IN THE COURT OF APPEALS OF IOWA
No. 17-1160
Filed September 26, 2018
JONATHAN ARMSTRONG,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Richard H.
Davidson, Judge.
A postconviction applicant appeals the district court order denying relief on
his multiple felony convictions. AFFIRMED.
Brian S. Munnelly of Munnelly Law Office, Omaha, Nebraska, for appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee State.
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
2
TABOR, Judge.
Jonathan Armstrong is serving a prison sentence not to exceed twenty-five
years after a jury convicted him of multiple offenses for his part in a violent home
invasion. He now appeals the district court’s denial of postconviction relief (PCR).
He raises several claims of ineffective assistance of counsel, contending his
criminal trial attorney should have (1) objected to the admission of cell phone
records and a black bandana1 bearing his DNA, (2) challenged the State’s process
for obtaining his DNA, (3) refrained from impeaching his own client, (4) produced
an alibi witness at the criminal trial, and (5) called out prosecutorial misconduct.
Armstrong also alleges he received ineffective assistance of appellate counsel on
direct appeal. Finally, he claims he suffered prejudice from the cumulative impact
of counsel’s errors. Because Armstrong cannot show a reasonable probability of
a different outcome even if counsel had followed the playlist developed in the PCR
application, we affirm the order denying relief.
I. Facts and Prior Proceedings
The jury reached its guilty verdicts after the following presentation of the
facts. In the early morning hours of July 21, 2011, Armstrong and two
accomplices, Alonzo Murray and Spencer Scott, broke into a Council Bluffs home
looking for money or marijuana. According to Murray’s testimony for the State,
Armstrong and Scott covered their faces with bandanas. The intruders ordered
1
The witness who found this item called it a bandana at the criminal trial; Armstrong refers
to it as a “do-rag” in his PCR deposition. In our direct appeal decision, we defined “do-
rag” as a kerchief worn to cover the hair. State v. Armstrong, No. 12-0426, 2013 WL
2107400, at *10 n.2 (Iowa Ct. App. May 15, 2013). In his trial testimony, accomplice
Alonzo Murray differentiated between the two items, explaining: “Do-rag you put on your
head. A bandana is like if you put it over your face.”
3
four of the home’s seven occupants out of their bedrooms at gunpoint and “pistol-
whipped” a fifth victim. One occupant managed to escape and call 911 before
returning to the house with a hammer to confront the assailants. The three
intruders fled from the house, and Scott fired at an occupant as they left. A few
blocks away, police arrested Murray—seizing his gun and cell phone. Murray
identified Armstrong and Scott as his accomplices in the home invasion.
The State charged Armstrong with attempted murder, six counts of
kidnapping in the second degree, six counts of robbery in the first degree, burglary
in the first degree, and carrying weapons. Armstrong filed an alibi defense. But
at trial, his alibi witness, Justine Dubois, failed to appear. Armstrong testified in
his own defense, telling the jury he was with his girlfriend, Dubois, and not at the
break-in.
On January 6, 2012, the jury returned guilty verdicts on first-degree
burglary, first-degree robbery, five counts of kidnapping in the third degree,
carrying weapons, and assault with intent to inflict serious injury (a lesser included
offense of attempted murder). On direct appeal, our court affirmed Armstrong’s
convictions for burglary, robbery, carrying weapons, and assault with intent.
Armstrong, 2013 WL 2107400, at *1. We reversed his kidnapping convictions
based on his trial counsel’s failure to object to a faulty jury instruction and
remanded for retrial on those five counts. Id. On remand, the State dismissed the
kidnapping counts.
In February 2014, Armstrong filed his PCR application, alleging ineffective
assistance of both trial and direct appeal counsel. The district court denied relief.
Armstrong now appeals.
4
II. Scope and Standards of Review
We generally review PCR proceedings for correction of legal error.
Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012). But when the application
alleges ineffective assistance of counsel, our review is de novo. Allison v. State,
914 N.W.2d 866, 870 (Iowa 2018).
III. Discussion
A. Ineffective Assistance of Trial Counsel
As the PCR applicant, Armstrong must show, by a preponderance of the
evidence, trial counsel breached an essential duty and prejudice resulted. See
Strickland v. Washington, 466 U.S. 668, 687 (1984); Lamasters, 821 N.W.2d at
866. We will affirm the district court’s PCR denial if either prong is unsatisfied.
Anfinson v. State, 758 N.W.2d 496, 499 (Iowa 2008).
