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Counsel,
Effective Assistance; Verdict against the Weight of the
Evidence.
Nguyen v. State,
707 N.W.2d 317 (Iowa 12/23/05).
Defendant cannot
demonstrate prejudice prong of ineffective assistance claim
regarding counsel's failure to file motion for new trial based
on verdict being against the weight of the evidence where, on
appeal, a review of the record indicates that the evidence
does not "preponderate heavily against the verdict."
Bright line rule
against asking witness to comment on credibility of another
witness.
Nguyen v. State,
707 N.W.2d 317 (Iowa 12/23/05).
"It is well-settled law in Iowa that a bright-line rule
prohibits the questioning of a witness on whether another
witness is telling the truth." State v. Bowman, 710 N.W.2d 200
(Iowa 2/17/2006) (citing State v. Carey, 709 N.W.2d 547 (Iowa
2006); State v. Graves, 668 N.W.2d 860, 873 (Iowa 2003) and
noting "there are no exceptions"). It is improper "under any
circumstance" to ask a witness to comment on the veracity of
another witness, and defense counsel who fails to object to
the process breaches an essential duty. State v. Graves, 668
N.W.2d 860 (Iowa 9/4/2003).
Prosecuting attorney; Prosecutorial Misconduct; Specific
Issues; Examination of Witnesses; Examples; Bright-line rule
of misconduct is not bright-line rule for prejudice.
Nguyen v. State,
707 N.W.2d 317 (Iowa 12/23/05).
"The bright-line rule in Graves [error to ask a witness
whether another witness was lying] is not a bright-line rule
for prejudice." In determining whether Graves error is so
prejudicial as to satisfy the prejudice prong of an
ineffective assistance of counsel claim, the reviewing court
examines both the error and the factual findings.
The trial lawyer may examine a witness by pointing out factual
differences between the witness's testimony and that of
another witness to the same event. It is not proper to take
the additional step and ask a witness if another witness was
lying, mistaken, or ask for some other comment on the other
witness's testimony. Misconduct does not occur by raising the
issue of witness credibility but rather by the manner in which
that is done. Where the prosecution did not engage in name
calling and encouraged the jury to decide which evidence it
believed, and where the case against the defendant was strong,
defendant did not satisfy the prejudice burden of his
ineffective assistance claim. (distinguishing this case
from State v. Graves, 668 N.W.2d 860 (Iowa 9/4/2003)
-- characterizing the prosecutor therein as aggressively
cross-examining the defendant with "liar" questions and
telling the jury during closing that the defendant's testimony
called the State's police officer witness a liar – on the
basis that Nguyen prosecutor did not call defendant a liar,
did not imply that defendant called another witness a liar,
and encouraged the jury to decide which evidence it believed). |
