IN THE COURT OF APPEALS OF IOWA
No. 15-1893
Filed December 21, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
BRADLEY DAVISSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Richard G. Blane II
(trial), Judge, and Carol S. Egly (motion to dismiss), District Associate Judge.
A defendant appeals his conviction challenging the court’s denial of his
motion to dismiss and his objection based on prosecutorial misconduct.
AFFIRMED.
Jamie L. Hunter of Dickey & Campbell Law Firm, P.L.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Aaron Rogers, Assistant Attorney
General, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ. Blane,
S.J., takes no part.
2
VOGEL, Presiding Judge.
Bradley Davisson appeals his conviction for operating a motor vehicle
without owner’s consent, in violation of Iowa Code section 714.7 (2013).
Davisson claims the district court erred in denying his motion to dismiss on
speedy indictment grounds and in overruling his objection to a portion of the
State’s closing argument, which he asserts shifted the burden of proof onto him.
Because the State dismissed the original complaint in furtherance of justice, the
speedy indictment requirements were not violated. Further, the State’s comment
during closing argument regarding a lack of exculpatory evidence did not shift the
burden onto Davisson. We affirm.
I. Background Facts and Proceedings
On April 7, 2015, a truck was reported stolen in Madrid. On April 9, two
Des Moines Police Department officers located a truck that matched the
description of the one reported stolen and had an identical license plate number.
The officers observed the driver, Davisson, exit the truck and enter a
convenience store. The officers entered the store and arrested Davisson.
Davisson told them he had borrowed the truck from a friend named “Nate.”
On April 9, the State charged Davisson with theft in the first degree by
preliminary complaint. On May 22, shortly before the speedy indictment period
was set to run, the State file a notice of intent not to prosecute, which requested
the theft charge be dismissed without prejudice due to “a lack of evidence to
continue prosecution.” The district court granted the State’s motion, citing the
reasons in the State’s motion and Iowa Rule of Criminal Procedure 2.33(1). On
June 22, the State by trial information charged Davisson with operating a vehicle
3
without owner’s consent. On July 17, Davisson filed a pro se motion to dismiss,
which was amended through counsel on July 23. Davisson’s motion claimed the
charge fell outside the speedy indictment period allotted by rule 2.33(2)(a). The
State did not file a written resistance; however, the district court allowed the State
to resist orally at the hearing on the motion to dismiss and gave Davisson an
opportunity to respond in writing after the hearing. The district court found the
prior dismissal was in the interest of justice and denied Davisson’s motion to
dismiss.
Davisson’s case proceeded to a jury trial. Davisson did not testify. In the
rebuttal portion of its closing argument, the State noted that, although Davisson
had told the arresting officers he borrowed the car from someone named Nate,
he did not call anyone by that name to testify at trial. The district court overruled
Davisson’s objection to this statement. On September 17, the jury convicted
Davisson. Davisson appeals.
II. Standard of Review
We review motions to dismiss a trial information for errors at law. State v.
Petersen, 678 N.W.2d 611, 613 (Iowa 2004). We review rulings on evidentiary
objections for an abuse of discretion. State v. Sallis, 574 N.W.2d 15, 16 (Iowa
1998).
III. Motion to Dismiss
Davisson claims the district court erred in denying his motion to dismiss
the State’s trial information. Specifically, he argues the State subverted speedy
indictment rules because dismissal of the theft charge was not “in furtherance of
justice” and he was recharged with the same offense based on the same
4
incident. The State argues the dismissal was appropriate because it was based
on a lack of evidence to prosecute and the State retained the opportunity to
gather more evidence and refile.
Rule 2.33(1) provides:
The court, upon its own motion or the application of the
prosecuting attorney, in the furtherance of justice, may order the
dismissal of any pending criminal prosecution, the reasons therefor
being stated in the order and entered of record, and no such
prosecution shall be discontinued or abandoned in any other
manner. Such a dismissal is a bar to another prosecution for the
same offense if it is a simple or serious misdemeanor; but it is not a
bar if the offense charged be a felony or an aggravated
misdemeanor.
