State Of Iowa Vs. Adam Donald Musser ( 2006 )

IN THE SUPREME COURT OF IOWA
No. 33 / 04-0809
Filed August 4, 2006
STATE OF IOWA,
Appellee,
vs.
ADAM DONALD MUSSER,
Appellant.
Appeal from the Iowa District Court for Johnson County, L. Vern
Robinson, Judge.
Defendant appeals his conviction of criminal transmission of human
immunodeficiency virus in violation of Iowa Code section 709C.1(1)(a)
(2001). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins and Cristen
Douglass, Assistant Attorneys General, J. Patrick White, County Attorney,
and Victoria Dominguez, Assistant County Attorney, for appellee.
2
TERNUS, Justice.
The defendant, Adam Donald Musser, appeals his conviction of
criminal transmission of human immunodeficiency virus (HIV) in violation
of Iowa Code section 709C.1(1)(a) (2001). Musser claims the statute violates
the First Amendment, is vague and overbroad, and infringes his right of
privacy. 1 He also argues his twenty-five-year sentence constitutes cruel
and unusual punishment. In addition to these constitutional claims,
Musser challenges the admission of laboratory reports showing his HIV-
positive status, asserting they lacked a proper foundation and contained
inadmissible hearsay. Finally, the defendant raises a claim of ineffective
assistance of counsel based on trial counsel’s failure to object to the
admission of the lab reports as a Confrontation Clause violation and failure
to object to the prosecutor’s opening statement and closing argument. 2 We
find no merit in any of the issues raised on appeal, and therefore, we affirm
the judgment of conviction and sentence.
I. Factual Background and Prior Proceedings.
The jury could have found the following facts from the evidence
introduced at trial. The defendant had unprotected sexual intercourse with
the victim, R.D., on three occasions in late 2002. At this time, he was HIV
positive and was receiving medical treatment for this condition. Musser did
not, however, tell the victim that he was HIV positive.
In April 2003, R.D. learned the defendant was HIV positive and
contacted the police. Musser was charged with criminal transmission of
1Musser also asserts section 709C.1 violates the Equal Protection Clause and his
right to procedural due process. We do not address these claims, however, because the
defendant failed to raise these issues in the district court. See State v. McCright, 569
N.W.2d 605, 607 (Iowa 1997) (“Issues not raised before the district court, including
constitutional issues, cannot be raised for the first time on appeal.”).
2Although the defendant initially challenged the sufficiency of the evidence to
support his conviction, he abandoned that issue at oral argument. Therefore, we do not
address it.
3
human immunodeficiency virus in violation of section 709C.1(1)(a). This
statute states a crime is committed if a “person, knowing that the person’s
human immunodeficiency virus status is positive, . . . [e]ngages in intimate
contact with another person.” Iowa Code § 709C.1(1)(a). The other person’s
knowing consent to exposure to the virus is an affirmative defense under
chapter 709C:
It is an affirmative defense that the person exposed to the
human immunodeficiency virus knew that the infected person
had a positive human immunodeficiency virus status at the
time of the action of exposure, knew that the action of exposure
could result in transmission of the human immunodeficiency
virus, and consented to the action of exposure with that
knowledge.
Id. § 709C.1(5).
The defendant filed a motion to dismiss challenging the
constitutionality of section 709C.1(1), which was overruled by the district
court. The case was subsequently tried to a jury, and the defendant was
found guilty of criminal transmission of HIV. After his post-trial motions
were overruled, Musser was sentenced to an indeterminate twenty-five-year
prison term. 3 See id. §§ 709C.3, 902.9(2).
II. Constitutional Challenges to Statute.
We first consider Musser’s various constitutional challenges to section
709C.1(1)(a). Our review of these claims is de novo. State v. Seering, 701
N.W.2d 655, 661 (Iowa 2005).
We presume a statute is constitutional. Id. To overcome this
presumption, a challenger must prove the unconstitutionality of the statute
beyond a reasonable doubt. Id. This burden can be met only by refuting “
3 Inaddition to the case involved in this appeal, the defendant was charged in three
other cases with violations of section 709C.1(1)(a). He was convicted in all four cases and
sentenced in each case to an indeterminate twenty-five-year prison term. Three of the
sentences were ordered to run concurrently, but the sentence in this case was ordered to
be consecutive.
4
‘every reasonable basis upon which the statute could be found
constitutional.’ ” Id. (citation omitted).
A. First Amendment. The defendant claims section 709C.1 offends
the First Amendment to the United States Constitution because it “compels
speech.” Specifically, he argues an HIV-positive person engaging in
intimate contact with another person can avoid criminal liability only by
telling the potential victim that the person is HIV positive and educating the
potential victim about the possible transmission of the virus. An infected
person who has sexual relations with another without conveying this
information is punished, he contends.
The legal principle upon which the defendant bases his argument is
valid: the First Amendment safeguards not only “the right to speak freely,”
but also “the right to refrain from speaking at all.” W. Va. State Bd. of Educ.
v. Barnette, 319 U.S. 624, 645, 63 S. Ct. 1178, 1189, 87 L. Ed. 1628, 1641
(1943) (Murphy, J., concurring). Moreover, the right to refrain from
speaking encompasses not only thoughts and opinions; it applies “equally
to statements of fact the speaker would rather avoid.” Hurley v. Irish-Am.
Gay, Lesbian & Bisexual Group, 515 U.S. 557, 573, 115 S. Ct. 2338, 2347,
132 L. Ed. 2d 487, 503 (1995).
The State contends these principles are inapplicable here, however,
because section 709C.1 does not compel speech. It points out the Iowa
statute, unlike statutes from other states, does not expressly require an
infected person to tell a potential victim that the person is HIV positive.
See, e.g., Mich. Comp. Laws Ann. § 333.5210 (2006) (making it a felony for
an HIV-infected person to “engage[ ] in sexual penetration with another
person without having first informed the other person that he or she . . . is
HIV infected”). The State asserts the victim “could learn of the HIV status
from any source.”
5
Even though section 709C.1 does not explicitly require disclosure by
the defendant, we think the practical effect of the Iowa statute is the same
as those statutes mandating disclosure. To avoid violating section 709C.1,
a defendant must rely on the consent defense set out in section 709C.1(5).
Realistically, the only way a defendant can be assured the victim knowingly
consents to exposure is for the defendant to tell the victim of the
defendant’s HIV status. The unlikelihood of the victim obtaining this
knowledge in any other way is underscored by the confidential nature of
this medical information. See Iowa Code § 141A.9(1) (“Any information,
including reports and records, obtained, submitted, and maintained
pursuant to this chapter [Acquired Immune Deficiency Syndrome (AIDS)] is
strictly confidential medical information.”); see also id. § 622.10 (preventing
medical professional from disclosing confidential communications). In other
words, the only way a potential victim will know the defendant is HIV
positive is if the defendant discloses this fact or otherwise waives the
privilege protecting this fact from disclosure by his treatment providers. 4
For this reason, we conclude the statute compels speech. 5 Cf. People v.
