
                        IN THE SUPREME COURT OF IOWA

                              No. 104 / 03-1953

                           Filed February 10, 2006


STATE OF IOWA,

      Appellee,

vs.

KEITH BRAINERD CAREY, SR.,

      Appellant.



      On review from the Iowa Court of Appeals.


      Appeal from the Iowa District Court for  Black  Hawk  County,  Alan L.
Pearson, Judge.

      Defendant appeals from convictions for willful injury and going  armed
with intent.  DECISION OF COURT OF APPEALS AND JUDGMENT  OF  DISTRICT  COURT
AFFIRMED.

      Linda Del Gallo, State Appellate  Defender,  and  Theresa  R.  Wilson,
Assistant State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney  General,  Richard  J.  Bennett,  Assistant
Attorney General, Thomas J. Ferguson, County  Attorney,  and  Kim  Griffith,
Assistant County Attorney, for appellee.


LARSON, Justice.
      Keith Carey, Sr. was convicted by a jury  of  willful  injury  causing
serious injury, Iowa Code § 708.4 (2001), and going armed with intent,  Iowa
Code § 708.8.  Carey appealed,  and  the  court  of  appeals  affirmed.   On
further review, we also affirm.
      I.  Facts and Prior Proceedings.
      The record, when viewed favorably to the verdict,  revealed  that  the
defendant  and  Anthony  VonMoore,  the  victim,  were   neighbors.    About
9:30 p.m. on May 14, 2003, VonMoore,  who  was  heavily  intoxicated  (later
testing .273), decided to visit Carey  at  Carey’s  house.   After  a  short
visit, VonMoore started to go home.   On  his  way  out  of  Carey’s  house,
VonMoore mentioned that Carey owed VonMoore’s employer  $50.   Carey  became
enraged, grabbed a long-bladed knife, and pursued  VonMoore  out  the  door,
saying that he was going to “get”  him.   VonMoore  turned  around  and  saw
Carey swinging the blade.  VonMoore suffered five cuts, including  one  over
his left eye and another that severed a tendon and an artery in  his  thumb.

      Several witnesses claimed they saw Carey standing on his front  porch,
waving a knife (or, according to some testimony, two knives).  Natalie,  one
of the defendant’s daughters, realized that VonMoore was  seriously  injured
and called 911.  This enraged Carey even further.  While Natalie was on  the
phone, Carey pushed her down while holding  a  knife.   Police  and  medical
personnel arrived, tended to VonMoore, and arrested Carey.
      Carey, who  claims  self-defense,  had  a  different  account  of  the
events. According to Carey, VonMoore came to Carey’s house  at  9  p.m.  and
lured Carey outside where he hit Carey on the back of  his  head  while  his
back was turned.  Carey said VonMoore hit him repeatedly and  threatened  to
injure Carey’s daughter and granddaughter if Carey did not give  him  money.
According to Carey, the beating  at  the  hands  of  VonMoore  was  serious,
testifying that “he hit me many times” and “my head was scrambled up  pretty
bad.  There was nothing I could do.”  The results,  Carey  claimed,  were  a
bloody nose, sore jaw, sore ribs, and a missing tooth filling.
      Carey’s account of the incident continued:   after  VonMoore  let  him
go, Carey went to his bathroom  to  clean  up  his  wounds.   While  in  the
bathroom, Carey heard someone enter his house through the  front  door.   He
glanced toward the door and saw VonMoore going up the stairs.  Carey  lunged
toward VonMoore, tackling him on the  stairs.   A  skirmish  ensued,  during
which, according to Carey, VonMoore drew a utility knife.   Carey  took  the
knife away from VonMoore and used it against VonMoore in self-defense.   All
of this, according to Carey, took place in the foyer of his house,  directly
below his daughter Natalie’s bedroom.
      On appeal, the defendant argues (1) the district court failed to  give
an instruction on provocation and (2) his trial counsel was ineffective  for
failing to object to several instances of prosecutorial misconduct.
      II.  Jury Instructions.
      Carey’s theory at trial was self-defense; however, at the end  of  the
trial, he also sought to include a jury  instruction  on  provocation.   The
district court sustained the State’s objection to  the  instruction  because
it was not supported by the evidence.
       Issues  regarding  jury  instructions  are  generally  reviewed   for
correction of errors at law.  State v. Breitbach, 488 N.W.2d 444, 449  (Iowa
1992).
      In this case, Jury Instruction No. 19 read in part:

            A person is justified in using reasonable force if he reasonably
      believes the force is necessary to defend himself  from  any  imminent
      use of unlawful force.  If  the  State  has  proved  any  one  of  the
      following elements, the defendant was not justified:

            1.  The  defendant  started  or  continued  the  incident  which
      resulted in injury.

The defendant claims  that  the  court  erred  by  failing  to  include  the
following instruction:

            If the defendant provoked the use of  force,  but  [the  victim]
      used force greatly disproportionate to the provocation and it  was  so
      great that the defendant reasonably believed he was in imminent danger
      of death or injury, he is not considered to have provoked the incident
      and his acts would be justified.