In explaining what grounds qualify for dismissal under rule 2.33(1), our supreme
court has “said that ‘furtherance of justice’ under rule [2.33(1)] includes
‘facilitating the State in gathering evidence, procuring witnesses, or plea
bargaining.’” State v. Fisher, 351 N.W.2d 798, 801 (Iowa 1984) (citation
omitted). The State requested dismissal based on a lack of evidence, and the
district court cited that reason in granting the motion. A lack of evidence and the
opportunity for further evidence-gathering is a factor our supreme court has
identified as proper grounds for dismissal in furtherance of justice. See id.
Accordingly, we find the dismissal of the theft charge without prejudice was
appropriate under rule 2.33(1). Because theft in the first degree is a felony,1 the
State was not barred from refiling charges against Davisson at a later date. See
1
Iowa Code § 714.2(1) (2013).
5
Iowa R. Crim. P. 2.33(1). Therefore, we affirm the district court’s denial of
Davisson’s motion to dismiss.2
IV. Evidentiary Objection
Davisson also asserts the district court erred in overruling his objection to
a portion of the State’s closing argument. Davisson claims the State committed
prosecutorial misconduct by improperly commenting on his decision not to
present evidence to support his defense, thereby shifting the burden of proof
onto him.3 The State contends there was no misconduct.
In order to receive a new trial, a defendant must show both misconduct on
the part of the prosecutor and prejudice resulted. State v. Bishop, 387 N.W.2d
554, 562 (Iowa 1986). While our supreme court has expressed concern about
prosecution comments relating to a defendant’s failure to produce evidence, such
comments are generally allowed as long as they do not focus on a defendant’s
decision not to testify. See id. at 563 (“A prosecutor may properly comment upon
the defendant’s failure to present exculpatory evidence, so long as it is not
phrased to call attention to the defendant’s own failure to testify.”). Additionally,
prosecution comments that are aimed at exposing a lack of evidence to support a
defendant’s general theory or a particular proposition are not improper. State v.
2
Davisson also claims the State procedurally defaulted by not filing a written resistance
to his motion to dismiss. We find the district court did not abuse its discretion in allowing
the State to resist orally at the hearing and allowing Davisson time to submit a written
response.
3
Davisson cites the Fifth Amendment in his brief and conflates his argument regarding
the shifting of the burden of proof with his decision not to testify. We do not believe the
prosecutor’s comments were a reference to Davisson’s decision not to testify nor could
they be interpreted that way by the jury. A prosecutor’s remarks are improper when “the
prosecutor manifestly intended to refer to the defendant’s silence, or [when] the jury
would ‘naturally and necessarily’ interpret the statement to be a reference to the
defendant’s silence.” State v. Hutchison, 341 N.W.2d 33, 39 (Iowa 1983) (quoting
Catches v. United States, 582 F.2d 453, 458 (8th Cir.1978)).
6
Hanes, 790 N.W.2d 545, 556–57 (Iowa 2010) (citing United States v. Emmert, 9
F.3d 699, 702–03 (8th Cir.1993) and State v. Swartz, 601 N.W.2d 348, 353 (Iowa
1999)).
Here, Davisson takes issue with prosecutor’s statement during closing
arguments referring to his claim that he borrowed the truck from a person named
Nate:
We have subpoena power and we bring people in, people that
exist, to testify about this. Defense counsel also has an
opportunity, if they bring forth an idea like mistake of fact, to bring
people in, to subpoena people, to subpoena people like Nate. . . .
It’s kind of hard to subpoena someone who doesn’t really exist.
Viewing this statement in the context of the trial, we do not believe the prosecutor
shifted the burden of proof unto Davisson by commenting on his failure to
present exculpatory evidence. The complainant testified that despite Davisson’s
claims at the time of his arrest, she never gave permission to anyone named
Nate to drive her truck. The prosecutor’s comment in his rebuttal closing
argument simply noted that Davisson failed to challenge the complainant’s claim
by providing any evidence to the contrary. The prosecutor’s comment did not call
attention to Davisson’s decision not to testify. See Bishop, 387 N.W.2d at 563.
Davisson relies on some broad language in Hanes—“[i]t is improper for the State
to shift the burden to the defense by suggesting the defense could have called
additional witnesses.” Hanes, 790 N.W.2d at 556. However, he fails to note that
language was tempered in Hanes by the court’s approval of situations where the
prosecutor generally references “an absence of evidence supporting the
defense’s theory of the case.” Id. at 557. We conclude the prosecutor’s
7
comment was not improper as it did not shift the burden of proof onto Davisson,
nor refer to Davisson’s decision not to testify.4
V. Conclusion
Because we conclude the district court did not err in denying Davisson’s
motion to dismiss and did not abuse its discretion in overruling Davisson’s
objection based on prosecutorial misconduct, we affirm.
