                    IN THE COURT OF APPEALS OF IOWA

                                 No. 19-0601
                             Filed August 5, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CLETIO R. CLARK,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Webster County, Thomas J. Bice,

Judge.

      Cletio Clark appeals his conviction of robbery in the first degree.

AFFIRMED.



      Shawn Smith of The Smith Law Firm, PC, Ames, for appellant.

      Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., and May and Greer, JJ.
                                         2


MAY, Judge.

       Someone robbed the Applebee’s restaurant in Fort Dodge.            The State

charged Cletio Clark for the crime. A jury found Clark guilty of robbery in the first

degree. In this direct appeal, Clark claims error by the district court as well as

ineffective-assistance of counsel. We affirm.

I. Factual Background

       We summarize the evidence in a light favorable to the verdict.

       Clark was friends with Diego Cordoba. On the evening of September 29,

2018, Cordoba and Clark hung out. They drank some Hennessy and watched

movies. Later, they drove around Fort Dodge. Clark told Cordoba he was “going

to bust a move.” Clark told Cordoba he was “going to go in” Applebee’s and “[g]et

some money.” Cordoba knew this meant Clark was going to commit a robbery.

Clark asked Cordoba to borrow his Glock 26, a small 9mm handgun. Cordoba

loaned him the gun. Cordoba dropped Clark a half block from Applebee’s.

       Meanwhile, Applebee’s hospitality manager, Miles Alcazar, was helping

close the restaurant. Around 1:34 a.m., Alcazar took a smoke break. He noticed

the gate by the Applebee’s dumpsters was open. When he went over to close it,

he noticed a man wearing a mask, later identified as Clark, kneeling nearby.

Alcazar tried to get back inside, but Clark detained him. Clark aimed the handgun

at Alcazar. Clark pulled Alcazar behind the dumpster and forced him to remain on

the ground for five minutes.

       At about 1:40 a.m., Clark led Alcazar into Applebee’s through the backdoor.

They walked through the kitchen to the office. Clark took over $4000 and stuffed
                                            3


it in a bright blue bag. Then Clark fled. As Clark ran back through the kitchen, he

slipped. His hand touched a white box on the wall.

         Clark and Cordoba had agreed that Clark would call when he needed to be

picked up. So at 1:43 a.m., Clark called Cordoba. Cordoba picked Clark up in the

same area where he had dropped him off. Clark returned the Glock 26 to Cordoba.

Clark had a bag tucked into his waistline.

         Later, Cordoba and Clark drove to Des Moines. One of Cordoba’s friends

rented a room at the West Des Moines Marriott. Clark stayed in the room while

Cordoba and the friend went to her house. Cordoba later returned and left with

Clark.

         When a housekeeper cleaned the hotel room following Clark’s stay, she

found a magazine for a Glock 26 pistol. And ten days after the robbery, Clark

posted a photo of himself displaying a wad of cash in a hotel room. It looked like

the Marriott room.

         Back at Applebee’s, Alcazar called police after Clark fled. He provided

police a description of the robber that matched Clark. Police lifted a fingerprint off

of the white box that Clark had touched as he fled the scene. A fingerprint expert

compared it with Clark’s known fingerprint. The expert concluded the same person

made both prints.

         The State charged Clark with first-degree robbery. Clark filed a notice listing

Cordoba as an alibi witness. Later, Clark filed an amended notice removing

Cordoba as a witness.
                                           4


       At trial, the State called Cordoba. Cordoba testified that Clark planned to

rob Applebee’s, he transported Clark to Applebee’s, he loaned Clark the Glock 26,

and he picked Clark up after the robbery.

       The jury found Clark guilty of robbery in the first degree. This appeal

followed.

II. Standard of Review

       We apply different standards to the different issues raised in Clark’s briefs.

“Trial courts have broad discretion in ruling on claims of prosecutorial misconduct

and we review such rulings for an abuse of discretion.” State v. Plain, 898 N.W.2d

801, 810 (Iowa 2017) (citation omitted).         But we apply de novo review to

constitutional issues, including claims of ineffective assistance of counsel. State

v. Brown, 930 N.W.2d 840, 844 (Iowa 2019).

