STATE OF IOWA, Plaintiff-Appellee, vs. WILLIAM B. ARISTANDO SANTACRUZ, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-596 / 08-1947
Filed August 19, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
WILLIAM B. ARISTANDO SANTACRUZ,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Crawford County, Duane E.
Hoffmeyer, Judge.
Defendant appeals his conviction for sexual abuse in the third degree.
AFFIRMED.
Mark C. Smith, State Appellate Defender and Robert P. Ranschau,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney
General, Vicki Ryan and Michael Mundt, County Attorneys, and Susan Larson
Christensen and Roger Knee, Assistant County Attorneys, for appellee.
Considered by Sackett, C.J., and Eisenhauer and Doyle, JJ.
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SACKETT, C.J.
Defendant, William B. Aristando Santacruz, appeals from his conviction of
sexual abuse in the third degree in violation of Iowa Code section 709.4(1)
(2007). He contends he received ineffective assistance of counsel when his
attorney failed to object to prosecutorial misconduct. We affirm.
I.
BACKGROUND.
On the evening of November 23, 2007, Jessica
Magana reported to police that she had been sexually assaulted and identified
the defendant, a friend of Jessica‟s family, as the perpetrator. The defendant
admitted to having sex with Jessica but contended it was consensual. At trial he
testified that Jessica scratched his face and arms during the encounter but she
did not inflict them out of anger. On cross-examination, the prosecutor asked,
Q. And Jessica did put that scratch on your face, didn‟t she?
This is a yes or no. A. Well, I can‟t say. Like I said before, when
you‟re in the middle of a sex act, you–your mind is not clear
thinking. Neither one of the two of us were thinking clearly.
Q. Let me ask you this, Mr. Santacruz: Jessica testified that
she scratched your face that night. Are you saying that that was
true or untrue testimony? A. Well, like I say, she didn‟t do it to me
trying to hurt me. When you‟re in the action of a sex act or relation,
you grab each other. You grab things and things happen on your
body that later you wonder where did that come from, and things
happen that you don‟t know where or when it happened.
Q. So in–strike that. You‟re not denying Jessica‟s testimony
that that scratch was put on your face by her? A. Well, like I said, I
don‟t know how it came about. I didn‟t feel that she did it because
she wasn‟t doing it because she was angry. It just–but yes, it did
come from that act.
The defendant also testified that when officers asked the defendant to
come to the police station to be interviewed about the incident, he was placed in
handcuffs.
To rebut this testimony, the prosecution called the officer that
transported the defendant to the station and asked,
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Q. Officer, if I were to tell you that there was testimony
offered in this case that the defendant was placed in handcuffs as
he was taken down to the police station, would you say that
testimony was true or not true? A. That is not true.
A jury found the defendant guilty of sexual abuse in the third degree. On
appeal the defendant contends these questions posed by the prosecutor were
improper. The defendant argues he received ineffective assistance of counsel
when his attorney failed to object to this alleged prosecutorial misconduct.
II. SCOPE OF REVIEW. We review claims of ineffective assistance of
counsel de novo. State v. Boggs, 741 N.W.2d 492, 499 (Iowa 2007). Ineffective
assistance of counsel claims are generally reserved for postconviction relief.
State v. Parker, 747 N.W.2d 196, 203 (Iowa 2008). We can resolve the claim on
direct appeal however when presented with an adequate record.
Tejeda, 677 N.W.2d 744, 754 (Iowa 2004).
State v.
To succeed on his claim, the
defendant “„must prove by a preponderance of the evidence that (1) his counsel
failed to perform an essential duty, and (2) prejudice resulted.‟” State v. Tate,
710 N.W.2d 237, 240 (Iowa 2006) (quoting Tejeda, 677 N.W.2d at 754).
III.
PROSECUTORIAL MISCONDUCT.
To establish a claim of
prosecutorial misconduct, a defendant must prove that misconduct occurred and
that it was so prejudicial that it deprived the defendant of a fair trial. State v.
Piper, 663 N.W.2d 894, 913 (Iowa 2003); see State v. Bowers, 656 N.W.2d 349,
355 (Iowa 2002); State v. Anderson, 448 N.W.2d 32, 33 (Iowa 1989).
The
resulting prejudice entitles the defendant to a new trial, not the misconduct itself.
State v. Greene, 592 N.W.2d 24, 31 (Iowa 1999). In the context of an ineffective
assistance of counsel claim based on failure to object to prosecutorial
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misconduct, we first “consider whether the prosecutor was guilty of misconduct in
the particulars identified by [the defendant] and whether the record shows [the
defendant] was prejudiced, i.e., denied a fair trial.” State v. Graves, 668 N.W.2d
860, 869 (Iowa 2003). If the record is adequate enough to show that either
element is lacking as a matter of law, we will affirm the conviction without
preserving the claim for postconviction relief. Id. at 870. If the record establishes
both elements of prosecutorial misconduct, we then evaluate counsel‟s failure to
object. Id. We determine if the attorney performed within the range of normal
competency, and if not, whether there is a reasonable probability the outcome of
the defendant‟s trial would have been different had counsel objected or moved
for a mistrial based on the prosecutor‟s misconduct. Id. We need not evaluate
counsel‟s performance prior to analyzing the prejudice element.
State v.
Wissing, 528 N.W.2d 561, 564 (Iowa 1995). “If sufficient prejudice is not shown,
we need not address whether counsel breached an essential duty.” Id.