AFFIRMED.
Vaitheswaran, J., concurs; McDonald, J., concurs specially.
4
Even if the prosecutor’s comment was improper, we find that Davisson was not
prejudiced by them. See id. at 562. The State presented evidence that Davisson did not
have permission from the car’s owner to drive the vehicle and that Davisson was found
in possession of the car. This evidence alone was sufficient for the jury to convict
Davisson of operating a motor vehicle without owner’s consent. See Iowa Code § 714.7
(“Any person who shall take possession or control of any railroad vehicle, or any self-
propelled vehicle, aircraft, or motor boat, the property of another, without the consent of
the owner of such, but without the intent to permanently deprive the owner thereof, shall
be guilty of an aggravated misdemeanor.”).
8
MCDONALD, Judge. (concurring specially)
I concur in the majority’s resolution of Davisson’s speedy trial claim. I
respectfully dissent from the majority’s conclusion the prosecutor did not err in
commenting on Davisson’s decision to not call a particular witness. However,
like the majority, I conclude Davisson failed to establish the prosecutor’s
comments denied Davisson a fair trial. I thus concur in the judgment.
I.
The majority sets forth one of the prosecutor’s comments and arguments
to the jury regarding the missing witness, but there were many more, including
the prosecutor’s comparison of this defendant to Keyser Soze. I need not set
forth all of the comments and arguments in full herein because the gist is the
same. At issue is the prosecutor’s argument to the jury that Davisson should
have called a witness, Nate, to corroborate Davisson’s statement Nate gave
Davisson permission to operate the victim’s vehicle. Also at issue is the
prosecutor’s further argument the jury could infer Nate did not exist or Nate’s
testimony would have been inculpatory rather than exculpatory. Davisson
argues the prosecutor’s comments constituted misconduct and infringed several
constitutional rights, specifically improper comment on the defendant’s invocation
of the privilege to not testify, violation of the right to have guilt or innocence
determined solely on the basis of the evidence introduced at trial, and reversal of
the presumption of innocence and burden of proof on an element of the offense.
See State v. Graves, 668 N.W.2d 860, 876 (Iowa 2003) (discussing the right to
have guilt determined based on evidence introduced); State v. Bishop, 387
N.W.2d 554, 562–63 (Iowa 1986) (discussing the privilege against self-
9
incrimination); State v. Hill, No. 12-0860, 2013 WL 2370714, at *6 (Iowa Ct. App.
May 30, 2013) (Potterfield, J., dissenting) (discussing presumption of innocence
and burden of proof).
II.
“A prosecutor ‘is not an advocate in the ordinary meaning of the term.’”
Graves, 668 N.W.2d at 870 (quoting 63C Am. Jur. 2d Prosecuting Attorneys § 1
(1997)). The prosecutor owes a duty to do justice for the accusers and the
accused. See id. “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.’” Id. (quoting DeVoss v. State, 648 N.W.2d 56, 64 (Iowa
2002)).
To establish a due process violation, the defendant must establish
prosecutorial misconduct or prosecutorial error. See id. at 869. “Prosecutorial
misconduct includes those statements where a prosecutor intentionally violates a
clear and unambiguous obligation or standard imposed by law, applicable rule or
professional conduct, as well as those situations where a prosecutor recklessly
disregards a duty to comply with an obligation or standard.” See State v.
Schlitter, 881 N.W.2d 380, 394 (Iowa 2016) (quotations omitted). Prosecutorial
error occurs “where the prosecutor exercises poor judgment and where the
attorney has made a mistake based on excusable human error, despite the
attorney’s use of reasonable care.” Id. (quotations omitted). “Evidence of the
prosecutor’s bad faith is not necessary, as a trial can be unfair to the defendant
even when the prosecutor has acted in good faith.” Graves, 668 N.W.2d at 869.