III. Analysis

       A. Prosecutorial Misconduct

       Clark claims the State committed prosecutorial misconduct by drawing

attention to problems in Clark’s alibi defense, effectively shifting the burden of proof

to Clark, and essentially challenging Clark’s constitutional right against self-

incrimination. We conclude Clark has not shown reversible error.

       To explain why, we begin with a review of Clark’s efforts on the issue of his

alibi. As noted, Clark initially filed a notice listing Cordoba as an alibi witness. He

later filed an amended notice removing Cordoba as a witness. His amended notice

made clear, however, that he “intend[ed] to offer his presence at the Courtyard

Marriott at Jordan Creek” in West Des Moines “on the night of the crimes alleged

in this case as evidence of his innocence.” Then, in opening statements, Clark’s
                                          5


counsel told the jury: “I expect that you’re going to hear that on the evening of the

29th of September, morning of 30th of September, [Clark] was in Des Moines

recording music.” And Clark obtained an alibi instruction. In closing arguments,

counsel pointed to evidence that Clark had been “up doing music in Des Moines.”

And counsel argued it was Cordoba who committed the robbery. Then “he met

up” with Clark, “who was already in Des Moines recording,” counsel argued.

         With this backdrop in mind, we turn to Clark’s argument on appeal. Clark

claims the prosecutor committed misconduct by (1) asking Cordoba if he had

spoken with defense counsel; (2) asking Cordoba if he knew defense counsel had

listed him as an alibi witness; (3) pointing out in rebuttal that Clark had listed

Cordoba as a defense witness and then later withdrew him; and (4) pointing out

that Cordoba could have testified and lied for Clark if he wanted to.

         “Prosecutorial misconduct” has specialized meaning. State v. Schlitter, 881

N.W.2d 380, 393 (Iowa 2016).           “Prosecutorial misconduct includes those

statements ‘where a prosecutor intentionally violates a clear and unambiguous

obligation or standard imposed by law, applicable rule or professional conduct,’ as

well as ‘those situations where a prosecutor recklessly disregards a duty to comply

with an obligation or standard.’” Id. at 394 (citation omitted).

         Defendants asserting a prosecutorial misconduct claim must first establish

some error occurred. See State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003).

Then the defendant must establish the error denied them1 a fair trial. See id. To

determine whether the defendant was denied a fair trial, we consider five factors:



1   This opinion will use “they” and “them” as gender neutral pronouns.
                                         6


“(1) the severity and pervasiveness of the misconduct; (2) the significance of the

misconduct to the central issues in the case; (3) the strength of the State’s

evidence; (4) the use of cautionary instructions or other curative measures; and

(5) the extent to which the defense invited the misconduct.” Id. (citations omitted).

       Viewing the record as a whole, we have some concern as to whether the

prosecutor’s statements effectively shifted the burden to Clark to prove his

innocence through establishment of his alibi.      Even assuming the prosecutor

committed some misconduct, however, we can reverse only if the misconduct

denied Clark a fair trial.

       Considering the Graves factors, we agree with the State that Clark received

a fair trial.   The prosecutor’s references were, as the State describes them,

“relatively benign” in the grand scheme of the proceedings and were unlikely to

stand out in the jury’s minds. And the jury instructions made clear (1) Clark had a

right not to testify and his choice not to testify could not be held against him, (2)

the prosecutor’s statements were not evidence, and (3) the burden of proof rested

with the State. We presume the jury followed those instructions, alleviating any

concern the jury might expect Clark to establish his innocence. See State v.

Hanes, 790 N.W.2d 545, 552 (Iowa 2010) (“We presume juries follow the court’s

instructions.”).

