February 2006

Prosecutorial Misconduct – Examination of Witnesses

State v. Bowman, 710 N.W.2d 200 (Iowa 2/17/2006). Bright line rule against asking witness to comment on credibility of another witness. "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); Nguyen v. State, 707 N.W.2d 317, 323-24 (Iowa 2005); 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). Requisite prejudice found where case turned on credibility of witnesses, prosecutor's improper questions were "pervasive" during cross-examination and improper references were deemed to carry into final arguments; approach was deemed to shift the jury's focus from determining what really happened to determining whether the State's or the defendant's witnesses were lying, and evidence against defendant was not particularly strong).

Ineffective assistance – Guilty Plea – Failure to Advise of Direct Consequences

State v. Tate, 710 N.W.2d 237 (Iowa 2006) (2/24/2006). Allegation that counsel failed to advise defendant of requirement that sentence for escape had to be served consecutively must be reserved for postconviction proceedings during which the record could be developed on (1) whether defendant's lawyer told him of the consecutive sentence possibility; (2) whether a specific defense or trial strategy had been foregone in favor of the plea, (3) what defendant was told regarding what was going to happen. ("[b]ecause Tate is unable to prove the prejudice element, his ineffective-assistance claim must fail. However, we do preserve the issue for postconviction proceedings so both Tate and his trial counsel will have the opportunity to establish a record.")

State v. Straw, 709 N.W.2d 128 (Iowa 2/3/06).  "Because '[a]ttorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial,' Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 209 (1985) (quoting Strickland, 466 U.S at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697), the defendant claiming ineffective assistance of counsel with respect to a guilty plea must prove that, but for counsel's breach, there is a reasonable probability he or she would have insisted on going to trial.

State v. Straw, 709 N.W.2d 128 (Iowa 2/3/06). Defense counsel who failed to alert the court or file motion in arrest of judgment after faulty plea proceeding in which court failed to inform the defendant of maximum possible sentence breached an essential duty. The prejudice inquiry is that of Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210 (1985): "in order to satisfy the ‘prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Applied here, the "reasonable probability" test required the defendant to demonstrate that he would not have pled guilty had the judge personally addressed the maximum punishment for his crimes. (remanding for development of record on the prejudice inquiry; characterizing as "an aberration" the prejudice analysis employed in State v. Kress, 636 N.W.2d 12 (Iowa 2001)).

State v. Wiederien, 709 N.W.2d 538 (Iowa 2/3/06).  No contact orders after acquittal. District court is without authority to order the continuation of a no-contact order under Iowa Code section 708.12(2) (2003) after the court acquitted her of the underlying harassment charge.

State v. Greene,  709 N.W.2d 535 (Iowa 2/3/06).  Court erred in submitting instruction allowing jury to find the use of a dangerous weapon in the form of metal shards defendant put behind the victim's car tires, which caused tires to puncture and flatten when victim backed over them. The shards could not reasonably support a finding of being "designed primarily for use in inflicting death or injury" under the first definition of dangerous weapon, Iowa Code section 707.2. The court found it "too speculative" that an intent to ruin a tire could give rise to an intent to kill or injure someone as a result of the driver losing control of a car with a flat tire. The shards also did not satisfy the alternative definition (device actually used in a manner as to indicate that the defendant intends to inflict death or serious injury).

State v. Bolsinger, 709 N.W.2d 569 (Iowa 2/10/06). As vitiating consent in sex abuse cases. Factors that will vitiate a victim's consent are not limited to those listed in Iowa Code section 709.1(1). Fraud in the fact (victim agrees to one act, defendant performs a different act) will vitiate the victim's consent. Fraud in the inducement (victim agrees to performance of act, defendant performs that act but for a reason other than that represented) does not vitiate consent. Where victims (young boys) allowed defendant to examine their genitalia under the pretense of a medical-type examination, their consent was obtained by fraud in the inducement because of defendant's illegitimate purpose. However, because the act that was done was that to which they had agreed, there was no fraud in fact. Because fraud was in the inducement and not in the fact, "[t]he consents, therefore, were not vitiated". (to the extent that State v. VanderEsch, 662 N.W.2d 689 (Iowa Ct. App. 2002) upheld convictions involving consent based on fraud in the inducement and not fraud in fact, "[w]e now hold that VanderEsch is no longer controlling".)

