State of Iowa v. Nathan Anthony Walter ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-1339
Filed December 9, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
NATHAN ANTHONY WALTER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Todd A Geer,
Judge.
The defendant appeals his conviction for willful injury causing serious
injury while in the immediate possession of a dangerous weapon. AFFIRMED.
Alfredo Parrish and Andrew Dunn of Parrish, Kruidenier, Dunn, Boles,
Gribble, Gentry, Brown & Bergmann, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik and Alexandra Link,
Assistant Attorneys General, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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MCDONALD, Judge.
On November 27, 2012, while drinking in a bar, Nathan Walter came up
behind Craig Kriener and smashed a glass against the side of Kriener’s head.
Broken glass sliced Kriener’s jugular vein and face. Walter immediately left the
bar and left Kriener in a pool of blood. Kriener was rushed to the emergency
room, underwent surgery, and spent three days in the intensive care unit. He
suffered permanent scarring and nerve damage. The assault was captured on
the bar’s video surveillance system and was witnessed by numerous bar patrons.
At trial, Walter asserted a defense of intoxication. The jury rejected the defense
and found Walter guilty of willful injury causing serious injury and found Walter
was in the immediate possession of a dangerous weapon. Walter filed a motion
for new trial and motion in arrest of judgment, both of which the district court
overruled. Walter stipulated to two prior felony convictions, and the district court
entered judgment on the verdict and sentenced Walter as a habitual offender to
an indeterminate term of incarceration not to exceed fifteen years. In this direct
appeal, Walter raises numerous challenges to his conviction.
I.
Walter first challenges the sufficiency of the evidence supporting his
conviction. We review challenges to the sufficiency of the evidence for correction
of legal error. See State v. Edouard, 854 N.W.2d 421, 431 (Iowa 2014). “In
reviewing challenges to the sufficiency of evidence supporting a guilty verdict,
courts consider all of the record evidence viewed in the light most favorable to
the State, including all reasonable inferences that may be fairly drawn from the
3
evidence.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). We will uphold
a verdict if there is substantial evidence to support it. See id. “Evidence is
considered substantial if, when viewed in the light most favorable to the State, it
can convince a rational jury that the defendant is guilty beyond a reasonable
doubt.” Id. But “[e]vidence that raises only suspicion, speculation, or conjecture
is not substantial evidence.” State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997)
(internal quotation marks omitted).
As relevant here, the State was required to prove Walter acted with the
specific intent to cause serious injury. See Iowa Code § 708.4(1) (2011) (“Any
person who does an act which is not justified and which is intended to cause
serious injury to another commits willful injury, which is punishable as follows: 1.
A class “C” felony, if the person causes serious injury to another.”); State v.
Hickman, 623 N.W.2d 847, 852 (Iowa 2001) (explaining the “willful-injury statute”
required the State to prove “the defendant intended to cause serious injury to the
victim (specific intent)”); State v. Rowley, No. 07-0168, 2008 WL 4725291, at *3
(Iowa Ct. App. Oct. 29, 2008) (“The crime of willful injury has as an element the
specific intent to cause serious injury to another.”). In Iowa, “specific intent”
means to undertake an act with the intent to “to do some further act or achieve
some additional consequence.” Eggman v. Scurr, 311 N.W.2d 77, 79 (Iowa
1981).
Walter asserted a defense of intoxication. The code provides:
The fact that a person is under the influence of intoxicants or drugs
neither excuses the person’s act nor aggravates the person’s guilt,
but may be shown where it is relevant in proving the person’s
specific intent or recklessness at the time of the person’s alleged
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criminal act or in proving any element of the public offense with
which the person is charged.
Iowa Code § 701.5. The defense of intoxication is a limited one. “[B]efore
intoxication [can] prevent a finding of specific intent, the offender not only had to
be intoxicated, but so intoxicated that he or she could no longer reason and was
incapable of forming a felonious intent.” State v. Guerrero Cordero, 861 N.W.2d
253, 259 (Iowa 2015). This is a fairly high threshold: “Mental disability, arising
from the use of intoxicants, is a matter of degree. Partial drunkenness does not
make impossible the formation of said criminal object. Therefore, the
‘intoxication’ or ‘drunkenness’ must be to the extent that the designing or framing
of such purpose is impossible.” Id.
Walter contends his voluntary intoxication precluded him from forming the
specific intent to cause Kriener serious injury. The evidence shows on
November 27, 2012, Walter and a friend began drinking beer around 3:00 p.m. at
Walter’s house. Walter’s friend testified he and Walter either shared a twelve
pack of beer or drank a twelve pack of beer each. Regardless, according to
Walter’s friend, they finished drinking at approximately 6:00 p.m. Walter’s friend
went home, and Walter drove himself to a local bar to meet friends. After arriving
at the bar, Walter continued to drink with his friends, including Kurt Walker. Later
that evening Walker and Kriener got into a verbal dispute while playing pool.
