Roach has failed to show he received ineffective assistance due to his trial attorney's failure to object. See State v. Hochmuth, 585 N.W.2d 234, 238 (Iowa 1998) (noting that counsel is not ineffective for failing to pursue meritless issues).
IV. New Trial
Roach claims the district court should have granted his motion for a new trial. We review a district court's ruling on a motion for a new trial for an abuse of discretion. State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1998). A district court should grant a new trial where a conviction is contrary to the weight of the evidence. Id. at 659. The court should weigh the evidence and consider the credibility of witnesses. State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003). The court should grant a new trial only in exceptional cases in which the evidence preponderates heavily against the verdict. Id.
The district court considered the evidence and stated, "I think the greater weight of credible evidence does support the verdict." The court specifically found Smith and Johnson were credible witnesses and that Roach was not credible. The court noted that the evidence did not support Roach's testimony that Ellis invited him into his home to sell him marijuana because no illegal drugs, drug paraphernalia or cash were found in Ellis's home. On the other hand, Johnson's testimony that Ellis called and asked her to find an envelope with money corroborates Smith's testimony that Roach sought money from Ellis at gunpoint, and that Roach went to the home in an attempt to get more money. Also, Roach was not credible because he gave multiple accounts of the activities that evening.
We conclude the district court did not abuse its discretion in denying Roach's motion for a new trial.
After considering all of the arguments raised on appeal, we affirm Roach's convictions.