Jensen, 586 N.W.2d 748, 758 (Mich. Ct. App. 1998) (concluding Michigan
statute compelled speech).
This conclusion brings us to the critical issue: Does the statute’s
impact constitute an unconstitutional infringement of the defendant’s free
4 The limited disclosure allowed through the “partner notification program” set up in
section 141A.5 does not alter our conclusion. The primary focus of that program is on
persons “with whom the [infected] person has had sexual relations” or a person who “is a
sexual partner” of the infected person. Iowa Code § 141A.5(3)(a), (c) (emphasis added);
accord Iowa Admin. Code r. 641—11.40 (establishing a procedure for notification of “an
identifiable third party who is a sexual partner of . . . a person who has tested positive for
the human immunodeficiency virus” (emphasis added)). The program does not encompass
a method for informing future sexual partners of the infected person’s status.
5 This court opined in State v. Keene, 629 N.W.2d 360, 364 n.3 (Iowa 2001), that
section 709C.1 “does not implicate the First Amendment.” Our observation was dicta, and
we now disavow it.
6
speech rights? See Consol. Edison Co. of N.Y., Inc. v. Pub. Serv. Comm’n,
447 U.S. 530, 535, 100 S. Ct. 2326, 2332, 65 L. Ed. 2d 319, 326 (1980)
(stating not every limitation on speech violates the Constitution). In testing
the constitutionality of section 709C.1 under the First Amendment, we
choose the appropriate level of scrutiny based on “the nature of the speech
taken as a whole and the effect of the compelled statement thereon.” Riley
v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796, 108 S. Ct. 2667,
2677, 101 L. Ed. 2d 669, 689 (1988). If the affected speech is commercial
speech or if the regulation is content neutral, an intermediate level of
scrutiny applies. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642,
114 S. Ct. 2445, 2459, 129 L. Ed. 2d 497, 517 (1994) (stating “regulations
that are unrelated to the content of speech are subject to an intermediate
level of scrutiny”); Cent. Hudson Gas & Elec. v. Pub. Serv. Comm’n, 447 U.S.
557, 566, 100 S. Ct. 2343, 2351, 65 L. Ed. 2d 341, 351 (1980) (holding
regulation of commercial speech is subject to an intermediate level of
review).
The nature of the speech at issue here is clearly noncommercial.
Commercial speech is “expression related solely to the economic interests of
the speaker and its audience.” Cent. Hudson Gas & Elec., 447 U.S. at 561,
100 S. Ct. 2349, 65 L. Ed. 2d at 348. The interests at stake in the intimate
relationship providing the context for the speech regulated by section
709C.1 are plainly not economic.
In deciding whether the statute regulates speech on the basis of
content, we find guidance in the following observations of the Supreme
Court:
[T]he “principal inquiry in determining content neutrality . . . is
whether the government has adopted a regulation of speech
because of [agreement or] disagreement with the message it
conveys.” . . . But while a content-based purpose may be
7
sufficient in certain circumstances to show that a regulation is
content based, it is not necessary to such a showing in all
cases. Nor will the mere assertion of a content-neutral purpose
be enough to save a law which, on its face, discriminates based
on content.
As a general rule, laws that by their terms distinguish
favored speech from disfavored speech on the basis of the ideas
or views expressed are content based. By contrast, laws that
confer benefits or impose burdens on speech without reference
to the ideas or views expressed are in most instances content
neutral.
Turner Broad. Sys., Inc., 512 U.S. at 642-43, 114 S. Ct. at 2459, 129 L. Ed.
2d at 517-18 (citations omitted). An example of a content-neutral
regulation is one that addresses “only the time, place, or manner of speech.”
Consol. Edison Co. of N.Y., Inc., 447 U.S. at 536, 100 S. Ct. at 2332, 65 L.
Ed. 2d at 327. “[T]he essence of time, place, or manner regulation lies in
the recognition that various methods of speech, regardless of their content,
may frustrate legitimate governmental goals.” Id.; accord Ward v. Rock
Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 2754, 105 L. Ed. 2d
661, 675 (1989) (“Government regulation of expressive activity is content
neutral so long as it is ‘justified without reference to the content of the
regulated speech.’ ” (Citation omitted.)).
Applying these principles, we conclude section 709C.1 regulates
speech on the basis of content. The focus of section 709C.1 is not on the
time, place, or manner of expression, but on the content of the
communication. The statute requires transmission of specific information—
the infected person’s HIV-positive status. See Riley, 487 U.S. at 795, 108 S.
Ct. at 2677, 101 L. Ed. 2d at 688 (“Mandating speech that a speaker would
not otherwise make necessarily alters the content of the speech. We
therefore consider the Act as a content-based regulation of speech.”). The
content-based nature of the statute is no less so because the state’s primary
intent is to limit the spread of AIDS. See Turner Broad. Sys., Inc., 512 U.S.
at 642-43, 114 S. Ct. at 2459, 129 L. Ed. 2d at 518 (“Nor will the mere
8
assertion of a content-neutral purpose be enough to save a law which, on
its face, discriminates based on content.”). In addition, the fact that the
public interest undoubtedly supports the required disclosure does not
change the nature of the statute as compelling the communication of
specific facts the speaker would prefer not to reveal. See Mich. State AFL-
CIO v. Miller, 103 F.3d 1240, 1252 (6th Cir. 1997) (“As Turner Broadcasting
makes clear, the real issue is whether the law is aimed at the
communicative impact of speech.”).
Because section 709C.1 is a content-based regulation, it is subject to
strict scrutiny. United States v. Playboy Entm’t Group, Inc., 529 U.S. 803,
813, 120 S. Ct. 1878, 1886, 146 L. Ed. 2d 865, 879 (2000) (“[C]ontent-
based speech restriction . . . can stand only if it satisfies strict scrutiny.”);
Turner Broad. Sys., Inc., 512 U.S. at 642, 114 S. Ct. at 2459, 129 L. Ed. 2d
at 517 (“Laws that compel speakers to utter or distribute speech bearing a
particular message are subject to [strict] scrutiny.”). “If a statute regulates
speech based on its content, it must be narrowly tailored to promote a
compelling Government interest. If a less restrictive alternative would serve
the Government’s purpose, the legislature must use that alternative.”
Playboy Entm’t Group, Inc., 529 U.S. at 813, 120 S. Ct. at 1886, 146 L. Ed.
2d at 879 (citation omitted).
We believe section 709C.1 withstands strict scrutiny. The obvious
purpose of this statute is the protection of public health by discouraging the
transmission of the AIDS virus. As one court has explained,
Considering the ease of transmitting AIDS and HIV through
sexual penetration and the absence of any “cure,” the state’s
interest in protecting the public health, safety, and general
welfare of its citizenry becomes extremely significant. Although
the statute may significantly infringe defendant’s individual
interests in remaining silent, the state’s interest to compel her
to disclose that she is HIV infected before engaging in sexual
penetration is undeniably overwhelming.