10
Whether the claim is one for prosecutorial misconduct or prosecutorial
error, the defendant must establish the misconduct or error “resulted in prejudice
to such an extent that the defendant was denied a fair trial.” Id.; see also
Schlitter, 881 N.W.2d at 394 (concluding the Graves standard applies whether
the claim is prosecutorial misconduct or prosecutorial error). The prosecutor can
deny the accused a fair trial in a variety of ways. See Schlitter, 881 N.W.2d at
393 (identifying a “range of trial conduct” constituting prosecutorial misconduct).
Whatever the conduct, “it is the prejudice resulting from misconduct, not the
misconduct itself, that entitles a defendant to a new trial.” State v. Piper, 663
N.W.2d 894, 913 (Iowa 2003), overruled on other grounds by State v. Hanes,
790 N.W.2d 545 (Iowa 2010).
A.
I first address whether the prosecutor engaged in misconduct or error.
The relevant constitutional terrain has been well traversed but not well marked.
The cases are in conflict, and the parties are left to perambulate with little
guidance.
The State relies on two precedents for the proposition the prosecutor’s
argument constituted fair comment and was not improper. In State v. Bishop, the
court stated, “A prosecutor may properly comment upon the defendant’s failure to
present exculpatory evidence, so long as it is not phrased to call attention to the
defendant’s own failure to testify.” 387 N.W.2d at 656 (quotation omitted). In
State v. Craig, the prosecutor asked the jury why the defendant failed to have
certain witnesses testify on his behalf. 490 N.W.2d 795, 797 (Iowa 1992). Citing
Bishop, the Craig court concluded the argument “amounted to fair comment.” Id.
11
The defendant relies on a more recent precedent, State v. Hanes, 790
N.W.2d 545 (Iowa 2010). In that case, the prosecutor argued the defendant
should have called certain witnesses, stating “[i]f there was anything the defense
really wanted from either one of these individuals that they felt was beneficial or
helpful to the defendant, they could have called them.” Hanes, 790 N.W.2d at
556. The court stated “[i]t was not proper for the State to attempt to shift the
burden to the defense to call the witnesses or to suggest the jury could infer from
the defense’s failure to call the witnesses that they would not have said anything
helpful to the defense.” Id. at 557. Hanes did not attempt to reconcile its
conclusion with Bishop or Craig. Indeed, the court did not cite or mention Bishop
or Craig.
Subsequent cases have not reconciled the apparent conflict between
Bishop/Craig and Hanes. See, e.g., State v. Carey, No. 12-1423, 2014 WL
955917, at *3 (Iowa Ct. App. Mar. 12, 2014) (holding prosecutor’s argument that
the defendant had ability to subpoena witnesses and would have if the witnesses
would have testified favorably was fair comment); State v. Fuentes, No. 12-1141,
2013 WL 5762878, at *2 (Iowa Ct. App. Oct. 23, 2013) (stating prosecutor may
have made improper argument but preserving claim of ineffective assistance of
counsel); Hill, 2013 WL 2370714, at *5 (holding there was no due process
violation).
Because the case law has not been reconciled, the parties are left to blaze
their own trails. The defendant contends Hanes is controlling and Hanes
implicitly overruled the Bishop/Craig cases. The defendant’s argument has some
purchase. In a different case, the State referred “to the Hanes language on
12
burden shifting as an ‘undeveloped departure’ from established case law.” State
v. Singh, No. 10-1583, 2011 WL 5387279, at *5 (Iowa Ct. App. Nov. 9, 2011). To
some extent, the State makes the same argument here, arguing Hanes is an
outlier and should be ignored. The State also argues, among other things, the
relevant language is Hanes is obiter dicta.
For the purposes of resolving this appeal, it is unnecessary to wander
through the constitutional woods in search of a trail that leads to a resolution of
this apparent conflict; there are non-constitutional landmarks that guide us. I
begin with the underlying evidentiary question preliminary to the constitutional
questions—what inference or inferences can be drawn from the failure to
produce a relevant witness? In non-criminal proceedings, “[w]hen relevant
evidence is within the control of a party whose interest is affected, a court may
infer that the evidence, if not produced, would be unfavorable to that party.”
