IN THE COURT OF APPEALS OF IOWA
No. 14-1479 Filed October 14, 2015
STATE OF IOWA, Plaintiff-Appellee,
vs.
MATHEW JOHN IRVING, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Marshall County, James C.
Ellefson, Judge.
Mathew Irving appeals his conviction for murder in the second degree.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney
General, Jennifer Miller, County Attorney, and Laura Roan, Assistant County
Attorney, for appellee.
Heard by Doyle, P.J., Bower, J., and Miller, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
DOYLE, Presiding Judge.
Mathew Irving appeals his conviction for murder in the second degree for
the death of his friend, Rebecca Hall. He contends his trial counsel1 was
ineffective in numerous respects, and if his counsel’s errors were not individually
prejudicial, the cumulative effect of the errors denied him a fair trial. We affirm.
I. Background Facts and Proceedings.
From the evidence presented at trial, a reasonable juror could have found
the following facts. In the early morning hours of July 14, 2013, Hall was found
dead by law enforcement officials in the back of her sister’s van.
The officers went to Hall’s sister’s home and talked to her sister. Shortly
after arriving, Shawn Irving, Mathew Irving’s wife, stopped by. Shawn was “kind
of hysterically . . . cry[ing],” saying, “Tell me it’s not so.” The officers, in the
general information-gathering stage of their investigation, requested Shawn
come to the sheriff’s office for an interview later, and Shawn agreed.
Shawn was subsequently interviewed. During Shawn’s interview, the
officers learned Hall and Shawn had been friends but had recently had “a falling
out or some animosity going on between them about some rumors that
Shawn . . . felt that [Hall] . . . was spreading about [Shawn and Mathew].”
Specifically, Shawn learned Hall had told persons, including Mathew, that Shawn
was cheating on Mathew with another man. Officers interviewed the other man,
and he told them Mathew had confronted him, that Mathew “was upset
and . . . made a statement that he’d throw [Hall] in the river.”
1 Although Mathew had two attorneys at trial, we collectively refer to both in the singular as “trial counsel.” 3
On July 15, officers interviewed Mathew, and the interview was video-
recorded and played for the jury. During this almost two-hour interview, Mathew
told the officers he did not see Hall on the evening of July 14, and he did not
know what had happened to her. Mathew told them that after he got home from
work around 4:30 p.m., he went and got gas, went to a town festival by himself,
and got back home around 6:30-7:00 p.m. Shawn was at her mother’s house.
Mathew told them he sat there for a while, and later that night, he went out to buy
cigarettes, driving his wife’s truck. He stated that while he was driving, the truck
started having issues; it was running poorly and would not stay running. Though
he is a mechanic, Mathew told the officers he was not sure what the issue was
and his description of the problem was vague. He said he talked to his wife on
his cell phone about the truck issue, but he was ultimately able to drive the truck
home. Shawn got home around 11:00 p.m., and he and Shawn left and went to
a casino. He told them they left the casino around dawn, and he went home and
slept. Despite employment of intensive investigative techniques, Mathew
repeatedly stated he did not know what happened to Hall.
The next day, Mathew’s aunt called the sheriff’s office requesting to speak
to someone involved with the investigation. An officer called her back, and after
speaking to her for a few minutes, she gave her phone to Mathew. Mathew
talked to the officer and ultimately told him that on the evening of July 13, he
decided to walk over to Hall’s house while his wife was at her mother’s house, on
the off chance that Hall might be home. He told the officer he wanted to confront
Hall “about all the things she was saying.” Mathew stated he found Hall at home
in her garage, and she asked him if he wanted to go for a ride in the van. He 4
said he agreed, and she drove them to a park and parked the van. Mathew told
the officer that when they got there, Hall “informed him that she wanted to
perform oral sex on him, and . . . he said okay,” and Hall then got in the back of
the van and took off all of her clothes. She began performing oral sex on him,
but he was not becoming aroused. He told Hall this, and Hall “just freaked out,”
and “she replied back something to the effect of, ‘Am I not good enough for you,’
and maybe another phrase,” and she started smacking him. Mathew told the
officer
he was holding her down, and [had his] hands on her mouth and nose or face area, . . . and he said that she . . . kept squirming around, and he said eventually she squirmed free, and when she had squirmed free, . . . she managed to be facing away from him. He said somehow she got free and then was facing away from him. He said that he then grabbed her from behind, and [his] elbow was near her nose and mouth area . . . . He said he put . . . his arm around her neck so that his elbow was near her nose and mouth. He said she continued to fight and that for being so small, she was very strong and that she at one point was attempting to kick him and elbow him. . . . [H]e said that she kept elbowing [him].