9
Jensen, 586 N.W.2d at 759; accord State v. Gamberella, 633 So. 2d 595, 604
(La. Ct. App. 1993) (“No one can seriously doubt that the state has a
compelling interest in discouraging the spread of the HIV virus.”). We think
section 709C.1 promotes a compelling state interest, and the legislature
narrowly tailored the statute to promote this compelling interest. See
Gamberella, 633 So. 2d at 604 (holding statute “[f]orcing an infected person
to inform all of his sexual partners so the partner can make an informed
decision prior to engaging in sexual activity . . . is narrowly drawn to further
the state’s compelling interest”). The statute does not absolutely prohibit an
infected person from having sexual relations with another. Moreover,
section 709C.1 does not compel public disclosure of an infected person’s
HIV status; an infected person may privately inform a potential sexual
partner of his or her condition. We cannot conceive of a less restrictive way
in which the state could accomplish its goal, and the defendant has not
suggested such an alternative. We hold, therefore, that section 709C.1 does
not unconstitutionally infringe the defendant’s First Amendment free-
speech rights.
B. Vagueness. “The Due Process Clause of the Fourteenth
Amendment to the United States Constitution prohibits vague statutes.”
State v. Wiederien, 709 N.W.2d 538, 542 (Iowa 2006).
A statute can be impermissibly vague for either of two
independent reasons. First, if it fails to provide people of
ordinary intelligence a reasonable opportunity to understand
what conduct it prohibits. Second, if it authorizes or even
encourages arbitrary and discriminatory enforcement.
Hill v. Colorado, 530 U.S. 703, 732, 120 S. Ct. 2480, 2498, 147 L. Ed. 2d
597, 621 (2000).
Musser claims the statutory prohibition of “intimate contact” between
an infected person and another is unconstitutionally vague because the
10
statutory definition of “intimate contact” lacks clarity. Section 709C.1(2)(b)
defines “intimate contact” as “the intentional exposure of the body of one
person to a bodily fluid of another person in a manner that could result in
the transmission of the human immunodeficiency virus.” The defendant
argues an ordinary person would not know what type of contact—mode of
transmission—is prohibited. Consequently, he asserts, the statute is vague
not only as applied to him, but facially as well. We discuss each claim
separately.
1. Vague as applied. When considering a vague-as-applied challenge,
we focus on whether the defendant’s “conduct clearly falls ‘within the
proscription of the statute under any construction.’ ” State v. Hunter, 550
N.W.2d 460, 465 (Iowa 1996) (citation omitted), overruled on other grounds
by State v. Robinson, 618 N.W.2d 306, 312 (Iowa 2000). In the case before
us, Musser engaged in sexual intercourse with the victim. The question,
therefore, is whether the definition of “intimate contact” gave the defendant
fair warning that sexual intercourse fell within the statutory prohibition, in
other words, involved the exposure of the victim to a bodily fluid that could
transmit the virus.
This question was answered in State v. Keene, 629 N.W.2d 360 (Iowa
2001). This court took judicial notice in Keene of the fact that “sexual
intercourse is one of the most common methods of passing the [human
immunodeficiency] virus.” 629 N.W.2d at 365. We concluded based on this
common knowledge and related statutes 6 that “any reasonably intelligent
person is aware it is possible to transmit HIV during sexual intercourse,
especially when it is unprotected.” Id. This court held, therefore, that the
6We cited two statutes in which “the risk of transmission during sexual intercourse”
had been recognized: Iowa Code section 709C.1(1)(b) (referring to semen as a “potentially
infectious bodily fluid”) and Iowa Code section 915.40(11) (presuming significant exposure
to HIV during sexual intercourse).
11
statute was not vague as applied to the defendant in Keene, who had had
unprotected sexual intercourse with the victim. Id. at 366.
The same conclusion is warranted here. When the statute is read as
a whole and considered in the light of common knowledge and related
statutes, it clearly gives fair warning that the transfer of semen through
sexual intercourse could transmit the virus and is, therefore, prohibited.
Consequently, section 709C.1(1) is not vague as applied to Musser, who
engaged in unprotected sexual intercourse with the victim.
2. Facial vagueness and overbreadth.
[I]mprecise laws can be attacked on their face under two
different doctrines. First, the overbreadth doctrine permits the
facial invalidation of laws that inhibit the exercise of First
Amendment rights if the impermissible applications of the law
are substantial when “judged in relation to the statute’s plainly
legitimate sweep.” Second, even if an enactment does not
reach a substantial amount of constitutionally protected
conduct, it may be impermissibly vague because it fails to
establish standards for the police and public that are sufficient
to guard against the arbitrary deprivation of liberty interests.
City of Chicago v. Morales, 527 U.S. 41, 52, 119 S. Ct. 1849, 1857, 144 L.
Ed. 2d 67, 77-78 (1999) (citation omitted). We conclude section 709C.1
passes constitutional muster under both doctrines. 7
a. Overbreadth. Musser argues section 709C.1 impermissibly chills
the exercise of infected persons’ freedom of association. He suggests the
statute could be interpreted to prohibit an infected person “from sweating
on another while playing a game of basketball” or “from kissing another.”
Assuming such social contact is protected by the First Amendment, we
7A defendant to whom a statute can be constitutionally applied lacks standing to
make a facial challenge to the statute “unless a recognized exception applies.” Hunter, 550
N.W.2d at 463. One such exception is a situation in which the vagueness of the statute
chills the exercise of First Amendment rights. Id. State courts are not required to apply
the standing doctrine. See Morales, 527 U.S. at 55-56 n.22, 119 S. Ct. at 1858-59 n.22,
144 L. Ed. 2d at 79-80 n.22. Given this discretion, we choose not to address the standing
issue and instead proceed directly to the merits of the facial vagueness challenge in the
case before us.
12
disagree that the statute could be interpreted to apply to such interactions
when they are not capable of transmitting HIV.
The statute clearly defines the proscribed contact: contact that
exposes another to bodily fluid from the infected person “in a manner that
could result in the transmission of the human immunodeficiency virus.” See
Iowa Code § 709C.1(2)(b) (emphasis added). We have previously determined
the state has a compelling interest in stopping the spread of HIV infections
and AIDS, and the statute is clearly limited to contact that can spread these
conditions. See Roberts v. U.S. Jaycees, 468 U.S. 609, 623, 104 S. Ct.
3244, 3252-53, 82 L. Ed. 2d 462, 474-75 (1984) (finding infringement of
associational rights constitutional in light of compelling state interest). In
view of the state’s compelling interest, the proscribed contact is not
sheltered by the First Amendment. We conclude, therefore, that the statute
simply “does not reach a substantial amount of constitutionally protected
conduct.” Morales, 527 U.S. at 52, 119 S. Ct. at 1857, 144 L. Ed. 2d at 78.