Hamer v. Iowa Civil Rights Comm’n, 472 N.W.2d 259, 262 (Iowa 1991). In
criminal proceedings, controlling authority provides “the jury may draw an
inference that the testimony of an uncalled witness would have been adverse to
one of the parties. However such a rule is to be applied with caution and there
must be a reason for such a supposition and a factual area within which it may
logically operate.” State v. Turley, 239 N.W.2d 544, 545 (Iowa 1976); see also
State v. Schlick, 257 N.W.2d 59, 63 (Iowa 1977) (recognizing the jury may draw
an inference the testimony of an uncalled witness would be adverse to the party
who fails to call such witness); State v. Parker, 151 N.W.2d 505, 512–13 (Iowa
1967) (stating “[u]nder some circumstances the jury may properly draw an
inference that the testimony of an uncalled witness would have been adverse to
13
one of the parties” but stating the rule “is to be applied with caution”) (quotation
omitted); State v. Cotton, 33 N.W.2d 880, 890 (Iowa 1948) (“Where evidence
which would properly be part of a case is within the control of the party whose
interest it would naturally be to produce it, and, without satisfactory explanation,
he fails to do so, the jury may draw an inference that it would be unfavorable to
him.”) (quotation omitted). For example, an inference should not be drawn where
there is some other explanation for the witness’s absence. See State v.
Williams, 155 N.W.2d 526, 530 (Iowa 1968). By way of another example, “no
presumption arises when it is shown that the witness is equally available to either
party or when the testimony that could be elicited from such witness would
merely be cumulative.” Parker, 151 N.W.2d at 513.
Commencing from this well-established landmark, I next address two
secondary questions also preliminary to the constitutional questions—who makes
the preliminary determination an inference can be drawn from the absence of a
witness and how is the inference presented to the jury? In State v. Langlet, 283
N.W.2d 330 (Iowa 1979), the supreme court concluded the threshold
determination was a question of law for the court and, if the foundation for such
an inference had been laid, the court was to instruct the jury on the issue:
As in instances of other sought-after inferences, it is the
court’s function to determine whether a jury could appropriately
deduce from the underlying circumstances the adverse fact sought
to be inferred, leaving it for the jury to say whether the inference
actually ought to be drawn in the particular case. The noncalling
party’s explanation suffices, and the missing witness rule is
properly rejected, where the trial judge is “satisfied that the
circumstances thus offered would, in ordinary logic and
experience, furnish a plausible reason for nonproduction.”
Where there are such reasons (for nonproduction), and they
are produced and satisfy the trial judge on plausibleness, the judge
14
should decline a request for a missing witness instruction, and
should also forbid adverse comment to the jury on the absence of
the witness.
283 N.W.2d at 335–36 (quotation and citation omitted). This is consistent with
the law from other jurisdictions. For example:
Before a party may argue an adverse inference as to an
absent witness, counsel must seek permission from the court, and
the court must determine (1) that the witness in question is
peculiarly available to the party against whom the inference is
sought, and (2) that the witness’ testimony would have elucidated
the transaction at issue. Argument by counsel and instructions by
the trial judge regarding the inferences to be drawn as to an absent
witness are prohibited if either condition is not met.
In addition, this exercise of discretion must itself be based on
a firm factual foundation and be exercised in an informed and
rational manner if it is to withstand appellate scrutiny. The party
seeking the missing witness inference must establish the two
foundation conditions to the court’s satisfaction. And even if the
evidentiary predicates are established, the trial court still has
considerable latitude to refuse to give a missing witness instruction,
where it determines from all of the circumstances that the inference
of unfavorable testimony is not a natural or reasonable one.
Carr v. United States, 531 A.2d 1010, 1012 (D.C. 1987) (quotations omitted).
The Langlet formulation sets forth what is commonly known as the
missing-witness rule. The classic statement of the rule was set forth in Graves v.
United States, 150 U.S. 118, 121 (1893): “The rule, even in criminal cases, is
that, if a party has it peculiarly within his power to produce witnesses whose
testimony would elucidate the transaction, the fact that he does not do it creates
the presumption that the testimony, if produced, would be unfavorable.” Graves
referred to the rule as creating a “presumption.” Id. Modern cases characterize
the rule as authorizing only a permissive inference. See Commonwealth v.
Dorman, 547 A.2d 757, 762–63 (Pa. Super. Ct. 1988) (“The instruction on
missing witnesses is essentially a comment on the evidence; the inference itself
15
is the natural inference that a party’s failure to call a witness in certain
circumstances suggests that he was afraid to do so, which in turn suggests that
the testimony would have been unfavorable.”).