Mathew told the officer Hall “just stopped fighting,” but “he knew she was
gone . . . when she . . . had peed herself.” When asked by the officer if Hall “just
pass[ed],” Mathew told him “[i]t wasn’t anywhere that neat.” Mathew told the
officer that after he knew Hall had died, he “just freaked out. He said he then
drove the van with her dead body in the back, and he drove west through town.”
He told the officer that when he got in the driver’s seat of the van, he called his
wife “and said, ‘I’m driving [Hall’s] van, and [Hall’s] in the back,’ and . . . he asked
her to come pick [him] up . . . , and she said she would.” “[H]e then just parked
[the van] alongside the road.” He left the keys on the front seat, where they were
found. Mathew told the officer he then ran into the nearby “cornfields in an 5
attempt to make his way back to town and to make his way back to his house.”
Mathew initially told the officer he walked all the way home but later told the
officer during the call that Shawn “had actually picked him up before he had
gotten to his house.” Mathew told the officer that he later took a shower and
changed his clothes, and thereafter, Shawn drove them to the casino. On the
way, they threw out articles of clothing and, after destroying it in the car, the
pieces of his cell phone.
Mathew voluntarily came back to the sheriff’s office for another interview,
which was video-recorded and played for the jury. In that interview, Mathew
related essentially the same story he gave the officer on the phone. Mathew was
arrested thereafter. Mathew had injuries on his hands, forearm, and bicep, along
with some scratches on his back. He told the officers the injuries on his hands
were sustained when he had fled from the van and had fallen in a creek, and the
scratches on his back were caused by Shawn. Mathew was subsequently
charged with first-degree murder.
In August 2013, Mathew filed notices that he intended to offer evidence of
self-defense and intoxication. At trial, Mathew testified that on the night of Hall’s
death:
[He] kind of had a feeling [Shawn] was going to sneak over to the casino, . . . telling [him] not to wait up for her, and [he] kind of got to thinking [he] should sneak over to [Hall’s] house and see if she would do some dope with [him] and maybe [he’d] have sex with her, and [he] was kind of wondering what . . . was up with [Shawn]. . . . [He] thought maybe [he] could get that out of [Hall].
Mathew testified he walked over to Hall’s house, and they smoked marijuana.
He began “kind of rubbing on her leg as [he] was sitting there next to her . . . to 6
see if she was receptive to come-ons,” and she was. He testified Hall “[s]tarted
out rubbing on [his] leg and then [they] stood up, and she was showing [him]—
she had like a knife, and she was showing it to [him].” Mathew testified they
continued rubbing each other and decided to go for a ride because Hall’s
teenage son was home and she did not want to get caught. They found a place
“kind of tucked off behind everything,” and Hall parked the van. He testified they
proceeded to have oral sex in the back of the van, as he previously told officers
in his other interviews, but he testified that when he told Hall he was not
becoming aroused, “[s]he pretty much flipped out.” He testified she smacked him
and tried to punch him “in the mouth, and then she was screaming, ‘You fucker;
you fucker; I’m going to kill you.’” He testified he pushed her away, but she came
back at him, hitting him in the mouth, trying to smack and claw him, all while
continuing to yell, “You fucker; you fucker; and . . . I’m going to kill you.” He
testified he “tried to push her down again, harder this time, and she landed on
her back. She went all the way down on her back.” He
turned to [his] left towards the door, and [he] pretty much no more than got turned around and she—before [he] got turned around, she kicked [him] once in the back, and then [he] got turned around a little more, and she kicked [him] in the ribs . . . , and [he] should have kept going, but [he] turned around, and when [he] turned around, she kicked at [him] again. [He was] pretty sure she was trying to kick [him] in the crotch.
