Carloss Robinson v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 19-1242
Filed August 4, 2021

CARLOSS ROBINSON,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Lars Anderson, Judge.

Carloss Robinson appeals from the denial of his postconviction relief (PCR)

application. AFFIRMED.

Webb L. Wassmer of Wassmer Law Office, PLC, Marion, for appellant.

Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee State.

Heard by Doyle, P.J., and Mullins and May, JJ.
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DOYLE, Presiding Judge.

Carloss Robinson appeals from the denial of his postconviction relief (PCR)

application. He argues the PCR court erred in rejecting his prosecutorial

misconduct argument, erred in denying his ineffective-assistance-of-counsel claim

about evidence of his praying during a police interrogation, and erred in denying

his request for a DNA sample. We affirm the PCR court’s ruling.

I. Background Facts and Proceedings.

A jury found Robinson guilty of first-degree murder in 2002. He was

sentenced to life in prison. Robinson appealed. This court affirmed his conviction.

State v. Robinson, No. 02-767, 2003 WL 21459681, at *10 (Iowa Ct. App. June 25,

2003). In October 2003, Robinson filed a pro se PCR application, and he was

appointed counsel. His lawsuit simmered on the court’s backburner for almost

fourteen years before it came to trial in August 2017. In the interim, Robinson filed

multiple and long pro se amendments to his application. A seemingly endless

string of motions to continue were granted. The PCR court ruled in April 2019 that

Robinson had no right to relief. After his post-trial motion was denied, Robinson

appealed. The appeal was transferred to this court in April 2021.

II. Scope of Review.

“We normally review postconviction proceedings for errors at law.” Castro

v. State, 795 N.W.2d 789, 792 (Iowa 2011). But when there are ineffective-

assistance-of-counsel claims, our review is de novo. Id.

III. Analysis.

Robinson raises three issues on appeal. First, he contends the prosecutor’s

closing argument comments that Robinson’s trial testimony was “ludicrous,”
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“ridiculous,” and “bogus” were improper and prejudicial. Second, he argues his

trial counsel provided ineffective assistance in failing to object to State’s evidence

regarding “prayer” by Robinson during his police interview. Third, he contends the

PCR court misconstrued Iowa Code section 81.8(5) (2019) in denying Robinson’s

request for a DNA sample.

A. Prosecutor’s Closing Argument.

During closing arguments, the prosecutor characterized Robinson’s trial

testimony as “ludicrous,” “ridiculous,” and “bogus.” Robinson argues those words

“violated the requirements of State v. Graves, 668 N.W.2d 860 (Iowa 2003), which

prohibits a prosecutor from calling a witness a liar or using similar language.”

Robinson’s counsel did not object to the prosecutor’s comments during trial, nor

was the issue raised on direct appeal. Robinson first raised the Graves issue in

his amended PCR application, and also raised it as one of ineffective assistance

of counsel. The PCR court addressed the merits of the prosecutorial misconduct

issue and found there was misconduct but no resulting prejudice.

In determining there was prosecutorial misconduct, the PCR court stated:

Robinson’s PCR counsel cites to State v. Graves as setting
forth the appropriate legal standard to determine whether there was
prosecutorial misconduct and resulting prejudice. While Graves was
decided after Robinson’s criminal trial, I have no problem applying
Graves to Robinson’s case. In Graves, the court noted “just two
years prior to the trial in this matter, this court held that comments
similar to those made by the county attorney in this case were ‘clearly
improper.’” State v. Graves, 668 N.W.2d 860, 882 (Iowa 2003) (citing
State v. Rutledge 600 N.W.2d 324, 325 (Iowa 1999)).
In Graves the court stated that “[i]t is improper for a prosecutor
to call the defendant a liar, to state the defendant is lying, or to make
similar disparaging remarks.” Id. at 876. “Notwithstanding this
prohibition, a prosecutor is still free ‘to craft an argument that
includes reasonable inferences based on the evidence and . . . when
a case turns on which of two conflicting stories is true, [to argue that]
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certain testimony is not believable.’” Id. (quoting State v. Davis, 275
Kan. 107, 61 P.3d 701, 710–11 (2003)). It is only misconduct “when
the prosecutor seeks [to tarnish the defendant’s credibility] through
unnecessary and overinflammatory means that go outside the record
or threaten to improperly incite the passions of the jury. State v.
Carey, 709 N.W.2d 547, 556 (Iowa 2006).” To determine whether
the line between zealous advocacy and misconduct has been
crossed, courts are to consider three factors:
(1) Could one legitimately infer from the
evidence that the defendant lied? (2) Were the
prosecutor’s statements that the defendant lied
conveyed to the jury as the prosecutor’s personal
opinion of the defendant’s credibility, or was such
argument related to specific evidence that tended to
show the defendant had been untruthful? And (3) Was
the argument made in a professional manner, or did it
unfairly disparage the defendant and tend to cause the
jury to decide the case based on emotion rather than
upon a dispassionate review of the evidence?
Graves, 668 N.W.2d at 874–75. Applying these factors to the
objected to statements, I find that that line was crossed with the
statements involving the words ludicrous, ridiculous, and bogus.
Robinson admitted that he lied to the police. Including his trial
testimony, he gave three different versions about what happened.
Some of the objected to statements by the prosecutor were
permissible comments on Robinson’s credibility. The ludicrous,
ridiculous, and bogus statements, however, were statements that
were unduly disparaging and risked creating an emotional reaction.
They crossed the line.