While Walker and Kriener were standing face-to-face and speaking with each
other, Walter walked across the bar and smashed a bar glass against Kriener’s
head. Walker and Walter immediately left the bar. Walker called his mother, a
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registered nurse, to see if she could treat injuries to Walter’s hand. Ms. Walker
met with Walker and Walter and drove Walter to the hospital.
Several witnesses testified regarding Walter’s level of intoxication.
Walter’s friend testified to the quantity of beer Walter drank in the afternoon prior
to leaving for the bar. Jacob McCraney testified Walter was excessively drunk.
Several of Walter’s friends testified to the same. Walter’s wife testified Walter
took at least two of her Xanax pills earlier in the day prior to departing for the bar.
There was also testimony Walter was drinking heavily, slurring his words, and
had bloodshot eyes. Walter’s expert witness, Dr. Newring, testified the
combination of alcohol and Xanax rendered Walter sufficiently intoxicated to
preclude him from forming the specific intent necessary to commit the offense.
The State did not present any contrary expert evidence.
Despite the foregoing, when viewed in the light most favorable to the
State, we have little trouble concluding there is substantial evidence Walter was
capable of forming the specific intent to cause Kriener serious injury. The
prosecutor effectively cross-examined the witnesses who testified Walter drank
excessively prior to going to the bar and was excessively drunk at the bar.
Through cross-examination, the prosecutor discredited Walter’s wife’s testimony
that Walter took her Xanax pills on the day of the assault. The information
regarding the Xanax was inconsistent with prior police or medical reports. Her
testimony also was inconsistent with her prescription use and fulfillment dates.
There was also testimony Walter was not overly intoxicated. The bartender
testified she had worked as a bartender for several years and was experienced in
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determining when patrons had too much to drink. She testified she served
Walter several dinks and had no concern regarding his intoxication level. She
testified he appeared awake and alert. Walter’s friend, Amanda Hall, testified
Walter did not need assistance in moving around and Walter was able to hold a
conversation. The investigating officer who interviewed Walter at the hospital
testified Walter “seemed a little bit intoxicated” but was awake, alert, and
understood events. The jury also was able to view the assault on the
surveillance video admitted into evidence. The surveillance video shows Walter
was able to walk across the bar without any impairment and strike Kriener. After
striking the victim, Walter left the bar without any apparent impairment.
Walter makes much of the fact the State did not call an expert witness to
rebut Dr. Newring’s testimony. The argument is unavailing. It was established
during cross-examination the doctor did not meet with the defendant at the
relevant time. It was also established the doctor did not have any toxicology
reports from the relevant time. Dr. Newring admitted his conclusions were based
on the predicate information provided by Walter’s counsel that Walter had drank
eighteen beers and taken a certain quantity of Xanax. The predicate information
was greatly disputed, and the jury was free to conclude Walter was not so
impaired. Even if the jury had believed Walter had drunk a significant quantity of
alcohol mixed with Xanax, the jury was still within its province to reject Dr.
Newring’s opinion drawn from those facts. “The fact finder is not obliged to
accept expert testimony, even if it is uncontradicted, although testimony should
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not be arbitrarily and capriciously rejected.” State v. Brandes, No. 06-0576, 2007
WL 4553478, at *4 (Iowa Ct. App. Dec. 28, 2007).
We also conclude there was substantial evidence Walter in fact had the
specific intent to cause Kriener serious injury. Although there was some verbal
sparring between Walker and Kriener, there was no immediate threat of violence
from which it could be inferred Walter was merely reacting to a violent situation.
Instead, Walter walked across the bar without any apparent impairment. He
approached the victim from behind so the victim was unable to protect himself.
There was testimony from which the jury could have found Walter picked up the
glass off of a table while walking across the bar, from which it could be inferred
he intended to use the glass as a weapon to inflict serious injury. The mere use
of a dangerous weapon supports an inference Walter intended to cause death or
serious injury. See State v. Ambrose, 861 N.W.2d 550, 560 (Iowa 2015)
(explaining intent may be inferred “from the mere use of the instrument”); State v.
Smith, 242 N.W.2d 320, 326 (Iowa 1976) (concluding “malice aforethought may
be inferred from defendant's use of . . . a deadly weapon” in a second-degree-
murder prosecution); State v. Hephner, 161 N.W.2d 714, 720 (Iowa 1968)
(stating that use of a deadly weapon supports inference of intent to commit
murder necessary for a conviction of assault with intent to commit murder).