On the breach-of-duty prong, we presume trial counsel was competent, and
Armstrong bears the burden of proving the representation fell below “prevailing
professional norms.” See Lamasters, 821 N.W.2d at 866. Miscalculated trial
strategies or simple mistakes in judgment generally do not rise to the level of
ineffective assistance of counsel. Id. On the prejudice prong, Armstrong must
demonstrate a different outcome would have been reasonably probable but for
counsel’s errors. See id. A reasonable probability is sufficient to undermine our
confidence in the outcome. Strickland, 466 U.S. at 694. If Armstrong can only
show the errors “conceivably” influenced the bottom line, the standard is not met.
See id.
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1. Cell Phone Records and Black Bandana
Armstrong contends his trial counsel breached an essential duty by failing
to object to evidence gathered from cell phone records and a black bandana found
at the crime scene. In his issue heading, Armstrong claims his attorney “failed to
object on foundation” but cites no rules of evidence in the body of his argument.
He starts with the cell phone records, alleging they were “highly
incriminating and prominently cited” in our decision on direct appeal. Armstrong
argues despite investigators’ failure to recover the “family” cell phone he admitted
to using on occasion, the State offered evidence of fourteen calls placed from the
Armstrong phone to accomplice Murray’s phone at the time they were fleeing the
crime scene. Police seized Murray’s phone and obtained provider records
showing both phones were in Council Bluffs at the time of the home invasion.
Because Armstrong cites no legal authority for his argument concerning trial
counsel’s handling of the cell phone records, we deem it waived. See Iowa R.
App. P. 6.904(4), 6.903(2)(g)(3).
Moreover, as the PCR court noted:
[Armstrong’s] attorney throughout the case argued that the State’s
evidence was insufficient to show that Armstrong had possession of
the phone and was at the crime scene. Armstrong’s attorney made
a number of foundation objections concerning the police
investigation, and the State was required to provide further
foundation for the officer’s testimony. After the additional foundation
by the state the evidence was admitted.
Armstrong established neither breach of duty nor prejudice in regard
to the cell phone evidence.
6
Armstrong next alleges his trial counsel should have challenged the State’s
chain of custody for a black bandana found in a bedroom of the burglarized house.
Despite a sweep of the house by crime scene technicians, the item was found by
an eighteen-year-old resident after she returned home from being interviewed by
police. The resident testified she immediately placed the item in a grocery bag
and turned it into authorities. Criminalists were able to match DNA extracted from
the bandana material to Armstrong’s sample.
To establish a chain of custody necessary for admission of physical exhibits,
the State bears the burden of showing the circumstances of evidence collection
made it “reasonably probable that tampering, substitution or alteration of evidence
did not occur.” State v. Biddle, 652 N.W.2d 191, 196 (Iowa 2002) (quoting State
v. Bakker, 262 N.W.2d 538, 542–43 (Iowa 1978)). The prosecutor satisfied that
burden in regard to collection of the bandana. Although investigators did not spot
the bandana on their initial sweep of the crime scene, a resident testified to finding
the item after being interviewed by police and turning it over to an evidence
technician just hours after the initial incident. Armstrong cannot show a breach of
duty or resulting prejudice from counsel’s disinclination to object to the chain of
custody.
2. Collection of DNA Evidence
In another attack on the evidence taken from the bandana, Armstrong
argues trial counsel was ineffective for not challenging the process by which
authorities obtained a buccal swab for Armstrong’s DNA when he was arrested on
an unrelated charge in Nebraska. Armstrong argues the nontestimonial
7
identification procedure did not comply with Iowa Code section 810.8 (2011) and
violated his constitutional right against unreasonable search and seizure.
While Armstrong was detained on a misdemeanor charge in Omaha,
Council Bluffs police sought a court order from a Nebraska judge. The Nebraska
judge granted the identification order under Nebraska law, and the order was
executed according to Nebraska collection procedures. Unlike Iowa Code section
810.8, the Nebraska statute does not extend a right to counsel during the
nontestimonial identification procedure. Compare Neb. Rev. Stat. § 29-3303
(2011), with State v. Nagel, 458 N.W.2d 10, 12 (Iowa Ct. App. 1990) (examining
statutory right to counsel under section 810.8).