State v. Newell, 709 N.W.2d 560 (Iowa 2/10/06).  "Testimonial statements may be admitted only if the declarant is unavailable and only if the defendant has had a prior opportunity for cross-examination."

State v. Newell, 709 N.W.2d 560 (Iowa 2/10/06).  No prejudice from the erroneous admission of testimonial out-of-court statement where the information was merely cumulative of defendant's own statements to the police and the facts were essentially undisputed at trial.

State v. Newell, 709 N.W.2d 560 (Iowa 2/10/06).  Citing Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) for the determination of the admissibility of nontestimonial hearsay: "the Confrontation Clause ‘does not bar admission of an unavailable witness's statement against a criminal defendant if the statement bears ‘adequate indicia of reliability,' a test met when the evidence ‘either falls within a firmly rooted hearsay exception' or bears ‘particularized guarantees of trustworthiness.'")

State v. Newell, 709 N.W.2d 560 (Iowa 2/10/06).  Although unavailable declarant's statements to police officer at the scene of the crime were testimonial in nature, their admission did not violate the Confrontation Clause because they were not hearsay: statements were not offered to prove what declarant stated occurred, but to show that she was aware that something had happened between defendant (her son) and the victim, and that declarant was trying to protect him with an exonerating version.

State v. Newell, 709 N.W.2d 560 (Iowa 2/10/06).  The confrontation clause generally protects the same values as the hearsay rule, but it bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule. Likewise, the Confrontation Clause does not prevent "the use of testimonial statements for purposes other than establishing the truth of the matter asserted."

State v. Newell, 709 N.W.2d 560 (Iowa 2/10/06).  911 calls nontestimonial. (addressed without comment as nontestimonial, Court holds that the statements made by defendant's mother in calling 911 were not hearsay, as not offered to prove the truth of the matter asserted; instead, the probative value of these statements, which reflected the caller's attempt to cover up for her son, rested on the fact that they were made, not on whether her story about what happened was true. Because the statements in the 911 call were not hearsay, their admission was not deemed to violate the Confrontation Clause.).

State v. Newell, 709 N.W.2d 560 (Iowa 2/10/06). Statements testimonial, but not hearsay. Although unavailable declarant's statements to police officer at the scene of the crime were testimonial in nature, their admission did not violate the Confrontation Clause because they were not hearsay: statements were not offered to prove what declarant stated occurred, but to show that she was aware that something had happened between defendant (her son) and the victim, and that declarant was trying to protect him with an exonerating version.

State v. Newell, 709 N.W.2d 560 (Iowa 2/10/06).  Police officer who simply reiterated another witness's professed reasons for coming forward, devoid of comment on whether he believed these reasons were true motivation, was not improper comment on veracity of another witness. Further, defendant was not prejudiced by counsel's failure to object to second statement by police witness – that he would believe other witness if his testimony could be corroborated – as the comment was "at most a lukewarm endorsement of [other witness's] veracity, accompanied by testimony that police corroborate everyone's testimony and given the overwhelming evidence against the evidence against the "reasonable probability of a different outcome" standard.

State v. Newell, 709 N.W.2d 560 (Iowa 2/10/06).  Where a defendant's intent is in dispute and the prior bad act evidence in question is probative of defendant's relationship with the victim and his possible motive for harming her, that evidence is relevant to a legitimate issue other than general propensity. Court considered that (1) the crime contained element of aforethought, (2) the element was contested, (despite defendant's protest that he did not raise a defense of mistake or accident), by evidence that defendant described to the police his relationship with the victim as "loving", that several of defendant's versions of the story had an "accidental" component, and that in closing, defense counsel repeatedly suggested that the relationship between defendant and the victim was amicable, and (3) that it was relevant as a circumstance that could be used to prove the defendant's state of mind and motivation at the time of the crime. (finding that, if the couple had an acrimonious relationship, it is more probable that defendant acted with malice at the time of the victim's death than if they had a loving relationship; whereas if defendant was possessive and controlling, it is more likely that he acted with a fixed purpose to do physical harm to her when she returned home after an inordinately long and unexplained absence).