       Also, the State’s case was very strong. Although Clark denied ever being

in the Applebee’s kitchen, Clark’s fingerprint was discovered on a white box in the

Applebee’s kitchen. It was the same white box that—according to surveillance

footage—the robber touched on his way out. Plus Alcazar’s description of his

assailant matched Clark. And Cordoba testified he loaned his Glock 26 to Clark,
                                           7


he knew Clark was going to rob the Applebee’s, he dropped Clark off a short

distance from the restaurant, and he picked him up in the same location a short

while later. And the Applebee’s surveillance footage showed the robber with a gun

consistent with Cordoba’s Glock 26.        Plus a housekeeper found a Glock 26

magazine after Clark stayed in a hotel room on the night of the robbery. Then,

less than two weeks after the robbery, Clark posted a photo to social media

showing him in a hotel room—a room that looked like the one he stayed in the

night of the robbery—holding a large sum of cash. Viewing the record as a whole,

we think the State is right to say it “produced overwhelming evidence against

Clark.”

          So even assuming the prosecutor committed some misconduct, we still

conclude Clark received a fair trial. And so Clark is not entitled to relief.

          B. Ineffective assistance of counsel

          Clark also claims we should reverse because his counsel was ineffective.

“To establish [a] claim of ineffective assistance of counsel,” the defendant must

show their “trial counsel failed to perform an essential duty and counsel’s failure

resulted in constitutional prejudice.” State v. Walker, 935 N.W.2d 874, 881 (Iowa

2019). “The [defendant] must prove both elements by a preponderance of the

evidence.” State v. Madsen, 813 N.W.2d 714, 724 (Iowa 2012).

          To establish breach of an essential duty, the defendant must prove counsel

“perform[ed] below the standard demanded of a reasonably competent attorney.”

State v. Haas, 930 N.W.2d 699, 703 (Iowa 2019) (citation omitted). In considering

these “claims, we ‘must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.’”            Id. (citation
                                           8


omitted). So “the defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’”

Id. (citation omitted).

       “To establish constitutional prejudice, the defendant is required to show ‘that

counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.’” Walker, 935 N.W.2d at 881 (citation omitted). “It is not

enough for the defendant to show that the errors had [only] some . . . effect on the

outcome of the proceeding.” Id. (alteration and omission in original) (citation

omitted). “Rather, ‘[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.’” Id. (alteration in original) (citation omitted).

       With these standards in mind, we turn to Clark’s particular claims. Clark’s

first argument focuses on the State’s fingerprint expert, Richard Crivello. Crivello

compared a known print for Clark with the latent print that police had obtained from

the Applebee’s kitchen. At trial, the prosecutor asked Crivello this question: “Is

there any doubt in your mind that the latent print [from Applebee’s] belongs to the

defendant, Cletio Clark?” Crivello responded, “I have no doubt that whoever made

that latent print made the known impressions of Mr. Clark.”

       On appeal, Clark claims that “[w]hen discussing non-DNA evidence, even

expert witnesses are not allowed to state their conclusions with absolute certainty.”

So Clark claims his counsel was ineffective for failing to object.

       We disagree. Although Clark claims “[a]n experienced trial attorney should

know” that experts cannot testify to “an absolute certainty,” he has not cited—and

we have not found—any Iowa authority to support his position. Indeed, we can
                                          9


think of no meritorious objection to the prosecutor’s question or Crivello’s answer.

“[C]ounsel has no duty to raise issues that have no merit.” State v. Dudley, 766

N.W.2d 606, 620 (Iowa 2009).

       We turn next to Clark’s arguments about the “golden rule.” “A ‘golden rule’

argument is where counsel asks the jurors to put themselves in the place of a party

or victim.” State v. Ayabarreno, No. 13-0582, 2014 WL 465761, at *4 (Iowa Ct.

App. Feb. 5, 2014). “Courts frown upon this type of appeal to the emotions or

personal interests of the jurors.” Id.

       Clark claims his counsel was ineffective for failing to object to various

“golden rule” arguments by the State.         First, during opening statements, the

prosecutor said:

       Mr. Alcazar will tell you that he was concerned for his own safety.
       Who wouldn’t be? A gun in your face, a gun in your back, you’d be
       terrified, much unlike [a prospective juror who was later excused],
       who sat there [during jury selection] and told you you wouldn’t be.
       You would be terrified.