For that reason, section 709C.1 does not violate the overbreadth doctrine.
b. Facial vagueness. The defendant claims the statute is facially
vague because it does not define the modes of transmission that could
result in transfer of the virus. We think the desired clarification is provided,
however, by reference to common knowledge and related statutes. “A
statutory term provides fair warning if the meaning of the word ‘is . . . fairly
ascertainable by reference to similar statutes, prior judicial determinations,
reference to the dictionary, or if the questioned words have a common and
generally accepted meaning.’ ” Hunter, 550 N.W.2d at 465 (citation
omitted). In addition, a challenged statute should be viewed “in the context
of the entire statutory scheme of which it is a part.” State v. Robinson, 618
N.W.2d 306, 314-15 (Iowa 2000). We proceed to do that now.
13
Initially, we take judicial notice of the fact, as we also did in Keene,
that “the HIV may be transmitted through contact with an infected
individual’s blood, semen or vaginal fluid.” 629 N.W.2d at 365. In addition,
we note section 709C.1(1) prohibits not only intimate contact by an HIV-
positive person, but also the transfer of semen “or other potentially
infectious bodily fluids” for “insemination, or other administration to
another person.” Further clarification of the modes of transmission
encompassed in chapter 709C is found in Iowa Code chapter 141A, a
related statute dealing with AIDS. See State v. Millsap, 704 N.W.2d 426,
436 (Iowa 2005) (concluding statute gave fair warning when meaning was
ascertainable by reference to related statutory definition). Section
141A.1(13) defines “infectious bodily fluids” as “bodily fluids capable of
transmitting HIV infection as determined by the centers for disease control
and prevention of the United States department of health and human
services and adopted by rule of the department.” The website of the
Department of Health and Human Services’ Centers for Disease Control and
Prevention contains information detailing which bodily fluids transmit HIV,
as well as an explanation of the ways in which HIV can be transmitted. See
Divs. of HIV/AIDS Prevention, Ctrs. for Disease Control & Prevention, Dep’t
of Health & Human Servs., Fact Sheet: HIV and Its Transmission, available
at http://www.cdc.gov/hiv/pubs/facts/transmission.pdf (July 1999);
Divs. of HIV/AIDS Prevention, Ctrs. for Disease Control & Prevention, Dep’t
of Health & Human Servs., Which Body Fluids Transmit HIV?,
http://www.cdc.gov/hiv/pubs/faq/faq37.htm (last updated Dec. 15, 2003).
When common knowledge and related statutes are considered,
section 709C.1 provides “standards for the police and public that are
sufficient to guard against the arbitrary deprivation of liberty interests.”
Morales, 527 U.S. at 52, 119 S. Ct. at 1857, 144 L. Ed. 2d at 78. Therefore,
14
the statute does not violate the void-for-vagueness doctrine. Gamberella,
633 So. 2d at 603 (holding statute prohibiting “sexual contact” between
infected person and another who has not given “knowing and lawful
consent” was not facially vague).
C. Right of privacy.
Under the Due Process Clause of the Fifth and Fourteenth
Amendments to the United States Constitution, the state is
forbidden from infringing on certain fundamental liberty
interests, no matter what process is provided, unless the
infringement is narrowly tailored to serve a compelling state
interest.
In re Interest of C.S., 516 N.W.2d 851, 860 (Iowa 1994) (citing Reno v. Flores,
507 U.S. 292, 301-02, 113 S. Ct. 1439, 1447, 123 L. Ed. 2d 1, 16 (1993)).
“If a fundamental right is not implicated, a statute need only survive a
rational basis analysis, which requires . . . ‘a reasonable fit between the
government interest and the means utilized to advance that interest.’ ”
Seering, 701 N.W.2d at 662 (citation omitted).
The defendant contends section 709C.1(1) infringes on his
fundamental right to privacy. See generally Griswold v. Connecticut, 381
U.S. 479, 485, 85 S. Ct. 1678, 1682, 14 L. Ed. 2d 510, 515-16 (1965)
(recognizing a protected right to privacy in the marriage relationship and the
marital bedroom); Eisenstadt v. Baird, 405 U.S. 438, 453-54, 92 S. Ct. 1029,
1038, 31 L. Ed. 2d 349, 362-63 (1972) (holding privacy rights apply to
individuals, married and single). He relies principally on the United States
Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558, 123 S. Ct.
2472, 156 L. Ed. 2d 508 (2003). In Lawrence, the Court struck down a
Texas statute “making it a crime for two persons of the same sex to engage
in certain intimate sexual conduct.” 539 U.S. at 562, 123 S. Ct. at 2475,
156 L. Ed. 2d at 515. The Court held the state’s attempt to control private
15
sexual activity violated citizens’ right to liberty under the Due Process
Clause. Id. at 578, 123 S. Ct. at 2484, 156 L. Ed. 2d at 525-26.
We think Lawrence is readily distinguishable from the present case.
As the Supreme Court noted in Lawrence, that case “involve[d] two adults
who, with full and mutual consent from each other, engaged in sexual
practices common to a homosexual lifestyle.” Id. at 578, 123 S. Ct. at 2484,
156 L. Ed. 2d at 525 (emphasis added). The Court also observed the case
before it did not “involve persons who might be injured or coerced.” Id. In
contrast, the statute challenged here prohibits intimate contact when there
is not “full and mutual consent” from the infected person’s sexual partner.
Surely it cannot be disputed that one considering having sexual intercourse
with another would want to know whether the other person is infected with
HIV prior to engaging in such intimate contact. Consent in the absence of
such knowledge is certainly not a full and knowing consent as was present
in Lawrence. It is also significant that the sexual partner of an infected
person is at serious risk of injury and even death from the prohibited sexual
contact.
Although section 709C.1(1) infringes on Musser’s privacy rights, we
conclude the State has a compelling interest in discouraging the spread of
the virus and protecting human life. See Cruzan v. Director, Dep’t of Health,
497 U.S. 261, 282, 110 S. Ct. 2841, 2853, 111 L. Ed. 2d 224, 244 (1990)
(holding “a State [has] an unqualified interest in the preservation of human
life”); Gamberella, 633 So. 2d at 603 (“No one can seriously doubt that the
state has a compelling interest in discouraging the spread of the HIV
virus.”). Moreover, as we have already determined, the statute is narrowly
tailored to further this compelling state interest. For these reasons, the
statute does not unconstitutionally infringe on the defendant’s right to
privacy and does not violate principles of substantive due process. See
16
Gamberella, 633 So. 2d at 603 (holding similar Louisiana statute did not
violate defendant’s right of privacy).
D. Eighth Amendment. “Criminal transmission of the human
immunodeficiency virus is a class ‘B’ felony.” Iowa Code § 709C.1(3).
Although this crime carries a twenty-five-year sentence, see id. § 902.9(2),
it is not a forcible felony subject to restrictions on eligibility for parole or
work release, see id. § 902.12.