He claims the facts of the case supported this  instruction  because,  under
his version of the events, he initiated the second scuffle  between  himself
and VonMoore when VonMoore entered his  house.   He  claims  that  the  jury
could have concluded that he “started” the second incident, since the  first
attack had ended.  Thus, he argues this instruction  was  necessary  because
VonMoore used force “greatly disproportionate to the  provocation”  when  he
drew his utility knife.
      We agree with the court of appeals’  resolution  of  this  issue.   It
stated:

            If we accept the defendant’s version of the altercation, he  did
      not provoke the attack, but rather was attacked first by VonMoore.  If
      we accept VonMoore’s version, he made some comments about  money,  was
      attacked by the defendant, and only tried to defend himself against  a
      knife attack.  Neither version  supports  an  instruction  [that]  the
      defendant provoked an attack by VonMoore or  that  VonMoore  responded
      with “greatly disproportionate” force.

A jury could not have believed Carey’s version of the events and also  found
that he provoked an attack by VonMoore.  The court did not err  in  refusing
to instruct on provocation.
      III.  The Ineffective-Assistance-of-Counsel Claim.
      Carey contends that the assistant county attorney committed misconduct
on several occasions throughout the  trial  and  during  closing  arguments.
Because  his  trial  counsel  did  not  object  to  any  of  these   alleged
improprieties, he  challenges  them  through  an  ineffective-assistance-of-
counsel claim.
      State v. Graves, 668 N.W.2d 860 (Iowa 2003), established  a  framework
for evaluating claims of prosecutor misconduct.   In  that  case,  involving
manufacturing and possession of marijuana, the state was required  to  prove
that  Graves  had  constructive  possession  by  exercising   control   over
marijuana found in different areas of a house owned by one of  his  friends.
At trial, the state called only one witness, Officer Jason  Steil,  who  had
arrested and interrogated Graves.  Id. at 866.  The  case  rested  in  large
part on the state’s ability to prove that Graves lived at that house,  which
in turn rested on Officer Steil’s testimony.   In  that  testimony,  Officer
Steil recounted much of  his  conversation  with  Graves,  during  which  he
claimed Graves admitted to living at the house.  Id.
      After the prosecution rested, Graves testified on his own behalf.   He
claimed he did not live at the house; rather, he simply stored some  of  his
belongings there and had  little  or  no  access  to  the  rooms  where  the
marijuana was found.  Further, he  claimed  that  Officer  Steil  apparently
misunderstood much of what Graves said during their  conversation.   Id.  at
867.
      Realizing that the case would turn on witness-credibility issues,  the
prosecutor mounted what this court described as “a full attack”  on  Graves’
credibility.  Id. at 879.  Graves was convicted and, on his appeal, he  made
a claim  identical  to  the  one  in  this  case:   his  trial  counsel  was
ineffective for failing to object  to  several  instances  of  prosecutorial
misconduct.  This court agreed and reversed and remanded for  a  new  trial.
Id. at 884.  Graves established rules to be applied in analyzing  misconduct
claims, and we apply them here.
      Carey’s claims of misconduct can  be  grouped  into  four  categories:
(1) asking a “was he lying” question; (2) distorting, on  cross-examination,
the defendant’s direct-examination testimony; (3) making  statements  during
closing argument that were unsupported by the record; and (4)  stating  that
the defendant’s version of events was untruthful.
      A.  The “was he lying” question.   In  Graves,  we  held  that  it  is
misconduct, under any circumstances, for a prosecutor to ask  a  witness  to
comment on the veracity of another  witness,  Graves,  668  N.W.2d  at  873,
because such questions (1) tend to  invade  the  province  of  the  jury  to
determine witness credibility; (2) have no probative value and  tend  to  be
argumentative; (3) may mislead the jury, as they imply that  the  jury  must
find that a state’s witness is lying in order to convict the defendant;  (4)
are solely designed to make the defendant look bad regardless of the  answer
given; and (5) are inconsistent with  the  prosecutor’s  duties  of  seeking
justice and insuring a fair trial.  Id. at 871-73.
      In Carey’s case, the  State  called  Dr. Rajendra  Singh  to  testify.
Dr. Singh stated that he fully examined Carey when the  police  brought  him
to the hospital, and during that examination, he did not see  any  signs  of
injury nor did  Carey  complain  of  any  injuries.   Later,  following  the
defendant’s direct testimony in which  he  described  the  attack  in  which
VonMoore allegedly injured him severely,  the  prosecutor  asked  Carey  the
following questions:

            Q.  And you didn’t make any complaint to the doctor about any of
      this; did you?  A.  I fail to differ, ma’am.  Yes, I did.

