IN THE COURT OF APPEALS OF IOWA
No. 15-0144
Filed October 12, 2016
JONATHAN LEE BREWER JR.,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert J. Blink,
Judge.
Jonathan Brewer appeals from the denial of his application for
postconviction relief. AFFIRMED.
Karmen R. Anderson of the Law Office of Karmen Anderson, Des Moines,
for appellant.
Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant
Attorney General, for appellee State.
Considered by Danilson, C.J., Mullins, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
2
DANILSON, Chief Judge.
Jonathan Brewer appeals from the denial of his application for
postconviction relief (PCR), contending his criminal trial and appellate counsel
provided constitutionally defective representation. The district court rejected his
claims. On appeal, Brewer asserts the district court erred in concluding trial
counsel was not ineffective and the prosecutor’s improper closing arguments
were not prejudicial.
I. Background Facts and Proceedings.
The background facts are set out in detail in State v. Brewer, No. 11-1330,
2012 WL 3860745, at *1-2 (Iowa Ct. App. Sept. 6, 2012). In short, Darshelle
Moore dated both Jonathan Brewer and Henry Palmer. Brewer, 2012 WL
386075, at *1. On February 13, 2011, Brewer burst through the door of Moore’s
apartment and threw gasoline on Palmer’s grandson (Tyrone Cameron) and then
threw the gasoline can at Palmer, who had come to investigate the loud noises.
Id. Moore called 911, which resulted in police searching for Brewer and his
vehicle. Id. Cameron’s girlfriend, Renee Thompson, testified she was at the
apartment but hiding when the door was forced open. Id. She also testified that
earlier that night, Brewer was driving a truck and had rammed her vehicle with
his own, stopped her vehicle, and then threatened Cameron. Id. Thompson and
Cameron then drove away to Moore’s building. Id. Palmer identified Brewer as
the intruder at trial. The jury found Brewer guilty of first-degree burglary. Id. at
*3-4.
Brewer sought a new trial based on newly discovered evidence—an
affidavit from Moore, who did not testify at trial or appear for her deposition. Id.
3
at *6. The trial court held hearings on the motion, twice delaying the hearing until
Moore was present to testify. While Moore’s affidavit stated she “never stated to
anyone involved in the trial that Jonathan L. Brewer was there or had anything to
do with that crime,” she admitted she “might” have called 911, and that if the 911
dispatcher told the police that Jonathan Brewer was involved in the burglary, that
information would have come from the person who placed the 911 call. The
court overruled the motion for new trial.
On appeal, we affirmed the conviction, concluding in part: “Given the
strong evidence that Brewer was the person who broke into the apartment and
doused Cameron with gasoline, we agree with the district court’s assessment
that Moore’s affidavit was not newly discovered material evidence that would
have changed the outcome of the trial.” Id. at *7.
Brewer filed a PCR application, asserting trial and appellate counsel were
ineffective and the prosecutor had engaged in misconduct. With respect to trial
counsel, Brewer maintained counsel failed in several respects. Brewer
contended counsel did not adequately investigate witnesses, did not adequately
impeach witnesses with their deposition testimony, did not object to improper
closing remarks by the prosecutor, and failed to object to the jury instruction
defining the elements of first-degree burglary. He also asserted appellate
counsel should have raised the additional issues on direct appeal.
Following a hearing, the district court rejected his claims of ineffective
assistance of counsel. The PCR court addressed each of Brewer’s claims.
When summarizing, the court wrote:
4
The trial in this case was fair. [Brewer’s] guilt was evident.
His counsel was an experienced criminal lawyer, but she was
limited by the violent and indisputable nature of her client’s conduct.
A lawyer, no matter how skilled, cannot change the inculpatory
facts blatantly or undeniably created by the defendant’s conduct.
The overwhelming evidence of [Brewer’s] guilt precludes any
conclusion that, even if any of his claims had merit, . . . the verdict
would have been different.
