IN THE COURT OF APPEALS OF IOWA
No. 16-1673
Filed August 16, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
UNDRAY JERMAINE REED,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Kellyann M.
Lekar, Judge.
A defendant challenges his conviction for possession of
methamphetamine. REVERSED AND REMANDED.
Colin R. McCormack of Van Cleaf & McCormack Law Firm, LLP, Des
Moines, for appellant.
Thomas J. Miller, Attorney General, and Darrel L. Mullins, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
2
TABOR, Judge.
Undray Reed appeals his conviction for possession of methamphetamine,
claiming the prosecutor improperly vouched for the candor of a law enforcement
officer during closing arguments. By telling jurors the officer was “being honest”
and wouldn’t risk perjury or his career by lying, the prosecutor engaged in
misconduct and defense counsel’s objection should have been sustained.
Because Reed’s drug conviction hinged on the officer’s truthfulness, we find the
misconduct to be prejudicial. Accordingly, we reverse and remand for a new
trial.1
I. Facts and Prior Proceedings
Waterloo police officer Albert Bovy recalled the weather was clear but
“fairly chilly” during his early morning shift on March 10, 2015. His dash camera
showed a “good frost” on the ground at the Kwik Star parking lot where he was
patrolling. Outside the Kwik Star, Officer Bovy noticed a Buick Century being
driven without license plates. The officer turned on his lights and sirens to signal
a traffic stop, but the driver—later identified as Reed—failed to pull over. In fact,
Reed sped away, reaching speeds of forty-five to fifty miles per hour on
residential streets. Reed eventually skidded through an intersection and crashed
the Buick into a house.
Officer Bovy testified: “I could see his driver’s window was open. His arm
comes flinging up as if to throw something, and then he comes rolling out of the
car and takes off running down the sidewalk.” The officer chased Reed down the
1
Because we reverse on this issue, we need not reach Reed’s allegation that his trial
attorney was ineffective for not seeking a mistrial based on the State’s failure to
establish a chain of custody for a methamphetamine pipe.
3
sidewalk—losing sight of him in an alley for about one minute but soon spotting
Reed trying to squeeze under a parked car. The dash cam video recorded the
loud barking and snarling of police dogs, as an officer yelled at Reed: “Come out
from under the car or you’re gonna get bit.”
Officer Bovy testified that, after arresting Reed, the officer searched the
ground around the Buick and found “a baggie of crystal ice” on the edge of the
sidewalk toward the rear tire on the driver’s side, within throwing distance of the
car. Bovy testified the baggie “appeared to be recently put there. Like I said,
there was quite a bit of frost that night. I got out with my flashlight out and looked
at it closely and there was no frost on it. It wasn’t damp or anything like that.”
Lab testing recorded .18 grams of methamphetamine in the baggie.
Searchers also found a glass methamphetamine pipe in the grass toward
the street that appeared to be recently placed there, according to Bovy’s
testimony. When interviewed by Bovy at the police station, Reed said he fled
because he didn’t have a driver’s license. Reed admitted smoking
methamphetamine about an hour before the crash but denied the baggie picked
up outside the Buick belonged to him.
In a three-count trial information, the State charged Reed with eluding,
possession of methamphetamine, and driving while his license was revoked. His
case went to trial on March 30, 2016, with Officer Bovy and two other police
officers as the only witnesses.
During closing argument, Reed’s attorney urged the jurors to evaluate
specific frames of the dash cam video from the crash scene, asserting Officer
Bovy planted the baggie of methamphetamine: “You see his hand go down and
4
place something on the ground.” Defense counsel then focused on a segment of
the video two minutes earlier when two officers walked on the same trajectory
without noticing any evidence, scoffing, “Officer Bovy is luckier than any of the
other officers, including officers that walk directly through that path.” The
defense attorney offered this appeal to the jury:
Officer Bovy is upset that evening perhaps about the activity that
Mr. Reed was involved in. He thinks he sees something go out the
window, but he can’t find it and none of the other officers can find it.
And [Bovy] thinks [Reed’s] done something wrong and [Bovy]
doesn’t want to let [Reed] get away with it, but that’s not how we
find the truth and do justice. Walking to the back of the vehicle,
bending down, and laying something on the ground, that’s not how
we do justice.
The State returned fire in its rebuttal closing argument. The prosecutor
first mused: “Officer Bovy has to be probably the worst corrupt officer ever
according to the defense. . . . They say he planted that knowing full well there’s
a camera videotaping that area and he’s gonna plant it right in front of a video.”