The PCR court did not embrace Armstrong’s testimony that the sample was
taken “by force,” instead stressing: “At bottom, Armstrong’s DNA sample was taken
pursuant to a valid Nebraska Court order.” Even if trial counsel had decided to
contest Iowa authorities’ choice to pursue the less-demanding Nebraska
procedures, we agree with the PCR court’s conclusion on prejudice: “Armstrong
has not shown a reasonable probability he would have been successful in
challenging the Nebraska order and nontestimonial procedures or that such a
challenge would have resulted in the Iowa trial court excluding the evidence.”
3. Impeachment of Client with Prior Offenses
In his next claim of ineffective assistance, Armstrong complains trial counsel
asked him highly prejudicial questions on the witness stand, “thus impeaching his
own client and allowing improper cross examination to take place.” On direct
examination, Armstrong acknowledged he had been convicted of theft by
deception, driving without a license, a drug charge, and attempted burglary. On
8
cross examination, the prosecutor probed for more details about Armstrong’s prior
offenses.
The PCR court described the defense strategy as an effort to “take the wind
out of the State’s sails” by revealing Armstrong’s criminal past in his direct
examination. On appeal, Armstrong contends his defense attorney was remiss in
not filing a motion in limine or otherwise sorting out before trial which prior
convictions would be admissible under Iowa Rule of Evidence 5.609. The State
responds that filing a motion in limine would not have changed the outcome of the
case—“at the very least, the defendant’s prior felony convictions
and prior crimes of dishonesty were admissible.”
We agree with the State—given Armstrong’s decision to testify on his own
behalf, he cannot show prejudice resulting from counsel’s strategy of taking the
sting out of his criminal history on direct examination. See State v. Jones, 271
N.W.2d 761, 765 (Iowa 1978) (recognizing validity of defense tactic of bringing up
prior convictions on direct examination). On appeal, Armstrong does not show that
had defense counsel filed a motion in limine to exclude his non-impeachable prior
offenses, a different outcome was reasonably probable.
4. Alibi Witness
Armstrong also contends his attorney was ineffective for failing to produce
Armstrong’s girlfriend, Dubois, as an alibi witness at trial. Armstrong asserts
counsel failed to effectively subpoena Dubois, did not investigate her location, and
should have established the witness was unavailable to allow submission of her
prior deposition testimony. In response, the State argues counsel could not have
9
reasonably done more to produce Dubois, and the record does not establish
counsel could have shown unavailability under the rules.
When Dubois did not appear to testify on behalf of Armstrong, trial counsel
asked for a continuance. Counsel told the court he sent a process server out with
a subpoena in case she needed to “get off work or something” and he was “at a
loss as to why she is not here.” The court denied the request for a continuance.
Counsel then moved to read her deposition into the record. The court denied the
motion because the defense had not shown the witness was unavailable. See
Iowa R. Evid. 5.804(a)(5). In his deposition testimony for the PCR proceedings,
trial counsel recalled Armstrong “didn’t seem surprised that she didn’t show up.”
The PCR court rejected Armstrong’s alibi-witness claim on prejudice
grounds:
Even assuming that Armstrong can show that his trial attorney was
ill prepared for establishing that Ms. DuBois was an unavailable
witness, he could not show a reasonable probability that it would
have changed any of the verdicts.
In some cases, alibi witnesses can be very persuasive. But
the facts and circumstances in this case fail to demonstrate that Ms.
DuBois would have been that type of witness. Ms. DuBois was
Armstrong’s girlfriend, not an unbiased observer. At her deposition
on December 22, 2011, DuBois stated that she remembered that
Armstrong specifically stayed with her the night of July
20 into the early morning of July 21, 2011. However, she could not
remember when Armstrong was arrested. She admitted having a
“bad memory.” Despite being the source of what was perhaps
Armstrong’s best evidence in his defense, she never contacted the
police after Armstrong was arrested to provide this information, nor
did she contact Armstrong’s attorney. Rather, it was Armstrong’s
attorney that contacted her.
We agree with the PCR court’s rationale. Armstrong cannot show he
suffered prejudice resulting from his counsel’s handling of the alibi witness
situation.
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5. Prosecutorial Misconduct
In his final claim of ineffective assistance of trial counsel, Armstrong focuses
on his attorney’s failure to challenge two instances of alleged misconduct by the
prosecutor.2 First, Armstrong argues his lawyer should have objected when the
prosecutor asked about the tattoo on his shoulder—the initials S.F.G.—during the
direct examination of accomplice Murray and cross examination of Armstrong.