Musser claims a twenty-five-year sentence for the criminal
transmission of HIV constitutes cruel and unusual punishment in violation
of the Eighth Amendment. 8 See U.S. Const. amend. VIII. The Eighth
Amendment prohibits “sentences that are disproportionate to the crime
committed.” Solem v. Helm, 463 U.S. 277, 284, 103 S. Ct. 3001, 3006, 77
L. Ed. 2d 637, 645 (1983). The defendant claims the punishment provided
for his crime fails the proportionality analysis set out in Solem. 463 U.S. at
292, 103 S. Ct. at 3011, 77 L. Ed. 2d at 650 (stating court should consider
gravity of offense, harshness of penalty, “sentences imposed on other
criminals in the same jurisdiction,” and “sentences imposed for commission
of the same crime in other jurisdictions”).
As this court has previously noted, the Solem proportionality test is
limited “ ‘to the rare case [in which] a threshold comparison of the crime
committed to the sentence imposed leads to an inference of gross
disproportionality.’ ” State v. Lara, 580 N.W.2d 783, 785 (Iowa 1998)
(citation omitted). Therefore, our first inquiry is whether Musser’s sentence
8Musser also challenges his sentence under the Iowa Constitution’s prohibition of
“cruel and unusual punishment.” Iowa Const. art. I, § 17. Because the Iowa prohibition is
similar to the federal prohibition, we look to the interpretation of the federal constitution for
guidance in interpreting the state provision. State v. Izzolena, 609 N.W.2d 541, 547 (Iowa
2000). Because the defendant has not suggested any distinction between the analyses
applicable to the state clause and the federal clause, we address the clauses together. See
In re Detention of Garren, 620 N.W.2d 275, 280 n.1 (Iowa 2000). Therefore, our discussion
of the Eighth Amendment applies equally to Musser’s claim under the Iowa Constitution.
17
appears grossly disproportionate in view of the gravity of his offense. See
State v. August, 589 N.W.2d 740, 743 (Iowa 1999). This analysis is
undertaken objectively without considering the individualized
circumstances of the defendant or the victim in this case. Id.
Viewed objectively, we cannot say the punishment set by the
legislature for the crime of criminal transmission of HIV is grossly
disproportionate to the harm sought to be punished and deterred. HIV is
“the causative agent of AIDS.” Iowa Code § 141A.1(11). AIDS is a chronic,
life-threatening condition. See MedlinePlus Medical Encyclopedia: AIDS,
http://www.nim.nih.gov/medlineplus/ency/article/000594.htm (last
updated Apr. 14, 2004) (“AIDS . . . is the final and most serious stage of HIV
disease . . . . At the present time, there is no cure for AIDS. It has proven
to be a universally fatal illness.”). Clearly, the dire consequences of this
crime can be significant and serious. The potential harm to the public
welfare from the spread of this deadly virus is equally grave and severe.
Musser argues in his brief that his offense is “de minimis” because
the victim did not become infected with HIV. But as noted above, in
evaluating the proportionality of a sentence, we do not consider the
circumstances of the particular case in which the challenge is made. See
State v. Ramirez, 597 N.W.2d 795, 797-98 (Iowa 1999) (concluding twenty-
five-year sentence for first-degree robbery was not cruel and unusual
punishment, refusing to consider the gravity of defendant’s specific
conduct, which consisted of shoplifting knife and gun and then briefly
brandishing knife toward store employee). Rather, we look at the harm the
legislative provision was designed to prevent—the spread of HIV infections.
The defendant also claims a twenty-five-year sentence is excessive in
view of the fact section 709C.1 does not require an intent to inflict injury or
the occurrence of an injury at all. While section 709C.1 may not expressly
18
require an intent to injure, it does require the functional equivalent: that the
defendant intentionally expose another person to the defendant’s infected
bodily fluid in such a way that the virus could be transmitted. See Iowa
Code § 709C.1(2)(b).
The crime of criminal transmission of HIV is actually quite similar to
the crime of first-degree robbery for purposes of proportionality analysis.
First-degree robbery does not require an intent to inflict injury (only an
intent to commit a theft), and it does not require that any actual injury
result from the defendant’s action. See Iowa Code §§ 711.1, .2. On the
other hand, it does require that the defendant “purposely inflict[ ] or
attempt[ ] to inflict serious injury” or be “armed with a dangerous weapon.”
Id. § 711.2. Based on the high “risk of death or serious injury to persons
present when first-degree robbery is committed,” this court has held that a
twenty-five-year sentence for that crime is not grossly disproportionate,
even though a defendant is required to serve at least eighty-five percent of
the maximum sentence. Lara, 580 N.W.2d at 785, 786.
The same conclusion is warranted here. Infection with HIV carries
the potential for serious injury, even death. Thus, a defendant who
intentionally exposes another to the virus is just like the first-degree robber
who attempts to inflict serious injury on his victim. And, just like the
robber carrying a gun or a knife, a defendant infected with HIV is armed
with a dangerous virus capable of inflicting serious injury or death on the
victim. In view of the gravity of the offense, we cannot say a twenty-five-
year sentence for the criminal transmission of HIV appears grossly
disproportionate. Because there is no inference of gross disproportionality,
we need not undertake the Solem analysis. The defendant’s sentence does
not constitute cruel and unusual punishment.
19
III. Admission of Laboratory Reports.
Over the defendant’s objection, the trial court admitted two reports
from the University of Iowa Hygienic Laboratory, showing the defendant had
tested positive for HIV on two occasions. On appeal, the defendant renews
his objections: (1) an inadequate foundation was laid for admission of the
reports; and (2) the reports contained inadmissible hearsay. We, like the
trial court, find no merit in the defendant’s challenges to these exhibits.
A. Foundation. “Whether the [offering] party has established . . . a
proper foundation is a matter committed to the sound discretion of the trial
court; reversal is warranted only when there is a clear abuse of discretion.”
Sechler v. State, 340 N.W.2d 759, 764 (Iowa 1983); accord Duncan v. City of
Cedar Rapids, 560 N.W.2d 320, 323 (Iowa 1997).
The State introduced the lab reports through the testimony of
epidemiologist Randy Mayer, HIV coordinator of the Iowa Department of
Public Health. Mayer testified the department is required by law to keep a
record of persons who test positive for HIV. See Iowa Code § 141A.6. To
ensure the department is aware of who has had a positive HIV test, all
laboratories and physicians in Iowa are required to report any positive
results directly to the department. Id. § 141A.6. Mayer also testified to the
procedure for collecting specimens from persons being tested, and to the
fact that a positive test is confirmed by a second test. He said the
department contracts with several testing sites across the state to do free
HIV testing, and one such site is the Free Medical Clinic in Iowa City. The
department also contracts, according to Mayer, with the Hygienic
Laboratory to test the specimens collected at the testing sites.
Mayer identified the two lab reports at issue in this case as being the
defendant’s HIV test results from the Hygienic Laboratory. He testified the
department has these reports in its possession as part of its statutory
20
recordkeeping responsibility. The reports showed the Free Medical Clinic
had collected two samples from the defendant, these samples were sent to
the Hygienic Laboratory where they were tested in July 2000, and both test
results were positive for HIV.