            Q.  You didn’t tell them about all of this stuff  you  told  us;
      have you?  A.  I told that man enough to get me some Tylenol.

            Q.  Well according to the  doctor  he  said  that  you  did  not
      complain to any injuries, you just asked for Tylenol.  That’s what  he
      said.  A.  According to the doctor, as I recall, he said that he,  you
      know, touched me, examined me, which never happened.

            Q.  So you’re saying  the  doctor  lied;  is  that  what  you’re
      telling us?  A.  I’m saying that the doctor operated off of a  set  of
      notes that he happened to have with him.

            Q.  Can you give us any reason—I mean does the doctor have  some
      prior relationship with you?   A.   I’ve  never  seen  that  gentleman
      before in my life.

            Q.  So there would be no reason that you know of for the  doctor
      to come in and make something up.  A.   I  never  said  that  somebody
      fabricated anything, ma’am.

(Emphasis added.)  In Graves this court adopted  a  “bright-line  rule  that
bars such inquiries without exception.”  Graves, 668 N.W.2d at  873.   While
Graves  was  filed  shortly  after  this  case  was  tried,  the  principles
underlying that case existed at the time of  Carey’s  trial,  based  on  the
authorities set out in Graves.  We conclude the  prosecutor’s  question  was
misconduct.  Unlike in Graves, however, in  which  the  credibility  of  the
defendant and the sole prosecution witness was  the  key  to  the  issue  of
guilt, the question in the present case as to  whether  Carey  was  truthful
about his medical examination was only  collaterally  relevant  to  the  key
issue, i.e., whether he had  inflicted  injury  upon  another  person.   The
prosecutor’s  improper  question,  however,   is   relevant   in   assessing
prejudice, which we discuss later.
      B.  Prosecutor’s  misstatement  of  the  defendant’s  testimony.   The
defendant contends that, during his  cross-examination  by  the  prosecutor,
the prosecutor elicited improper bad-acts evidence.  On direct  examination,
Carey had testified:

            Q.  Were you upset with  [Natalie,  the  defendant’s  daughter,]
      calling 911 about this incident?  A.  Yeah, I was.

            Q.  Why?  A.  Why—why would she call the police on  me?  I  mean
      I’m the one that got beaten up.  I’m the one that got threatened.  I’m
      the one that he threatened to kill.

            Q.  Then what happened?  A.  It’s all a blur—I mean—It’s—Natalie
      says I knocked her down.  I don’t remember knocking her down.  I  just
      don’t.  I don’t see why I  would  knock  her  down.   Hell,  she’s  my
      daughter.

      On the prosecutor’s cross-examination of Carey,  she  treated  Carey’s
statement on direct examination that, “I don’t see why  I  would  knock  her
down,” as if Carey had denied ever hurting her.  In response the  prosecutor
got Carey to admit that, in 2000, he had assaulted his daughter  by  choking
her.
      Carey contends that the prosecutor misquoted his direct examination in
which he had not mentioned the event that occurred in 2000.  The result,  he
claims, was to introduce prior bad-acts evidence.  The State  counters  that
Carey opened the door for this question about his  earlier  choking  of  his
daughter by denying that he would hurt her.  Ordinarily,  bad-acts  evidence
may not be used except in limited circumstances.   See  Iowa  Rs.  of  Evid.
5.403, 5.404(b).  That is so because a defendant should be  tried  for  what
he allegedly did, not for who he is.  The State argues that  Carey’s  direct
testimony opened the door for the prosecution to inquire  into  the  earlier
event in which he choked his daughter.  See  United  States  v.  Segal,  852
F.2d 1152 (9th Cir. 1988).

      While evidence of prior crimes is generally inadmissible under Fed. R.
      Evid. 404(b) and  403,  the  “invited  error”  doctrine  entitles  the
      government to pursue inquiry into a matter, if  evidence  thereon  was
      first introduced by defendant.