He testified he told Hall to stop and “just quit it,” but she continued to try “to hit
[him], trying to poke [him] in the eyes, and that’s when [he] shoved her back
down the third time.” He “kind of jumped up on her just to hold her down,
and . . . [he] had one hand on her shoulder and one hand on her face, and [he]
was holding it, and she was trying to roll over . . . to her right side.” He “tried to 7
keep her on the floor, but [he] couldn’t, and when she got rolled over to where
she was kind of facing away from [him], [he] dropped down on the floor and put
[his] arm around her neck and [his other] arm around her waist just to hold her.”
He
let go of her neck because [he] thought [he] was going to break her neck. . . . [A]round that time she spit at [him], and she started coming back up. Right away [he] held her down, and she tried to kind of get away, and . . . as [he] was pushing her down, [he] kind of slid her over in the corner of the van, and that’s just—that’s just how it happened.
He testified
she kind of got a little bit quieter, and then, you know, she’s cussing [him] the whole time, and she kind of got quiet . . . . [He] kind of felt her right hand. Like she patted [him] on the leg . . . . [He] kind of took that as [she gave] up, and then she quit moving. And then— and then she peed on the carpet, and [he] realized that she was dead.
He testified that although he was not “so much” physically afraid of Hall, he had
“never known her not to have a knife, and she was mad as hell.” Mathew
testified he did not tell the officers that Hall threatened to kill him several times
because “originally [he] thought [he] had told them, but [he didn’t] know a lot of
details in that interview.” He had assumed Hall had a knife on her because he
had “never ever seen her without one or three or four knives,” and he did not get
out of the van because he thought he “could restrain her and get her to chill out.”
He testified he acted in self-defense, but he did not intend to kill Hall. He testified
that he thought the amount of force he used to respond and react to Hall’s
actions seemed reasonable at the time, but he testified he was unsure now,
since she had died. 8
The jury found Mathew guilty of second-degree murder. See Iowa Code
§§ 707.1, .3 (2013). He now appeals.
II. Discussion.
On appeal, Mathew asserts his trial counsel was ineffective in failing (1) to
argue the evidence was insufficient to establish he acted with malice
aforethought; (2) to assert and request a jury instruction on imperfect self-
defense; (3) to challenge hearsay statements and personal opinions presented
by law enforcement officials; and (4) to object to the prosecutor’s statement in
closing argument that a defendant must pick only one legal defense and may not
present inconsistent theories. Mathew contends that if not individually
prejudicial, the cumulative effect of the errors denied him a fair trial. We address
his arguments in turn.
A. Ineffective Assistance of Counsel and Fair Trial.
We review ineffective-assistance-of-counsel claims de novo. See
Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015). We generally preserve
such claims for postconviction-relief proceedings where a proper record can be
developed. See State v. Null, 836 N.W.2d 41, 48 (Iowa 2013). “That is
particularly true where the challenged actions of counsel implicate trial tactics or
strategy which might be explained in a record fully developed to address those
issues.” State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). “[A]t a postconviction
relief hearing, trial counsel will have an opportunity to explain [his or] her conduct
and performance.” State v. Blair, 798 N.W.2d 322, 329 (Iowa Ct. App. 2011).
“Even a lawyer is entitled to his day in court, especially when his professional
reputation is impugned.” State v. Bentley, 757 N.W.2d 257, 264 (Iowa 2008). 9
Consequently, we will only address claims of ineffective assistance of counsel on
direct appeal when the record is sufficient to decide the issue. See State v.
Ross, 845 N.W.2d 692, 697 (Iowa 2014). We find the record adequate here.
To succeed on a claim of ineffective assistance of counsel, Mathew must
prove both that (1) his counsel failed to perform an essential duty and (2) he
suffered prejudice as a result of his counsel’s failure. See id.; see also Strickland
v. Washington, 466 U.S. 668, 687 (1984). Counsel does not provide ineffective
assistance if the underlying claim is meritless; in other words, counsel has no
duty to engage in an exercise in futility. See State v. Halverson, 857 N.W.2d
632, 635 (Iowa 2015). Only if the underlying claim has merit will we move to the
determination of whether the failure to make the claim amounted to a breach of
duty and whether the defendant was prejudiced by the breach. See id.
