Opinion
No. 5-666 / 05-0072
Filed October 26, 2005
Appeal from the Iowa District Court for Polk County, Artis I. Reis, Judge.
The State appeals from a judgment granting Antonio Speed's application for postconviction relief. REVERSED.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, John P. Sarcone, County Attorney, and Robert DiBlasi, Assistant County Attorney, for appellant.
Tiffany Koenig of Kragnes, Tingle Koenig, P.C., Des Moines, for appellee.
Heard by Sackett, C.J., and Miller and Eisenhauer, JJ.
On December 16, 2004, on Antonio Speed's application for postconviction relief, the district court granted Speed a new trial, after concluding the assistant county attorney posed questions to him that were impermissible under State v. Graves, 668 N.W.2d 860, 873 (Iowa 2003). The State appeals. After reviewing the arguments of counsel and the record made in the district court, we reverse the judgment of the district court.
Background
On July 6, 2002, Officer Michael Coughlin of the Des Moines Police Department was in uniform and on patrol in what the record describes as a "high crime area" in Des Moines when he observed Antonio Speed running toward a vacant lot. Coughlin observed Speed glance over his shoulder on two occasions. He also observed an object that appeared to be a gun or a car stereo face plate in Speed's left hand. At that time, Coughlin stopped Speed and asked him to put his hands on the hood of the patrol car. When Speed did so, Coughlin noticed the object in Speed's hand was a cell phone and charger. He also noticed Speed had been carrying a plastic bag that appeared to contain rock cocaine.
While Coughlin was attempting to place handcuffs on Speed, Speed hit Coughlin in his chest and ran toward the vacant lot. Coughlin chased Speed into an alley and tackled him. While Coughlin was attempting to place handcuffs on Speed, Speed rolled out and grabbed for Coughlin's weapon. Coughlin rolled over and placed both hands on his holster. Speed ran toward Coughlin's patrol car, and Coughlin saw Speed knock the cell phone off the hood of the car.
Coughlin continued to chase Speed and eventually subdued him, sustaining several injuries (including a broken bone in his hand) in the process. The crack cocaine had been taken from the hood of the patrol car and was recovered with the assistance of a canine unit near where Speed was eventually subdued.
On August 13, 2002, the State filed a trial information accusing Mr. Speed of (1) possession of a controlled substance with intent to deliver, in violation of Iowa Code section 124.401(1)(c)(3) (2001); (2) assault on a peace officer with the intent to inflict serious bodily injury, in violation of section 708.3A(1); and (3) disarming a peace officer, in violation of sections 708.13(1) and 708.13(2). The court appointed counsel for Mr. Speed. Prior to trial, Mr. Speed asked that new counsel be appointed. When the court informed him that he could not have counsel of his choosing, he asked to be allowed to represent himself. Speed had previously represented himself in a drug possession case, and obtained a not guilty verdict. The court granted his request, with current counsel remaining as stand-by counsel.
The case proceeded to trial. Coughlin testified as set forth above. Officer Keith Hoferman testified (1) the bag recovered at the scene contained 2.93 grams of cocaine, and (2) that amount was inconsistent with possession for personal use.
Speed testified at trial, disputing Coughlin's testimony. He stated he did not have what he described as an "official altercation" with Coughlin. He also denied the crack cocaine produced in court was in his possession. On cross examination and after Speed stated he did not strike Coughlin in the chest, the prosecutor twice asked the following question: "The officer is lying?" Speed raised no objections to these questions.
A jury returned a guilty verdict on all counts, and the court imposed its sentence on December 2, 2002. Speed appealed. Appellate counsel filed a motion to dismiss under Iowa Rule of Appellate Procedure 6.104, which Speed resisted. Our supreme court granted the motion and dismissed the appeal on October 1, 2003.
Although Graves was decided after the court imposed Speed's sentence, we have applied it retrospectively in numerous, unpublished opinions, and the State does not argue Graves should be applied prospectively only.
Speed filed an application for postconviction relief on March 15, 2004, asserting multiple bases for relief. Appointed counsel filed an amended application, seeking relief based on the Graves violations. Relying on only that ground, the court granted Speed's application. The State appeals.
Scope and Standard of Review
We conduct a de novo review of claims of ineffective assistance of counsel raised in an application for postconviction relief. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). To prevail on his application, Mr. Speed must prove both (1) his counsel breached one or more essential duties, and (2) he suffered prejudice due to those breaches. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2065, 80 L. Ed. 2d 674, 693 (1984).
We give weight to the trial court's findings of fact, but are not bound by them. Iowa R. App. P. 6.14(6)( g).
Error Preservation
The State argues Speed failed to preserve error when he failed to raise this issue in his resistance to appointed counsel's Rule 6.104 motion. The State raised this issue below; however, the district court did not address it. To preserve this issue for appeal, the State was obligated to seek a ruling from the district court by filing a post-ruling motion. Bill Grunder's Sons Constr., Inc. v. Ganzer, 686 N.W.2d 193, 197-98 (Iowa 2004). As it failed to do so, the State did not preserve its error-preservation argument for our review. See, e.g., Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995) ("Issues must ordinarily be presented to and passed upon by the trial court before they may be raised and adjudicated on appeal.").