Walter smashed the drinking glass against Kriener’s head with sufficient force to
shatter the glass and cause Kriener permanent injury. The savagery of the blow
and seriousness of the resulting injury support an inference of intent to cause
serious injury. See State v. Bell, 223 N.W.2d 181, 184 (Iowa 1974) (“[T]he extent
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of injury may be taken into consideration in determining defendant’s intent.”);
State v. Alexander, No. 12-0715, 2013 WL 535741, at *7 (Iowa Ct. App. Feb. 13,
2013) (holding blow to the head with cane done with sufficient force to crack the
cane and lacerate the forehead supported inference of “intent to cause death or
serious injury”). In short, the jury was free to infer the defendant intended the
natural consequences of his acts. See State v. Evans, 671 N.W.2d 720, 724–25
(Iowa 2003) (noting a court may infer intent from the normal consequences of a
party’s actions); State v. Rinehart, 283 N.W.2d 319, 322–23 (Iowa 1979)
(discussing the inference a person intends the natural consequences of voluntary
acts).
“Inherent in our standard of review of jury verdicts in criminal cases is the
recognition that the jury [is] free to reject certain evidence and credit other
evidence.” Sanford, 814 N.W.2d at 615 (citation and internal quotation marks
omitted). In particular, the question of whether the defendant was so intoxicated
as to be unable to form the requisite intent is “entrusted to the jury based on the
facts of each case.” Guerrero Cordero, 861 N.W.2d at 259. It is immaterial the
State’s evidence was circumstantial. See Iowa R. App. P. 6.904(3)(p) (“Direct
and circumstantial evidence are equally probative.”). Intent is seldom proven by
direct evidence. See State v. Grant, 722 N.W.2d 645, 647–48 (Iowa 2006)
(“Because it is difficult to prove intent by direct evidence, proof of intent usually
consists of circumstantial evidence and the inferences that can be drawn from
that evidence.”); State v. Nance, 533 N.W.2d 557, 562 (Iowa 1995) (“Intent is a
state of mind; it may be established by circumstantial evidence and by inferences
9
drawn from that evidence.”). Walter presented his defense to the jury, and the
jury rejected his defense. We are disinclined to interfere with the jury’s verdict.
See Brandes, 2007 WL 4553478, at *4 (holding trial court was free to reject
expert testimony the defendant lacked the capacity to form specific intent).
II.
A criminal defendant has a constitutional and statutory right to be
personally present at all critical phases of the proceedings. See U.S. Const.
amend. VI and XIV; Iowa R. Crim. P. 2.27(1); State v. Rogerson, 855 N.W.2d
495, 505 (Iowa 2014); State v. Wise, 472 N.W.2d 278, 279 (Iowa 1991). The
right is grounded in both the Confrontation Clause and the Due Process Clause.
See Rogerson, 855 N.W.2d at 505. Although the defendant has a right to be
present for all critical stages of the proceedings, the right to be present may be
waived. See State v. Mensah, 424 N.W.2d 453, 455 (Iowa 1988). If not waived,
prejudice may be presumed from the defendant's absence. See State v. Atwood,
602 N.W.2d 775, 781 (Iowa 1999). This presumption may be rebutted, however,
under a harmless-error analysis. See id. A defendant’s absence thus will not
always necessitate reversal. See Wise, 472 N.W.2d at 279. “To establish
harmless error, the State must prove beyond a reasonable doubt the error
complained of did not contribute to the verdict.” State v. Walls, 761 N.W.2d 683,
686 (Iowa 2009).
Walter contends his right to be present at a critical stage of the proceeding
was violated when the district court allowed the jury to re-watch the surveillance
video in his absence but in the presence of the prosecutor and the judge. After
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the case had been submitted to the jury, the jury requested permission to re-
watch the surveillance video that had been admitted into evidence. The district
court contacted the prosecutor and defense counsel prior to taking any action.
Both parties agreed the jury could re-view the surveillance video in the
defendant’s absence. In the judge’s presence, the prosecutor operated the
audiovisual equipment to allow the jury to view the exhibit. This is the same
procedure the parties used during the course of trial. The re-viewing of the
surveillance video was reported in the defendant’s absence. The record reflects
the prosecutor operated the audiovisual equipment without any comment or
remarks to the jury.
“Our error preservation rule requires that issues must be presented to and
passed upon by the district court before they can be raised and decided on
appeal.” State v. Manna, 534 N.W.2d 642, 644 (Iowa 1995). After closing
arguments, the parties made a record regarding the exhibits to be given to the
jury to view during deliberation. Walter did not object to the jury having the
surveillance video to view during deliberation. The district court contacted the
parties upon receiving the jury’s request to re-watch the surveillance video, and
the parties consented to the procedure used. After the jury had viewed the
exhibit but prior to the district court reading the verdict, the district court
discussed with Walter and his counsel the procedure used to replay the video for
the jury. Walter’s trial counsel stated, “I have discussed it with Mr. Walter, and
we don’t have any objections to that.” After the verdict was read in open court,
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Walter made no objection to the procedure used. Walter did not raise this issue
in either of his post-trial motions.