Mr. Brewer has not met his burden to prove ineffective
assistance of trial or appellate counsel. Nor has he shown how trial
counsel’s failure to do any of the things complained of amounted to
a breach of an essential duty. He has failed to prove he was
prejudiced by the alleged errors of trial counsel. Given the record,
all other claims made are without merit, and, even if supported by
the record, would probably not lead to a different verdict. The
petition for postconviction relief is denied.
Brewer appeals.
II. Scope and Standard of Review.
Generally, we review postconviction rulings on error. Ledezma v. State,
626 N.W.2d 134, 141 (Iowa 2001). But we review claims of ineffective
assistance of counsel de novo because they are based on constitutional
guarantees under the United States and Iowa Constitutions. Nguyen v. State,
878 N.W.2d 744, 750 (Iowa 2016). We apply a two-pronged test: “We ask if trial
counsel breached an essential duty.” Id. at 752. “We also ask whether prejudice
resulted from said breach. The [applicant] has the burden of proving both
elements by a preponderance of the evidence.” Id. (citation omitted). We “must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the [applicant] must overcome the
presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. (quoting Strickland v. Washington, 466 U.S.
5
668, 689 (1984) (citation omitted)). Moreover, if the applicant fails to prove either
element, we need not address the other. Id. at 754.
III. Discussion.
Upon our de novo review, we agree with the district court’s ruling that
many of Brewer’s complaints involve reasonable strategic decisions by trial and
appellate counsel, and in any event, Brewer failed to prove any claimed error
caused prejudice. We thus do not address further Brewer’s assertions that trial
counsel conducted an inadequate investigation1 and failed to impeach Thompson
with her criminal history,2 or that appellate counsel failed to raise the issues of
prosecutorial misconduct and the impropriety of the marshalling instruction on
burglary in the first degree. And because we agree with the district court that
Brewer did not prove trial counsel was ineffective, his claim that appellate
counsel was ineffective in failing to raise the additional contentions is without
merit. See State v. Taylor, 689 N.W.2d 116, 134 (Iowa 2004) (noting the
“important” principle that “counsel has no duty to raise an issue that lacks merit”).
We address only two of his many claims in more detail.
1
As explained in Ledezma, 626 N.W.2d at 145, “Counsel is required to conduct a
reasonable investigation or make reasonable decisions that make a particular
investigation unnecessary. Thus, the duty to investigate is not unlimited, and trial
counsel is not required to interview every potential witness.” (Citations omitted.) Here,
Brewer’s claim related only to the failure to investigate a potential witness, but even if
investigated and called as a witness, we do not believe the result of the trial was likely to
have changed.
2
While trial counsel testified she could not “recall a strategic reason for not doing so,”
and that it “may simply have been an error on my part,” not to impeach Thompson with
the witness’s prior felony convictions, we agree with the district court’s finding that
Brewer cannot prove prejudice resulted in light of the strength of the other evidence
against him.
6
A. Jury instructions. Brewer contends that trial counsel was ineffective in
failing to object to the marshalling instruction for first-degree burglary.3 The jury
was instructed:
The State must prove all of the following elements of
Burglary in the First Degree:
1. On or about the 13th day of February, 2011, the
Defendant entered a residence . . . ;
2. The residence was an occupied structure as defined in
Instruction No. 20;
3. Persons were present in the occupied structure;
4. The Defendant did not have permission or authority to
enter the residence . . . ;
5. The Defendant did so with the specific intent to commit an
assault, theft or felony; and
6. During the burglary, Defendant had possession of
incendiary material.
If the State has proved all of the elements, the Defendant is
guilty of Burglary in the First Degree. If the State has failed to
prove any one of the elements, the Defendant is not guilty of
Burglary in the First Degree and you will then consider the charge
of Attempted Burglary in the First Degree explained in Instruction
No. 22.
(Emphasis added.)