Second, Armstrong contends counsel had a duty to object to the prosecutor’s
misstatements about the presumption of innocence and corroboration of the
defendant’s testimony during the State’s closing argument.
We turn first to the tattoo questions. In the direct examination of State’s
witness Murray, the prosecutor asked if his accomplice had a tattoo, and Murray
confirmed the letters “S.F.G.” were inked on Armstrong’s upper arm. The
prosecutor also asked Armstrong about the tattoo on cross examination. In the
PCR hearing, Armstrong’s counsel asserted the initials S.F.G. “supposedly stood
for South Family Gang.” Armstrong argues his trial counsel was remiss in not
objecting to these slightly veiled references to gang membership because they
prompted the jury to convict him for reasons independent from his alleged
involvement in the home invasion. See State v. Nance, 533 N.W.2d 557, 562
(Iowa 1995) (“[E]vidence of gang membership and activity is inherently prejudicial.
It appeals to the jury’s instinct to punish gang members.”).
2
Our supreme court recognizes a distinction between misconduct and less egregious
missteps by a prosecutor. State v. Schlitter, 881 N.W.2d 380, 394 (Iowa
2016). Prosecutorial misconduct marks an intentional breach or reckless disregard of
clear standards of law or professional obligations. Id. Prosecutorial error covers
instances where the State’s attorney uses reasonable care but exercises poor judgment
or makes a mistake. Id.
11
The PCR court was not convinced the tattoo questions called for an
objection or that the absence of an objection prejudiced Armstrong. The court
noted “the evidence at trial shows the [S.F.G.] tattoo was used as a means of
identifying Armstrong, and there was no reference to gang affiliation.” In fact, the
court emphasized “the record is devoid of any reference to gang or gang affiliation.”
On appeal, the State contends the tattoo references strengthened accomplice
Murray’s naming of Armstrong as a participant in the crimes—“[r]eference to a
unique identifying mark, like a tattoo, is plainly relevant for the jury to understand
the reliability of a witness’ identification.”
The tattoo testimony—billed as necessary to identify Armstrong as an
accomplice—appears gratuitous given the other proof of the relationship between
Armstrong and Murray. Armstrong acknowledged in his testimony that he “hung
out” with Murray. But even if the prosecutor may have skated close to the line
drawn in Nance, it was not crossed. See id. Without any direct mention of gangs
or gang affiliation, Armstrong cannot show he was prejudiced by his trial attorney’s
reluctance to draw attention to the tattoo testimony. See State v. Smith, No. 16-
0533, 2017 WL 6033880, at *6 (Iowa Ct. App. Dec. 6, 2017) (finding no abuse of
discretion from admission of photograph of defendant’s back, showing a tattoo
featuring the words “Global Gangsta” because there was no mention of gangs
during trial). Without a more explicit characterization by the State of Armstrong’s
gang affiliation, the isolated references to the tattoo do not rise to the level of
misconduct necessary to render defense counsel ineffective for failing to object.
We turn next to Armstrong’s claim concerning the State’s closing argument,
when the prosecutor highlighted Murray’s testimony:
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It was undisputed what you heard up there, unless there was
something I didn’t hear. I don’t think the facts were challenged at all.
What he said, his testimony was never challenged at all. Guess who
he identified? He identified . . . the defendant. Immediately,
presumption of innocence, ladies and gentleman is gone.
Armstrong also complains about the following statement by the prosecutor
in rebuttal:
[Defense counsel] said Murray was not corroborated . . . . Tell me
one corroboration for the defendant when he got up there. I would
like to hear one thing, one thing he said that was corroborated.
Armstrong argues both passages were incorrect statements of law and cried out
for objections by defense counsel. Armstrong contends the presumption of his
innocence was not “gone” after Murray testified, but remained throughout the trial,
including through closing arguments. He also maintains that a defendant’s
testimony, unlike that of an accomplice, requires no corroboration.
The PCR court concluded it was reasonable for defense counsel to refrain
from objecting to the presumption-of-innocence comment, opining “[t]he statement
by the prosecutor was nothing more than argument that the evidence had
established guilt beyond a reasonable doubt.” The PCR court also found it
significant that the criminal court properly instructed the jury “[t]he presumption of
innocence remains with the defendant throughout the trial unless the evidence
establishes guilt beyond a reasonable doubt.”