In a very similar case, the Washington Court of Appeals concluded the
defendant effectively waived any challenge to the jury’s re-listening to audiotapes
outside of the defendant’s presence when the audiotapes had been admitted into
evidence and the defendant made no contemporaneous objection to the
procedure:
Bowers contends that the trial court violated his right to be present
during critical stages of his trial when it played the tapes for the jury
outside his presence and the presence of his counsel. He
acknowledges that his counsel agreed to the playing of the tapes at
the request of the jury without the presence of counsel, but argues
that he did not waive his right to be present. . . . We also note that
the record contains no indication that Bowers objected to the
court’s statement that it would allow the jury to listen to the tapes
outside of his presence. The trial court therefore lacked the
opportunity to address the issue of prejudice. Because Bowers
does not meet the threshold requirement of establishing the
possibility of prejudice, he cannot claim that the alleged error
caused him harm.
State v. Bowers, No. 54168-4-I, 2005 WL 2420426, at *2 (Wash. Ct. App. Oct. 3,
2005). Similarly, because Walter did not object to the procedure used, we
conclude he has effectively waived any challenge to the procedure used and
otherwise failed to preserve error. See State v. Mitchell, 757 N.W.2d 431, 435
(Iowa 2008) (“Issues not raised before the district court, including constitutional
issues, cannot be raised for the first time on appeal.”); State v. Rasmus, 90
N.W.2d 429, 430 (Iowa 1958) (“A party to a criminal proceeding . . . will not be
permitted to allege an error in which he himself acquiesced, or which was
committed or invited by him, or was the natural consequence of his own
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actions.”); State v. Jensen, 66 N.W.2d 480, 484 (Iowa 1954) (“It is sound law and
logic that a party may not sit by and permit the court to commit inadvertent error
without protest, and then complain for the first time in his motion for a new trial or
in the appellate court.”).
III.
Walter raises several claims of ineffective-assistance-of-counsel. Such a
claim is an “exception to normal error-preservation rules.” State v. Ondayog, 722
N.W.2d 778, 784 (Iowa 2006). To establish a claim of ineffective assistance,
Walter must demonstrate “(1) his trial counsel failed to perform an essential duty,
and (2) this failure resulted in prejudice.” State v. Straw, 709 N.W.2d 128, 133
(Iowa 2006). To establish counsel failed to perform an essential duty, Walter
must establish “the attorney performed below the standard demanded of a
reasonably competent attorney.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa
2001). The attorney’s performance is measured against “prevailing professional
norms,” and it is presumed the attorney performed competently. See id. “A
claim of ineffective assistance is more likely to prevail when counsel lacked
diligence as opposed to the exercise of judgment.” State v. Polly, 657 N.W.2d
462, 465 (Iowa 2003). To establish prejudice, the defendant must show trial
counsel’s allegedly deficient performance caused a complete “breakdown in the
adversary process” such that his conviction is unreliable. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). This requires a showing “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Collins v. State, 588 N.W.2d 399,
13
402 (Iowa 1998) (citation and internal quotation marks omitted). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome of
the defendant's trial.” Id. (citation and internal quotation marks omitted). “In
determining whether this standard has been met, we must consider the totality of
the evidence, what factual findings would have been affected by counsel’s errors,
and whether the effect was pervasive or isolated and trivial.” State v. Clay, 824
N.W.2d 488, 496 (Iowa 2012). A claim for ineffective assistance of counsel is
reviewed de novo. See Iowa R. App. P. 6.907; State v. Finney, 834 N.W.2d 46,
49 (Iowa 2013).
A.
Walter contends his trial counsel was ineffective for failing to object to the
jury re-viewing the surveillance video outside Walter’s presence and for failing to
request an instruction the jury should not draw a negative inference from Walter’s
absence during the re-viewing. While “the better practice [would be] for counsel
to always obtain the client’s presence or for the court to obtain an express waiver
of the defendant’s presence,” Everett v. State, 789 N.W.2d 151, 159 (Iowa 2010),
Walter failed to establish counsel breached an essential duty by failing to object
to the procedure used or by failing to request a curative instruction and failed to
establish prejudice.
It is not disputed it was within the court’s sound discretion to allow the jury
to take to the jury room for further examination all papers and exhibits in
evidence. See Iowa R. Crim. P. 2.19(5)(e) (“Upon retiring for deliberations the
jury may take with it all papers and exhibits which have been received in
14
evidence. . . .”). The parties agreed to this prior to the time the jury asked to re-
view the surveillance video. As a general rule, the defendant has no right to
monitor the jury’s deliberations while examining evidence. See State v.