Id. at 1155 (citations omitted).
      Even  if  we  assume,   as   Carey   argues,   that   the   prosecutor
mischaracterized his testimony and therefore was guilty  of  misconduct,  we
do not believe it was sufficiently prejudicial to require a  new  trial  for
the reasons we discuss later.
      C.  Prosecutor’s statements in closing argument.  Carey next  contends
that several statements made by the prosecutor in her closing argument  were
unsupported by  the  evidence  and  were  solely  intended  to  inflame  the
passions of the jury.
      We start with the principle that, “[i]n closing arguments, counsel  is
allowed some latitude.  Counsel may draw conclusions and  argue  permissible
inferences which reasonably flow from  the  evidence  presented.”  State  v.
Thornton, 498 N.W.2d  670,  676  (Iowa  1993)  (citations  omitted);  accord
Graves, 668 N.W.2d at 874; State  v.  Phillips,  226  N.W.2d  16,  19  (Iowa
1975).  “‘However, counsel has no right to create evidence  or  to  misstate
the facts.’”  State v. Greene,  592  N.W.2d  24,  32  (Iowa  1999)  (quoting
Thornton, 498 N.W.2d at 676) (emphasis  omitted).   Carey  highlights  three
statements in the  prosecutor’s  closing  argument  that  he  contends  were
unsupported by the evidence.
      1.  Carey believes that the prosecutor improperly insinuated,  in  her
final argument, that Carey’s daughter, Natalie, was  an  eyewitness  to  the
events.  He contends that, “[i]n fact, Natalie specifically  testified  that
she was at home during the altercation but did not see  or  hear  anything.”
Carey is mistaken in  his  factual  predicate  for  this  claim.   The  call
Natalie made to 911 was submitted as evidence, and  on  that  tape,  Natalie
told the operator that Carey had  a  weapon  and  that  he  was  threatening
people with it.  According to the tape, Natalie yelled  at  Carey  and  told
him that the police were coming and that he was going to  jail.   Therefore,
contrary to Carey’s claim, the prosecutor’s statement that Natalie  believed
Carey was the assailant is clearly supported by the record.
       2.  The  defendant  challenges  the  prosecutor’s  statement  in  her
closing argument that Carey’s 2000 assault on Natalie was  “an  attack  that
included a knife.”  The defendant only admitted  choking  his  daughter;  he
never mentioned using a knife in the 2000 assault.  Potentially, this  could
be damaging because the alleged incident involved a  knife,  which  was  the
weapon used in the present case.
      Two considerations bear on the resolution of  this  question.   First,
it appears that the prosecutor probably confused, in good  faith,  the  2000
assault of his daughter (that did not involve a knife)  with  the  2003  one
that occurred while Natalie was on the telephone with the 911 operator.   In
the latter incident, Carey did have a  knife  that  he  was  wielding  while
pushing Natalie to the floor.  See Wycoff v. State, 382 N.W.2d  462,  467-68
(Iowa  1986)  (holding  erroneous  comment  made  in  good  faith  was   not
misconduct).
      The second consideration is that the mistaken  2000  “knife”  incident
was only alluded to in final argument; it was  not  presented  as  evidence.
Under  the  court’s  instruction,  arguments  of  counsel  were  not  to  be
considered as evidence.  Even if we assume the mistaken knife reference  was
not made in good faith, we consider it  only  as  bearing  on  the  ultimate
issue of prejudice.
      3.  The third example of alleged misconduct involves a statement  made
by the prosecutor in her rebuttal:

      Now if the defendant got the knife from Mr. VonMoore as  he  said,  no
      one is that good in trying to get a knife from another  person  that’s
      trying to attack you and not getting an injury.  When [the  defendant]
      got the knife, as he said, from Mr. VonMoore, if you notice he  didn’t
      sustain one cut, bruise, nothing.  That’s probably the only person  in
      history  that’s  been  successful  in  not  sustaining  an  injury  in
      defending themselves.

The defendant argues that the prosecutor’s assertion that no one,  including
the defendant, could successfully defend  against  a  knife  attack  without
sustaining an injury, is unsupported by the record.  That may be so, but  it
is strongly suggested by common sense, and we believe it was based  on  “the
reasonable inferences and  conclusions  to  be  drawn  from  the  evidence.”
Graves, 668 N.W.2d at 874.  We find no misconduct on this ground because  it
strains  the  imagination  that  the  defendant  could  have  disarmed   his
“assailant,” a former boxer, and not sustain even a slight injury.
       D.  Alleged  inflammatory  statements.   The  prosecutor  made  three
statements in her closing argument that, according to Carey,  were  intended
to inflame  the  passions  of  the  jury.   The  first  occurred  while  the
prosecutor was describing Carey’s initial reaction to  the  police  officers
who arrived at the scene.  The officers testified that, when they  tried  to
question him, he just “freaked out.”  The prosecutor described the scene:

      [W]ithout warning  [the  defendant]  became  violent  and  aggressive,
      threatening Officer Zubak that he would get him or something  to  that
      effect.  Sounds really familiar doesn’t it?  At that  point  in  time,
      though, [he] just didn’t have a knife to get  Zubak  with  as  he  had
      Mr. VonMoore.

