JOHN GRAVES, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-225 / 06-0369
Filed May 23, 2007
JOHN GRAVES,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Michael D. Huppert,
Judge.
John Graves appeals the denial of his postconviction relief application.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Robert Ewald, Assistant Attorney
General, John P. Sarcone, County Attorney, and Michael T. Hunter, Assistant
County Attorney, for appellee State.
Heard by Mahan, P.J., and Eisenhauer and Baker, JJ.
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MAHAN, P.J.
John Graves appeals the denial of his postconviction relief application. He
claims he received ineffective assistance of counsel when his counsel failed to
object to prosecutorial misconduct. Graves also claims his trial, appellate, and
postconviction counsel rendered ineffective assistance when they failed to object
to (1) the State’s “golden rule” argument and (2) the jury instruction for felony
murder by willful injury. We affirm.
I. Background Facts and Proceedings
Graves was convicted of first-degree murder of Darlene Avant, a known
prostitute and drug user. He appealed his conviction, and we affirmed. State v.
Graves, No. 01-0629 (Iowa Ct. App. May 15, 2002). He now brings this action
for postconviction relief alleging he received ineffective assistance of counsel.
First, Graves claims his counsel should have objected to statements the
prosecutor made during closing argument. The statements are as follows:
(1) Now, [defense counsel] is going to say it is too embarrassing to
call the police when you’ve got a prostitute in your house. Ladies
and gentlemen, that’s so weak.
(2) Ladies and gentlemen, consider what he does after he kills her.
Everything he does is an attempt to cover up. He cleans up. He
uses bleach. He lies to his girlfriend. He lied to police. And I
submit he lies to you, ladies and gentlemen.
(3) Now let’s go back and look at the instruction on justification. . . .
You know, ladies and gentlemen, and I’m going to tell you right
now, you can’t believe a word this defendant says. He’s a
convicted felon and he’s got an interest in this case.
(4) And you know what? He is planning to go to work the next day.
He comes home and cleans up, tries to clean up the blood, lies
about it, does all those things. And do you think he is going to
come in here and tell you the truth? No. He didn’t tell the truth.
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Second, Graves argues his counsel should have objected to the “golden
rule” argument. During his closing argument, the prosecutor stated, “Ladies and
gentlemen, tell Mr. Graves with your verdict that she was more than just a
prostitute. Tell him with your verdict that she was someone’s friend, she was
someone’s daughter, she was someone’s sister.”
Defense counsel did not
object. Finally, he argues counsel should have objected to the jury instruction on
felony murder and willful injury. The jury was instructed on both first-degree
murder based on premeditation and malice aforethought pursuant to Iowa Code
sections 707.1, 707.2(1), and 707.2(2) (1999) and felony murder and willful injury
pursuant to sections 708.4 and 702.11. 1 The jury rendered a general verdict,
finding Graves guilty of first-degree murder.
The postconviction relief court determined the prosecutor’s first and third
statements did not rise to the level of misconduct. Further, it found Graves was
not prejudiced by the other statements. Finally, the court dismissed Graves’s
other challenges and denied his application for postconviction relief.
Graves
appeals.
II. Standard of Review
Generally, we review postconviction relief proceedings for errors at law.
Ledezma v. State, 626 N.W.2d 134, 131 (Iowa 2001).
However, when the
petitioner alleges ineffective assistance of counsel, we review that claim de novo.
1
Graves’s trial occurred prior to the supreme court’s holding in State v. Heemstra, 721
N.W.2d 549, 558 (Iowa 2006), in which the court stated: “[I]f the act causing willful injury
is the same act that causes the victim’s death, the former is merged into the murder and
therefore cannot serve as the predicate felony for felony-murder purposes.”
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Nguyen v. State, 707 N.W.2d 317, 322-23 (Iowa 2005); Collins v. State, 588
N.W.2d 399, 401 (Iowa 1998).
III. Merits
A. Prosecutorial Misconduct
To evaluate an ineffective assistance of counsel claim based on
prosecutorial misconduct, we must examine the merits of the prosecutorial
misconduct claim. State v. Graves, 668 N.W.2d 860, 869-70 (Iowa 2003). We
look for two elements: proof of misconduct and resultant prejudice.