Gathercole, 553 N.W.2d 569, 575 (Iowa 1996) (holding the district court did not
abuse its discretion in allowing the jury to use recorder to replay audio tape of
interview during deliberations); State v. Johnson, No. 01-1644, 2003 WL
1966962, at *5 (Iowa Ct. App. Apr. 30, 2003) (holding trial counsel did not breach
an essential duty by not objecting to jury’s use of recorder to listen to audiotape
during deliberations). There is thus no issue with the jury re-viewing a video
already admitted into evidence.
The question is whether the defendant’s presence was required when the
jury re-viewed the surveillance video in the presence of the judge and the
prosecutor, who was present solely for the purpose of operating the equipment,
where neither the prosecutor nor the judge had any substantive communication
with the jury. There is some authority indicating the defendant did not need to be
present. See, e.g., United States v. Sobamowo, 892 F.2d 90, 96 (D.C. Cir. 1989)
(holding there was no reversible error when defense counsel and judge, but not
defendants, were present when an audio tape was replayed for the jury during
deliberations); Atwood v. Mapes, 325 F. Supp. 2d 950, 975 (N.D. Iowa 2004)
(stating the “presence of a defendant is a condition of due process to the extent
that a fair and just hearing would be thwarted by his absence, and to that extent
only”); Banks v. State, 884 N.E.2d 362, 371 (Ind. Ct. App. 2008) (holding
“appellate counsel could not have provided ineffective assistance of counsel by
15
failing to argue that Banks’ rights had been violated when he was not permitted
to be present when the jury reviewed the tape during deliberations”); State v.
Wembley, 712 N.W.2d 783, 796 (Minn. Ct. App. 2006) (stating “defendant does
not have a constitutional right to be present during jury deliberations when the
jury reviewed exhibits submitted into evidence” and “the district court did not
commit reversible error when it allowed the jury to replay the videotape exhibit
outside of [the defendant’s] presence”); State v. Fehr, 341 P.3d 363, 368 (Wash.
Ct. App. 2015) (“We hold that where audio evidence was admitted at trial and
played to the jury with the defendant present, a subsequent proceeding to
determine whether to replay that audio evidence during jury deliberations is not a
time during trial where the defendant’s substantial rights may be affected.”).
We need not resolve this question, however, because Walter has not
articulated Strickland prejudice. In this context, the defendant must show that
had he been present or had the jury been instructed not to draw a negative
inference from his absence, there was a reasonable probability of a different
outcome. See Everett, 789 N.W.2d at 159-60. Walter has not identified the
prejudice allegedly suffered. Walter has not cited any authority for the
proposition he suffered any prejudice. He simply asserts he was prejudiced.
“[C]onclusory claims of prejudice are not sufficient to satisfy the prejudice
element.” State v. Tate, 710 N.W.2d 237, 241 (Iowa 2006). See also Iowa R.
App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of an issue may be
deemed waiver of that issue.”).
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Independently, we conclude Walter has not established Strickland
prejudice. “Even if a defendant shows that particular errors of counsel were
unreasonable . . . the defendant must show that they actually had an adverse
impact on the defense.” Tate, 710 N.W.2d at 240. There is no such showing
here. The district court acted within its discretion. See Iowa R. Crim P.
2.19(5)(e). The jury contacted the district court only because it needed
assistance in viewing the surveillance video. The district court specifically
explained to the jury: “Ladies and gentlemen, I need to inform you that we cannot
communicate with you. You’re deliberating now, and so you won’t hear anything
from Mr. Williams. Mr. Engels and his client are not here because Mr. Engels is
unavailable . . . we won’t be able to answer any questions you might have.” The
jury watched the surveillance video in the presence of the judge. Neither the
judge nor the prosecutor made any substantive comment while the jury watched
the video. The tape had been played for the jury multiple times during trial and
discussed during closing argument. There is no reasonable probability the jury
would have reached a different result had the defendant been present. See
Everett, 789 N.W.2d at 160-61 (holding no prejudice when court instructed jury
outside the defendant’s presence); Erving v. State, No. 11-0582, 2013 WL
4039464, at *1-2 (Iowa Ct. App. Jul. 24, 2013) (holding the defendant did not
establish Strickland prejudice where the defendant was not present during guilty-
plea proceeding for misdemeanor offense); see also Pilgrim v. Pineda, No. 2:10-
CV-761, 2011 WL 6967997, at *26 (S.D. Ohio Nov. 4, 2011) (“Even if the trial
court’s communication with the jury outside of defendant’s presence were error,
17
defendant failed to demonstrate that he was prejudiced when not only did
defense counsel agree with the trial court’s response to the jury, but the court’s
communication was brief and nonsubstantive in nature.”); People v. Kinsey, No.
