Terrance Jerrell Burnett, Applicant-Appellant v. State of Iowa ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 14-1128
Filed February 10, 2016
TERRANCE JERRELL BURNETT,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, James M.
Richardson, Judge.
An applicant appeals from the denial of his application for postconviction
relief. AFFIRMED.
Brian S. Munnelly of Munnelly Law Office, Omaha, Nebraska, for
appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik and Heather
Mapes, Assistant Attorneys General, for appellee State.
Considered by Mullins, P.J., McDonald, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, Senior Judge.
Terrance Jerrell Burnett appeals from the denial of his application for
postconviction relief.
I. Background Facts and Proceedings
Dustin Jones died from a stab wound he suffered while attending a party
during the late evening hours of December 11, 2009. On December 23, 2009,
Terrance Jerrell Burnett, also an attendee at the party, was charged with first-
degree murder. A jury trial was held and on January 21, 2011, the jury returned
a verdict of guilty to the lesser-included offense of second-degree murder. The
applicant appealed, and the verdict was affirmed. See State v. Burnett, No. 11-
0361, 2012 WL 836656, at *1 (Iowa Ct. App. Mar. 14, 2012). That opinion
recounts the factual situation that will not be restated, except where relevant to
the applicable claims raised in this proceeding.
An application for postconviction relief was filed on June 29, 2012,
requesting that the conviction be set aside and the case dismissed or,
alternatively, a new trial granted. The applicant’s postconviction-relief action is
based on his contention trial counsel was ineffective for failing to move for a
mistrial and in failing to object to certain testimony. He further contends that if no
individual claim justifies relief, the cumulative effect of the individual claims taken
together justify the requested relief. He finally claims that appellate counsel in
his original appeal was ineffective for failing to raise the same issues as raised in
this postconviction-relief action. The trial court denied his request. The applicant
has appealed.
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II. Error Preservation
Error preservation is generally considered present when the issues to be
reviewed have been raised and ruled on by the district court. Meier v. Senecaut,
641 N.W.2d 532, 537 (Iowa 2002). Other than the cumulative effect of the
various claims, which was not raised before the postconviction court, each claim
of ineffective assistance of counsel was raised and carefully considered and
ruled on by the postconviction court. For purposes of this proceeding, we will
assume individual claims of ineffective assistance counsel preserve their
cumulative effect to the extent their cumulative effect may be considered.
III. Standard of Review
Appeals from the denial of a postconviction-relief application are ordinarily
reviewed for corrections of errors of law. Castro v. State, 795 N.W.2d 789, 792
(Iowa 2011). Denial of effective assistance of counsel raises a constitutional
issue, and as such the review is de novo. Lamasters v. State, 821 N.W.2d 856,
862 (Iowa 2012).
IV. Discussion
To prevail on a claim of ineffective assistance of counsel a claimant must
prove by a preponderance of the evidence that (1) counsel failed to perform an
essential duty, and (2) prejudice resulted. Ledezma v. State, 626 N.W.2d 134,
142 (Iowa 2001). A claim of ineffective assistance must overcome the
presumption that counsel is competent. Taylor v. State, 352 N.W.2d 683, 685
(Iowa 1984). 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). Choices of strategy after proper
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investigation are virtually unchallengeable. Ledezma, 626 N.W.2d at 143. In
reviewing counsel’s effectiveness we do not take on the role of a Monday
morning quarterback and view the proceedings with twenty-twenty hindsight.
Fryer v. State, 325 N.W.2d 400, 414 (Iowa 1982). For relief to be granted there
must be a determination that but for ineffective assistance, there is a reasonable
probability the result would have been different. Ledezma, 626 N.W.2d at 145.
Counsel is not ineffective for failing to make a meritless claim. State v. Brubaker,
805 N.W.2d 164, 171 (Iowa 2011).
A. The Prejudicial Clothing
The applicant’s family arrived at the courthouse the morning the jury was
to be selected. They observed as many as eight of the victim’s family seated in
the courtroom wearing shirts with the likeness of the victim’s face imprinted on
the front. There were other unidentified individuals in the courtroom at the time
that might have been a part of the jury pool. Prior to voir dire the shirts were
observed and the court ordered the shirts removed or turned inside out. The
order was obeyed. The applicant contends that trial counsel should have moved
for a mistrial because of the shirts.