It should be said that the prosecutor’s comment was a misstatement of the
law on the presumption of innocence. “The presumption of innocence, although
not articulated in the Constitution, is a basic component of a fair trial under our
system of criminal justice.” Estelle v. Williams, 425 U.S. 501, 503 (1976). This
fundamental principle places the burden on the State to prove a defendant’s guilt
13
beyond a reasonable doubt—while placing no burden on the accused. See
Presumption of Innocence, Black’s Law Dictionary (10th ed. 2014). “It is
misconduct to misinform the jury that the presumption of innocence is ‘gone’ prior
to the jury’s deliberations. It strikes at the very heart of our system of criminal
justice.” See People v. Cowan, 214 Cal. Rptr. 3d 576, 582 (Ct. App. 2017) (“Even
a novice prosecutor should know not to make such a fallacious statement to the
jury.”). The presumption of innocence “remains with the defendant through every
stage of the trial, most importantly, the jury’s deliberations. It is extinguished only
upon the jury’s determination of guilt beyond a reasonable doubt.” United States
v. Crumley, 528 F.3d 1053, 1065–66 (8th Cir. 2008); accord People v. Conyac,
361 P.3d 1005, 1029 (Colo. Ct. App. 2014) (disapproving of prosecutor’s closing
statement that defendant’s “presumption of innocence is gone”); State v. Trimble,
371 N.W.2d 921, 926 (Minn. Ct. App. 1985) (rejecting prosecutor’s “bursting
bubble” theory, i.e., once sufficient evidence is produced to rebut the presumption
of innocence, it vanishes, and holding defendant does not lose presumption of
innocence until jury evaluates evidence).
Trial counsel had a duty to object to the prosecutor’s mischaracterization
concerning the presumption of innocence. Accordingly, the question becomes
whether Armstrong established he was prejudiced by counsel’s failure to do so.
We agree with the PCR court that any error was remedied in this case by giving a
proper instruction following closing arguments. See Crumley, 528 F.3d at 1066
(finding no prejudice where proper jury instruction “cured” prosecutor’s improper
statement on presumption of innocence). We find Armstrong suffered no prejudice
from the prosecutor’s misstatement concerning the presumption of innocence.
14
As for the prosecutor’s rebuttal remark about corroboration of defendant’s
testimony, defense counsel testified in the PCR proceeding that he would have
preferred for the prosecutor not to venture down that road, but did not believe much
would have been accomplished by objecting. The PCR court credited defense
counsel’s position, as do we. While the prosecutor’s rebuttal may have been
inartful, it was somewhat invited by the defense closing and was not the kind of
severe or pervasive misconduct that would require reversal. See State v. Graves,
668 N.W.2d 860, 869 (Iowa 2003).
B. Ineffective Assistance of Appellate Counsel
Taking a different tack, Armstrong switches his criticism to his direct-appeal
attorney, contending the appellate defender was ineffective in failing to raise the
claims set out in his postconviction application. Armstrong alleges “had the issues
discussed above been raised on appeal, there is a reasonable probability that the
outcome of the appeal would have been different.” We find no merit in Armstrong’s
allegation concerning appellate counsel, who was successful in raising an issue
leading to the dismissal of his kidnapping convictions. The appellate defender had
no duty to raise additional claims of ineffective assistance of trial counsel without
an adequate record to litigate them. See Iowa Code § 814.7. And, in fact,
appellate counsel often provides better advocacy by being more selective in the
briefing process. Luke v. State, 465 N.W.2d 898, 904 (Iowa Ct. App. 1990)
(“Sound trial strategy generally dictates that only the most promising issues be
raised on appeal.”).
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C. Cumulative Error
As his final point, Armstrong contends if none of counsel’s errors merits
relief standing alone, they should be considered for their aggregate impact. He
claims the cumulative effect of the alleged errors denied him a fair trial. See State
v. Clay, 824 N.W.2d 488, 501 (Iowa 2012) (“Iowa recognizes the cumulative effect
of ineffective assistance of counsel claims when analyzing prejudice under
Strickland.”). By our review, Armstrong has not shown he was prejudiced by his
trial counsel’s overall performance. The State offered strong evidence of
Armstrong’s participation in the home invasion, including the testimony of his
accomplice and DNA evidence. Our confidence in the verdicts is not undermined
by trial counsel’s inability to deliver perfect representation. See Strickland, 466
U.S. at 694.
AFFIRMED.