322145, 2015 WL 6161744, at *2 (Mich. Ct. App. Oct. 20, 2015) (holding non-
substantive communication with jury outside the presence of the defendant was
not prejudicial); State v. Johnson, No. 03 CA 118, 2004 WL 1812731, at *1-2
(Ohio Ct. App. Aug. 11, 2004) (holding the defendant suffered no prejudice
where the court had non-substantive communication with the jury outside the
defendant’s presence).
B.
Walter next contends his trial counsel was ineffective in failing to object to
several instances of prosecutorial misconduct. We apply the following standard
to assess a prosecutorial misconduct claim raised within an ineffective-
assistance-of-counsel claim:
In analyzing the defendant’s ineffective-assistance-of-
counsel claim, our first step is to assess whether the record
demonstrates, as a matter of law, the existence or absence of a
meritorious due process violation. Thus, we must consider whether
the prosecutor was guilty of misconduct in the particulars identified
by [defendant] and whether the record shows [defendant] was
prejudiced, i.e., denied a fair trial.
If the record is insufficient to make this determination, we
must preserve the defendant’s ineffective-assistance claim for a
fuller development of the pertinent facts. If, however, the record
shows that either element is lacking as a matter of law, we will
affirm [defendant’s] conviction without preserving his due process
claim for a later postconviction-relief action.
State v. Graves, 668 N.W.2d 860, 869–70 (Iowa 2003). A party is entitled to a
new trial based on prosecutorial misconduct only if the party has shown
18
prejudice. See State v. Bowers, 656 N.W.2d 349, 355 (Iowa 2002). Relevant
factors include: “(1) the severity and pervasiveness of the misconduct; (2) the
significance of the misconduct to the central issues in the case; (3) the strength
of the State’s evidence; (4) the use of cautionary instructions or other curative
measures; and (5) the extent to which the defense invited the misconduct.”
Graves, 668 N.W.2d at 870 (internal citations omitted). “The most important
factor under the test for prejudice is the strength of the State’s case.” State v.
Carey, 709 N.W.2d 547, 559 (Iowa 2006). If the defendant establishes a
meritorious due process claim, we must then consider that claim within the
context of an ineffective-assistance of counsel claim by considering whether trial
counsel’s decision to forego objection or request new trial was a breach of an
essential duty and whether Strickland prejudice resulted.
1.
Walter argues the prosecutor engaged in misconduct while cross-
examining Walter’s wife. The defendant complains the prosecutor used leading
questions to paint the impression Walter’s wife would say anything to exonerate
her husband. Walter’s complaint regarding the prosecutor’s examination of
Walter’s wife is without merit. Leading questions are permitted on cross-
examination. See Iowa R. Evid. 5.611(c) (“Ordinarily leading questions should
be permitted on cross-examination.”). The prosecutor’s use of Walter’s wife’s
prior inconsistent statements was also permissible. See Iowa R. Evid. 5.613.
Walter has failed to establish a threshold showing of prosecutorial misconduct in
support of his ineffective-assistance claim, and his claim fails. See State v.
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Schneider, No. 14-1113, 2015 WL 2394127, at *4-6 (Iowa Ct. App. May 20,
2015) (holding the defendant’s claim of ineffective assistance failed absent a
threshold showing of misconduct).
2.
Walter also challenges the conduct of the prosecutor in examining Dr.
Newring. Walter contends the prosecutor’s questions regarding Dr. Newring’s
opinions in other, unrelated cases were irrelevant because the prosecutor failed
to lay foundation from which the jury could infer Dr. Newring’s opinions in the
other cases were unreliable. Walter also contends the prosecutor engaged in
misconduct by eliciting through cross-examination of Dr. Newring that Dr.
Newring was a paid expert witness who had not testified for the State for several
years. With respect to the first issue, even assuming the questions did not elicit
relevant information due to lack of foundation, the questions do not rise to the
level of prosecutorial misconduct. With respect to the latter issue, the fact that an
expert is paid is proper grounds for impeachment. See State v. Stewart, 691
N.W.2d 747, 751-52 (Iowa Ct. App. 2004) (holding “straightforward, non-
inflammatory” questioning of expert regarding past history and pattern of
testifying for party in criminal trial was proper cross-examination); Butman v.
Christy, 198 N.W. 314, 317 (Iowa 1924) (“It should require no citation of
authorities to establish the proposition that it is always permissible to show, on
cross-examination, the interest of the witness.”). The claims are without merit.
See Schneider, 2015 WL 2394127, at *2.
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3.