The PCR court continued its analysis, weighing all the Graves prejudice

factors together, and concluded Robinson did not establish that he was prejudiced

by the statements at issue:

First, the conduct at issue was neither severe nor pervasive.
The statements, while crossing the line, were made as part of an
otherwise permissible argument. The prosecutor never used the
word liar. The words used were inflammatory by a matter of degree.
There are five statements in all that are at issue, all grouped closely
together. In the context of a multi-day trial and 2000 plus page
transcript, the statements are limited.
Second, the statements all relate to Robinson’s credibility.
Clearly, that was an important issue at trial. However, Robinson’s
credibility would have been at issue regardless of the statements.
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The limited statements at issue were not themselves significant on
the issue of credibility when compared to the record as whole.
Third, as for the strength of the State’s case, it can be said to
be a middling case. As noted by the Court of Appeals in its decision
on direct appeal, it was a circumstantial case. But, it was a solid
circumstantial evidence, as summarized by the Court of Appeals in
reviewing the sufficiency of the evidence and quoted previously. In
short, the case against Robinson was not so strong that the
misconduct can essentially be overlooked, nor was it so weak that it
mandates reversal.
Fourth, there were no cautionary instruction or curative
measures taken as a direct result of the statements made by the
prosecutor. However, the statements were made during closing
arguments and the jury was instructed that the attorney’s statements
and arguments were not evidence. This mitigates against any
prejudice resulting from the statements. See State v. Plain, 898
N.W.2d 801, 821 (Iowa 2017) (“the district court instructed jurors that
‘[the] summations and closing arguments of counsel are not
evidence,’ thus mitigating the term’s prejudicial effect.”).
Lastly, it cannot be said that Robinson invited the misconduct
in this case. Again, his numerous contradictory statements did justify
the prosecutor attacking his credibility. They did not allow for the
manner in which it was done.
Weighing all the factors together then, I find that Robinson has
not established that he was prejudiced by the statements at issue.

The court did not specifically address the attendant ineffective-assistance-

of-counsel claim:

In the final sections of his brief, Robinson first clams ineffective
assistance of trial and/or appellate counsel with respect to the
alleged thirty significant trial errors discussed above [which included
the prosecutorial closing argument error/misconduct issue]. As
those have already been addressed, I will not again address them.

But the PCR court denied Robinson’s entire application, so it is implicit in its ruling

that it denied the ineffective-assistance-of-counsel claim. Robinson moved to

amend or enlarge the court’s findings. He addressed the merits of the Graves

claim but mentioned nothing about the attendant ineffective-assistance claim. The

PCR court denied the motion.
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On appeal, Robinson argues the merits of his prosecutorial misconduct

claim under a Graves analysis, but makes no argument under the rubric of an

ineffective-assistance-of-counsel claim. He gives ineffective-assistance only

passing reference by stating the PCR court found the comments improper, “which

means that the [PCR] court found that defense counsel provided ineffective

assistance of counsel in failing to object.” The PCR court made no such finding.

In mentioning one of the Graves factors, curative measures, Robinson states, “[n]o

curative action was taken as defense counsel breached a duty in failing to object.”

See Graves, 668 N.W.2d at 869. In responding to the State’s error preservation

argument, Robinson replies that because he did not raise a Graves violation claim

on direct appeal, that “is why the claim is raised as one of ineffective assistance of

counsel” on PCR.1 The ineffective-assistance-of-counsel issue was raised in his

application and decided, even if only implicitly, by the PCR court. But Robinson

does not make or flesh out an ineffective-assistance-of-counsel argument on

appeal. Random mention of an issue, without elaboration or supportive authority,

is not enough to raise the issue for our review. EnviroGas, L.P. v. Cedar

Rapids/Linn Cnty. Solid Waste Auth., 641 N.W.2d 776, 785 (Iowa 2002); Soo Line

R.R. v. Iowa Dep’t of Transp., 521 N.W.2d 685, 689 (Iowa 1994) (stating court will

