Appeal from the Iowa District Court for Black Hawk County, Jon C. Fister, Judge.
Applicant appeals from a ruling denying his request for postconviction relief.
Steven J. Drahozal of Drahozal Law Office, P.C., Dubuque, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kim Griffith, Assistant County Attorney, for appellee State.
Considered by Vaitheswaran, P.J., and Doyle, J., and Goodhue, S.J. [*]
The applicant, Joseph Leo Johnson, appeals from a ruling entered May 8, 2012, denying his request for postconviction relief. Johnson contends that he received ineffective assistance of counsel in three particular areas: (1) failing to object to prosecutorial misconduct, (2) withdrawing the applicant's notice of self defense and failing to present evidence or prepare the applicant for testimony relative to the issue of self-defense, and (3) failing to pursue the applicant's request for judgment of acquittal with adequate specificity. In his pro se brief, Johnson also raises the issue of trial counsel's failure to object to a misstatement of the law in the instructions and generally contends that the trial court in the postconviction proceeding applied a lesser standard to his counsel's performance than is permitted by applicable law.
I. BACKGROUND FACTS AND PROCEEDINGS.
Johnson was convicted of first-degree murder and was sentenced to life in prison on November 29, 2007. He appealed his conviction, and his conviction was affirmed by this court. See State v. Johnson, No. 07-2074, 2010 WL 200048 (Iowa Ct. App. Jan. 22, 2010). The factual background is set out in that opinion. See id. The claims of ineffective assistance of counsel as to the failure to request a corroborating instruction to the admissions and the failure to present a self-defense claim were preserved for postconviction relief in that decision. See id. The factual setting for Johnson's conviction will not be repeated except to the extent that it may be relevant to this proceeding.
The victim died of a stab wound. The stabbing took place at a party where at least twenty-five to thirty people were present. A fight broke out. Witnesses testified that the victim and Johnson were involved in the fight and there was testimony that they were directly fighting with each other immediately prior to the discovery of the victim's fatal wound. No one saw Johnson inflict the fatal wound. However, witnesses—including a law enforcement officer—testified that Johnson stated he had killed someone or made other statements from which one could infer that he was admitting he was the one who stabbed the victim. Generally each admission was coupled with an explanation suggestive of justification. Other witnesses testified that Johnson had a knife during the altercation and had blood on his clothes after the altercation.
Counsel at the trial court level filed a notice of self-defense, but the notice was withdrawn before trial. Johnson testified at trial he did not stab or kill the victim. His testimony suggests that someone else at the party must have done it. At the postconviction relief hearing, Johnson's trial counsel testified Johnson always insisted at trial and prior to trial he simply did not stab the victim; therefore, the self-defense claim was abandoned. No specific instruction or evidence was submitted relative to the self-defense issue.
On voir dire, the prosecutor discussed the difference between a murder charged based on the felony murder rule and premeditated murder. She then stated, "The case that we're going to present . . . is going to be under the category of premeditated." After making the statement, she began asking the jury what "premeditated" meant to them. Johnson's counsel did not object and Johnson now contends the prosecutor was inappropriately instructing the jury in voir dire. The prosecutor then asked a juror: "If you do something when you're angry are you still responsible for your actions?" Johnson contends this was an impermissible argument in voir dire, and again trial counsel did not object.
In her opening statement, the prosecutor stated she would prove that after the initial confrontation at the party, the applicant left, but came back. She then asked two questions that might be classified as rhetorical questions. The prosecutor specifically stated:
One would have to ask, why are you going back to the party to begin with, a party that you been asked to leave, a party that was obviously uncomfortable at best for some of the individuals in that car because of the racial ...