Brewer contends the trial court was required to instruct the jury on the
specific felony, theft, or assault Brewer intended commit, and trial counsel did not
object to the instructions. The State agrees such an instruction is required, see
State v. Mesch, 574 N.W.2d 10, 12 (Iowa 1997), but argues Brewer cannot
3
Iowa Code section 713.1 provides:
Any person, having the intent to commit a felony, assault or theft
therein, who, having no right, license or privilege to do so, enters an
occupied structure, such occupied structure not being open to the public,
or who remains therein after it is closed to the public or after the person's
right, license or privilege to be there has expired, or any person having
such intent who breaks an occupied structure, commits burglary.
7
establish prejudice. As to this claim,4 the PCR court concluded Brewer had
“failed to establish that if trial counsel had objected to any of the instructions, the
result of the trial would have been different.”
In Mesch, in addition to the general instruction about burglary, the trial
court had defined “assault” and “theft” in separate instructions. It did not,
however, specify what felony the defendant had intended to commit. The court
wrote:
One of the elements of common-law burglary was that the breaking
and entering be “with the intent to commit a felony” therein. In
keeping with the common-law definition, we hold that the intent to
commit a felony, assault or theft is an element of attempted
burglary under section 713.2. The State is therefore required to
specify the felony that the defendant intended to commit after the
breaking and entering. To avoid confusion or speculation on the
part of the jury, the district court must also instruct on the elements
constituting the felony. Failure to do both is reversible error. See
State v. Gordon, 560 N.W.2d 4, 6–7 (Iowa 1997) (holding court
must leave to jury determination of elements of offense). See also
Iowa Crim. J[ury] Inst. 1300.4 (1993) (indicating that burglary
instruction must “describe” felony).
Here, over [the defendant’s] objection, the district court
simply instructed the jury in terms of the statute: [Defendant]
attempted to enter “with the specific intent to commit a felony,
assault, or theft.” The district court was required to specify what
felony [the defendant] intended to commit after the breaking and
entering and the elements constituting such felony. Its failure to do
so constituted reversible error.
Requiring the State to specify the felony is not onerous.
While the State may not know what the defendant actually intended
to do inside the dwelling, the State knows very well what evidence
of intent it has. If the State has evidence of intent to commit certain
felonies, and not others, it should request instructions only on those
the evidence supports. The district court cannot submit instructions
on felonies for which there is no evidence. . . . In addition, unless
we require the State to specify the felony or felonies, [this
defendant] and defendants similarly situated may be convicted on
4
The PCR court characterized the claim: “Brewer complains that trial counsel breached
an essential duty by failing to object to the jury instructions. Applicant misunderstands
the elements of burglary and mischaracterizes the evidence and the court’s instructions.”
8
nothing more than proof of “who knows what she would have been
up to had she entered.”
Mesch, 574 N.W.2d at 14-15.
In State v. Oetken, 613 N.W.2d 679, 686 (Iowa 2000), the court explained:
To commit burglary in Iowa, a person unlawfully entering a
premises must have the intent to commit a felony, assault or theft
therein. See Iowa Code § 713.3. In Mesch, the trial court refused
to instruct the jury as to which crime or felony an accused charged
with burglary intended to commit. We reversed the defendant’s
conviction on the grounds that, unless the State limits its
prosecution and requested jury instructions to theft or assault, the
State must specify which felony it believes a burglar intended to
commit. Mesch, 574 N.W.2d at 14. We also directed the court to
instruct the jury as to the elements constituting the felony. Id.
Generally, a court is required to instruct the jury as to the
pertinent issues, the law, and the definition of the crime. State v.
Kellogg, 542 N.W.2d 514, 516 (Iowa 1996); Henderson v. Scurr,
313 N.W.2d 522, 525 (Iowa 1981). Particular terms need not be
defined, though, if readily understood by persons of ordinary
intelligence. Only technical terms or legal terms of art must be
explained. Kellogg, 542 N.W.2d at 516.
We need not decide, however, whether “theft” is a term
readily understood by persons of ordinary intelligence or whether it
is a legal term of art warranting a definitional instruction. Even
assuming an instruction defining the crime of theft should have
been given, we conclude the defendant suffered no prejudice from
the absence of such an instruction here.
