                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1398
                             Filed August 31, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSHUA MICHAEL STEWARD,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom,

Judge.



      Joshua Steward appeals from his conviction following a jury trial for

assault on a peace officer, a serious misdemeanor, in violation of Iowa Code

section 708.3A(4) (2015). AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, and Shawna Domeyer, Student Legal Intern, for appellee.



      Considered by Danilson, C.J., Tabor, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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DANILSON, Chief Judge.

       Joshua Steward appeals from his conviction following a jury trial for

assault on a peace officer, a serious misdemeanor, in violation of Iowa Code

section 708.3A(4) (2015).          Steward contends defense counsel rendered

ineffective assistance by failing to object to the State’s remarks in rebuttal closing

argument, which referenced the defense’s failure to call a witness. Because the

record is insufficient to determine whether defense counsel was ineffective, we

affirm and preserve Steward’s claim for possible postconviction relief

proceedings.

       On April 18, 2015, an officer performed a traffic stop on a vehicle

transporting Steward and being driven by Steward’s friend, Nikko Scott. While

the officer was checking Steward and Scott’s information, Steward became very

nervous, knowing he had warrants out for his arrest. Steward attempted to exit

the vehicle and flee but was tackled by the officer. Steward managed to free

himself and rise to his feet.       The officer testified Steward then pushed him,

causing him to fall to the ground, and ran. Steward testified he merely ran once

he got to his feet and denied pushing the officer.

       The only third-party witness to the incident was Scott. The State did not

call Scott as a witness. The defense intended to call Scott as a witness but

ultimately proceeded without his testimony.1



1
  The transcript reflects that on the first day of trial, defense counsel stated he intended
to call Scott as a witness but did not expect to get to the defense’s case so quickly and
had scheduled Scott to testify the following morning. Defense counsel was unable to
reach Scott and proceeded to Steward’s testimony. At the end of the day, the record
was left open for the defense to present further evidence the following day. It is unclear
why defense counsel did not call Scott as planned the following day and instead rested.
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      At issue in this matter are remarks by the State in rebuttal argument made

in response to defense counsel’s closing argument regarding the failure to call

Scott as a witness. Defense counsel’s closing argument provided, in part:

              Now, in my voir dire and throughout the case it’s kind of
      been framed as a he said/he said, [the officer]’s story versus Josh
      Steward’s story, just the two versions to compare, except for that’s
      not actually true. [The officer] testified that there was a person who
      had a ringside seat for this whole affair, saw the whole thing, and at
      least theoretically should be able to testify to what [the officer] said.
              That would be this Nikko Scott, the gentleman Mr. Steward
      turned to and said, I’m going to flee, I’m going to run away, placing
      him in the situation of having to deal with the aftermath of that. The
      gentleman who, if you paid attention, his name didn’t come up until
      the defense brought it up under cross, not in closing, not in any
      other testimony.
              It’s almost as if the State was ashamed of him, didn’t want
      you to think about him, but you’ve kind of got to think about him.
      You have to ask yourself, if there’s an eyewitness, someone with a
      perfect view of the whole thing who theoretically should be able to
      make it look like it’s not just a he said/he said but could come in
      and back up everything the officer had to say, why wouldn’t they
      have had him do that?
              They could certainly compel him to come in if he didn’t want
      to. Why wouldn’t you have him come in and say, Yeah, it
      happened exactly like [the officer] said, [Steward] definitely pushed
      him. The only—you have to think about that, why you wouldn’t do
      that because, remember, it’s the State’s job, their whole job here is
      to present the best evidence to you so you can find my client guilty
      so you can reach a verdict.
              Our job, we don’t have to present anything. We have no
      obligation to put on a case. We have no obligation to call
      witnesses, present evidence, nothing.

      The State then made the following remarks in its rebuttal argument:

             Yes, ladies and gentleman, the State does have a burden in
      this case, and the State offered the evidence to prove that up. But
      make no mistake, defense counsel can call people too. If there
      was something there, where do you think Nikko would be? That’s
      not the case.

      Steward contends the State’s remarks were an improper attempt to shift

the burden of proof to the defense. Steward asserts the comments constitute
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prosecutorial misconduct and defense counsel rendered ineffective assistance in

failing to object.

       We review ineffective-assistance-of-counsel claims de novo.           State v.

Tejeda, 677 N.W.2d 744, 754 (Iowa 2004). To demonstrate he was provided

ineffective assistance, the defendant “must prove by a preponderance of the

evidence that ‘(1) his counsel failed to perform an essential duty, and (2)

prejudice resulted.’” Id. (citation omitted). However, “[o]nly in rare cases will the

trial record alone be sufficient to resolve the claim on direct appeal.” State v.

Straw, 709 N.W.2d 128, 133 (Iowa 2006). “Th[is] 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. Rubino,

602 N.W.2d 558, 563 (Iowa 1999). “We prefer to reserve such questions for

postconviction proceedings so the defendant’s trial counsel can defend against

the charge.” State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006).

       To establish a successful prosecutorial-misconduct claim, Steward must

show misconduct occurred and he “was so prejudiced as to warrant a new trial.”

State v. Jacobs, 607 N.W.2d 679, 689 (Iowa 2000). Because, “[i]t is improper for

the State to shift the burden to the defense by suggesting the defense could have

called additional witnesses,” State v. Hanes, 790 N.W.2d 545, 556 (Iowa 2010),

the State’s remarks in rebuttal closing argument may well have constituted

prosecutorial misconduct, to which an objection would have been proper.

       However, the record is insufficient to determine whether defense counsel

rendered ineffective assistance in this case. The record does not reflect defense

counsel’s potential strategy in failing to call Scott as a witness or his reasoning in
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failing to object to the State’s remarks in rebuttal closing argument. See State v.

Clay, 824 N.W.2d 488, 500 (Iowa 2012) (“If the challenged actions of counsel

implicate trial tactics or strategy, we will not address the issue until the record is

fully developed.”). The record is also insufficient to determine whether prejudice

resulted from either the alleged prosecutorial misconduct or defense counsel’s

failure to object.

       We therefore affirm and preserve Steward’s claim for possible

postconviction proceedings.

       AFFIRMED.