To determine whether counsel failed to perform an essential duty, “we
measure counsel’s performance against the standard of a reasonably competent
practitioner,” objectively assessing whether counsel’s performance “was
reasonable, under prevailing professional norms, considering all the
circumstances.” State v. Thorndike, 860 N.W.2d 316, 320 (Iowa 2015).
Counsel’s competence is presumed. See id. On the second prong, Mathew has
to establish his “counsel’s errors were so serious as to deprive [him] of a fair
trial.” See id. He must prove “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” See id. A mere showing that the error conceivably could have
influenced the proceeding’s outcome is not sufficient. See id. 10
1. Malice Aforethought.
Mathew asserts the evidence was not sufficient to show he acted with
“malice aforethought” when he killed Hall, and his trial counsel was therefore
ineffective for not challenging the sufficiency of the evidence on this element. In
reviewing challenges to the sufficiency of the evidence, we view the record in the
light most favorable to the non-moving party—here, the State—and make all
legitimate inferences and presumptions that may be reasonably deduced from
the evidence. See State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005). Evidence
is substantial if it would convince a reasonable trier of fact the defendant is guilty
beyond a reasonable doubt. See id.
Malice aforethought is an essential element of second-degree murder and
separates second-degree murder from other lesser-included offenses of first-
degree murder. See State v. Reeves, 670 N.W.2d 199, 207 (Iowa 2003).
“Malice aforethought is a fixed purpose or design to do physical harm to another
that exists before the act is committed.” State v. Myers, 653 N.W.2d 574, 579
(Iowa 2002). It does not need to exist for any particular length of time; it is
sufficient if the purpose was formed and continued to exist at the time the act
was committed. See Reeves, 670 N.W.2d at 207. “Because this element is a
state of mind, circumstantial evidence is generally used to prove malice.” State
v. Buenaventura, 660 N.W.2d 38, 49 (Iowa 2003). The relationship between the
state of mind, malice aforethought, and the homicidal act “is more accurately
characterized as a causal relationship than as a temporal relationship.” Bentley,
757 N.W.2d at 265. “In other words, the malice must result in the homicidal act.”
Id. “Evidence of bad feelings or quarrels between the defendant and the victim 11
are circumstances that may be used to support a finding of malice aforethought.”
Buenaventura, 660 N.W.2d at 49.
Mathew asserts the “only evidence presented to the jury about the events
that transpired the night of July 13, 2013, came from [him],” and he points to his
own testimony that Hall’s death was accidental and that he acted with justification
in protecting himself. However, it was for the jury to determine whether Mathew’s
testimony was credible. See State v. Blair, 347 N.W.2d 416, 420 (Iowa 1984)
(stating that “evidence, if deemed credible by the jury, would substantiate
defendants’ alibi and serve to acquit defendants,” but noting “the jury is at liberty
to believe or disbelieve the testimony of witnesses as it chooses”). “The jury is
free to believe or disbelieve any testimony as it chooses and to give weight to the
evidence as in its judgment such evidence should receive.” State v. Thornton,
498 N.W.2d 670, 673 (Iowa 1993). To reach their verdict, it is the function of the
jury to sort out the evidence presented and place credibility where it belongs.
See Blair, 347 N.W.2d at 420; see also State v. Musser, 721 N.W.2d 758, 761
(Iowa 2006) (“It is not the province of the court . . . to resolve conflicts in the
evidence, to pass upon the credibility of witnesses, to determine the plausibility of
explanations, or to weigh the evidence; such matters are for the jury.”).
Mathew maintains his testimony was “essentially the same version of
events he gave police in his second interview,” but he ignores crucial differences
between his testimony and his two recorded interviews. Specifically, he never
mentioned in his interviews that he thought Hall had a knife, that Hall threatened
to kill him, or that he feared for his life. Assuming his failure to mention these
details in his first interview can be explained by his total denial of his involvement 12
in Hall’s death, his failure to bring up these details in the second interview, which
he came in for voluntarily and admitted to killing Hall, has no rational explanation.