Walter challenges several statements the prosecutor made during closing
argument. A prosecutor is entitled to “some latitude” during closing arguments in
analyzing the evidence admitted at trial. See Graves, 668 N.W.2d at 874. 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. See id. The
prosecutor cannot assert a personal opinion, create evidence, or misstate the
law. See id. at 874, 879-80. “The governing principle does not preclude all
personalized remarks; it merely precludes those that do not appear to be based
on the evidence.” State v. Williams, 334 N.W.2d 742, 745 (Iowa 1983).
Walter contends the prosecutor engaged in misconduct when he used the
phrase “red herring” in reference to Walter’s argument that the police failed to
test his blood alcohol concentration. Walter contends the term “red herring” is
“undeniably pejorative.” The cases on which Walter relies are distinguishable. In
United States v. Holmes, 413 F.3d 770, 775 (8th Cir. 2005), the court held the
defendant was denied a fair trial where the prosecutor made improper
statements, including use of the phrase “red herring,” to create the impression
“defense counsel [was] conspiring with the defendant to fabricate testimony.”
The isolated statement here does not go that far. In State v. Campos, 309 P.3d
1160, 1175 (Utah Ct. App. 2013), the court held the prosecutor’s comments were
improper because the comments were directed at defense counsel. In contrast,
in this case the prosecutor’s statement was a comment on the defense’s theory
21
and the evidence, which is permissible. See Campos, 309 P.3d at 1175
(“However, referring to defense counsel’s theory as a red herring would not be
inappropriate so long as the reference could be classified as a comment on the
strength of the evidence and the inferences and deductions arising therefrom.”).
The defendant was not denied a fair trial by the prosecutor’s singular use of the
phrase “red herring.” The claim fails. See Schneider, 2015 WL 2394127, at *6.
Walter contends the prosecutor crossed the line by reemphasizing during
closing argument that Dr. Newring was a paid expert witness. This was not
improper argument. See State v. Comes, 62 N.W.2d 753, 757 (Iowa 1954) (“It is
of course the duty of a prosecuting officer to present the State’s cause zealously
and effectively within proper bounds.”). However, misconduct occurs when the
prosecutor seeks to attack a witness’s credibility “through unnecessary and
overinflammatory means that go outside the record or threaten to improperly
incite the passions of the jury.” Carey, 709 N.W.2d at 556. We are concerned by
the prosecutor’s arguably inflammatory statement regarding Dr. Newring’s
motivation to testify:
The doctor, who’s paid to be here, who has never testified in his
current position for the prosecutor in any criminal matter, what’s his
motive here? And I would say it’s a big dollar sign, folks. His
explanation, his bias for the opinion that he gives is a big dollar
sign.
The defendant cites numerous cases from other jurisdictions that give examples
of the prosecutor going too far in criticizing a paid expert. We need not discuss
or distinguish each case. The statement in this case, while at the edge of
propriety, is not as inflammatory as in the cases cited. We do make the following
22
observation, however: The motivation of the witness is a proper ground for
argument; inflammatory language is not a proper means to make the argument.
Walter also challenges the same statement on the ground that the
prosecutor gave his personal opinion on the evidence. It is improper for the
prosecutor to give his personal opinion regarding the evidence. See Williams,
334 N.W.2d at 744 (“Of course, counsel has no right to create evidence by his
argument nor interject his personal beliefs. It is for the jury to determine the logic
and weight of the conclusions drawn.”). We reject Walter’s argument that
counsel’s statement was a statement of personal belief. Under similar facts, our
court has concluded the prosecutor did not interject his personal beliefs into
closing argument by using the pronoun “I” during argument when the context
showed the prosecutor was referring to evidence admitted. See State v. Lindsey,
No. 10-1812, 2011 WL 6076544, at *4 (Iowa Ct. App. Dec. 7, 2011) (“While the
prosecutor’s use of the word ‘I’ was perhaps unfortunate, in this case the
statements made did not insinuate to the jury that his opinion was based on non-
record facts. Each remark was related to evidence the jury would hear or did
hear. . . . Thus, we cannot conclude that these statements amount to
prosecutorial misconduct.”).
Walter contends the prosecutor engaged in misconduct by asking the jury
to consider whether Walter’s witnesses would have testified the same way if this
were a different kind of case:
And I ask you, if this was an OWI case or public intoxication case,
would all of his buddies be coming in here saying how drunk he
was? I want you to ask yourself what their motive is here, why
they’re coming in here saying how drunk he was, because he’s got
23
nothing else, folks. . . . And then [Walter] parades his buddies and
his wife up here, this alleged use [of] the Xanax. Would they be
doing that if this was any other kind of case?”
Walter cites no authority supporting the proposition these statements constituted
prosecutorial misconduct. The issue is without merit.