A majority of state and federal courts have, like Iowa, adopted some
formulation of the rule. See State v. Tahair, 772 A.2d 1079, 1082 (Vt. 2001)
(“For more than one hundred years, this Court—in conformity with most other
state and federal courts—has approved a ‘missing witness’ instruction.”); State v.
Malave, 737 A.2d 442, 446–47 (Conn. 1999). However, some jurisdictions have
moved away from the rule in criminal proceedings:
It is one thing for this court to employ a judicial guideline in
determining the sufficiency of evidence, or to say that a matter may
be the legitimate subject of comment by counsel for one party or
another, or to indicate that a circumstance may be considered by
the trier of fact; it is quite another thing, however, for a trial court to
instruct a jury that an adverse presumption arises from the failure of
one or the other of the parties to a criminal proceeding to call a
particular witness. We do not believe a missing-witness
presumption instruction has any place in a criminal case. If its use
is permitted, both the prosecution and the defense, against the risk
of having the instruction granted at the request of the opposing
party, would be required to call all witnesses possibly having some
knowledge of the case, even though their testimony might be
merely cumulative. This is not required of the prosecution, and it
should not be required of the defense.
Furthermore, and of special significance, use of the
instruction against the defense would run head on into the
presumption of innocence to which every accused is entitled and
upon which juries are universally instructed. The burden is upon the
prosecution to prove its case against the accused. The defense
need not prove anything; it may rely upon the presumption of
innocence. To tell a jury that the failure of the defense to call a
material witness raises an adverse presumption against the
accused is to weaken, if not neutralize, the presumption of
innocence which, if given its full strength, might be sufficient to tip
the scales in favor of acquittal.
16
Russell v. Commonwealth, 223 S.E.2d 877, 879 (Va. 1976); see, e.g., State v.
Cobb, 743 A.2d 1, 135 n.4 (Conn. 1999) (Berdon, J., dissenting) (collecting
cases); Malave, 737 A.2d at 447 (abandoning rule in criminal cases); see also
Hill, 2013 WL 2370714, at *6 (Potterfield, J., dissenting) (arguing comment
regarding absent witness violated the presumption of innocence and relieves the
State of its burden of proof); Tahair, 772 A.2d at 1085–86 (collecting cases and
rejecting the rule in criminal cases). I need not consider whether Iowa should
continue to adhere to or abandon the missing-witness rule in criminal cases.
Neither party has briefed the issue. Further, controlling authority has adopted
and applied the rule. See Langlet, 283 N.W.2d at 335–36; Schlick, 257 N.W.2d
at 63; Turley, 239 N.W.2d at 545. This court is not at liberty to overrule supreme
court precedent. See State v. Beck, 854 N.W.2d 56, 64 (Iowa 2014).
The contours of the rule in Iowa are not well developed. One court has
set forth what appears to be a commonly accepted version of the rule:
The missing witness rule provides that a negative inference may be
drawn from the failure of a party to call a particular witness who
was in his control. However, each of the following circumstances
represents an exception to that rule:
1. The witness is so hostile or prejudiced against the party
expected to call him that there is a small possibility of obtaining
unbiased truth;
2. The testimony of such a witness is comparatively
unimportant, cumulative, or inferior to that already presented;
3. The uncalled witness is equally available to both parties;
4. There is a satisfactory explanation as to why the party
failed to call such a witness;
5. The witness is not available or not within the control of the
party against whom the negative inference is desired; and
6. The testimony of the uncalled witness is not within the
scope of the natural interest of the party failing to produce him.
17
Dorman, 547 A.2d at 762–63 (quotation omitted). The foregoing formulation is
not an exhaustive list of the situations where a missing-witness instruction might
be proper. “The propriety of such an instruction depends on the facts of each
particular case.” Id.