Though he appeared sleepy and sometimes had slurred speech in the second
interview, his account of what happened that night was detailed and straight-
forward, and he had no reason to omit these details from the interview if true.
Furthermore, his trial testimony that he did not tell the officers because he
thought he already had does not add up. Moreover, Mathew admitted he was
upset with Hall and that he told others that he would like to kill her and throw her
in the river.
Murder in the second degree is a general intent crime. See State v.
Lyman, 776 N.W.2d 865, 877 (Iowa 2010). Clearly, viewing the record in the
light most favorable to the State, the jury could have found Mathew’s actions
were not accidental or justified. We therefore find his claim to be without merit,
and his counsel therefore had no duty to object and was not ineffective.
2. Imperfect Defense.
Mathew next argues his trial counsel was ineffective in failing “to assert
and argue the doctrine of imperfect self-defense.” Mathew acknowledges the
doctrine “has not been formally adopted in Iowa,” but he asserts the argument
was worth making and had counsel done so, there was a reasonable probability
the jury would have chosen to convict Mathew of involuntary manslaughter rather
than second-degree murder. We find his argument to be without merit.
In an unpublished opinion, this court previously addressed an ineffective-
assistance-of-counsel claim for failure to assert the doctrine of imperfect self- 13
defense. See State v. Gomez-Rodriguez, No. 06-0527, 2007 WL 1688987, *1
(Iowa Ct. App. 2007). There, this court explained:
Under Iowa law, self-defense is the justified use of force “when the person reasonably believes that such force is necessary to defend oneself or another from any imminent use of unlawful force.” Iowa Code § 704.3 (emphasis added). The doctrine of imperfect self-defense, on the other hand, recognizes a defendant’s honest but unreasonable belief that deadly force is necessary. See, e.g., State v. Jones, 8 P.3d 1282, 1287 (Kan. Ct. App. 2000) (“Imperfect self-defense is an intentional killing committed with an unreasonable but honest belief that circumstances justified deadly force.”); State v. Faulkner, 483 A.2d 759, 769 (Md. 1984) (“[W]hen evidence is presented showing the defendant’s subjective belief that the use of force was necessary to prevent imminent death or serious bodily harm, the defendant is entitled to a proper instruction on imperfect self defense.”). “The theory underlying the doctrine is that when a defendant uses deadly force with an honest but unreasonable belief that it is necessary to defend himself, the element of malice, necessary for a murder conviction, is lacking.” State v. Catalano, 750 A.2d 426, 429 (R.I. 2000). In states where the doctrine of imperfect self-defense has been adopted, proof of an imperfect self-defense does not exonerate the accused but mitigates the homicide to voluntary manslaughter. See, e.g., People v. Vasquez, 39 Cal. Rptr. 3d 433, 435 (Cal. Ct. App. 2006) (“When imperfect self-defense applies, it reduces a homicide from murder to voluntary manslaughter because the killing lacks malice aforethought.”).
Id. at *1-2. Nevertheless, we determined Gomez-Rodriguez’s trial counsel “had
no duty to present a defense based on the doctrine of imperfect self-defense,”
noting that it had not been adopted in Iowa and finding it conflicted with Iowa
statutory law, stating
Iowa Code section 704.3 provides that “[a] person is justified in the use of reasonable force when the person reasonably believes that such force is necessary to defend oneself or another from any imminent use of unlawful force.” (emphasis added). In essence, Gomez-Rodriguez is asking us to judicially create a new non- statutory defense. See State v. Khouri, 503 N.W.2d 393, 395 (Iowa 1993) (declining to adopt the doctrine of emotional disturbance in the absence of legislative action). 14
Id. at *3. We declined “Gomez-Rodriguez’s invitation to find his trial counsel
breached any duty by failing to argue a defense that has not been adopted in this
state, has been rejected in several other states, and is contrary to Iowa statutory
law.” Id.