Thus, instructional error is not necessarily reversible error. Oetken, 613 N.W.2d
at 686. And in Oetken, no reversible error was found because:
In the context of the burglary statute and the facts presented
herein, the evidence overwhelmingly indicated Oetken [the
defendant] intended to commit theft by breaking into private
residences, and stealing firearms, televisions, and other personal
property. Oetken was not prejudiced by the jury’s understanding of
the term “theft.” Nor, for the reasons set forth in the previous
division, was he prejudiced by the jury’s application of the
commonly accepted meaning of “possession.” It is therefore
unnecessary for us to consider whether his attorney abrogated a
duty by failing to request further instruction in these regards.
Id.
9
Here, we are not convinced Brewer’s conviction was “on nothing more
than proof of ‘who knows what []he would have been up to had []he entered.’”
Mesch, 574 N.W.2d at 15. The State made its theory clear in closing
arguments—that Brewer had the intent to commit an assault.
Now, there could be alternative theories of what [Brewer] was going
to do. Was he going to commit attempted murder? Was he going
to commit a willful injury? He’s certainly committed an assault,
right? I mean, pouring gasoline on a person is an assault.
We conclude, in the context of the burglary statute and the facts presented
at the trial, the evidence overwhelmingly indicated Brewer intended to commit an
assault after breaking and entering. See State v. Clay, 824 N.W.2d 488, 499-500
(Iowa 2012) (finding that even though trial counsel should have objected to
prosecutor’s misstatement of law with respect to intent to deprive, evidence
showed defendant intended to permanently deprive owner of vehicle).5
Consequently, we agree with the district court that Brewer failed to establish
prejudice by counsel’s failure to object to the erroneous instructions or appellate
counsel’s failure to raise the issue on direct appeal.
5
The Clay court wrote:
With this testimony in the record, we cannot say trial counsel’s
conduct in not objecting to the prosecutor’s statement of law regarding
the crime of theft is sufficient to undermine our confidence in the verdict.
We say this because the only evidence in the record was the out-of-court
statements regarding Clay’s intent that he stole the vehicle and had the
intent to take it to South Dakota. This evidence could lead a reasonable
jury to conclude that Clay took the car for more than a joyride and is
sufficient for the jury to find Clay had the intent to permanently deprive
Overman of his vehicle. Therefore, this evidence does not undermine our
confidence in the verdict, even if the court had properly instructed the jury
that Clay had to have the intent to permanently deprive Overman of his
vehicle in order to commit a theft.
824 N.W.2d at 499-500.
10
B. Prosecutor’s statements during closing argument. Brewer claims
the prosecutor improperly vouched for the credibility a witness and injected his
personal opinions in closing arguments. Brewer argues he was denied a fair trial
by trial counsel’s failure to object to prosecutorial misconduct and appellate
counsel’s failure to raise the issue on appeal. We will refer to Brewer’s
allegations as claims of “prosecutorial error.”6 See State v. Schlitter, 881 N.W.2d
380, 393-94 (Iowa 2016).
In analyzing Brewer’s claims, we must first decide if prosecutorial error
occurred. See id. at 394 (“We discussed the role of the prosecutor in criminal
cases in [State v.] Graves, 668 N.W.2d [860,] 870 [(Iowa 2003)]. We also
identified a multifactor test to evaluate the statements made during closing
arguments in determining if there was misconduct and if that misconduct was
6
In Schlitter, our supreme court stated:
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.” . . . 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.” . . . This distinction also conforms to
the general definitions for misconduct and a trial error. Compare
Misconduct, Black’s Law Dictionary (10th ed. 2014) (defining misconduct
as “[a]n attorney’s dishonesty or attempt to persuade a court or jury by
using deceptive or reprehensible methods”), with Trial Error, Black’s Law
Dictionary (defining trial error as “[a] mistake in or deviation from proper
trial procedure during the presentation of a case to a jury”). Going
forward, we adopt the ABA’s recommendation on our review of
prosecutorial behavior and distinguish between incidences of
prosecutorial error and prosecutorial misconduct. A prosecutor who has
committed error should not be described as committing misconduct.