In State v. Graves, 668 N.W.2d 860, 873 (Iowa 2003), the Supreme Court
considered whether a prosecutor commits misconduct by asking the defendant
whether another witness lied. It found this tactic “incompatible with the duties of
a prosecutor.” Graves, 668 N.W.2d at 873. It ruled
that it is improper for a prosecutor to call the defendant a liar, to
state the defendant is lying, or to make similar disparaging
comments. Notwithstanding this prohibition, a prosecutor is still
free “to craft an argument that includes reasonable inferences
based on the evidence and . . . when a case turns on which of two
conflicting stories is true, [to argue that] certain testimony is not
believable.”
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Id. at 876 (quoting State v. Davis, 61 P.3d 701, 710-11 (Kan. 2003)). Although
the prosecutor in this case did not specifically ask the defendant whether other
witnesses lied, the prosecutor did ask the defendant and an officer whether they
believed certain testimony given by other witnesses was true. This questioning
could be viewed as an attempt to characterize the defendant as a liar. Inquiring
about another witness‟s veracity is misconduct under any circumstances. State
v. Carey, 709 N.W.2d 547, 552 (Iowa 2006) (“In Graves, we held that it is
misconduct, under any circumstances, for a prosecutor to ask a witness to
comment on the veracity of another witness.”)
Even if prosecutorial misconduct is established, however, in an ineffective
assistance of counsel claim the defendant is only entitled to a new trial if he was
prejudiced by his attorney‟s failure to object to the improper questions. See Id. at
559.
An error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the
error had no effect on the judgment. . . . [Therefore], any
deficiencies in counsel‟s performance must be prejudicial to the
defense in order to constitute ineffectiveness under the
Constitution.
Id. (quoting Strickland v. Washington, 466 U.S. 668, 691-92, 104 S. Ct. 2052,
2066-67, 80 L. Ed. 2d 674, 696 (1984)). The defendant is required to “show that
there is a reasonable probability that, but for counsel‟s unprofessional errors, the
result of the proceeding would have been different.” Graves, 668 N.W.2d at 882
(quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). In
making this determination we consider the totality of the evidence, what factual
findings would have been affected by counsel‟s errors, and whether the effect
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was pervasive or isolated and trial.” Id. at 883 (quoting Strickland, 466 U.S. at
695-96, 104 S. Ct. at 2069, 80 L. Ed. 2d at 698).
Applying these factors to the circumstances of this case, we find the
misconduct did not result in prejudice.
The misconduct was not severe or
pervasive. The prosecutor did not directly call the defendant a liar or ask the
defendant if other witnesses were lying. The misconduct was not pervasive and
instead, was limited to isolated questions. The defendant does not claim the
misconduct spread throughout the trial or during closing arguments, as occurred
in Graves.
See id., 668 N.W.2d at 880-81 (noting that the prosecutor‟s
misconduct “was not isolated, but rather became a central theme of the
government‟s prosecution”).
The defendant points out that the credibility of the witnesses was the
central issue at trial and his attorney‟s failure to object to the prosecutor‟s
questions affected the jury‟s credibility findings. Both the defendant and Jessica
agreed that a sex act occurred but the defendant claimed it was consensual
whereas Jessica claimed it happened against her will.
Therefore, as the
defendant argues, the prosecution‟s questioning witnesses about whether other
testimony was true or false prejudiced the defendant by characterizing him as a
liar. We agree that the prosecution‟s misconduct did bear on an important issue
in the case. However, the impact of the prosecution‟s misconduct on the central
issue of credibility appears minimal since they were isolated incidents.
See
Carey, 709 N.W.2d at 559 (finding no prejudice caused by the prosecution‟s “was
he lying” question and by misstating defendant‟s testimony because they were
7
isolated incidents and had minimal impact on the issue of credibility). We find the
attorney‟s failure to object to the improper questions had minimal impact on the
credibility issue.
“The most important factor under the test for prejudice is the strength of
the State‟s case.” Id. Although the evidence against the defendant was not
overwhelming, the prosecution did have a strong case.
There were multiple
witnesses and additional evidence that supported Jessica‟s claim that she had
been sexually assaulted. She called 911 shortly after the incident and the call
was admitted into evidence. The responding police officer testified that others
came to the police station to also report that their friend, Jessica, had been
raped. The officer described Jessica‟s shaken state and recounted what Jessica
claimed had transpired. A nurse who treated Jessica the night of the incident
also testified about Jessica being visibly upset. Jessica‟s testimony that she
scratched the defendant in an attempt to protect herself was also supported in
the record. The officer corroborated her testimony, the scrapings from Jessica‟s
fingernails matched the defendant‟s DNA, and scratches were found on the
defendant‟s face and arms. Some of the defendant‟s own statements support
Jessica‟s claim of assault. The defendant testified that he knew why officers
came to his house and wanted to interview him, even before the officers
explained that Jessica had reported a sexual assault. He also admitted that
Jessica told him to stop, but stated she was not angry and did not yell at him.
Although the prosecution asked improper questions and committed
misconduct, we find counsel‟s failure to object to the isolated questions did not
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cause the defendant prejudice. There is not a reasonable probability that the jury
was misled or inflamed by the prosecutor‟s questions or found the defendant
guilty for reasons other than those found in the evidence.
Given that the
defendant suffered no prejudice from any prosecutorial misconduct, his
ineffective assistance of counsel claim fails and we affirm his conviction.
AFFIRMED.
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