The defendant argues Mayer’s testimony was inadequate because
Mayer “did not conduct the tests, never met or examined Mr. Musser, had
no knowledge of the protocol of the tests, or of the method of record
keeping.” But we do not think these matters are required for proper
authentication or identification under Iowa Rule of Evidence 5.901.
Rule 5.901 provides in pertinent part:
a. General provision. The requirement of authentication
or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.
b. Illustrations. By way of illustration only, and not by
way of limitation, the following are examples of authentication
or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that
a matter is what it is claimed to be.
....
(7) Public records or reports. Evidence that a writing
authorized by law to be recorded or filed and in fact recorded or
filed in a public office, or a purported public record, report,
statement, or data compilation, in any form, is from the public
office where items of this nature are kept.
Iowa R. Evid. 5.901. The foundation made through Mayer satisfied
subparagraphs (1) and (7) of rule 5.901(b). Mayer testified the exhibits were
lab reports showing HIV test results maintained by the department as
required by law. This testimony established that the exhibits were “what
[they were] claimed to be” and that they were records “from the public office
where items of this nature are kept.” Iowa R. Evid. 5.901(b)(1), (7); see
Spear v. McDermott, 916 P.2d 228, 233 (N.M. 1996) (“All that is necessary is
the testimony of a witness who knows that the documents in fact came from
21
the legal custodian of the document.”); State v. D’Alo, 649 A.2d 498, 499
(R.I. 1994) (holding proper foundation existed for admission of defendant’s
driving record through testimony of employee of public office where such
records are kept). The trial court did not abuse its discretion in admitting
these exhibits over the defendant’s foundation objection.
B. Hearsay. Our scope of review is well established:
We review the defendant’s hearsay claims for errors at law.
“Hearsay . . . must be excluded as evidence at trial unless
admitted as an exception or exclusion under the hearsay rule
or some other provision.” Subject to the requirement of
relevance, the district court has no discretion to deny the
admission of hearsay if it falls within an exception, or to admit
it in the absence of a provision providing for admission.
Inadmissible hearsay is considered to be prejudicial to the
nonoffering party unless otherwise established.
State v. Newell, 710 N.W.2d 6, 18 (Iowa 2006) (citation omitted).
Hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Iowa R. Evid. 5.801. Clearly, the lab reports contained
hearsay: the test results shown in the reports were conclusions of a lab
technician who did not testify, and the results were offered to prove the
truth of the matter asserted—that the defendant was HIV positive. See
State v. McCurry, 544 N.W.2d 444, 446 (Iowa 1996) (holding DNA reports
were hearsay); State ex rel. Buechler v. Vinsand, 318 N.W.2d 208, 210 (Iowa
1982) (holding paternity blood test results were hearsay).
Hearsay evidence is not admissible unless some exception allows its
admission. Iowa R. Evid. 5.802. One exception is for records of regularly
conducted activity, known as the business records exception:
A memorandum, report, record or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses, made
at or near the time by, or from information transmitted by, a
person with knowledge, if kept in the course of a regularly
conducted business activity, and the regular practice of that
22
business activity was to make the memorandum, report,
record, or data compilation, all as shown by the testimony of
the custodian or other qualified witness, unless the source of
information or the method or circumstances of preparation
indicate lack of trustworthiness. The term “business” as used
in this subrule includes business, institution, association,
profession, occupation, and calling of every kind, whether or
not conducted for profit.
Iowa R. Evid. 5.803(6) (emphasis added). This exception applies to hearsay
falling within its scope even though the declarant is not shown to be
unavailable. See Iowa R. Evid. 5.803.
We think the business records exception applies to the information
contained in the exhibits challenged by the defendant. See Ex parte: Dep’t
of Health & Envtl. Control, In re: State v. Doe, 565 S.E.2d 293, 297 (S.C.
2002) (approving admission of HIV tests as a business record based on
testimony of department-of-health employee). First, the lab report from the
Hygienic Laboratory is the type of document encompassed in this exception:
it is a “record . . . of [a] diagno[sis], made at or near the time by . . . a person
with knowledge.” Iowa R. Evid. 5.803. As the witness from the department
of public health explained, the Hygienic Laboratory does the actual testing
for the presence of HIV and prepares a report showing the results when the
testing is completed. The witness also established it was “the regular
practice of [the laboratory] to make the . . . report.” Id. These reports are
required by law and, according to the witness, all reports showing a positive
HIV test are routinely forwarded to the department. Finally, the witness
was qualified to give this testimony, as he was an employee of the agency
designated by law as the custodian of these reports. We find nothing in the
record or the defendant’s briefing to indicate a lack of trustworthiness with
respect to the Hygienic Laboratory or the method or circumstances of the
reports’ preparation. The trial court did not err in admitting the lab reports
under the business records exception.
23
IV. Ineffective-Assistance-of-Counsel Claims.
Musser raises two claims of ineffective assistance of counsel. He
asserts his attorney failed to object to the admission of the lab reports
based on the Confrontation Clause. He also contends the prosecutor made
improper statements in the opening statement and closing argument to
which counsel should have objected.
To establish a claim of ineffective assistance of counsel, the defendant
must show: (1) trial counsel failed to perform an essential duty; and (2)
prejudice resulted from this failure. State v. Scalise, 660 N.W.2d 58, 61
(Iowa 2003). Counsel has no duty to raise an issue or make an objection
that has no merit. Id.
“Generally, ineffective-assistance claims are preserved for
postconviction relief proceedings to afford the defendant an
evidentiary hearing and thereby permit the development of a
more complete record.” If the record on appeal shows,
however, 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. Graves, 668 N.W.2d 860, 869 (Iowa 2003) (citations omitted).
A. Confrontation Clause. The Sixth Amendment to the United States
Constitution guarantees that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI; see also Pointer v. Texas, 380 U.S. 400, 406, 85 S.
Ct. 1065, 1069, 13 L. Ed. 2d 923, 927-28 (1965). This constitutional
provision reflects the “preference for face-to-face confrontation at trial and
the right of cross-examination.” State v. Castaneda, 621 N.W.2d 435, 444
(Iowa 2001). It is not to be equated with the hearsay rule. See State v.
Brown, 656 N.W.2d 355, 361 (Iowa 2003). That is because “[t]he
24
Confrontation Clause bars the admission of some evidence that would
otherwise be admissible under an exception to the hearsay rule.”
Castaneda, 621 N.W.2d at 444.
An out-of-court statement by a witness that is testimonial in nature is
barred under the Confrontation Clause unless the witness is unavailable
and the defendant had a prior opportunity to cross-examine the witness.
Crawford v. Washington, 541 U.S. 36, 59-60, 124 S. Ct. 1354, 1369, 158 L.
Ed. 2d 177, 197 (2004). This prohibition applies even though the out-of-
court statement is deemed reliable by the court. Id. at 61, 124 S. Ct. at
1370, 158 L. Ed. 2d at 199. Nontestimonial statements are not subject to
scrutiny under the Confrontation Clause. Davis v. Washington, 547 U.S.