The language of section 704.3 has not been amended since we decided
Gomez-Rodriguez, nor has the legislature amended other sections of the Iowa
Code to include the option of asserting a defense based upon the doctrine of
imperfect self-defense. This could be interpreted as a “tacit approval of [the]
decision.” See Drahaus v. State, 584 N.W.2d 270, 276 (Iowa 1998) (holding that
where the legislature has failed to amend a statute in response to a particular
interpretation of the statute announced by the court, it is presumed that the
“legislature has acquiesced in that interpretation”); see also Swiss Colony, Inc. v.
Deutmeyer, 789 N.W.2d 129, 135 (Iowa 2010) (“Had the legislature intended to
establish the forty-hour week as standard for full-time employment it could have
done so.”). In any event, we do not find the law has changed since Gomez-
Rodriguez, and we decline Mathew’s invitation to revisit the issue. Mathew’s
counsel had no duty to request the defense and was therefore not ineffective.
3. Testimonial Evidence.
Mathew next argues his counsel was ineffective for failing to object to
alleged “hearsay evidence” related by the officers to Mathew in his first recorded
interview, as well as an officer’s trial testimony alleged to contain hearsay
evidence. He also asserts the officers in the first interview “made numerous
statements indicating their personal opinion of Mathew and that they knew he
was involved in the commission of the offense.” We disagree. 15
i. Hearsay.
Mathew contends his trial counsel should have objected to the statements
conveyed to him by the officers in the interview, allegedly made by Shawn, as
well as the man with whom she was allegedly having an affair. Neither Shawn
nor the man testified at trial. Mathew argues the statements made by the officers
in the interview related evidence to the jury that the officers had other evidence of
Mathew’s guilt that was not introduced at trial. Additionally, he asserts the
statements would undermine Mathew’s theory of defense and bolster the State’s
argument that he acted with malice aforethought. The State disputes whether
the statements were hearsay, but in any event, it argues the statements were
cumulative of Mathew’s own testimony and therefore harmless. We agree.
When an out-of-court declarant’s statement is presented at trial to explain
responsive conduct, and it not offered to show the truth of the matter asserted, it
is not considered hearsay. See State v. Tompkins, 859 N.W.2d 631, 642 (Iowa
2015). Nevertheless, even if the statement is deemed to be hearsay, the
hearsay testimony will be considered cumulative and rebut the presumption of
prejudice if the hearsay statement is found to be trustworthy, based on the
trustworthiness of the corroborating testimony. See State v. Elliott, 806 N.W.2d
660, 669 (Iowa 2011). For example, the Iowa Supreme Court has found hearsay
evidence to be extremely trustworthy and its admission therefore harmless error
where other witnesses, including the defendant, “all gave testimony corroborating
the same line of testimony without objection.” Id. (discussing State v. Johnson,
272 N.W.2d 480, 482-83 (Iowa 1978)). 16
Here, even assuming the complained of testimony was hearsay, we agree
with the State that its admission was harmless. The statements challenged by
Mathew were confirmed by his own testimony. When asked on direct
examination about his overall feelings towards Hall, Mathew testified he “was
pretty pissed off” and that he probably stated to his wife that he wanted to kill
Hall. On cross examination, Mathew admitted he told Shawn, “I ought to kill
that—I’d like to kill that bitch and throw her in the river or something like that,” but
he denied saying it to Shawn’s male friend. Given that Mathew admitted at trial
he made the statements and similar ones, the alleged hearsay statements were
merely cumulative and harmless. Mathew cannot show he was prejudiced for
this reason. Consequently, he cannot show his counsel was ineffective for failing
to object to the statements.
ii. Opinion Testimony.
Mathew also argues the statements made by the officers during his first
interview alleging that they knew he was involved and that he was lying to them
were opinion evidence that should have been excluded, or, at the very least, his
trial counsel should have requested a limiting instruction directing the jury to
consider the statements for their limited purpose. Again, even assuming without
deciding his counsel should have objected to the statements made by the
officers, Mathew cannot show the required prejudice. As the State points out,
this was not a “who-done-it” case. Mathew continually denied involvement in
Hall’s death in the first interview, despite the officers’ statements and
investigative tactics. And the officers were correct; Mathew was lying and
involved in Hall’s death, to which he confessed the next day. Mathew testified at 17
trial and admitted he lied, and he had the opportunity to explain his actions to the
jury. He cannot show that had his counsel objected to the statements and had
them redacted or if his counsel had requested a limiting instruction, the outcome
of his proceeding would have been different. Consequently, he cannot show his
counsel was ineffective for failing to object to the statements.