The prosecutor called the argument that Officer Bovy planted evidence
“absolutely offensive and ridiculous” and complained that defense counsel did
not “even ask [Bovy] about it” during cross-examination. The prosecutor told the
jurors: “It goes to show you the sincerity of the argument.”
The prosecutor then wove a rhetorical line suggesting Officer Bovy was
being truthful because his testimony against Reed was not airtight. Critically, the
prosecutor asserted:
[Officer Bovy] never actually said he saw anything leave the
[d]efendant’s hand when he made a throwing motion. All he could
say was a throwing motion; right? If you’re gonna lie, say you saw
something leave his hand. Why would a person who’s gonna risk
perjury, your career, do something like that in such a weak way?
That’s called candor. He’s being honest.
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Defense counsel objected, and the district court overruled the objection.
The prosecutor continued:
Officer Bovy didn’t plant this. He’s not that stupid, and if he
did—if he was really going to plant it, he isn’t going to do it this way.
Why not put it in the [d]efendant’s pocket? That’s gonna be better.
Why not do it when there’s no camera rolling. That would be better.
Why not lie about the meth pipe? Why not lie and say you actually
saw something leave his hand? And that’s the problem with their
argument. The [d]efendant is guilty.
The prosecutor further argued: “So really, it’s gonna come down to
whether you believe Officer Bovy or you don’t. Do you think he’s a corrupt
officer, or do you think he told the truth?”
After closing arguments and outside the presence of the jury, the district
court explained its decision to overrule the defense objection:
[M]y rulings stem from the fact that while we do need to be careful
in terms of how we cast people’s testimony, my bigger concern is
typically when someone attempts to call someone a liar as opposed
to attempts to simply say they felt their testimony was honest,
straightforward, or had candor.
The jury returned verdicts finding Reed guilty of eluding, driving while
barred, and possession of methamphetamine. On appeal, Reed challenges only
his conviction for possession of methamphetamine.
II. Standard of Review
Our district courts have broad discretion when ruling on claims of
prosecutorial misconduct; our review is for an abuse of that discretion. State v.
Plain, ___ N.W.2d ___, ___, 2017 WL 2822482, at *2 (Iowa 2017). “We find an
abuse of discretion only where there is misconduct and the defendant was so
6
prejudiced by the misconduct as to deprive him of a fair trial.” State v. Jacobs,
607 N.W.2d 679, 689 (Iowa 2000).
III. Analysis of Reed’s Prosecutorial Misconduct Claim
Iowa’s seminal case on prosecutorial misconduct remains State v. Graves,
668 N.W.2d 860, 870 (Iowa 2003). Graves touted the unique advocacy role filled
by prosecutors, who owe “a duty to the defendant as well as to the public.” 668
N.W.2d at 870.
Graves preserved for prosecutors “some latitude during closing argument
in analyzing the evidence admitted in the trial.” Id. at 874 (quoting State v.
Phillips, 226 N.W.2d 16, 19 (Iowa 1975)). In that vein, a prosecutor may argue
reasonable inferences drawn from the evidence but may not express personal
beliefs or personally vouch for the credibility of a State’s witness. Id. (citing
State v. Williams, 334 N.W.2d 742, 744 (Iowa 1983)). Among the misconduct
identified in Graves were comments implying the prosecutor knew “something
the jurors did not” about the motivations of a police-officer witness to tell the truth.
See id. at 879 (citing United States v. Boyd, 54 F.3d 868, 871 (D.C. Cir. 1995)
(holding prosecutor improperly vouched for police witnesses when she indicated
in closing argument officers would not risk their careers by lying because this
argument relied on evidence not in the record)).
But Graves recognized “prosecutorial misconduct does not automatically
prejudice a defendant’s right to a fair trial.” Id. at 876. In deciding if a
prosecutor’s improper argument threatened a defendant’s right to a fair trial, we
consider several factors, including “(1) the severity and pervasiveness of the
misconduct; (2) the significance of the misconduct to the central issues in the
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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.” Id. at 877. Subsequent cases have identified the
strength of the State’s case against the defendant as the most important factor.
See, e.g., State v. Boggs, 741 N.W.2d 492, 509 (Iowa 2007); State v. Carey, 709
N.W.2d 547, 559 (Iowa 2006).