If either
element is missing, we need not answer whether Graves’s counsel rendered
ineffective assistance by failing to object to the prosecutor’s conduct. Nguyen,
707 N.W.2d at 324; Graves, 668 N.W.2d at 870. In determining whether there
was prejudice from prosecutorial misconduct,
[w]e consider (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 869.
We agree with the postconviction court’s analysis of this issue. In the first
and third statements cited above, the prosecutor was arguing reasonable
inferences and conclusions that could be drawn from the evidence. See id. at
874. As for the rest of the comments, Graves cannot show he was prejudiced.
Lying was not the theme of the State’s case, and the prosecutor’s comments
were not severe and pervasive. See Nguyen, 707 N.W.2d at 317. Graves’s own
attorney, in his opening statement, addressed the lies Graves told to cover up the
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crime. See Graves, 668 N.W.2d at 878. Finally, the State’s evidence against
Graves was strong. See Nguyen, 707 N.W.2d at 326. Graves’s prosecutorial
misconduct claim must fail.
B. Golden Rule Argument
Graves also argues his counsel failed to object to the State’s improper
“golden rule” argument. Essentially, a golden rule argument persuades jurors to
put themselves in the place of witnesses or parties. Contrary to Graves’s claim,
the prosecutor’s statement did not ask jurors to put themselves in the place of the
victim or any witnesses. Instead, it cautioned them against excusing Graves’s
crime because the victim practiced an illegal and socially disreputable profession.
Jurors were only being admonished to ignore their own possible bias toward the
victim. Even if the argument was improper, Graves cannot show prejudice for
the reasons stated above.
Because Graves cannot meet the burden for his
prosecutorial misconduct claim, he cannot show ineffective assistance of
counsel. Nguyen, 707 N.W.2d at 324; Graves, 668 N.W.2d at 870.
C. Felony Murder
Finally, Graves argues his trial, appellate, and postconviction counsel
rendered ineffective assistance for failing to object to the felony murder and
willful injury jury instructions.
The burden of proof for showing ineffective
assistance is the same for all three types of counsel. See Cox v. State, 554
N.W.2d 712, 715 (Iowa 1996); Patchette v. State, 374 N.W.2d 397, 399 (Iowa
1985). Graves must show (1) his counsel breached an essential duty and (2) the
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breach prejudiced the outcome of his trial. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).
Graves’s argument is based on the application of State v. Heemstra, 721
N.W.2d 549, 558 (Iowa 2006), to his case. That case, however, was decided
after Graves’s trial and direct appeal. Until Heemstra, the instructions given at
Graves’s trial were commensurate with the law. See Heemstra, 721 N.W.2d at
557-58. His counsel had no duty to anticipate the change. See State v. Liddell,
672 N.W.2d 805, 814 (Iowa 2003).
Furthermore, according to Heemstra,
The rule of law announced in this case regarding the use of willful
injury as a predicated felony for felony-murder purposes shall be
applicable only to the present case and those cases not finally
resolved on direct appeal in which the issue has been raised in the
district court.
Id.
Graves relies on Teague v. Lane, 489 U.S. 288, 299-300, 109 S. Ct. 1060,
1069-70, 103 L. Ed. 2d 334, 349 (1989), for the proposition that “once a new
[constitutional rule of criminal procedure] is applied to the defendant in the case
announcing the rule, evenhanded justice requires that it be applied retroactively
to all who are similarly situated.” Graves’s argument is inapposite. We need not
reach the question of retroactivity Graves urges because Heemstra did not
announce a new constitutional rule of criminal procedure.
Instead, the case
interpreted a state statute. The Supreme Court cannot construe a state statute,
whether it is procedural or substantive in nature, differently from the construction
rendered by the state’s highest court. Johnson v. Fankell, 520 U.S. 911, 916,
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117 S. Ct. 1800, 1803-04, 138 L. Ed. 2d 108, 115 (1997). Therefore, the new
law established in Heemstra is not applicable to Graves.
The district court’s judgment is affirmed.
AFFIRMED.
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