Appeal from the Iowa District Court for Dubuque County, Monica L. Ackley, Judge.
A defendant contends (1) the prosecutor committed misconduct in multiple ways, (2) the State withheld exculpatory evidence, (3) the district court judge should have recused herself, (4) the district court erred in answering a jury question, and (5) his right to confront witnesses was violated.
Eddie R. Adams, Fort Dodge, appellant pro se.
Christopher M. Soppe of Law Office of Christopher M. Soppe, Dubuque, and Christopher J. Welch of Blair & Fitzsimmons, P.C., Dubuque, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Ralph Potter, County Attorney, and Christine Corken, Assistant County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
Knicker's Saloon in Dubuque was robbed by two men wearing ski masks and carrying sawed-off shotguns. The State charged Eddie Adams and his father, Eddie Chest, with crimes arising from the incident. Adams's case proceeded to trial, and a jury found him guilty of first-degree robbery, possession of an illegal firearm, and possession of a firearm.
On appeal, Adams contends (1) the prosecutor committed misconduct, (2) the State withheld exculpatory evidence, (3) the district court judge should have recused herself, (4) the district court erred in answering a jury question, and (5) his right to confront witnesses was violated. We will address the pertinent facts and procedures in the context of each of these arguments.
I. Prosecutorial Misconduct
A claim of prosecutorial misconduct requires proof of misconduct and proof of "prejudice to such an extent that the defendant was denied a fair trial." State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003). Review of this issue where there is a proper objection is for an abuse of discretion. State v. Thornton, 498 N.W.2d 670, 676 (Iowa 1993).
A. Prosecutor's Statement That Adams Lied.
In her closing arguments, the prosecutor stated, "[W]e have Eddie Adams himself on the stand, who turned himself in as one of the State's best witnesses by lying and getting caught at it, and by Eddie Adams pointing the finger as hard and as fast as he can away from Eddie Adams." Adams's attorney immediately objected to the prosecutor's assertion that Adams was lying, arguing that the statement violated case precedent. The prosecutor responded by asking the court whether she had indeed made such a statement; the court responded she had. The prosecutor then stated:
I did? Okay. All right. And I apologize. When the Defendant took the stand, and told us what he told, you get to decide whether its good or not. And I apologize, it is wrong, that I said the Defendant was lying. He-absolutely bad words. Thats your job. You figure that out. You figure that out. But when the Defendant takes the stand, and tell us us what he tells us, its your job to figure out who's telling the truth.
We will assume without deciding that the prosecutor committed misconduct by stating that Adams lied. See Graves, 668 N.W.2d at 876 aI]t is improper for a prosecutor to call the defendant a liar, to state the defendant is lying, or to make similar disparaging comments."). Adams cannot establish prejudice based on this statement because the prosecutor immediately retracted it, apologized, and followed up with a statement that credibility was for the jury. Additionally, the district court fashioned a special instruction that reiterated the point. See State v. Carey, 709 N.W.2d 547, 558 (Iowa 2006) (While this court has held that referring to a defendant as a liar is misconduct, such comments do not always result in prejudice.").
B. Prosecutor's Cross-Examination of Adams.
On direct examination, Adams testified that his nephew came to the apartment in which he was staying and told him he committed a robbery with his grandfather. While Adams was trying to process this information, he said he "happened to look up in the ceiling, and the tile was out of place." He knew his nephew "usually puts stuff up there in the ceiling" so he "reached in and grabbed the envelope, and its full of money."
On cross-examination, the prosecutor asked Adams, "And magically, you saw the tile away from its original place, and you went up there, and you found the envelope, full of money. Yes? Adams's attorney objected, and the prosecutor withdrew the question. Later, the prosecutor referred to Adams's discovery of the money and stated, "You are a lucky man." Again, Adams's attorney interposed an objection and, again, the prosecutor withdrew the assertion.
We are not persuaded that these comments amounted to prosecutorial misconduct. See Carey, 709 N.W.2d at 557 (stating that jurors "are sophisticated enough not to be inflamed or prejudiced by what would reasonably be characterized as simply being snide or sarcastic comments "). First, the comments were withdrawn. Second, the comments flowed directly from Adams's testimony. See id. (concluding prosecutor's statement that defendant ...