Reed contends the prosecutor’s closing rebuttal argument crossed into the
realm of misconduct by vouching for the credibility of Officer Bovy. The offending
statement, according to Reed, was the prosecutor’s assurance to the jury that
Bovy would not commit perjury or risk his career by telling a lie—in short, “[h]e’s
being honest.”
In its appellee’s brief, the State acknowledges our supreme court has
disproved of “language suggesting the prosecutor has information that the jury
does not, such as the risk of perjury or the loss of career.” But the State
contends the prosecutor’s misconduct, or his error,2 was not sufficiently
prejudicial to warrant a new trial. The State asserts the trial prosecutor was
“entitled to respond with some vigor” to the defense accusation that Officer Bovy
planted the baggie of methamphetamine.
2
Our supreme court recently explained the difference between misconduct and error by
a prosecutor. Prosecutorial misconduct means an intentional violation of “a clear and
unambiguous obligation or standard imposed by law, applicable rule or professional
conduct,” as well as reckless disregard of a duty to comply with an obligation or
standard. State v. Schlitter, 881 N.W.2d 380, 394 (Iowa 2016) (citation omitted).
Prosecutorial error covers instances of “poor judgment” and “mistake” and “excusable
human error, despite the use of reasonable care.” Id. (citation omitted). Given the clear
standard announced in Graves, we find the prosecutor’s closing argument here was
more misconduct than error.
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Reed weighs in on the prejudice issue, characterizing Officer Bovy’s
testimony as “very important to the State’s case, making it very likely that the
State’s attorney vouching directly for his honesty could have a negative effect on
the [d]efendant.” Reed contends the district court abused its discretion by
overruling his counsel’s objection to the prosecutor’s improper remarks during
the closing rebuttal argument.
We start our analysis with the threshold question whether the prosecutor’s
remarks, which drew a spontaneous objection from defense counsel, were
improper. We conclude the prosecutor’s declaration that Officer Bovy was “being
honest” because his career was on the line if he gave false testimony constituted
impermissible vouching as outlined in Graves.3 The State concedes as much in
its appellate argument.
The contested question is whether the prosecutor’s impermissible
vouching for the police witness “prejudiced, inflamed or misled the jurors so as to
prompt them to convict the defendant for reasons other than the evidence
introduced at trial and the law as contained in the court’s instructions.” See
Graves, 668 N.W.2d at 877. In Reed’s case, the misconduct was limited to the
prosecutor’s closing rebuttal argument and was no doubt incited by the
controversial defense theory that a police officer planted drug evidence.
But on the other side of the balance, the misconduct carried great
significance for the central issue bearing on the possession-of-methamphetamine
3
Also concerning are the prosecutor’s repeated declarations in closing argument that
“[t]he [d]efendant is guilty.” These declarations were not consistently tied to evidence in
the record, but seemed to suggest a personal opinion. Under our case law, prosecutors
are “precluded from using argument to vouch personally as to a defendant’s guilt.” See
Williams, 334 N.W.2d at 744.
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count and the court’s overruling of the defense objection blocked the possibility of
any curative measures. The prosecutor told the jurors their verdict came down to
whether they believed Officer Bovy. The State’s primary evidence regarding
possession was the baggie—either found or planted by the police officer near the
Buick that Reed had been driving. Both sides argued plausible interpretations of
what can be seen on the dash-cam video. When the prosecutor personally
vouched for the officer’s honesty rather than sticking to the evidence presented,
Reed was denied a fair trial. See State v. Martens, 521 N.W.2d 768, 772 (Iowa
Ct. App. 1994) (explaining that “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”).
We don’t lightly find an abuse of discretion by the district court, which was
called upon to rule on the defense objection in the moment. But we disagree
with the district court’s rationale that the prosecutor’s argument was not
objectionable because he vouched for the honesty of a State’s witness rather
than calling the defendant “a liar.” Either misstep can result in a due-process
violation depending on the application of the Graves factors. Had the district
court sustained the defense objection, the opportunity would have arisen to
caution the jury that the prosecutor had no inside information about the veracity
of the police officer or about Reed’s guilt. As the record stands, the
impermissible vouching deprived Reed of a fair trial on his possession-of-
methamphetamine charge. Accordingly, we reverse that conviction and remand
for a new trial on that count of the trial information.
REVERSED AND REMANDED.
State of Iowa v. Undray Jermaine Reed
Combined Opinion