1 Our supreme court has “long held [PCR] is not a means for relitigating claims that
were or should have been properly presented on direct appeal.” Osborn v. State,
573 N.W.2d 917, 921 (Iowa 1998) (citations omitted). See also Iowa Code § 822.8
(2003); Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001) (“Generally, a claim
not raised on direct appeal cannot be raised in a postconviction relief proceeding
unless the applicant can demonstrate a sufficient cause or reason for not properly
raising the issue previously.” (citing Iowa Code § 822.8)). And Robinson makes
no such argument here. Thus, his only option was to raise the issue under an
ineffective-assistance framework.
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not consider issues about which an appellant cites no authority nor offers any

substantive argument). So we need not consider Robinson’s ineffective-

assistance of-counsel claim about his counsel’s failure to object to the prosecutor’s

closing argument comments.

But even if we chose to bypass this serious preservation-of-error problem,

see State v. Taylor, 596 N.W.2d 55.56 (Iowa 1999), we would find no ineffective

assistance on trial counsel’s part for failing to object. Assuming without deciding

the PCR court's Graves analysis and conclusion that the prosecutor engaged in

misconduct was correct, Robinson was not prejudiced thereby. The prosecutor’s

remarks did not deprive Robinson of a fair trial. With no Graves prejudice, there

is no foundation on which to build an ineffective-assistance-of-counsel claim for

failure to object to the prosecutor’s comments. Put another way, because

Robinson did not establish a due process violation based on prosecutorial

misconduct, his trial counsel had no duty to make an objection to the prosecutor’s

comments. See State v. Braggs, 784 N.W.2d 31, 35 (Iowa 2010) (Counsel has no

duty to make an objection or raise an issue that has no merit”). Thus, Robinson’s

ineffective-assistance-of-counsel claim must fail.

B. Prayer.

Robinson argues that his trial counsel provided ineffective assistance of

counsel in failing to object to evidence that he prayed during his police

interrogation. To prevail on a claim of ineffective assistance of counsel, Robinson

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 Strickland v.

Washington, 466 U.S. 668, 687 (1984); Dempsey v. State, 860 N.W.2d 860, 868
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(Iowa 2015). “We can resolve ineffective-assistance-of-counsel claims under

either prong of the analysis.” State v. Ambrose, 861 N.W.2d 550, 556 (Iowa 2015).

At the criminal trial a police officer testified that when he was outside the

interrogation room during a break he observed Robinson praying. He asked

Robinson if he was praying and he said he had been. On cross-examination,

Robinson denied praying and denied telling the officer he was praying. During his

closing argument, the prosecutor mentioned that Robinson came up with a new

version of his story “after he had been interrogated over three hours, three hours

during which he had certainly some time to do some real soul searching, some

time for prayer, over three hours of serious contemplation.” Robinson’s counsel

did not object to the “prayer” testimony or the prosecutor’s comment. Robinson

claims the evidence was not admissible under Iowa Rule of Evidence 5.404(b) and

lacked probative value. With no real elaboration, Robinson also claims the

prosecutor’s comment was improper.

The PCR court found there was no error in not objecting to the evidence of

prayer because the evidence was admissible under rule 5.404(b) as it was

probative of Robinson’s awareness of guilt. We agree the evidence was

admissible, but part ways with the PCR court’s holding that the evidence of prayer

was of awareness of guilt. Here, there is no evidence on what Robinson was

praying about. An inference of guilt should not and cannot be made by the mere

act of praying. There are a myriad of speculative reasons Robinson may have

been praying. And here, there are no additional facts on which to infer guilt by the

act of praying.
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Rule 5.404(b) excludes evidence of other crimes not on grounds

of relevance but “based on the premise that a jury will tend to give other crimes,

wrongs, or acts evidence excessive weight and the belief that a jury should not

convict a person based on his or her previous misdeeds.” State v. Nelson, 791

N.W.2d 414, 425 (Iowa 2010). But the rule expressly permits evidence of other

crimes, wrongs, or acts for “proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.” Iowa R. Evid.

5.404(b)(2).

A court may admit evidence of other crimes, wrongs, or acts if there is a

non-character theory of relevance and the evidence is material to a legitimate

issue other than the defendant’s general criminal disposition. Nelson, 791 N.W.2d

at 425. Even if there is a non-character theory of relevance, “the probative value

of the evidence [must] not [be] substantially outweighed by the danger of unfair

prejudice to the defendant.” State v. Cox, 781 N.W.2d 757, 761 (Iowa 2010).