       Second, during rebuttal, the prosecutor said:

       The defendant had the gun on Mr. Alcazar for almost six minutes. If
       I didn’t want to take up more of your time, I’d make you sit here for
       six minutes and think to yourself, “How would I feel if I had a gun
       pointed at me, pointed at my face for six minutes?” Miles told you he
       was scared to death. And I guarantee you that if the gun was pointed
       at you for six minutes, you would be too.

       Finally, at the end of rebuttal, the prosecutor said:

       Now, as far as whether or not the Defendant did all of this and
       instilled fear or threatened Miles Alcazar with a risk of serious bodily
       injury, I’ve said it several times today, it’s important to the case, use
       your common sense. I asked [a prospective juror who was later
       excused] during jury selection, “Would you be afraid if somebody put
       a gun in your face?” She was the only one in the room that said no.
       The rest of you, you didn’t raise your hand; so I assume that means
       that you’d be terrified if somebody put a gun in your face. Miles
                                            10


       Alcazar testified he was scared to death. The gun was in his face;
       the gun was pointed at him for almost six minutes. . . . Use your
       common sense. You’d be terrified, you’d be scared to death if
       somebody put a gun in your face for six minutes and told you, “Tell
       me where the money’s at.”

       In analyzing this claim, we focus first on the question of prejudice. If a

defendant fails to show Strickland prejudice, it is not necessary for the court to

consider whether counsel breached an essential duty. King v. State, 797 N.W.2d

565, 574 (Iowa 2011) (“In this case, however, it is not necessary to decide the

issue of whether King’s counsel provided inadequate assistance because, upon

our review of the entire record, we conclude that King has failed to show prejudice

as required under the Strickland test.”).

       Like the State, we believe the alleged “golden rule” statements all related to

an issue that “[n]o one seriously disputed” at trial, namely, “that the robber made

Alcazar fear immediate serious injury.” Instead, the real fighting issue at trial was

identity: Who robbed the Applebee’s? And the evidence of Clark’s guilt was very

strong. So we conclude Clark has not shown there was a “reasonable probability

the outcome of the trial would have been different” if counsel would have objected

to the alleged-“golden rule” statements. See Graves, 668 N.W.2d at 870. And

without that showing of prejudice, Clark can obtain no relief.

       C. Clark’s supplemental pro se brief

       Finally, we address whether we may consider Clark’s pro se brief. Clark’s

trial counsel filed Clark’s notice of appeal on April 11, 2019. Clark’s appellate

counsel filed Clark’s proof brief on August 31. Then Clark filed a supplemental pro

se brief on September 18. The State moved to strike the supplemental pro se

brief, citing Iowa Code section 814.6A(1) (2020), which provides, “A defendant who
                                          11


is currently represented by counsel shall not file any pro se document, including a

brief, reply brief, or motion, in any Iowa court. The court shall not consider, and

opposing counsel shall not respond to, such pro se filings.” Our supreme court

ordered the matter to be considered with this appeal.

       Iowa Code section 814.6A(1) was enacted in 2019. See 2019 Iowa Acts

ch. 140, § 30. It was part of an omnibus crime bill that modified several aspects of

criminal-justice process. See id. In State v. Macke, our supreme court addressed

the bill’s provisions relating to ineffective-assistance claims and appeals from guilty

pleas. 933 N.W.2d 226, 235 (Iowa 2019). Macke held those provisions would not

apply to cases in which judgment was entered prior to the bill’s effective date. Id.

at 227–28. Relying on the reasoning in Macke, we previously held we could

consider a supplemental pro se brief when the appeal was pending prior to July 1,

2019. See State v. Purk, No. 18-0208, 2019 WL 5790875, at *7 n.8 (Iowa Ct. App.

Nov. 6, 2019). So, because this appeal was pending prior to July 1, we believe we

may consider Clark’s pro se brief.

       Even so, the issues raised in Clark’s pro se brief are either not preserved,

already addressed by counsel’s brief, or not sufficiently developed for our review.

So none of Clark’s pro se claims warrant discussion beyond our discussion of

claims brought by counsel.

IV. Conclusion

       Because Clark has not shown grounds for reversal, we affirm.

       AFFIRMED.