(Emphasis added.)
       The  second  incident  occurred  when  the  prosecutor  pointed   out
inconsistencies between Carey’s  testimony  and  that  of  other  witnesses.
Specifically, she noted that Carey testified that  his  daughter,  Liz,  had
approached him on the day  of  the  attack  and  said  she  had  an  ongoing
conflict with VonMoore.  However, Liz testified that she  and  VonMoore  had
no disputes that day.  The  prosecutor  stated:   “Liz  said  there  was  no
problem when she testified.  None.  [The defendant] should  have  sent  some
letters to her.”  (Emphasis added.)  As the defendant notes, this  reference
to letters  apparently  went  back  to  testimony  by  his  other  daughter,
Natalie, in which she stated that Carey sent  her  a  “vulgar”  letter  from
jail.  The  prosecutor  suggested  that  this  letter  may  have  influenced
Natalie’s testimony due to its threatening nature.  The “letters”  reference
suggested that the defendant perhaps should have  sent  threatening  letters
to his other daughter,  Liz,  to  influence  her  testimony,  since  it  was
damaging to the defendant.
      The third example occurred when the prosecutor repeated a  portion  of
Carey’s  testimony,  noted  that  it  conflicted  with  nearly  every  other
witness’s account, and then asked  the  jury,  “What  games  are  [sic]  the
defendant playing with you?”
      These three comments, while sarcastic  and  snide,  were  based  on  a
legitimate assessment of the evidence  and  especially  of  the  defendant’s
credibility and  did  not  constitute  misconduct,  given  the  considerable
latitude accorded to lawyers in final arguments.
      E.  Prosecutor’s assertion during closing argument that defendant  was
lying  while  other  witnesses  were  truthful.   The  defendant  points  to
instances in the prosecutor’s closing  argument  where  she,  impliedly  and
expressly, suggested that the defendant lied while  giving  his  account  of
the attack and improperly vouched for certain witnesses for the  State.   In
his brief, he highlights the following:  The  prosecutor  characterized  the
defendant’s testimony about his relationship with the victim as “not  true.”
 She also noted a conflict in the evidence between  the  defendant  and  the
victim concerning whether the victim was wearing a black coat so  as  to  be
able to conceal a knife.  She characterized  the  defendant’s  testimony  in
that regard as “absolutely not true.”  She also stated in her argument  that
“a person that’s telling the truth doesn’t need to skirt around the  issue,”
an obvious reference to the defendant’s evasive  and  feigned  confusion  on
almost all  key  cross-examination  questions.   This  experience  obviously
prompted this  statement  by  the  prosecutor  that  is  now  challenged  as
misconduct:

      [T]he truth always remains constant.  The lies that the defendant told
      you are the constantly changing ones that change with the ebb and flow
      as to how things are going at the time.

      At another point the prosecutor argued “[the victim]  is  telling  the
truth.  You know he is.  Because he doesn’t have any motive in here  to  try
to get this defendant convicted of any crime . . . .   [H]e’s  here  because
he’s subpoenaed.”
      The prosecutor also said, “You know [the victim] is  not  lying,”  and
stated that the defendant’s version was “baloney,”  apparently  basing  this
assessment  on  the  fact  that  other  witnesses  bolstered  the   victim’s
testimony and virtually all  other  evidence  contradicted  the  defendant’s
testimony.  The prosecutor noted the lack of  supporting  evidence  for  the
defendant’s version of the event and then asked, “[W]hy on earth  would  you
believe anything the defendant says?”
      The issue is how far a  prosecutor  may  go  in  suggesting  that  the
defendant gave untruthful testimony.  On one hand, “Iowa  follows  the  rule
that it is improper for a prosecutor to call the defendant a liar, to  state
the defendant is lying, or to make similar disparaging  comments.”   Graves,
668  N.W.2d  at  876.   However,  “[n]otwithstanding  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] certain  testimony  is  not
believable.’”  Id. (quoting State  v.  Davis,  61  P.3d  701,  710-11  (Kan.
2003)).

      “The key point is that counsel is precluded  from  using  argument  to
      vouch personally as to a defendant’s guilt or a witness’s credibility.
       This is true whether the personal  belief  is  purportedly  based  on
      knowledge of facts not possessed by the jury, counsel’s experience  in
      similar cases, or any ground other than the weight of the evidence  in
      the trial.  A defendant is entitled to have the case decided solely on
      the evidence.”