___, ___, 126 S. Ct. 2266, 2273, 165 L. Ed. 2d 224, 236 (2006).
The first question here, then, is whether the test results contained in
the lab reports are testimonial or nontestimonial hearsay.
Various formulations of [the] core class of “testimonial”
statements exist: “ex parte in-court testimony or its functional
equivalent—that is, material such as affidavits, custodial
examinations, prior testimony that the defendant was unable
to cross-examine, or similar pretrial statements that declarants
would reasonably expect to be used prosecutorially”;
“extrajudicial statements . . . contained in formalized
testimonial materials, such as affidavits, depositions, prior
testimony, or confessions”; “statements that were made under
circumstances which would lead an objective witness
reasonably to believe that the statement would be available for
use at a later trial . . . .”
Crawford, 541 U.S. at 51-52, 124 S. Ct. at 1364, 158 L. Ed. 2d at 193
(citations omitted). In addition, statements in response to police
interrogations that are “solely directed at establishing the facts of a past
crime, in order to identify (or provide evidence to convict) the perpetrator,”
are also testimonial statements subject to the Confrontation Clause. Davis,
547 U.S. at ___, 126 S. Ct. at 2276, 165 L. Ed. 2d at 240.
25
The test results at issue here are clearly nontestimonial. See People
v. Johnson, 18 Cal. Rptr. 3d 230, 233 (Ct. App. 2004) (“A laboratory report
does not ‘bear testimony,’ or function as the equivalent of in-court
testimony.” (Citation omitted.)); Commonwealth v. Lampron, 839 N.E.2d 870,
875 (Mass. App. Ct. 2005) (holding hospital records containing drug and
alcohol test results were nontestimonial); State v. Dedman, 102 P.3d 628,
636 (N.M. 2004) (holding laboratory report of defendant’s blood alcohol level
was nontestimonial). The HIV tests were not requested by law enforcement;
they were done two years before the crime at issue here was even
committed. Compare People v. Brown, 801 N.Y.S.2d 709, 712 (Sup. Ct.
2005) (holding records of lab technicians who tested DNA samples were not
testimonial because they “were not prepared solely for litigation” but for
routine business purposes), with State v. Crager, 844 N.E.2d 390, 397 (Ohio
Ct. App. 2005) (holding DNA reports prepared by state bureau of criminal
investigation were testimonial because they were “prepared wholly in
anticipation of litigation”). In addition, the statements were not given in
response to structured questioning in an investigative setting or litigation
context. See State v. Staten, 610 S.E.2d 823, 830 (S.C. Ct. App. 2005)
(observing testimonial statements described in Crawford “ ‘all involve a
declarant’s knowing responses to structured questioning in an investigative
environment or a courtroom setting where the declarant would reasonably
expect that his or her responses might be used in future judicial
proceedings’ ” (citation omitted)). Although lab personnel possibly realized
the report could be used in a later prosecution for criminal transmission of
HIV, that use would be rare and certainly collateral to the primary purpose
of providing the defendant and his medical providers with the information
they needed to make informed treatment decisions. Cf. Davis, 547 U.S. at
___, 126 S. Ct. at 2276-77, 165 L. Ed. 2d at 240 (considering primary
26
purpose of police interrogation to determine whether responsive statements
were testimonial or nontestimonial).
Because the reports are nontestimonial statements, an objection
under the Confrontation Clause would have had no merit. Consequently,
Musser’s counsel did not fail to perform an essential duty when he did not
raise this issue at trial.
B. Prosecutorial misconduct. The defendant contends the prosecutor
committed prosecutorial misconduct in opening statement and closing
argument and his counsel should have objected. In considering this claim,
we are guided by the following principles:
The prosecutor’s duty to the accused is to “assure the
defendant a fair trial” by complying with “the requirements of
due process throughout the trial.” Thus, while a prosecutor is
properly an advocate for the State within the bounds of the
law, the prosecutor’s primary interest should be to see that
justice is done, not to obtain a conviction.
Graves, 668 N.W.2d at 870 (citations omitted).
In order to establish a due process violation based upon prosecutorial
misconduct, the defendant must first establish proof of misconduct. Id. at
869. We noted in Graves that “[a] prosecutor ‘is entitled to some latitude
during closing arguments in analyzing the evidence admitted in the trial. ’ ”
Id. at 874 (citation omitted). “[A] prosecutor may argue the reasonable
inferences and conclusions to be drawn from the evidence,” but may not
suggest that the jury decide the case on “any ground other than the weight
of the evidence” introduced at trial. Id. In addition, a prosecutor is not “
‘allowed to make inflammatory or prejudicial statements regarding a
defendant in a criminal action.’ ” Id. (citation omitted). Nor is the
prosecutor allowed to instruct the jury “to place themselves in the position
of the victim.” Lucas v. State, 335 So. 2d 566, 567 (Fla. Dist. Ct. App. 1976)
(“The technique of asking jurors to place themselves in the position of the
27
victim has been held improper in both criminal and civil cases.”); see also
Oldsen v. Jarvis, 159 N.W.2d 431, 435 (Iowa 1968) (“Direct appeals to jurors
to place themselves in the situation of one of the parties . . . [is] condemned
by the courts.”). These rules ensure the case is decided solely on the
evidence.
Prosecutorial misconduct alone does not entitle a defendant to a
mistrial, however. See State v. Trudo, 253 N.W.2d 101, 106 (Iowa 1977).
There must be proof the misconduct resulted in prejudice to the extent the
defendant was denied a fair trial. Id. In determining whether prejudice
resulted, we consider several factors “ ‘within the context of the entire trial.’”
Graves, 668 N.W.2d at 869 (citation omitted). These factors include the
severity and pervasiveness of the misconduct, the significance of the
misconduct to the central issues in the case, the strength of the State’s
evidence, the use of cautionary instructions or other curative measures,
and the extent to which the defense invited the improper conduct. Id. We
turn now to the facts of this case.
The defendant claims his trial counsel was ineffective for failing to
object to the following italicized portions of the prosecutor’s quoted
statements:
[State’s Opening Statement]: At the end of the trial, I will have
the opportunity to come back and stand here before you and
ask you to find the Defendant guilty. And I will do that for two
reasons. First of all, because the evidence in this case will only
point you in that direction. And, second, because it is the right
thing to do.
[State’s Closing Argument]: We submit to you that in
December of 2002, two and a half years after he knew he was
HIV positive, this man did not care. Either he was in denial or
he was angry about the fact that, out of everyone in this world,
he was afflicted with HIV. And at the point in time that you
don’t care about yourself, you care less about somebody else.
When he met the victim in this case, the least he could have
done was be honest with her. The least he could have done
28
was respect her life. But when the time came, the only thing
he said was, “I ain’t got nothing,” and that is not true.
I am asking you to find the Defendant guilty, not only
because the State proved all the elements of the offense, but
because the only way that he will care is if you make him care.
