from the Iowa District Court for Clarke County, John D.
appeals conviction and sentencing of two counts of
first-degree murder based on his denial of fair trial due to
prosecutorial error and ineffective assistance of counsel.
C. Smith, State Appellate Defender, and Brenda J. Gohr,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Sharon K. Hall, Assistant
Attorney General, for appellee.
by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
found Richard Ryan Lamb Carson guilty of two counts of
first-degree murder. Carson appeals his convictions and
sentence after the district court denied his motion for a
mistrial. He claims the prosecutor made multiple comments
during closing arguments that denied him the right to a fair
trial. He further asserts his counsel provided ineffective
assistance by failing to object to the prosecutor's
questions during cross-examination. Because the
prosecutor's comments did not prejudice Carson, the
district court did not abuse its discretion in denying
Carson's motion for mistrial. We preserve the issue of
ineffective assistance of counsel for possible postconviction
Background Facts and Proceedings
jury could have reasonably found the following facts. On
January 23, 2015, Carson and his girlfriend, Tracy Johnson,
went to the home of Chris Elben and Lynn Sutton for dinner.
Elben's niece, Victoria Byers, was staying at the home
and was also present that evening. Two of Byers's
friends, Noe Flores and Erick Reyna, came to the home to go
out with her that night. According to Byers, Flores entered
the home and told her that he would wait in the car until she
was ready to leave. Flores went back outside where he and
Reyna waited in a black Honda that was parked in the
left the home for a brief period while Byers prepared to go
out with Flores and Reyna; when he came back, he told Johnson
that he had "kicked somebody's ass and he didn't
know what to do." Carson and Elben then left the home
together. Later that evening, Sutton received a phone call
from Elben indicating that he and Carson needed a
ride. Johnson and Sutton drove Carson's
truck to a house in the country and picked up the two men.
The group briefly returned to the Elben/Sutton house before
they went to Carson's mother's home. At the
mother's home, the two men went to the bathroom where
they threw their clothes and shoes in a trash bag, showered,
and washed their hands and a gun with bleach. Johnson heard
Carson "talk[ing] about shooting one of them in the head
and describing that it smelled terrible." Johnson and
Carson then returned to Johnson's apartment.
January 25, while Johnson and Carson were watching television
at Johnson's apartment, Carson said he thought someone
was outside with a gun. After Carson asked Johnson if there
was a storm drain nearby, he went to the bedroom and returned
with a gun. She had seen him with that gun before the events
of January 23. He put the gun in his pants and left the
apartment. Later that night, law enforcement found Flores and
Reyna dead from gunshot wounds. The bodies were inside a
black Honda, which was located on the property of
Carson's former mother-in-law. The next day, law
enforcement found the gun Carson had in Johnson's
apartment in a storm drain one-half block from the apartment.
testified and admitted to having shot Flores and Reyna but
claimed he did so in self-defense. His version of the events
on the evening of January 23 began when he went outside the
Elben/Sutton home to retrieve a pack of cigarettes. Seeing
the parked Honda, he knocked on the rear driver's side
window to ask if someone had a lighter. A voice from inside
the car told him to come to the front passenger's side.
When he walked around the car, the window rolled down and the
passenger pointed a gun at Carson. The passenger said,
"I've got you now," and fired a shot that
missed Carson. Carson testified he grabbed the firearm,
twisted it free from the passenger's hand, and fired two
shots at the passenger's head. He then saw the driver
reach for a short barrel revolver, so he fired two more shots
at the driver. With the driver still moving, Carson fired one
more shot, "center mass on his body," after which
the driver went into convulsions, dropped his firearm, and
slumped over the steering wheel.
to Carson's testimony, he was scared and shaking after
the shootings. He wiped off the gun and dropped it back into
the car. The gun landed on metal, and Carson discovered a
large automatic pistol and a magazine clip in the
passenger's lap. After a few minutes, he went back into
the house and declared, "I f**ked a couple of guys
up." He pulled Elben aside and said, "A
couple guys just tried to kill me.... I shot them. . . . I
took one of the guns away from them and I fired back."
When he and Elben went outside, he claimed the Honda had
the May 1 to May 4, 2017 jury trial, Carson was found guilty
of two counts of first-degree murder, class "A"
felonies, for which two consecutive life sentences were
imposed. He appeals.
Standard of Review
review denials of mistrials and prosecutorial error claims
for abuse of discretion. State v. Plain, 898 N.W.2d
801, 810-11 (Iowa 2017). "An abuse of discretion will
only be found when a court acts on grounds clearly untenable
or to an extent clearly unreasonable." State v.
Leckington, 713 N.W.2d 208, 216 (Iowa 2006).
review ineffective-assistance-of-counsel claims de novo.
State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).
"If an ineffective-assistance-of-counsel claim is raised
on direct appeal from the criminal proceedings, we may decide
the record is adequate to decide the claim or may choose to
preserve the claim for postconviction proceedings."
Id. (citing Iowa Code § 814.7(3) (2005)).
Denial of Motion for Mistrial; Prosecutorial
asserts he was denied a fair trial due to prosecutorial error
that occurred during the trial. "Prosecutors have a dual
function. They must prosecute with vigor and diligence, and,
at the same time, be alert to assure the defendant a fair
trial." State v. Webb, 244 N.W.2d 332, 333
(Iowa 1976). "In order to establish a violation of the
right to a fair trial, a defendant must show both (1) error
or misconduct and (2) prejudice." Plain, 898
N.W.2d at 818. Carson points to three situations where
prosecutorial error allegedly occurred during closing
argument: (1) the prosecutor repeatedly implied Carson was a
liar, (2) the prosecutor asked about Carson invoking his
right to an attorney, and (3) the prosecutor's use of the
prosecutor "is entitled to some latitude during closing
argument in analyzing evidence admitted in the trial."
State v. Phillips, 226 N.W.2d 16, 19 (Iowa 1975).
"[A] prosecutor may argue the reasonable inferences and
conclusions to be drawn from the evidence" but may not
"express his or her personal beliefs." State v.
Graves, 668 N.W.2d 860, 874 (Iowa 2003).
objected to multiple comments from the prosecutor's
closing and rebuttal arguments that he argues impliedly
called him a liar or were otherwise improper. First, the
To be clear, this case is not about insanity. The defendant
was evaluated and found competent. . . . That is not what
this case is about. His words have been designed to mislead
and to draw attention away from the facts. Again, my standing
here saying something no matter how outrageous it is, does
not mean it is true. He makes these outrageous claims, but
they're mostly designed to keep him from being held
argues this comment raised the issue of competency to
"improperly cause the jury to draw the inference that
the defendant was a liar." Competency was first
discussed during cross-examination after Carson struggled to
answer the prosecutor's questions:
Q. Okay. Tracy Johnson was your girlfriend?
A. Yes, she was.
Q. You were living with her?
A. I was staying part time at my mother's-Marjorie-house,
and then I would stay over at her house once in a while.
But I had my oldest boy, Colton. He was right around fifteen
years old. When he hit about fourteen or fifteen, him and his
mom started bumping heads. I don't have forty-nine
percent custody now because he turned eighteen years old on
the twenty-seventh of this last month, but I had forty-nine
percent custody of him and his mom had fifty-one percent
custody, and they were bumping heads, so he was staying with
me and my mother and going to school.
Q. My question to you: Tracy Johnson, you were pretty much
living with her, and she was your girlfriend?
A. I didn't live with her full time. I stayed there off
Q. Let's be clear about something. You have been
evaluated and found to be competent to stand trial; correct?
A. I had to fight to do that.
Q. And so you have been evaluated and found ...