Id. at 874 (quoting State v. Williams, 334  N.W.2d  742,  744  (Iowa  1983))
(emphasis added).
      The obvious threat addressed by Graves and other of our cases  is  the
possibility that a jury might convict the defendant for reasons  other  than
those found in the evidence.  Thus, misconduct does not reside in  the  fact
that the prosecution attempts to tarnish defendant’s  credibility  or  boost
that of the State’s witnesses; such tactics are not only  proper,  but  part
of the prosecutor’s duty.  See State v. Comes, 245 Iowa 485, 491, 62  N.W.2d
753, 757 (1954) (“It is of course the  duty  of  a  prosecuting  officer  to
present  the  state’s  cause  zealously  and   effectively   within   proper
bounds.”).  Instead, misconduct occurs when the prosecutor  seeks  this  end
through unnecessary and overinflammatory means that go  outside  the  record
or threaten to improperly incite the passions of the jury.
      In  determining  whether  the  prosecutor’s  statements  to  the  jury
employed such means, and therefore constituted misconduct, the court  should
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.
      In considering the first factor,  a  jury  could  reasonably  conclude
from the evidence that the defendant had lied,  as  his  version  of  events
differed substantially from that of every other witness.   The  prosecutor’s
comments were unquestionably based on legitimate inferences that  Carey  had
been untruthful.
      Under the second factor, the comments about Carey’s truthfulness  were
not presented as merely the prosecutor’s personal  opinion.   This  is  much
more apparent when the challenged statements are presented in context.   For
example,  the  prosecutor  noted  that  the  defendant  “talked  around  the
questions,” that the  defendant’s  story  had  changed,  that  he  told  his
daughter Liz that he did not remember what happened, and “now  he  comes  up
with this ridiculous story.”  The prosecutor stated that  “a  person  that’s
telling the  truth  doesn’t  need  to  skirt  around  the  issue,”  and,  in
contrasting the testimony by  the  victim,  attributed  credibility  to  the
victim’s statements “because the truth . . .  remains  constant.   The  lies
that the defendant told you are the constantly  changing  ones  that  change
with the ebb and flow as  to  how  things  are  going  at  the  time.”   The
prosecutor then pointed out that the defendant  was  contradicted  by  other
evidence, including the testimony of Carey’s own daughters.
      Contrary to the defendant’s assertion, the prosecutor  did  not  state
that it was her personal opinion  that  the  defendant  lied,  nor  did  she
personally vouch for the victim’s  credibility.   Instead,  she  highlighted
for the jury the evidence in the record that  showed  the  inconsistent  and
evasive nature of the defendant’s testimony.   She  compared  his  testimony
with that of the victim’s, whose story was unchanging.   This  argument  was
proper under the first and second Graves factors.
      Under the third factor, the court must consider under  Graves  whether
the comments were made  to  disparage  the  defendant  and  to  inflame  the
passions of the jury.  The prosecutor’s comments, when read in  context,  do
not rise (or sink) to that level.  While more professional  language  could,
and should, have been used to convey the same message, we should not  forget
that prosecutors are  entitled  to  some  latitude  in  crafting  a  closing
argument.  Graves, 668 N.W.2d at 874; Phillips, 226 N.W.2d at  19.   Jurors,
we believe, are sophisticated enough not to be  inflamed  or  prejudiced  by
what would reasonably be categorized as  simply  being  snide  or  sarcastic
comments.
      The Supreme Court has enunciated  the  following  rule  of  thumb  for
assessing allegations of prosecutorial misconduct:

      [The county attorney] may prosecute with earnestness and vigor—indeed,
      he should do so.  But, while he may strike hard blows, he  is  not  at
      liberty to strike foul ones.  It is as much his duty to  refrain  from
      improper methods calculated to produce a wrongful conviction as it  is
      to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88, 55  S. Ct.  629,  633,  79  L. Ed.
1314, 1321 (1935).  In Berger the Court held it was a “foul”  blow  for  the
prosecutor to claim personal knowledge about what  a  witness  knew  and  to
state it was unfair that he could  not  ask  certain  questions,  while  the
defendant’s counsel could  twist  questions.   Id.   In  Viereck  v.  United
States, 318 U.S. 236, 247-48, 63 S. Ct. 561,  566-67,  87  L. Ed.  734,  741
(1943), a case tried in wartime, the defendant was likened  to  the  wartime
enemy; this comment was held to be misconduct.  In Graves we held  that  the
prosecutor’s misconduct was prejudicial because disparaging the  defendant’s
testimony was the centerpiece of the prosecution.   Graves,  668  N.W.2d  at
883; see also State v. Vickroy, 205 N.W.2d 748, 750-51 (Iowa 1973)  (holding
prosecutor’s urging of jurors to place  themselves  in  position  of  drunk-
driving victim held to be prejudicial misconduct).
      In contrast, in State v. Williams, 334 N.W.2d  742  (Iowa  1983),  the
prosecutor argued that the defendant took the victim to a secluded area  “in
my opinion, in an attempt to avoid detection.”   The  prosecutor  also  said
that, “I also think it is clear that she was  subjected  to  sexual  abuse,”
and that “it seems to me that the money  didn’t  exist.”   In  referring  to
part of the defendant’s testimony, the prosecutor said “I find that hard  to
believe” and “I find that story just a little bit hard to believe.   I  find
it stretches my imagination.”  Williams, 334 N.W.2d at 744.  We said:

      The key point is that counsel is  precluded  from  using  argument  to
      vouch personally as to a defendant’s guilt or a witness’s credibility.
       This is true whether the personal  belief  is  purportedly  based  on
      knowledge of facts not possessed by the jury, counsel’s experience  in
      similar cases, or any other ground than the weight of the evidence  in
      the trial.  A defendant is entitled to have the case decided solely on
      the evidence.

Id. (citing DR 7—106(c)).
      We declined in Williams to find misconduct because,

      [v]iewed in context, all of the prosecutor’s challenged  remarks  were
      obviously based on his view of  the  evidence.   He  did  not  in  any
      statement insinuate that his opinion was based on non-record facts nor
      can  it  fairly  be  said  that  he  personally  vouched  against  the
      credibility of defendant’s testimony.

Id. at 745.
      While this court has held that referring to a defendant as a  liar  is
misconduct, such comments do not always result in prejudice.  It is  not  so
much the fact that the prosecutor suggests the defendant is untruthful  that
creates  the  misconduct.   Graves,  668  N.W.2d  at  876  (stating  that  a
prosecutor is free to argue, based on reasonable inferences drawn  from  the
evidence, that certain testimony is unbelievable).  Instead, it is  the  use
of the word “liar” itself, as this court found it to be  “inflammatory”  and
“improper.”  Id. (“Iowa has joined those jurisdictions holding  it  improper
to call the defendant a liar.”).
      In this case, the prosecutor often suggested that  the  defendant  had
been less than truthful regarding his  version  of  events.   However,  only
once did the prosecutor use the disparaging  term  “lies”  to  describe  the
defendant’s testimony.
      This case must  be  distinguished  from  Graves  on  this  issue.   In
Graves, the court stated the “most disturbing” aspect  of  the  prosecutor’s
comments was his suggestion that the  defendant  had  called  the  arresting
officer a liar.  668 N.W.2d at 880.  In that case,  the  prosecutor  stated:
“If you believe [the arresting  officer],  there  is  no  question  that  he
[Graves] is guilty as charged.”   This,  we  held,  is  more  than  just  an
inflammatory statement; it is a misstatement of the  law.   “[E]ven  if  the
jury believes the government witnesses have told the truth, it  might  still
conclude guilt has not been proved beyond a reasonable doubt.” Id.
      In this case, the prosecutor never suggested that  Carey  referred  to
other witnesses as liars.  Further, she did not distort the  State’s  burden
of  proof.   Instead,  she  primarily  discredited  Carey’s   testimony   by
comparing it to the testimony of other witnesses and other evidence  in  the
record.
      IV.  The Prejudice Issue.
      In a case  based  on  alleged  ineffectiveness  of  trial  counsel,  a
defendant must establish more than a breach of  duty  on  the  part  of  his
counsel.  Even if we assume in Carey’s case  that  his  attorney  failed  to
challenge the prosecutor’s acts of misconduct, that  alone  is  insufficient
to set aside the judgment.  The Supreme Court has said that

            [a]n error by counsel, even if professionally unreasonable, does
      not warrant setting aside the judgment of a criminal proceeding if the
      error  had  no  effect  on  the  judgment. . . .    [Therefore],   any
      deficiencies in counsel’s  performance  must  be  prejudicial  to  the
      defense in  order  to  constitute  ineffective  assistance  under  the
      Constitution.

Strickland v. Washington, 466 U.S. 668, 691-92, 104  S. Ct.  2052,  2066-67,
80 L. Ed. 2d 674, 696 (1984).
      The test for prejudice “finds its roots” in a test for materiality  of
government-withheld evidence.  Therefore,  to  prevail  on  an  ineffective-
assistance-of-counsel claim,

      [t]he defendant must show that there is a reasonable probability that,
      but for counsel’s unprofessional errors, the result of the  proceeding
      would have been different.  A reasonable probability is a  probability
      sufficient to undermine confidence in the outcome.

Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d  at  698;  accord  Graves,  668
N.W.2d at 877; Nguyen v. State, 707 N.W.2d 317, 324 (Iowa 2005).
      Carey only raises two instances arising during  the  evidence  portion
of the trial:   the  “was  he  lying”  question  and  the  prodding  of  the
defendant to admit he had previously choked his daughter by  misstating  the
defendant’s direct-examination answers.  These isolated incidents, which  we
have discussed previously, did not establish pervasiveness.   The  remainder
of Carey’s allegations of misconduct arose out  of  the  prosecutor’s  final
argument, an area in which we have traditionally “cut  a  little  slack”  to
prosecuting  attorneys.   See  Greene,  592  N.W.2d  at   32.    While   the
prosecutor’s observations about credibility were sarcastic and probably ill-
considered, they were based on a legitimate view of  the  evidence.   As  to
the impact on the central issue, i.e., whether Carey  attacked  VonMoore  in
self-defense, we believe they were minimal.
      The most  important  factor  under  the  test  for  prejudice  is  the
strength of the State’s case.  See Greene,  592  N.W.2d  at  32  (concluding
that the prosecutor’s misconduct did not prejudice the  defendant  for  many
reasons, but perhaps the most compelling reason was that  the  state’s  case
against the defendant was strong); Anderson, 448 N.W.2d at 34  (noting  that
the  state’s  strong  case  was  “significant”  in   concluding   that   the
prosecutor’s misconduct did not prejudice the defendant);  see  also  United
States v. Wilson, 149 F.3d 1298, 1302 (11th Cir. 1998) (stating that one  of
the most important factors in determining prejudice is the strength  of  the
prosecution’s case).  Clearly, the stronger the case against the  defendant,
the less likely the jury is to look beyond the  record.   United  States  v.
Modica, 663 F.2d 1173, 1182 (2d Cir. 1981) (per  curiam)  (recognizing  that
the existence of prejudice often turns on the strength of  the  government’s
case: “if proof of guilt is strong,  then  the  prejudicial  effect  of  the
comments tends to be deemed insubstantial; if proof of guilt is  weak,  then
improper statements are more likely to result in reversal”).
      Unlike Graves,  the  State’s  case  against  Carey  was  strong.   See
Graves, 668 N.W.2d at 877 (“The State’s case in  the  absence  of  [Officer]
Steil’s  testimony  concerning  Graves’  admissions  was   weak.”).    Carey
conceded the underlying elements of each crime.  The only  material  dispute
was whether  his  actions  were  justified.   Carey  contends  that  he  was
justified because VonMoore had assaulted him earlier that evening,  punching
and kicking him in the head and  chest,  multiple  times,  “scrambling”  his
head “pretty bad,” and causing a bloody nose and other injuries.
      This version of events cannot be reconciled  with  any  of  the  other
witnesses’ testimony.  For example, Carey’s contention that he  was  punched
and kicked several times is  completely  unsupported  in  the  record.   The
victim was so drunk  he  could  hardly  stand  up,  according  to  witnesses
present at the time of the incident.  It is  highly  unlikely  he  would  be
able to inflict  the  injuries  that  Carey  now  attributes  to  him.   The
officers who first arrived at the scene testified that Carey appeared to  be
uninjured. The doctor who treated Carey observed no injuries to his head  or
body.  The doctor testified that the  defendant  did  not  complain  of  any
injuries, and he displayed no outward signs  of  having  been  in  a  fight.
While  the  defendant  asserted  that  the  doctor  did  not   examine   him
thoroughly, the doctor said he performed a full examination.   In  addition,
the officer  who  accompanied  Carey  to  the  hospital  testified  that  he
witnessed the examination, and he thought  the  doctor  was  very  thorough,
going so far as to require  Carey  to  remove  his  shirt  for  examination.
These  eyewitness  accounts  are  supported  by  photographs  taken  of  the
defendant shortly after the incident occurred.
      Given the evidence previously set out in the statement  of  facts  and
the severe inconsistencies in Carey’s testimony, the  State’s  case  against
Carey was overwhelming.  The defendant, in  fact,  admitted  every  material
element of the crimes with which he was charged; the  State  only  bore  the
burden of proving that the defendant was not justified in his  actions.   We
believe the record shows that the State met that burden.
      In this  case,  the  prosecutor  clearly  committed  several  acts  of
questionable conduct, and we  admonish  her  to  be  more  professional  and
constrained in future cases.  Nevertheless, any alleged misconduct  did  not
cause prejudice to the defendant sufficient to require a  new  trial.   Most
of the instances were not severe and did not relate to  significant  aspects
of the trial.  Most importantly, the State’s evidence was extremely  strong.
 Given these circumstances, it is not “reasonably probable” that,  “but  for
counsel’s unprofessional errors, the result of  the  proceeding  would  have
been different.”  Strickland, 466 U.S.  at  694,  104  S. Ct.  at  2068,  80
L. Ed. 2d at 698.
      Because we find the defendant has failed to  establish  prejudice,  we
reject his ineffective-assistance claim and affirm his conviction.
      DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT  AFFIRMED.