[State’s Rebuttal Closing Argument]: The only thing you need
in order to decide this case is the evidence that was presented
in this matter. That evidence is the testimony of those five
witnesses that came in here and took the oath and told you
what they knew about this case, and the exhibits. That’s all
you need. Find him guilty. Make him responsible because, if
you don’t, no one will.
(Emphasis added).
Although the defendant claims the prosecutor improperly vouched for
the credibility of witnesses, injected her personal belief of the defendant’s
guilt into her statements to the jury, and asked the jurors to place
themselves in the position of the victim, we agree with the State that
nothing in the quoted statements can be construed in this manner. The
defendant is correct, however, when he asserts the prosecutor improperly
urged the jurors to decide the case on something other than the evidence.
The ABA Standards for Criminal Justice state: “The prosecutor
should refrain from argument which would divert the jury from its duty to
decide the case on the evidence.” ABA Standards for Criminal Justice 3-5.8
(3d ed. 1993); see also id. commentary (“Predications about the effect of an
acquittal on lawlessness in the community also go beyond the scope of the
issues in the trial and are to be avoided.”). See generally United States v.
Young, 470 U.S. 1, 8, 105 S. Ct. 1038, 1042, 84 L. Ed. 2d 1, 7-8 (1985)
(relying on ABA Standards in considering claim of prosecutorial
misconduct, noting the Standards were “useful guidelines”); State v.
Williams, 334 N.W.2d 742, 745 (Iowa 1983) (relying on ABA Standards in
reviewing allegations of prosecutorial misconduct). Although there is
always some gray area between proper and improper argument, we think
29
the prosecutor here inappropriately diverted the jury from its duty to decide
the case solely on the evidence by injecting issues broader than the guilt or
innocence of the defendant and by making predictions of the consequences
of the jury’s verdict. Whether the defendant should be made to care is not a
reason independent of the evidence for a finding of guilt, yet that is what the
prosecutor suggested when she told the jury to find the defendant guilty
“not only because the State proved all the elements of the offense, but
because the only way that he will care is if you make him care.” (Emphasis
added.) Similarly, whether a finding of guilt is “the right thing to do” in an
abstract sense is not the issue, yet that is what the prosecutor implied
when she said she would ask for a guilty verdict based on the evidence
“[a]nd because it is the right thing to do.” (Emphasis added.) See Impson v.
State, 721 N.E.2d 1275, 1283 (Ind. 2000) (holding prosecutor’s request that
the jury “do the right thing” was “an improper statement” insofar as it urged
the jury to act for reasons other than the evidence); Lisle v. State, 937 P.2d
473, 482 (Nev. 1997) (holding prosecutor’s statements to the jury that it
must be “accountable” and “do the right thing” were improper). The issue in
any criminal case is ultimately one of guilt or innocence as shown by the
evidence. The prosecutor here improperly attempted to broaden the jury’s
duty to include a responsibility to do the right thing and to make the
defendant care. See Trudo, 253 N.W.2d at 106 (holding prosecutor’s
comment in closing argument “that the jury should be concerned about
returning defendant to the community was improper”); People v. Brown, 817
N.Y.S.2d 139, 140 (App. Div. 2006) (holding prosecutor’s “public safety
arguments” to jury were improper).
Although the statements made by the prosecutor were objectionable,
prosecutorial misconduct is not, standing alone, a due process violation. As
noted above, only when the prosecutor’s conduct deprives the defendant of
30
a fair trial is the right to procedural due process denied. We conclude
based on our review of the entire record the defendant was not denied a fair
trial. See Young, 470 U.S. at 11, 105 S. Ct. at 1044, 84 L. Ed. 2d at 10
(stating “statements or conduct must be viewed in context; only by so doing
can it be determined whether the prosecutor’s conduct affected the fairness
of the trial”). The evidence against the defendant was strong, the comments
did not go to a central issue in the case, and the improper statements by
the prosecutor were isolated. In addition, the jurors were instructed they
were to decide the defendant’s guilt or innocence “from the evidence and the
law in these instructions,” and that evidence did not include “[s]tatements,
arguments, and comments by the lawyers.”
At this juncture, we briefly address a related argument made by the
defendant with respect to the jury instructions. Musser argues his attorney
should at least have requested that the court give the jury the following
instruction: “The duty of the jury is to determine if the defendant is guilty or
not guilty. In the event of a guilty verdict, you have nothing to do with
punishment.” The defendant contends this instruction would have
mitigated the effect of the prosecutor’s inappropriate statements. We do not
think counsel failed to perform an essential duty when he opted not to
request this instruction. As we have already determined, the defendant was
not prejudiced by the improper statements made by the prosecutor.
Therefore, we cannot say trial counsel was duty bound to request an
instruction arguably to avoid the inconsequential effect of the prosecutor’s
misconduct.
In summary, we frown upon the prosecutor’s improper appeal to the
jury to convict the defendant for reasons other than his guilt as established
by the State’s evidence. But in the context of the entire record, we cannot
say the defendant was denied a fair trial. Therefore, defense counsel did not
31
fail to perform an essential duty when he did not claim a due process
violation at trial.
V. Conclusion.
There is no merit in the defendant’s constitutional challenges to
section 709C.1 defining the crime of criminal transmission of HIV and to
the punishment a conviction of that offense carries. The statute does not
violate defendant’s freedom of speech. It is not unconstitutionally vague, on
its face or as applied to the defendant, in its description of the proscribed
“intimate contact.” Section 709C.1 is not overbroad because it does not
infringe on a substantial amount of constitutionally protected conduct.
Moreover, the statute does not violate the defendant’s substantive due
process rights by unconstitutionally infringing on his right of privacy. The
sentence imposed for this crime does not constitute cruel and unusual
punishment. In view of the serious health risk the defendant’s conduct
poses to the victim of his crime, the twenty-five-year sentence does not raise
an inference of gross disproportionality. Therefore, the district court did not
err in overruling the defendant’s motion to dismiss.
The trial court properly admitted the laboratory reports of the
defendant’s HIV testing under the business records exception to the hearsay
rule. The State adequately authenticated these reports through the
testimony of an epidemiologist employed by the department of public
health, the official custodian of these records.
As a matter of law, the defendant cannot prevail on his ineffective-
assistance-of-counsel claims. The admission of the hearsay test results
contained in the lab reports did not violate the defendant’s confrontation
rights because these statements were nontestimonial. Consequently, trial
counsel did not fail to perform an essential duty by not objecting to the lab
reports on the basis of the Confrontation Clause. With respect to the
32
defendant’s ineffective-assistance claim based on counsel’s failure to object
to prosecutorial misconduct, the record shows the prosecutor made
improper statements when addressing the jury. Notwithstanding the
objectionable nature of the prosecutor’s comments, these comments were
not so pervasive as to deny the defendant a fair trial. The defendant’s
ineffective-assistance-of-counsel claims are not preserved.
Finding no basis for reversal, we affirm the defendant’s conviction and
sentence.
AFFIRMED.