No. 06-0072.Court of Appeals of Iowa.
December 13, 2006.
Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
Applicant appeals following denial of his third application for postconviction relief. AFFIRMED.
John Billingsley of Walker Billingsley, Newton, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, John P. Sarcone, County Attorney, and Steve Foritano, Assistant County Attorney, for appellee State.
Considered by SACKETT, C.J., and ZIMMER and EISENHAUER, JJ.
ZIMMER, J.
Gary Titus appeals following the district court’s denial of his application for postconviction relief, which asserted that trial counsel was ineffective for failing to object to prosecutorial misconduct. Upon our de novo review, Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999), we affirm the district court.
In 1988 Titus was convicted of murder in the first degree. His conviction was upheld on direct appeal. State v. Titus, No. 88-1070 (Iowa Ct.App. Dec. 27, 1989). Titus unsuccessfully sought postconviction relief in 1990 and 1992.[1] He filed the present application for postconviction relief on July 14, 2004.
The application alleged trial counsel had been ineffective for failing to object to questions posed by the prosecutor during cross-examination of Titus, which had inquired into the veracity of State witnesses. It asserted the questioning was objectionable because it amounted to prosecutorial misconduct under the rule announced in State v. Graves, 668 N.W.2d 860 (Iowa 2003).[2] It further asserted the application was timely, even though it was filed nearly fifteen years after procedendo issued in the direct appeal, because Graves
had announced a new rule of law. See Iowa Code §822.3 (2003) (requiring application to be filed within three years of date decision is final or procedendo is issued, unless application is based on “a ground of fact or law that could not have been raised within the applicable time period”).
Following hearing, the district court denied Titus’s application. On appeal, Titus again asserts that trial counsel was ineffective for failing to object to questioning that amounted to prosecutorial misconduct. To establish such a claim, Titus must demonstrate that his attorney’s performance fell below “an objective standard of reasonableness” and that “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).
Having reviewed the record and relevant case law, we conclude the district court properly denied Titus’s claim. We agree with the court that this matter is governed by State v. Bayles, 551 N.W.2d 600 (Iowa 1996), which addressed for the first time the issue of whether a prosecutor may question a defendant about the veracity of other witnesses. The court noted a split of authority in other jurisdictions as to whether such questioning amounted to prosecutorial misconduct, but determined it need not decide the question in order to address the defendant’s ineffective assistance of counsel claim:
[B]efore our decision in this case, there was nothing in our statutes, rules, or case law imposing a duty on defense counsel to object to the cross-examination questions at issue here. A claim for ineffective assistance of counsel will not lie when the law governing the issue complained of is unsettled at the time the cause is tried.
Bayles, 551 N.W.2d at 610.
The questioning at issue here occurred some eight years prior to the Bayles decision. If the counsel i Bayles could not be found ineffective in light of the unsettled state of the law, we see no basis for reaching the opposite conclusion in this matter.
Titus contends his trial counsel can be deemed ineffective for failing to foresee a change in the law, given that trial counsel in Graves was found ineffective. He points to language in Graves that noted “`trial counsel’s failure to raise an issue of first impression cannot be excused as a judgment call left to the discretion of trial counsel.'” Graves, 668 N.W.2d at 882 (citation omitted). This language must, however, be read in context.
In Graves, the supreme court determined that “counsel could not have reasonably concluded that objections to the prosecutor’s cross-examination . . . were not worth making” because Bayles had alerted counsel to the issue Id. Here, in contrast, reasonably competent counsel would not necessarily anticipate that such statements could be deemed prosecutorial misconduct. See State v. Liddell, 672 N.W.2d 805, 814 (Iowa 2003) (“`Counsel need not be a crystal gazer; it is not necessary to know what the law will become in the future to provide effective assistance of counsel.'” (citation omitted)). Titus has accordingly failed to establish the ineffective assistance of his trial counsel. The district court ruling denying Titus’s application for postconviction relief is affirmed.
AFFIRMED.