Finally, Walter contends the prosecutor engaged in misconduct by
misstating the law during closing argument. During closing argument, the
prosecutor stated:
[D]o we have a mentally ill individual . . . incapable of forming
specific intent, who hits the guy who’s arguing with his buddy? Is
that a colossal coincidence? The guy who evades police, does he
know what’s going on? I submit to you that the obvious answer is
yes.
The defendant notes the instruction given to the jury provided intoxication is a
defense “when it causes a mental disability which makes the person incapable of
forming the specific intent. . . .” The defendant argues “mental illness” and
“mental disability” are distinct and the prosecutor effectively required the jury to
find the defendant had a mental illness. The prosecutor’s statement was a mere
stray remark, and the prosecutor did not rely on the purported distinction. Walter
cites no authority supporting the proposition this constituted prosecutorial
misconduct. The issue is without merit.
Even if the prosecutor had engaged in any misconduct, Walter has not
established he did not receive a fair trial. See Graves, 668 N.W.2d at 869
(“Thus, it is the prejudice resulting from misconduct, not the misconduct itself,
that entitles a defendant to a new trial.”). There was strong evidence of Walter’s
guilt. The challenged statements were isolated and not repeated as part of an
24
overall theme. The jury was instructed that it should base its verdict only on the
evidence and that the statements, arguments, questions, and comments by the
lawyers were not evidence. See State v. Musser, 721 N.W.2d 734, 756-57 (Iowa
2006) (finding defendant was not prejudiced where the jury was instructed “to
decide the defendant’s guilt or innocence from the evidence and the law in these
instructions, and that evidence did not include statements, arguments, and
comments by the lawyers” (alteration omitted)); State v. Reeves, No. 13-0908,
2014 WL 2884864, at *4-5 (Iowa Ct. App. Jun. 25, 2014) (holding the defendant
failed to establish prejudice where the evidence was strong and the jury was
properly instructed to consider only the evidence). Mere stray remarks or poorly
worded questions do not entitle the defendant to a new trial. “[W]e are faced with
the firmly established rule that misconduct of the prosecutor does not require a
new trial unless it appears to have been so prejudicial as to deprive defendant of
a fair trial.” State v. Mercer, 154 N.W.2d 140, 142 (Iowa 1967). A fair trial does
not necessarily mean an absolutely perfect trial. Walter’s trial counsel presented
a vigorous defense on Walter’s behalf. Walter received a fair trial.
C.
Walter contends his counsel should have objected to the testimony of the
police officer to the extent the officer provided narration regarding the events
captured on the video surveillance. Walter contends the testimony usurped the
role of the jury. As set forth below, Walter has not established prejudice.
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D.
Walter argues his counsel was ineffective in failing to request a jury
instruction regarding defense of another and reasonable force. Walter also
contends his trial counsel should have requested an instruction that Walter was
“under the influence.” See Iowa State Bar Ass’n., Iowa Criminal Jury Instruction
2500.5. While we do not believe the evidence was sufficient to require these
instructions and while we do not believe these instructions are consistent with the
law or the defense as presented, we preserve this claim for postconviction-relief
proceedings.
E.
We address a final issue common to each of the claims resolved in parts
III.A.-C. of this direct appeal: the failure to establish Strickland prejudice. See
Graves, 668 N.W.2d at 869 (providing the failure to prove prejudice is fatal to an
ineffective-assistance claim). Whether the claimed errors are considered
individually or cumulatively, we conclude Walter failed to establish Strickland
prejudice. See Clay, 824 N.W.2d at 501 (discussing cumulative prejudice). As
set forth above, the only issue for trial was whether Walter had the specific intent
to cause Kriener serious injury. There was overwhelming evidence from which
the jury could have inferred such intent, including: the testimony of the bartender
and investigating officer, both of whom testified Walter was alert and aware;
Walter’s ability to walk across the bar and strike the victim; Walter’s decision to
pick up a glass from a table while approaching the victim; Walter’s use of a
dangerous weapon in striking the victim; the severity of the injury; and Walter’s
26
ability to leave the bar and seek medical attention. Given these facts, there is no
reasonable probability the result of the proceeding would have been different
even assuming trial counsel breached an essential duty. See State v. White, 668
N.W.2d 850, 859-60 (Iowa 2003) (denying ineffective-assistance claim where
there was overwhelming evidence of specific intent to inflict serious injury); Sager
v. State, Nos. 9-477, 98-1108, 1999 WL 775941, at *1-2 (Iowa Ct. App. Sep. 29,
1999) (denying ineffective-assistance claim where there was overwhelming
evidence establishing specific intent, including the nature of the injuries).
IV.
We have considered each of the defendant’s claims and permutations of
the same. For the foregoing reasons, we affirm the defendant’s conviction and
sentence. We preserve for postconviction-relief proceedings Walter’s claim
regarding the failure to request certain jury instructions.
AFFIRMED.