A spectator’s conduct can be grounds for a mistrial, but the conduct must
be such as to prejudice the defendant or influence the verdict. State v. Curtis,
192 N.W.2d 758, 760-61 (Iowa 1971) (citing State v. Peters, 352 P.2d 329, 332
(Haw. 1959)). There is no concrete evidence that any juror saw the shirts in
question. Furthermore, there was no evidence that even if seen, why or how
viewing a likeness of the victim would have prejudiced the jury. Finally, to the
extent the shirts were objectionable, the problem was resolved, even before voir
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dire commenced. The court obviously considered its order an appropriate
resolution of the problem, and it is highly unlikely it would have granted a motion
for mistrial, even if made. Counsel had no duty to make such a motion.
B. Blood or Bloods Issue
The applicant’s background indicated he had some relationship with an
organization or gang known as the Bloods. Prior to trial the applicant filed a
motion in limine in an effort to keep out any suggestion that he was affiliated with
the Bloods. The motion was granted with the court noting it was not intending to
indicate that things that were a part of the res gestae were not admissible. The
court gave the further caveat that if circumstances should change, counsel
should approach the court before offering evidence on the prohibited subject.
In the State’s opening statement, the prosecutor gave a preview of the
anticipated testimony. He stated that immediately after the stabbing one witness
would quote the applicant as stating, “He was a Blood. I’ll stab him, I’ll stab him.”
The applicant’s counsel did not object. In the State’s redirect, one of the State’s
witnesses stated, “I can’t recall anything else. Something about blood.” Counsel
objected and after a sidebar the objection was overruled because there was no
linkage between the word “blood” and any gang. The prosecution later asked the
witness, “And you heard him say ‘blood’ as he walked out?” and the witness
answered, “Yes. Yes, sir.” The applicant’s counsel did not further object or
move for a mistrial.
In the State’s closing argument the prosecution made mention of the
demeanor of one of the witnesses, who was a friend of the applicant, stating,
“[He] got up here, took the stand wearing that kind of white puffy coat, and he hits
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what I like to call the gangster slouch. He gets up there and kind of wants to
pose a little bit.” The applicant’s counsel did not object.
Counsel’s objective was to prevent any comment that would indicate the
applicant’s gang relationship from being inserted into the record. He accordingly
made the motion in limine, and we assume it was correctly granted. The
applicant’s trial counsel testified that he did not object or move for mistrial when
references to blood or Bloods were made because he was concerned it would
only emphasize what he was attempting to avoid. It was a part of his strategy,
and it was effective. An objective reading of the transcript does not imply or even
suggest the applicant was a member of the Bloods or any other gang. The
prosecutor’s opening statement suggested the victim might have been a member
of the Bloods, but not the applicant. It is only speculative what impression might
have been raised in the jury’s mind or what would have been said if objections or
motions had followed the statements set out above. Left as they were, there was
not even an inference the applicant had any association with a gang.
C. Prosecutor’s Alleged Misconduct
The applicant contends the prosecutor’s statements, questions, and
closing argument constituted prosecutorial misconduct and trial counsel was
ineffective for failing to move for a mistrial. In order to obtain relief based on
prosecutorial misconduct the applicant must prove both the misconduct and that
prejudice resulted. State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003). It is a
duty of a prosecutor to present the State’s cases zealously and to attempt to
tarnish a defendant’s credibility within the proper bounds. State v. Comes, 62
N.W.2d 753, 757 (Iowa 1954). Counsel is not permitted during closing
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arguments to create evidence or vouch personally as to the defendant’s guilt or a
witness’s credibility based on personal experience or knowledge of facts not
before the jury, but he is entitled to analyze the facts and draw conclusions and
argue all permissible inferences that reasonably flow from the record. State v.
Williams, 334 N.W.2d 742, 744 (Iowa 1983). To the extent the prosecutor used
the word “blood,” it was not connected to the applicant’s relationship to a gang,
nor did it constitute misconduct.