State v. Newell, 709 N.W.2d 560 (Iowa 2/10/06).  Erroneously admitted but no prejudice. No abuse of discretion in refusing to declare a mistrial based on a witness's answer that referenced defendant's prior drug charge, as (1) the reference occurred only once, (2) no further questions elaborated on this information, (3) the court gave a general instruction admonishing the jurors not to consider evidence of other wrongful acts, and (4) the evidence against the defendant was strong.

Opinion and expert testimony; expert opinion evidence; qualifications of witness; domestic violence.

State v. Newell, 709 N.W.2d 560 (Iowa 2/10/06). Domestic violence witness was sufficiently qualified in area of his testimony by virtue of extensive training, experience, training others, and as demonstrated by awards he received for his work. (in addition, defendant's criticism of the authorities on hich expert relied were not shown to be unreliable was insufficient basis for disqualifying expert).

State v. Newell, 709 N.W.2d 560 (Iowa 2/10/06). Murder victim's prior statements to a number of people that she was afraid of the defendant, feared for her safety, planned to leave him, and was afraid that if she did leave him he would keep their child from her were admissible under the hearsay exception R. Evid. 5.808(3), "then existing mental, emotional, or physical condition". If the declarant's state of mind, emotion, sensation or physical condition are relevant, the evidence is admissible. Here, the declarant's state of mind was relevant to rebut defendant's claim that he and the victim had a loving relationship. Court recognizes federal case law that victim's fear of defendant may be relevant on three grounds: to rebut self-defense, suicide or accidental death claims; but is still subject to balancing prejudice vs. probative value.

Several holdings regarding prosecutorial conduct

State v. Carey, 709 N.W.2d 547 (Iowa 2/10/06).  Asking defendant whether a previous medical witness lied in his testimony constituted misconduct; however, defendant's credibility regarding his medical examination was only collaterally relevant to the key issue of whether he had inflicted injury upon another person, relevant to assessing prejudice, which the court found to be absent; incident was not pervasive, and State's case was strong).

State v. Carey, 709 N.W.2d 547 (Iowa 2/10/06).  Distorting defendant's direct-examination testimony on cross-examination (no prejudice). Prosecutor introduced evidence of prior bad act of choking his daughter after defendant gave ambiguous testimony as to whether he knocked her down during fracas with victim. State contended that defendant opened the door to the admission of prior bad acts evidence and defendant contended prosecutor misquoted his testimony on the "opening the door" incident. The Court holds that even assuming the prosecutor mischaracterized his testimony so as to be guilty of misconduct, it was not sufficiently prejudicial to require a new trial.

State v. Carey, 709 N.W.2d 547 (Iowa 2/10/06).  Counsel is allowed some latitude in closing arguments. Specifically, counsel may draw conclusions and argue permissible inferences which reasonably flow from the evidence presented. Prosecutor's reference to defendant's daughter being a witness was properly supported by the record; prosecutor's probably mistaken reference that prior bad act involved a knife was not prejudicial; prosecutor's argument that defendant was the "only person in history" not to sustain defensive wounds in supposedly getting the knife away from his alleged aggressor was proper as suggested by common sense and based on reasonable inferences and conclusions to be drawn from the evidence.

State v. Carey, 709 N.W.2d 547 (Iowa 2/10/06).  Counsel may not vouch personally for the defendant's guilt or a witness's credibility. The examples of that practice are expressions of belief that are purportedly based on (1) knowledge of facts not possessed by the jury (2) counsel's experience in similar cases, or (3) any ground other than the weight of the evidence in the trial.