Applying the rule to the facts of this case, here the prosecutor did not lay
the foundation to establish an adverse inference could be drawn from the
witness’s absence. Nor did the district court instruct the jury that such an
inference could be drawn. In the absence of either, pursuant to Langlet, the
prosecutor was prohibited from arguing an adverse inference from the witness’s
absence. See 283 N.W.2d at 335–36. Establishing the necessary foundation to
allow the district court to exercise its gatekeeping function is not trivial. The
adverse inference argued to the jury is essentially the creation of evidence by the
absence of evidence. The fact the defendant failed to call a witness has no
probative value in and of itself—the witness could not have been called for any
one of a variety of reasons or for no reason at all. The fact the defendant failed
to call a witness could have probative value, however, if the proper foundation
were laid to establish the witness was not called under circumstances from which
an adverse inference could be drawn. Where, as here, the prosecutor comments
on an absent witness without laying the foundation to establish an adverse
inference could be drawn—viz., the absence of the witness has probative
value—the prosecutor is effectively making an argument regarding “evidence”
not supported by the record. See Arnold v. United States, 511 A.2d 399, 415
(D.C. 1986) (stating “the courts have established these requirements to eliminate
the risk that a missing witness argument may add a fictitious weight to one side
18
or another of the case because in a sense it creates evidence from the absence
of evidence”) (quotation omitted); State v. Fowler, 785 P.2d 808, 813 (Wash.
1990) (holding adverse inference argument without prior judicial determination
was improper comment on facts not in the record). The prosecutor is forbidden
from arguing evidence not in the record. See Graves, 668 N.W.2d at 879. Given
the foregoing, I must conclude the prosecutor erred in commenting on the
absence of the witness and erred in urging the jury to draw an adverse inference
from the same without laying the necessary foundation and without seeking an
instruction on the issue.
Given my conclusion, I need not address whether the missing witness rule
is unconstitutional as applied in criminal proceedings or whether the prosecutor’s
comment violated constitutional principles. It should be noted, however, the
Supreme Court has concluded the permissive inference instruction does not
impermissibly relieve the State of its burden of proof or violate the presumption of
innocence:
The most common evidentiary device is the entirely permissive
inference or presumption, which allows—but does not require—the
trier of fact to infer the elemental fact from proof by the prosecutor
of the basic one and which places no burden of any kind on the
defendant. . . . Because this permissive presumption leaves the
trier of fact free to credit or reject the inference and does not shift
the burden of proof, it affects the application of the “beyond a
reasonable doubt” standard only if, under the facts of the case,
there is no rational way the trier could make the connection
permitted by the inference.
Cty. Court of Ulster Cty. v. Allen, 442 U.S. 140, 157 (1979).
19
B.
I next address whether the prosecutor’s error deprived the defendant of a
fair trial. In making the determination, we look to the Graves factors, among
other things. See Graves, 668 N.W.2d at 869 (“In determining prejudice the
court looks at several factors within the context of the entire trial. We 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.”) (quotation and
citations omitted).
In looking at the totality of the circumstances, including the Graves factors,
I am not convinced the prosecutor’s comments deprived the defendant of a fair
trial. The prosecutor’s comments were isolated. See State v. Greene, 592
N.W.2d 24, 32 (Iowa 1999) (“Whether the incident was isolated or one of many is
also relevant; prejudice results more readily from persistent efforts to place
prejudicial evidence before the jury.”); State v. Anderson, 448 N.W.2d 32, 34
(Iowa 1989) (“Prejudice can, but usually does not, result from isolated
prosecutorial misconduct.”). The prosecutor’s comment was effectively rebutted
by Davisson’s counsel’s closing statement. See State v. Jackson, 839 N.E.2d
362, 374 (Ohio 2006) (finding defendant failed to establish prejudice because, in
part, “[d]efense counsel directly rebutted the prosecution’s” statement during
defendant’s closing argument.”). The district court properly instructed the jury on
the burden of proof. See Anderson, 448 N.W.2d at 33–34 (“We do not overlook
the prosecutor’s conduct, but must also consider the whole trial, including the
20
court’s admonition to the jury.”). We assume the jurors abide by the district
court’s instructions. See State v. Caringello, 288 N.W. 80, 83 (Iowa 1939). Plus,
the State’s case was strong and straightforward, including testimony from the
owner who unequivocally denied knowing the missing witness and the defendant
and denied giving either permission to operate her motor vehicle. See Greene,
592 N.W.2d at 32.
III.
For the foregoing reasons, I respectfully concur in the judgment.
State of Iowa v. Bradley Davisson
Combined Opinion