1. Prosecutors Use of the Word “Lie”
The applicant testified that when the victim left the house where they had
been partying, he did not know the victim had been stabbed. He also stated that
the victim had pulled the knife first and he had only acted in self-defense. His
counsel, in a somewhat inconsistent vein, argued in his closing statements the
stabbing was done in the heat of passion and if the jury found the applicant guilty
of murder, it should only be as to second degree. The prosecutor, in his rebuttal
argument, pointed out the applicant’s counsel was saying “I hope you believe my
client, but if you don’t believe my client, then I hope the lie that he told you that—I
hope the thing you believe he was lying about was being enraged and in the heat
of passion and being seriously provoked.” The applicant’s counsel asked to
approach the bench and the court sustained what was apparently an unreported
objection made at the bench and admonished the prosecutor not to use the word
“lie.” The prosecution restated his analysis and without using the word “lie” in his
comments and summed up his contentions by stating, “You can’t have it both
ways, ladies and gentlemen. Either the defendant’s story as he took the stand,
was it the truth or it was not the truth?” The applicant’s counsel did not object or
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move for a mistrial. The use of the word “lie” was unnecessary and unfortunate,
but it is highly unlikely a mistrial would have been granted even if a motion had
been made by defense counsel. The prosecution was challenging the applicant’s
credibility based on the record and the inconsistent positions the applicant had
taken.
2. Victim’s Mothers’ Grief
In closing argument the prosecution referred to the victim’s mother, who
had actually found his body. “No mother should have to find their son lying dead
on a darkened sidewalk in the snow, the son that she gave birth to, the same son
she tried to breathe life back into his dead body twenty-three years after she
gave birth.” Prosecutors have a duty to keep the record free from inflammatory
utterances. State v. Werts, 677 N.W.2d 734, 739 (Iowa 2004). The applicant’s
counsel did not object or move for a mistrial.
The prosecutor’s comments concerning the victim’s mother’s grief would
have been better left unsaid. However, the fact that the victim’s mother had
found her son’s body, her grief, and attempt to resuscitate him were in evidence.
Both counsel in argument and the court in its instructions admonished the jury
not to decide the case based on sympathy. Even if the statements are
considered misconduct, it can hardly be considered prejudicial to the point of
having an impact on the overall fairness of the trial. The prosecutor’s statement
did not introduce any factor into the evidence not already before the court. This
one reference to the mother’s grief does not even approach the specter of
prejudicial misconduct present in Werts, 677 N.W.2d at 739, on which the
applicant relies.
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3. Use of Slides Using the Word “Proven” or Phrase “No Reasonable
Doubt”
As a part of his final argument, the prosecutor used slides setting out the
elements of the offense followed by the word “Proven” or the phrase “No
Reasonable Doubt.” Counsel in fact was not improperly stating his own opinion,
vouching as to the applicant’s guilt, or relying on personal experience or facts
outside the record, but was drawing conclusions based on the facts before the
jury. Furthermore, the jury was instructed that counsel’s statements were not
evidence and should not be considered as such. The applicant in his brief
appears to concede that the use of the words “Proven” or “No Reasonable
Doubt” would have been acceptable when accompanied by the court’s cautionary
instructions if they had been stated in oral argument. Instead, he contends that
to put it in writing and show it as a part of a slide is different and unacceptable
but cites no authority for such a proposition. Generally, visual aids can be used
to assist in the analysis of the facts in evidence. State v. Pepples, 250 N.W.2d
390, 396 (Iowa 1977).
In summary, factors to be considered in determining whether prosecutorial
misconduct constitutes the required prejudice are the severity and pervasiveness
of misconduct, the significance of the misconduct to the central issues of the
case, the strength of the State’s evidence, the use of cautionary instructions or
other preventative measures, and the extent to which the defendant invited the
improper conduct. State v. Musser, 721 N.W.2d 734, 755 (Iowa 2006). Overall,
the prosecutor’s conduct cannot be considered severe or pervasive, and
cautionary instructions were used. The evidence of the applicant’s guilt, as set
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out in Burnett, 2012 WL 836656, at *4-5, was overwhelming. If counsel had
moved for a mistrial based on the prosecutor’s misconduct or any part thereof,
denial of such a motion would have been expected and justified.
D. The Cumulative Effect
The cumulative effect may be taken into consideration when the prejudice
prong of ineffective assistance of counsel is being considered. State v.Clay, 824
N.W.2d 488, 501-02 (Iowa 2012). The postconviction trial court found no breach
of duty on the part of trial counsel and neither do we. The cumulative effect as to
the issue of prejudice need not be considered. See id.E. Appellate Counsel’s Ineffectiveness
The applicant contends his appellate counsel was ineffective for failing to
raise the issues of trial counsel’s ineffectiveness. The appellant has failed to
establish trial counsel’s ineffectiveness. The claim of ineffective appellate
counsel necessarily fails.
We affirm the decision of the district court denying Burnett’s application for
postconviction relief.
AFFIRMED.