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IN THE COURT OF APPEALS OF IOWA No. 8-113 / 06-1254 Filed May 14, 2008

CHRISTOPHER P. BENNETT, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, D.J. Stovall, Judge.

Christopher Bennett appeals from the denial of his application for postconviction relief. AFFIRMED.

Frank Burnette, Des Moines, for appellant. Thomas J. Miller, Attorney General, Mary Tabor and Robert P. Ewald, Assistant Attorneys General, John P. Sarcone, County Attorney, and Nan Horvat, Assistant County Attorney, for appellee State.

Heard by Vogel, P.J., and Zimmer and Baker, JJ.

2 BAKER, J. Christopher Bennett appeals from the denial of his application for postconviction relief. Because Bennett is unable to prove both breach of duty and resulting prejudice on any of his ineffective-assistance-of-counsel claims, we affirm the district courts decision to deny Bennetts application. I. Background and Facts On March 20, 1995, Christopher Bennett was convicted of first-degree murder in the death of his girlfriend, Julie Wacht. At the time of her death, Wacht was sixteen and Bennett was eighteen. They lived together and were involved in a romantic, yet volatile and violent, relationship. At trial, Bennett claimed that on the night she died Wacht was upset and had been hitting and yelling at him, so he tied her up to calm her down. Bennett tied Wac hts arms and legs together and put a sock in her mouth, then tied a pillow over her face to muffle her screaming. He then left to go to a friends house. Wacht died due to suffocation. Bennetts conviction was affirmed on direct appeal. State v. Bennett, No. 95-0926 (Iowa Ct. App. Nov. 27, 1996). In 2003, he filed an application for postconviction relief, which he amended in 2005.1 The district court dismissed the application and denied relief. Bennett appeals. Other facts will be discussed in our consideration of the legal issues presented. II. Merits Bennett contends he was denied due process and a fair trial due to prosecutorial misconduct. He also contends his trial counsel rendered ineffective
1

In its post-trial brief, the State raised the issue of untimeliness. The district court denied the States request for dismissal, noting it had waived its statute of limitations defense when it "had its opportunity to properly raise this defense and failed to do so."

3 assistance by failing to request an instruction on voluntary manslaughter and a limiting instruction on bad acts evidence. Bennett asserts that the alleged errors in this case were not harmless, under any standard of harmless error. Bennett also asserts "this court is not required to follow a conclusion of the United States Supreme Court with respect to" the issue of the retroactive application of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Our review of postconviction relief proceedings can be for errors at law or de novo. When the action implicates constitutional issues, our consideration is in the nature of a de novo review. When no constitutional safeguards are at issue, our review is for errors at law. Berryhill v. State, 603 N.W.2d 243, 244-45 (Iowa 1999) (citations omitted). Because a criminal defendants right to reasonably effective assistance of trial counsel is derived from the Sixth Amendment of the United States Constitution, we review ineffective assistance claims de novo. State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005). A. Prosecutorial Misconduct Bennett contends his trial counsel rendered ineffective assistance by failing to object to prosecutorial misconduct which occurred during cross-examination and closing argument. "In order to establish a due p rocess violation based upon prosecutorial misconduct, the defendant must first establish proof of misconduct." State v. Musser, 721 N.W.2d 734, 754 (Iowa 2006) (citation omitted). "A prosecutor is not an advocate in the ordinary meaning of the term." State v. Graves, 668 N.W.2d 860, 870 (Iowa 2003) (citation omitted). In addition to the duty owed to the public, prosecutors owe a duty to the defendant to assure a fair trial, and must therefore abide by due process requirements throughout the

4 trial. Id. Although a prosecutor is an advocate for the State, the prosecutors primary interest is to see that justice is served, not to obtain a conviction. Id. While a prosecutor is allowed some latitude during closing arguments, and "may argue the reasonable inferences and conclusions to be drawn from the evidence," she must confine her arguments to the evidence and "is not ,,allowed to make inflammatory or prejudicial statements regarding a defendant in a criminal action." Id. at 874 (citations omitted). 1. Sarcasm and Improper Comments

Bennett contends the prosecutors cross-examination of him and closing argument were misconduct. The prosecutors questions to Bennett included: Q. Did you love Julie when you restrained her by holding her hands down? .... Q. And you loved Julie Wacht when you testified that you slapped her only once, is that correct? .... Q. And when did that happen in relation to the day when you loved her so much you killed her? The prosecutors closing argument, which Bennett asserts was "laced with sarcasm and disdain" for his professed love for Wacht, included: And above all, remember that glorious statement, I love her, I want to spend the rest of my life with her. I love her so much that when she told me I couldnt lea ve, I took a rope and I tied her hands together while sitting on top of her, after throwing her on the bed. I loved her so much that I took a sock and I put it in her mouth. And I tied a rope around it to make sure it stayed. I loved her so much that I tied that same rope to her ankles. .... I loved her so much that . . . I went back and I cut a piece of that rope, and I loved her so much, so very much, that I tied a pillow around her face. What a loving, loving act. ....