State v. Carey, 709 N.W.2d 547 (Iowa 2/10/06).  Even though it is improper to call the defendant a liar or state that he or she is lying or make similar disparaging comments, the prosecutor is still free to "craft an argument that includes reasonable inferences based on the evidence..." Attempts to tarnish defendant's credibility or boost that of the State's witnesses are not tactics constituting misconduct, and are part of the prosecutor's duty. Misconduct occurs when the prosecutor uses "unnecessary and inflammatory means that go outside the record or threaten to improperly incite the passions of the jury." (several references to defendant's story as being untrue did not offend Graves, because (1) the jury could reasonably conclude from the evidence that the defendant had lied, (2) the comments about defendant's truthfulness were not presented as merely the prosecutor's personal opinion, and (3) "while professional language could, and should, have been used to convey the same message," the court found no violation of the "unfairly disparaging" factor; distinguishing Graves on the grounds that disparaging the defendant's testimony was not the centerpiece of this prosecution, prosecutor here did not suggest that defendant had called another witness a liar, and did not distort the State's burden of proof).

State v. Carey, 709 N.W.2d 547 (Iowa 2/10/06).  While snide and sarcastic, three comments that served as the basis of alleged prosecutorial argument were based on a legitimate assessment of the evidence and did not constitute misconduct. (the first statement "sounds really familiar, doesn't it?" went to defendant's claim that he "freaked out" when the officers tried to question him about the incident in which defendant attacked the victim with a knife; the second statement implied that defendant should have sent threatening letters from jail to the daughter who contradicted his testimony, as he had sent a vulgar letter from jail to his other daughter, suggesting that the letter may have influenced the receiving daughter's testimony due to its threatening nature; the third statement repeated portions of defendant's testimony and noted that it conflicted with nearly every other witness's account, then asked "What games are [sic] the defendant playing with you?". While holding that any alleged misconduct did not cause prejudice sufficient to require a new trial, Court admonishes prosecutor to be more professional and constrained in future cases).

State v. Bowman, 710 N.W.2d 200 (Iowa 2/17/2006).  Prosecutorial misconduct in asking witness to comment on another witness’s credibility, references in closing argument.  (requisite prejudice found where case turned on credibility of witnesses, prosecutor's improper questions were "pervasive" during cross-examination and improper references were deemed to carry into final arguments; approach was deemed to shift the jury's focus from determining what really happened to determining whether the State's or the defendant's witnesses were lying, and evidence against defendant was not particularly strong).

State v. Duncan, 710 N.W.2d 34 (Iowa 2/17/2006).  Defendant cannot both use and rely on evidence to support a theory of defense and urge reversal on appeal based on the same evidence. "He may not do so because of the rule commonly referred to as judicial estoppel but more accurately referred to as preclusion of inconsistent positions. See 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4477, at 549 (2d ed. 2002); Vennerberg Farms, Inc. v. IGF Ins. Co., 405 N.W.2d 810, 814 (Iowa 1987)." (defendant claimed self-defense in that the victim, his wife, shot him first, having armed herself because of defendant's previous abuse of her; evidence that defendant had been abusive was key to the defense so that defendant would not be allowed to complain on appeal of the admission of the same type of evidence, extracted during cross-examination and rebuttal by the State).

State v. Tate, 710 N.W.2d 237 (Iowa 2/24/2006).  Breach of duty, failure to advise of consequences. Allegation that counsel failed to advise defendant of requirement that sentence for escape had to be served consecutively must be reserved for postconviction proceedings during which the record could be developed on (1) whether defendant's lawyer told him of the consecutive sentence possibility; (2) whether a specific defense or trial strategy had been foregone in favor of the plea, (3) what defendant was told regarding what was going to happen. ("[b]ecause Tate is unable to prove the prejudice element, his ineffective-assistance claim must fail. However, we do preserve the issue for postconviction proceedings so both Tate and his trial counsel will have the opportunity to establish a record.")