IN THE COURT OF APPEALS OF IOWA
No. 16-0567
Filed March 8, 2017
BRUCE MARCEL BRAGGS,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Mitchell E. Turner,
Judge.
Bruce Braggs appeals the denial of his application for postconviction relief.
AFFIRMED.
Wallace L. Taylor of the Law Offices of Wallace L. Taylor, Cedar Rapids,
for appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee State.
Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
2
DANILSON, Chief Judge.
Bruce Braggs was convicted following a jury trial of first-degree burglary
and second-degree sexual abuse. In State v. Braggs, No. 09-1932, 2011 WL
2697740 (Iowa Ct. App. July 13, 2011), this court addressed his several
allegations of error1 and affirmed his convictions. We will not restate the
background facts because they are set out at length in that prior opinion.
Braggs, 2011 WL 2697740, at *1-3.
Braggs then filed an application for postconviction relief (PCR), alleging
multiple counts of ineffective assistance of trial and appellate counsel, requesting
relief based upon newly discovered evidence, and contending there is insufficient
evidence to support his convictions. The district court carefully and thoroughly
addressed each of his contentions and denied relief. On appeal, Braggs asserts
the district court erred in rejecting his claims that trial counsel was ineffective in
failing to obtain an expert witness to testify about the reliability of eyewitness
identification, and his appellate attorney was ineffective in failing to challenge the
trial court’s admission of rebuttal testimony by the DCI chemist and failing to
present a claim of prosecutorial misconduct in closing arguments.
1
On direct appeal, Braggs asserted:
[T]he district court erred in (1) denying his challenge to the jury panel, (2)
denying his motion to strike potential jurors for cause, (3) overruling his
objection to expert testimony, (4) overruling his chain of custody objection
to the admission of evidence, (5) permitting the jury to listen to a
recording of the 911 call during deliberations, (6) refusing to give a
spoliation instruction, and (7) denying his motion for a new trial. In
addition, Braggs asserts in his pro se brief the district court erred in not
merging the burglary charge with the sexual abuse charge under section
701.9 [(2007)], and erred in refusing to give an instruction on the lesser
offense of attempted burglary in the first degree.
Braggs, 2011 WL 2697740, at *1.
3
Our review of PCR proceedings is generally for correction of errors at law.
Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012). However, we review
constitutional claims such as ineffective assistance of counsel de novo. Nguyen
v. State, 878 N.W.2d 744, 750 (Iowa 2016).
In order to succeed on a claim of ineffective assistance of counsel, an
applicant must show counsel (1) breached an essential duty and (2) prejudice
resulted. See Strickland v. Washington, 466 U.S. 668, 687 (1984). “If we
conclude a claimant has failed to establish either of these elements, we need not
address the remaining element.” Dempsey v. State, 860 N.W.2d 860, 868 (Iowa
2015). “[W]e begin with the presumption that the attorney performed
competently. Moreover, we avoid second-guessing and hindsight.” Ledezma v.
State, 626 N.W.2d 134, 142 (Iowa 2001) (citations omitted). An accused is not
entitled to perfect representation but only that level of representation that is within
the normal range of competency. State v. Artzer, 609 N.W.2d 526, 531 (Iowa
2000).
I. Trial counsel. We note, first, Braggs’ trial attorney thoroughly prepared
for the criminal proceedings. We agree with the PCR court’s characterization of
his representation: “Mr. Braggs’ trial counsel, Raphael Scheetz, obviously
prepared his case meticulously and extensively. From the transcript of the trial, it
appears that Mr. Scheetz raised timely objections, engaged in effective and
focused cross-examination, and raised approximately [nineteen] pretrial
motions.”
At trial three witnesses—the victim and her two roommates—were asked
to make eyewitness identifications of Braggs. The sexual abuse victim informed
4
police at the time that her assailant had his face wrapped throughout the incident
and all she ever saw was his eyes, and consequently, she was never shown a
photo lineup. She did, however, identify Braggs at the time of trial about two
years later. Attorney Scheetz testified he did not consider an expert witness for
this purpose because he felt “it was of common understanding” an identification
made based on just someone’s eyes “would be unreliable.” We conclude trial
counsel’s strategic decision was reasonable. See Ledezma, 626 N.W.2d at 143
(noting “strategic decisions made after ‘thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable’” (citation omitted));
see also Osborn v. State, 573 N.W.2d 917, 924 (Iowa 1998) (noting reasonable
“[t]actical decisions . . . are immune from subsequent attack by an aggrieved
defendant claiming ineffective assistance of counsel”).
The victim’s roommates were presented with photo lineups. One was
unable to identify anyone in the photo lineup, and her testimony remained
consistent through the trial. The other did identify a photo of Braggs as being the
person she saw outside of the apartment complex that morning but qualified her
identification both at the time of the photo lineup and in her testimony at trial that
she was only seventy-five percent certain of her selection. Braggs asserts trial
counsel should have engaged an expert witness to testify as to the reliability of
photo lineups and eyewitness identifications. At the PCR trial, Braggs called
Professor Jason Chen, an associate professor of psychology at Iowa State
University, to testify about research investigating the reliability of photo lineups
and eyewitness identification. Our review of Professor Chen’s testimony does
not convince us such testimony at the criminal trial would likely have changed the
5
result. Moreover, Scheetz cross-examined the witnesses vigorously and argued
the victim’s in-court identification of Braggs was not reliable. Yet, like the district
court, we observe,
significant DNA evidence, circumstantial evidence surrounding
[Braggs’] presence at the scene of the crime, his discarding the
allegedly white T-shirt that he was wearing in his attempt to elude
police at the scene, the finding of a red T-shirt and another T-shirt
in the woods in the immediate vicinity, as well as the disputed
footprint on the window ledge could all, if believed by a jury, easily
support a conviction.