881 N.W.2d at 393-94 (citations omitted) (emphasis added).
11
prejudicial. Id. at 877-78. These same factors easily translate to an evaluation of
prosecutorial error.”).7
If prosecutor error occurred and defense counsel failed to object,
we must then consider whether an attorney performing within the
range of normal competency would have made an objection and/or
requested a mistrial. If there is no possibility that trial counsel’s
failure to act can be attributed to reasonable trial strategy, then we
can conclude the defendant has established that counsel failed to
perform an essential duty. . . .
The final step of our analysis, should the defendant’s claim
survive to this point, will be to assess whether the record permits a
determination of the prejudice prong of the ineffective-assistance
claim. In this regard, we will examine whether there is a
reasonable probability the outcome of the trial would have been
different had trial counsel performed competently.
Graves, 668 N.W.2d at 870.
It is the prosecutor’s duty to assure the accused a fair trial. Id. And while
a prosecutor is allowed “some latitude during closing argument in analyzing the
evidence” and “may argue the reasonable inferences and conclusions to be
drawn from the evidence,” the prosecutor may not express personal beliefs. Id.
at 874 (citations omitted).
Brewer maintains the following statements by the prosecutor in closing
were improper: “Renee [Thompson] is a very credible witness.” “I’m sure Tyrone
[Cameron] was absolutely afraid [to identify Brewer.]” Even if we were to agree
7
The Graves court noted an isolated act of prosecutorial error may not amount to a
constitutional violation. 668 N.W.2d at 880.
“[I]t is the prejudice resulting from [prosecutorial error], not the
[prosecutorial error] itself, that entitles a defendant to a new trial.” 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
[prosecutorial error], (2) the significance of the [prosecutorial error] 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 [prosecutorial error].
Id. at 869 (citations omitted).
12
the first comment constituted improper vouching for Thompson’s credibility or the
second comment constituted improper personal opinion, see id., Brewer’s
criminal appeals counsel testified she reviewed the record, considered the best
possible issues to raise, and excluded those she believed lacked merit, including
a claim of prosecutorial error.8 Appellate counsel must exercise sound discretion
in selecting which issues to raise on appeal.
The prosecutor’s statements were isolated and not particularly significant
in contrast to the strength of Palmer’s testimony identifying Brewer as the
intruder who poured gasoline on his grandson and threw the gas can at Palmer.
In the context of the entire trial, we agree that any failure to object did not
prejudice Brewer and appellate counsel breached no duty in deciding not to raise
the issue on appeal. See Ledezma, 626 N.W.2d at 143 (miscalculated strategies
and mere mistakes in judgment normally do not rise to the level of ineffective
assistance of counsel).
8
Appellate counsel testified:
If this is an isolated incident, the Court’s not going to do anything
about it. I mean, it has to kind of flow throughout the closing arguments.
The other thing that the court would say about this is how it’s done is
couched into how it corroborates with other testimony and how her
testimony is not really controverted by anything else.
So as I said, it’s done more as a comparison, you know, her
testimony compared with everybody else. No one’s really contradicting
her. And then he says, you know, that makes her—and he submits that
she’s a credible witness. I mean, if he was doing it throughout the closing
argument, you know, Renee’s telling the truth, such-and-such is telling
the truth, that would be more problematic. But this isolated incident of
saying she’s very credible and in comparison—and then, you know,
compares the other testimony, that’s not going to be a reversible error.
Q. If [the prosecutor] were to make comments about other
witnesses, such as Tyrone Cameron, being scared to come forward with
the truth or other comments such as that, do you think that would make
this issue more problematic? A. No, I don’t think so.
13
The district court concluded Brewer failed to establish the requisite
prejudice to prove trial and appellate counsel provided constitutionally deficient
representation. Upon our de novo review, we agree. Therefore, we affirm the
denial of Brewer’s application for postconviction relief.
AFFIRMED.