5 And all were asking you now is to hold him accountable for loving Julie the way he did. Bennett asserts that the prosecutors use of the phrase "you loved her so much" in connection with his killing Wacht "could do no more than inflame the passions of the jury, which is exactly what it did, as it was deliberately designed to do." Questioning and closing arguments which "attempt to appeal to the passion and prejudice of the jury," clearly "violate a prosecutors duty to keep the record free of undue denunciations or inflammatory utterances," and are to be avoided. State v. Werts, 677 N.W.2d 734, 739 (Iowa 2004) (citations omitted). [M]isconduct does not reside in the fact that the prosecution attempts to tarnish defendants credibility or boost that of the States witnesses; such tactics are not only proper, but part of the prosecutors duty. Instead, misconduct occurs when the prosecutor seeks this end through unnecessary and overinflammatory means that go outside the record or threaten to improperly incite the passions of the jury. State v. Carey, 709 N.W.2d 547, 556 (Iowa 2006) (citation omitted). In determining whether a prosecutors argum ents are improper, we consider whether the prosecutors argument was made in a professional manner, or whether it unfairly disparaged the defendant and tended to "cause the jury to decide the case based on emotion rather than upon a dispassionate review of the evidence." Graves, 668 N.W.2d at 874-75. In Wertz, 677 N.W.2d at 739, a prosecutor asked the defendant whether she had in truth "knocked the life out of" the child victim and "robbed that little boy of his life because he didnt fit within [her] schedule." During closing arguments the prosecutor held a baby book up and described several childhood activities the victim would never experience, tearing a page out of the book for each activity. Wertz, 677 N.W.2d at 739. The

6 questioning and closing argument were found to be an improper attempt to appeal to the passions of the jury, and therefore constituted prosecutorial misconduct. Id. Conversely, in Carey, 709 N.W.2d at 555, the prosecutors "sarcastic and snide" comments, were "based on a legitimate assessment of the evidence and . . . did not constitute misconduct, given the considerable latitude accorded to lawyers in final arguments." Upon our de novo review, we find the prosecutors references to Bennetts professed love for Wacht did not constitute prosecutorial misconduct. The

prosecutors "loved her so much" comments, while sarcastic, were not improper attempts to appeal to the passions of the jury. 2. Truthfulness of Other Witnesses Bennett also asserts prosecutorial misconduct because he was asked to comment on the credibility or truthfulness of other witnesses. Asking a defendant whether another witness has lied is inconsistent "with the prosecutors duty to the defendant to ensure a fair trial, including a verdict that rests on the evidence and not on passion or prejudice." Graves, 668 N.W.2d at 873 (citation omitted). [A] lawyer may properly examine a witness about an event by pointing out the factual differences between the witnesss testimony and the testimony of other witnesses to the same event . . . . However, it is not proper to take the further step of asking one witness if another witness is untruthful, mistaken, or to otherwise ask the witness to comment on the credibility of another witness. Nguyen v. State, 707 N.W.2d 317, 324-25 (Iowa 2005). At trial, Michael Glodt and Victoria Padavitch, who were friends and coworkers with Wacht, testified they had observed evidence of physical abuse, such as black eyes and bruises, and that Wacht had told them that Bennett hit