Braggs has failed to establish either a breach of duty or prejudice on this
ineffectiveness claim.
II. Appellate counsel. Braggs contends appellate counsel was ineffective
in failing to raise two additional issues on appeal. First, he contends appellate
counsel should have argued the State was improperly allowed to present rebuttal
evidence over trial counsel’s objection.
At trial in the State’s case-in-chief, Dr. Amy Pollpeter testified about the
results of the DNA testing done on Braggs’ underwear and on a penile swab
taken from Braggs. The defense called Dr. David Soll, who was critical of the
analysis done by Dr. Pollpeter and the criminalistics lab and asserted the test
results could be explained by contamination of the samples. Over Scheetz’s
objections, the State was allowed to recall Dr. Pollpeter for the limited purpose of
addressing the issue of the contamination of the samples raised by the defense
expert.
Rebuttal testimony is testimony that “explains, repels, controverts, or
disproves evidence produced by the opposing party.” State v. Johnson, 539
N.W.2d 160, 162-63 (Iowa 1995). “The trial court has considerable discretion in
6
admitting rebuttal evidence, including the discretion to admit evidence that
technically could have been offered as part of the plaintiff’s case-in-chief.”
Carolan v. Hill, 553 N.W.2d 882, 889 (Iowa 1996). And a “trial court’s ruling will
be disturbed only upon a clear abuse of discretion.” Id. We acknowledge
rebuttal is not intended to give a party a second bite at the apple and is not to be
“merely cumulative.” Id. But even if appellate counsel had raised the issue on
appeal, the trial court did not clearly abuse its discretion in allowing the limited
rebuttal testimony of Dr. Pollpeter to address the defense expert’s specific
criticisms.2 Braggs has failed to prove appellate counsel was ineffective in this
regard.
Second, Braggs maintains appellate counsel should have argued the
prosecutor’s closing argument improperly vouched for the credibility of the
victim.3 A prosecutor may not vouch for the credibility of a witness. Graves, 668
N.W.2d at 874. As explained by our supreme court:
A prosecutor “is entitled to some latitude during closing
argument in analyzing the evidence admitted in the trial.” State v.
2
Defense counsel specifically raised the issue of the limits of rebuttal testimony during
the trial, before Dr. Pollpeter testified on rebuttal, and the district court informed all
parties of such limitations.
3
Braggs’ brief labels appellate counsel’s ineffectiveness as a failure to raise the issue of
prosecutorial misconduct. We note the Iowa Supreme Court recently cautioned against
conflating the terms prosecutorial misconduct, which generally describes “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,’” and prosecutorial error, which includes situations “‘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.’” State v.
Schlitter, 881 N.W.2d 380, 394 (Iowa 2016) (citations omitted).
We are to apply the multi-factor test outlined in State v. Graves, 668 N.W.2d 860,
877-78 (Iowa 2003), either way. See Schlitter, 881 N.W2d at 394 (stating the multifactor
test set out to evaluate the statements in determining if there was misconduct and if that
misconduct was prejudicial “easily translate to an evaluation of prosecutorial error”).
7
Phillips, 226 N.W.2d 16, 19 (Iowa 1975). Moreover, a prosecutor
may argue the reasonable inferences and conclusions to be drawn
from the evidence. Id. A prosecutor may not, however, express his
or her personal beliefs. Id.
The key point is that counsel is precluded from
using argument to vouch personally as to a
defendant’s guilt or a witness’s credibility. This is true
whether the personal belief is purportedly based on
knowledge of facts not possessed by the jury,
counsel’s experience in similar cases, or any ground
other than the weight of the evidence in the trial. A
defendant is entitled to have the case decided solely
on the evidence.
State v. Williams, 334 N.W.2d 742, 744 (Iowa 1983); accord State
v. Martens, 521 N.W.2d 768, 772 (Iowa Ct. App. 1994) (stating,
“vouching for a witness may induce the jury to trust the judgment of
the prosecutor rather than their view of the evidence since the
prosecutor’s opinion carries the imprimatur of the Government”).
Id.
To succeed on an ineffective-assistance-of-counsel claim based on
prosecutorial misconduct, a defendant must establish: (1) proof of misconduct
and (2) “the misconduct resulted in prejudice to such an extent that the defendant
was denied a fair trial.” Id. at 869. Having reviewed the closing arguments of
counsel, we agree with the PCR court’s findings and adopt them as our own:
A fair review of the closing arguments convinces this court
that the rebuttal argument of Harold Denton [the prosecutor] is not
only fairly responsive but directly responsive to the closing
arguments of Mr. Scheetz. There was no attempt to inflame the
jury, and Mr. Denton does not personally vouch for [the complaining
witness]. He appropriately commented that what [the complaining
witness] had to endure provided no motivation for her to make the
whole thing up. He further appropriately argued that other evidence
substantiates the fact that this was not something that she
fabricated. This court notes that defense counsel did object to the
State’s closing argument, but the objection was overruled by the
trial judge. . . . Mr. Braggs has categorically failed to prove, even if
the closing was somehow improper, that there was any resulting
prejudice.
8
Braggs has failed to show either trial or appellate counsel provided
constitutionally deficient representation. We affirm the denial of postconviction
relief.
AFFIRMED.