4. Prosecutorial Misconduct.
Mathew asserts his trial counsel was ineffective for failing to object to a
statement made by the prosecutor during rebuttal, arguing the statement was an
incorrect statement of the law. During closing arguments, the prosecutor stated
in rebuttal:
Let’s look at the inconsistency of the defense theories in this case. What he did was an accident. He acted recklessly. He didn’t mean to kill her. You heard his own words under oath. . . . That would be involuntary manslaughter [as set out in] Verdict Form Number 3. On the other hand, they claim that [Mathew] is not guilty because he was justified of his acts, because he acted in self-defense [corresponding to] Verdict Form Number 4. See, simply under the law, you pick a legal excuse supported by evidence, but these are inconsistent. They simply both cannot be true. They cannot both be true. And that’s the trouble with the facts and the trouble with the truth. This crime scene, it only happened one way. This isn’t a game where you pick A or B or in this case 3 or 4. And quite simply, neither one of these defenses as they claim is a valid legal excuse because [Mathew] intentionally committed this crime.
A party is entitled to a new trial based on prosecutorial misconduct only if
the party has shown prejudice. See State v. Bowers, 656 N.W.2d 349, 355 (Iowa
2002). “Thus it is the prejudice resulting from misconduct, not the misconduct
itself, that entitles a defendant to a new trial.” State v. Graves, 668 N.W.2d 860,
869 (Iowa 2003) (citation omitted). A prosecutor is entitled to “some latitude”
during closing arguments in analyzing the evidence admitted at trial. See id. at 18
874. A prosecutor may argue the reasonable inferences and conclusions to be
drawn from the evidence, but may not suggest that the jury decide the case on
any ground other than the weight of the evidence introduced at trial. See id. The
prosecutor cannot assert a personal opinion, create evidence, or misstate the
law. See id.
It is true that defendants “may present diverse theories of defense, even
those as ‘inconsistent’ as insanity and alibi.” State v. Broughton, 425 N.W.2d 48,
50 (Iowa 1988). But Mathew was able to present those inconsistent theories at
trial, as well as given the opportunity to explain the inconsistency, if any. Mathew
does not point to any case law that says the prosecutor cannot point out the
inconsistencies to the jury, nor do we find any. It makes sense that a prosecutor
would be able to point out the inconsistencies, particularly where the defendant’s
credibility is at issue. Ultimately, the attack is on the inconsistent actions, not the
asserted theories. Here, Mathew testified he inadvertently smothered Hall in
self-defense. However, he is only entitled to use reasonable force to prevent
injury to himself. The State was entitled to point out that Mathew had other
options, such as exiting the van, that made his actions to stay and hold Hall to
the point of smothering her unreasonable and inconsistent with his claim his
actions were necessary to defend himself. Because we find no error in the
prosecutor’s statements, Mathew’s trial counsel had no duty to object and was
therefore not ineffective.
B. Cumulative Error.
Finally, Mathew maintains we should determine whether he was
prejudiced by the cumulative effect of trial counsel’s errors. See Clay, 824 19
N.W.2d at 500 (“Under Iowa law, we should look to the cumulative effect of
counsel’s errors to determine whether the defendant satisfied the prejudice prong
of the Strickland test.”). While we agree that consideration of cumulative
prejudice is the proper analysis, we have already concluded that most of
Mathew’s allegations did not amount to a failure to perform an essential duty.
Assuming without deciding his counsel had a duty to object to the complained of
testimonial evidence, for the reasons stated above, Mathew cannot show there
was a reasonable probability that, but for counsel’s failure to object to the
admission of the hearsay and opinion evidence, individually or cumulatively, the
result of the proceeding would have been different. Those complained of
statements were cumulative of other testimonial evidence given by Mathew at
trial. Consequently, Mathew’s trial counsel was not ineffective.
III. Conclusion.
For all of the foregoing reasons, we affirm Mathew’s conviction of second-
degree murder.