7 her. During the prosecutions cross-examination of Bennett, these exchanges occurred: Q. And are you saying that Mike Glodt is exaggerating or making that up? A. I am saying thats not what happened. .... Q. Vicki Padavitch and Mike Glodt testified that Julie came to work with black eyes, crying, marks on her, often. Are you saying they are mistaken? A. I am saying that the black eye that they both claim to have seen is probably the same one. .... Q. So, then, is Vicky Padavitch mistaken about that Julie was in the house crying and you wouldnt let her in to see Julie? A. No. Because asking a defendant ",,were they lying or mistaken questions" constitutes prosecutorial misconduct, defense counsels failure to object to such questioning may constitute a breach of an essential duty. Nguyen, 707 N.W.2d at 324; see also Bowman v. State, 710 N.W.2d 200, 205 (Iowa 2006) (asking the defendant to comment on the credibility of witnesses was improper, an d "trial counsel had a duty to make a proper objection to these questions"). We find the prosecutors cross-examination of Bennett, in which he was asked to comment on the veracity of Padavitch and Glodts testimony, constituted misconduct. See Bowman, 710 N.W.2d at 204 ("It is well-settled law in Iowa that a bright-line rule prohibits the questioning of a witness on whether another witness is telling the truth. There are no exceptions to this rule." (citations omitted)). To prevail on his ineffective assistance claim, however, Bennett must show both failure to perform an essential duty and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The prosecutors misconduct, while satisfying the breach of duty prong, does not necessarily entitle Bennett to a mistrial. See Musser, 721 N.W.2d at

8 755. We turn therefore to the prejudice prong. See State v. Wilkins, 693 N.W.2d 348, 352 (Iowa 2005) (",,[I]t is the prejudice resulting from misconduct, not the misconduct itself, that entitles a defendant to a new trial." (citation omitted)). To prove prejudice, Bennett must prove "a reasonable probability that, but for counsels unprofessional errors, the result would have been different." State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000) (citing Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). We consider several factors, including "the severity and pervasiveness of the misconduct, the significance of the misconduct to the central issues in the case, [and] the strength of the States evidence . . . ." Musser, 721 N.W.2d at 755 (internal citations omitted). "The most important factor is the strength of the States case against the defendant." State v. Boggs, 741 N.W.2d 492, 509 (Iowa 2007) (citing Carey, 709 N.W.2d at 559). ",,[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Nguyen, 707 N.W.2d at 326 (quoting Strickland, 466 U.S. at 696, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699). "[M]isconduct, and resulting prejudice, does not occur by raising the issue of credibility of a witness, but by the manner in which it is done." Id. at 325. Where a prosecutor aggressively asked the defendant liar questions, told the jury that the defendant basically called a police officer a liar, and repeatedly called the defendant a liar, such conduct was found to be prejudicial because it improperly diverted the jurys focus to the issue of the defendants truthfulness. Graves, 668 N.W.2d at 880-81. However, where the prosecutor asked the defendant to

comment on whether other witnesses were mistaken, but then made no

9 reference to lying in closing argument and never called the defendant a liar or implied the defendant called an eyewitness a liar, the defendant was not prejudiced because the jury was focused on whether the eyewitnesses were mistaken, not whether the defendant was a bad person because he said the witnesses were mistaken. Nguyen, 707 N.W.2d at 325-26. The parties agree the central issue at the time of trial was Bennetts intent at the time he tied up Wacht. We agree with the district court that the error did not affect the intent element because "Bennetts responses to the questions on cross-examination did not change the quality or nature of his abusive conduct toward the victim." Further, the prosecutors few questions regarding the veracity of Padavitch and Glodts testimony, in the context of a trial with numerous witnesses, was not pervasive. See State v. Stewart, 691 N.W.2d 747, 751 (Iowa Ct. App. 2004) (holding "only three inappropriate questions from the prosecutor" during "a trial with multiple witnesses" was neither severe nor pervasive). Further, the questions had little effect on the factual findings which supported the conviction and did not become a central issue in the case. Finally, the States evidence against Bennett was strong. Considering the misconduct in light of the totality of the evidence, we cannot conclude that, absent the misconduct, the jury "would have had a reasonable doubt respecting guilt." Strickland, 466 U.S. at 695, 104 S. Ct. at 2068-69, 80 L. Ed. 2d at 698. Bennett cannot establish the prejudice prong. We therefore reject this ineffective assistance claim. B. Voluntary Manslaughter Bennett next contends his trial counsel rendered ineffective assistance by failing to request a jury instruction on voluntary manslaughter. He argues that,

10 because Wacht was upset, yelling, and hitting during the ordeal, the jury could reasonably have concluded a voluntary manslaughter verdict was appropriate. Voluntary manslaughter is a lesser-included offense for first-degree murder. State v. Jeffries, 430 N.W.2d 728, 737 (Iowa 1988). Therefore, if after applying the "factual test" the trial court determines substantial evidence supports each element of voluntary manslaughter, an instruction on that offense is appropriate. State v. Royer, 436 N.W.2d 637, 643 (Iowa 1989). Voluntary manslaughter requires proof of intent and a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a person and there is not an interval between the provocation and the killing in which a person of ordinary reason and temperament would regain control and suppress the impulse to kill. Iowa Code

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