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Kevin N. Johnson v. State of Iowa

January 9, 2013

KEVIN N. JOHNSON, APPLICANT-APPELLANT,
v.
STATE OF IOWA, RESPONDENT-APPELLEE.



Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.

The opinion of the court was delivered by: Mahan, S.J.

Applicant appeals the district court decision denying his request for post-conviction relief from his convictions for possession of a controlled substance with intent to deliver and failure to affix a drug tax stamp. AFFIRMED.

Considered by Doyle, P.J., Mullins, J., and Mahan, S.J.*fn1 Tabor, J., takes no part.

I. Background Facts & Proceedings.

On September 23, 2008, Officer Kevin Wright of the Des Moines Police Department responded to a request to go to the scene of a car accident. One of the people involved in the accident was Kevin Johnson. In investigating the accident, Officer Wright discovered Johnson had an outstanding warrant for his arrest. Officer Wright gave Johnson a pat-down search for weapons, handcuffed him behind his back, put him in his patrol car, and transported him to jail. After Johnson was out of the vehicle, Officer Wright discovered a plastic bag containing a white powdery substance on the floorboard near where Johnson had been sitting in the back of the patrol car. Officer Wright had personally inspected the vehicle before starting his shift, and he had not transported any other people in the patrol car that day.

Johnson was charged with possession of a controlled substance (cocaine base) with intent to deliver, in violation of Iowa Code section 124.401(1)(b) (2007), a class "B" felony;*fn2 and failure to affix a drug tax stamp, in violation of section 453B.12, a class "D" felony. After a trial, the jury found Johnson guilty of possession of a controlled substance with intent to deliver and failure to affix a drug tax stamp.

On March 3, 2009, Johnson was sentenced to a term of imprisonment not to exceed twenty-five years and a term not to exceed five years, to be served consecutively. The sentences were suspended, and Johnson was placed on probation for a period of three years. On August 28, 2009, Johnson's probation was revoked, and his original sentence was reinstated.*fn3

On June 28, 2010, Johnson filed an application for post-conviction relief, claiming he had been subjected to prosecutorial misconduct and received ineffective assistance of counsel. The district court found: (1) the trial information was properly amended to charge Johnson under the statute pertaining to cocaine base; (2) Johnson did not show he was prejudiced when the prosecutor commented on the credibility of witnesses in closing arguments; (3) defense counsel adequately cross-examined Officer Wright; (4) defense counsel was not ineffective for failing to have the controlled substance retested; and (5) Johnson did not show he received ineffective assistance of appellate counsel. Johnson appeals the decision of the district court denying his request for post-conviction relief.

II. Prosecutorial Misconduct.

To the extent a claim of prosecutorial misconduct raises an issue of due process, our review is de novo. State v. Boggs, 741 N.W.2d 492, 508 (Iowa 2007). In order to prevail on a claim of prosecutorial misconduct, a defendant must show misconduct and that the misconduct resulted in prejudice to such an extent he was denied a fair trial. State v. Musser, 721 N.W.2d 734, 754 (Iowa 2006). We consider the severity and pervasiveness of the misconduct, the significance of the misconduct to the central issues of the case, the strength of the State's evidence, the use of a cautionary instruction, and whether the defense invited the misconduct. Id. at 755.

Johnson claims that during the State's rebuttal in closing arguments the prosecutor improperly stated, "But the reality is when you look at the evidence and you look at the more credible witnesses, then it's very clear to me this defendant is guilty as charged." The prosecutor also stated, "And here's why I would tell you that the defendant is not credible and neither was his girlfriend." Johnson claims he was prejudiced by the statements.

In general, a prosecutor may not express his or her personal beliefs during closing arguments. State v. Graves, 668 N.W.2d 860, 874 (Iowa 2003). The prosecutor's statements were improper under this standard. We turn then to the issue of whether Johnson was prejudiced. We consider "whether there is a reasonable probability the prosecutor's misconduct 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." Id. at 877. We must determine whether the fairness of the trial was compromised. Id. at 880.

In considering this issue the district court found:

In this case, the court cannot conclude that a single personal opinion, expressed in the final minutes of rebuttal argument, resulted in sufficient prejudice to Johnson so as to award a new trial. Unlike the misconduct in Graves, the actions of the prosecutor in the present case were not pervasive or part of a central theme that tainted the entire proceeding. The comments are best described as isolated in nature and, in comparison to the strength of the remainder of the State's case against Johnson, insufficient to grant post-conviction relief. (Citation omitted). We concur in the district court's conclusions. The statements were ...


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