The State argues it sufficiently preserved error by raising the issue before the district court, and asserts no district court ruling was necessary. We disagree. As noted by the State, we may affirm on grounds raised in but not decided by the district court. See DeVoss v. State, 648 N.W.2d 56, 61 (Iowa 2002). Although there is language in DeVoss noting the supreme court had reversed on grounds not decided by the district court, see id. (citing Fencl v. City of Harper's Ferry, 620 N.W.2d 808, 811-12, 818-19 (Iowa 2000)), we believe later cases foreclose reliance on that brief, passing reference in DeVoss. See Otterberg v. Farm Bureau Mut. Ins. Co., 696 N.W.2d 24, 28 (Iowa 2005) (stating reversal may only be predicated on an issue "presented and decided by the district court").
The State further argues the district court necessarily overruled its error preservation argument by implication when it addressed the merits of Speed's application. We disagree. We cannot see how the State's error preservation defense is so entwined with the merits of Speed's application that considering the latter necessarily overruled the former by implication.
Discussion
The district court granted a new trial to Speed after concluding Speed had turned over his defense to standby counsel, who had a duty to assert prosecutorial misconduct in a motion for new trial. The trial court concluded counsel was ineffective in failing to do so. The trial court further concluded the Graves violations in Speed's trial "entirely spoiled the trial" and entitled him to a new trial. The State takes issue with both conclusions. We address each in turn.
I.
For sake of discussion, we assume Speed had, at some point in his trial, relinquished his pro se status. Even if this assumption were true, we conclude Speed was not entitled to postconviction relief, for he did not raise any timely objection to the prosecutor's concededly improper questions.
The State does not challenge the district court's finding that standby counsel took over Speed's defense at some point well after the Graves violations. We note, however, that in nearly all instances of standby counsel's actions relied on by the district court, standby counsel was acting at Speed's express request or direction. We thus question whether this particular finding by the district court has support in the record.
The district court wrote: "Counsel was obligated to file any post-trial motions that were necessary, including a new trial motion based on the Graves violation." If counsel had done so, however, the Graves violation would not have been raised in a timely manner. Our supreme court has stated, in the context of complaints about prosecutorial misconduct, "a motion for new trial is not a substitute for objecting at the time of the offending conduct." State v. Romeo, 542 N.W.2d 543, 552 (Iowa 1996) (alleged prosecutorial misconduct in closing argument).
Since objections to prosecutorial misconduct may not be first raised in a motion for new trial, we ordinarily would analyze the failure to timely raise objections to prosecutorial misconduct through an ineffective-assistance-of-counsel lens. Graves, 668 N.W.2d at 868-69. In this case, however, Speed was representing himself at all times during which a timely objection could be made. He is barred from claiming ineffective assistance of counsel. In a nearly identical situation, our supreme court stated:
The defendant is not entitled to have it both ways. Stated otherwise, the defendant cannot knowingly and intelligently make an election to proceed pro se and then, having lost his trial on the merits, seek a reversal on appeal by claiming ineffective assistance of counsel.
State v. Hutchison, 341 N.W.2d 33, 42 (Iowa 1983). This rule, when applied to the facts of the present case, forecloses the relief sought by Speed. The district court's decision granting such relief must be reversed.
Speed apparently argues there should be an exception to normal error preservation rules when a defendant challenges a Graves violation. We disagree. The supreme court's language in Graves, Romeo, and Hutchinson leaves no room in which to locate such an exception.
II.
Even if we were to reject the State's argument based on Hutchinson, we would still reverse the district court's judgment, as we conclude Speed has failed to show the Graves violations were so severe that he was denied a fair trial.
Under Graves, we are to consider the following five factors in determining whether a prosecutor's improper conduct denied a defendant a fair trial:
(1) the severity and pervasiveness of the misconduct; (2) the significance of the misconduct to the central issues of 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 869 (citations omitted). When those factors are considered, especially the first and third factors, we conclude the defendant was not denied a fair trial. Significantly, the prosecutor's comments were brief and isolated. Moreover, we conclude the State's evidence was strong. After reviewing the trial record presented, we are not convinced the credibility battle between Coughlin and Speed was as close as the district court concluded it to be. On our de novo review, we find the credibility issue was not so close that the improper questions "entirely spoiled the trial." We conclude the prosecutor's improper questions did not deprive Speed of a fair trial. State v. Stewart, 691 N.W.2d 747, 750-51 (Iowa Ct.App. 2004).
Even though we agree with the State on this issue, some comment upon the State's argument is in order. First, the State apparently argues that an isolated Graves violation can never deprive a defendant of a fair trial. Second, the State further argues a Graves violation only occurs when the jury appears to base its decision solely on the improper questioning. In other words, according to the State, if the jury's verdict is at all explainable by reference to the evidence, the defendant has still received a fair trial, no matter how severe the prosecution's misconduct may have been. We conclude both arguments, while arguably based on language from Graves read in isolation, are inconsistent with the five-part test announced in Graves and set forth above. First, while isolated acts of misconduct will usually not deprive a defendant of a fair trial, the multifactor Graves test leaves open the possibility of so concluding in closely balanced cases. Likewise, we conclude the State's second argument is entirely inconsistent with the Graves multifactor test.
Conclusion
We reverse the judgment of the district court.