In general, relevant evidence is admissible and irrelevant evidence is not

admissible. See Iowa R. Evid. 5.402. Relevant evidence is evidence “having any

tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without

the evidence.” Iowa R. Evid. 5.401. Even when evidence is relevant, it “may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice.” Iowa R. Evid. 5.403, State v. Taylor, 689 N.W.2d 116, 123 (Iowa 2004).

The general test of relevancy is “whether a reasonable person might believe the

probability of the truth of the consequential fact to be different if the person knew

of the proffered evidence.” State v. Putman, 848 N.W.2d 1, 9 (Iowa 2014).
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Evidence of Robinson’s praying was just part of a chain of events and

relevant to explaining the context, background, or circumstances surrounding the

interrogation. Its probative value is not substantially outweighed by the danger of

unfair prejudice. There was plenty of evidence establishing Robinson’s guilt. And

as the State points out in its brief, the officer’s “brief testimony and Robinson’s

refutation were negligible when considered against the backdrop of Robinson’s

trial.” So even if Robinson’s trial counsel breached an essential duty in not

objecting to the testimony, we find no resulting Strickland prejudice. Thus,

Robinson's ineffective-assistance-of-counsel claim must fail.

C. Access to DNA record.

Robinson moved the PCR court to order the Iowa Department of Public

safety to provide the DNA profile of an individual (individual “A”), a felon on

probation whose probation terms required him to furnish a DNA sample to the

Department of Corrections. Robinson states there was evidence presented at the

murder trial of DNA obtained from the victim. A vaginal swab showed the presence

of Robinson’s DNA and that of the victim. There was also the presence of DNA

from a “minor contributor” who was not identified. According to Robinson, the

evidence suggested the victim had sex with the unidentified person (along with

Robinson) within a few days of the murder. Robinson alleges individual “A” was

likely the “minor contributor” of DNA found on the murder victim. Robinson wanted

to compare individual “A’s” DNA profile with the “minor contributor” DNA. Testing

would enable Robinson to rule in or out individual “A” as the “minor contributor.” If

not ruled out, Robinson suggests an investigation should continue to determine

whether individual “A” had a role in the murder.
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After a hearing on Robinson’s motion, the court held that Iowa Code

section 81.8 provides for a default of confidentiality of DNA records, with certain

limited exceptions—those exceptions applying to pending criminal cases. The

court reasoned that since a PCR action is a civil action, the section 81.8 exceptions

did not apply. The court denied Robinson’s motion.

DNA records are considered confidential “and disclosure of a DNA record

is only authorized pursuant to this section.” Iowa Code § 81.8(1). Applicable

exceptions are:

4. A DNA record or other forensic information developed
pursuant to this chapter may be released for use in a criminal or
juvenile delinquency proceeding in which the state is a party and
where the DNA record or forensic information is relevant and material
to the subject of the proceeding. Such a record or information may
become part of a public transcript or other public recording of such a
proceeding.
5. A DNA record or other forensic information may be released
pursuant to a court order for criminal defense purposes to a
defendant, who shall have access to DNA samples and DNA profiles
related to the case in which the defendant is charged.

Iowa Code § 81.8 (4)-(5).

Robinson agrees the section 81.8(4) exception is limited to criminal or

juvenile delinquency proceedings. Since a PCR action is a civil action, see Jones

v. State, 545 N.W.2d 313, 314 (Iowa 1996), the section 81.8(4) exception does not

apply. But Robinson argues the section 81.8(5) exception must have a broader

applicability than a “criminal or juvenile delinquency proceeding” as stated in

section 81.8(4). We disagree. The section 81.8(5) exception is limited to allowing

the release of DNA information for criminal defense purposes to a defendant.

Robinson is not a defendant in this proceeding. He is a PCR applicant in a civil

proceeding. If the legislature had intended to make section 81.8(5) available in
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PCR cases it would have said so. It did not. We cannot rewrite the statute and

allow access in civil cases to DNA records under Iowa Code section 81.8(5). The

PCR court committed no error in denying Robinson’s motion.

Lastly, Robinson claims his PCR counsel was ineffective for failing to obtain

a DNA sample directly from the suspected individual. The record is insufficient

about this claim at this time and we will not decide whether PCR counsel was

ineffective in failing to obtain a DNA sample directly from the suspected individual.

D. Pro se supplemental brief.

Because he is represented by counsel, we cannot consider Robinson’s pro

se supplemental brief. Iowa Code § 822.3A (Supp. 2019); see also Hrbek v. State,

958 N.W.2d 799, 781-84 (Iowa 2021).

IV. Conclusion.

Robinson’s ineffective-assistance-of-counsel arguments lack merit. The

PCR court properly denied Robinson’s request for a DNA sample. Thus, we affirm

the denial of Robinson’s PCR application.

AFFIRMED.