
IN THE SUPREME COURT OF IOWA

                              No. 117 / 03-1769

                           Filed February 17, 2006


CRAIG BOWMAN,

      Appellant,

vs.

STATE OF IOWA,

      Appellee.



      On review from the Iowa Court of Appeals.


      Appeal from the Iowa District  Court  for  Dubuque  County,  Robert J.
Curnan, Judge.

      The defendant seeks further review of an adverse decision in the court
of appeals on his  postconviction  relief  action.   DECISION  OF  COURT  OF
APPEALS VACATED; DISTRICT COURT JUDGMENT  REVERSED  AND  CASE  REMANDED  FOR
RETRIAL.

      Linda Del Gallo, State Appellate Defender,  and  David  Arthur  Adams,
Assistant State Appellate Defender, for appellant.

      Thomas J.  Miller,  Attorney  General,  Thomas  S.  Tauber,  Assistant
Attorney  General,  Fred  H.  McCaw,  County  Attorney,  and  Ralph  Potter,
Assistant County Attorney, for appellee.

WIGGINS, Justice.
      In this case, we must decide  if  Craig  Bowman  received  ineffective
assistance of counsel during a prior criminal prosecution in  which  he  was
convicted of second-degree kidnapping, terrorism with  intent,  and  assault
while  participating  in  a  felony.   After  reviewing   the   record   and
considering the arguments presented, we conclude Bowman established that  he
received ineffective assistance of counsel based on  his  defense  counsel’s
failure to object to the prosecutor’s questions asking  Bowman  whether  the
State’s witnesses fabricated their trial testimony.  Accordingly, we  vacate
the decision of the court of appeals, reverse the  convictions,  and  remand
the case for retrial.
      I.  Background Facts and Proceedings.
      The convictions arise out of a series of events that began late in the
evening of July 29, 1999 and ended in the early morning  hours  of  July 30.
At the time of the events leading to his convictions, Bowman was  unemployed
and on disability  retirement.   When  Bowman  was  nineteen  years  old,  a
motorcycle accident caused his physicians to amputate a portion of his  left
leg.  The doctors fitted him with a prosthesis for  his  left  leg.   During
the next twenty years, he was on and off work, and in 1995 John  Deere  gave
him a total disability retirement from the company due to  the  problems  he
experienced with his injury.
      On the evening of July 29, Bowman and  his  then  girlfriend,  Theresa
Carey, visited a bar in Dubuque and drank  beer  and  mixed  drinks.   Later
that evening, they drove to  a  bar  called  The  Circle  in  East  Dubuque,
Illinois.  Bowman and Carey had been arguing throughout the  evening.   They
ordered two drinks at The Circle, but the evidence  is  inconclusive  as  to
who drank them.  Bowman acknowledged that at the time he and Carey left  The
Circle they were both intoxicated.  As they were walking to  their  vehicle,
Bowman asked Carey if she intended to repay Bowman for the money  he  loaned
her to help pay for her divorce.  At this point, Carey shoved Bowman’s  head
against a wall causing a large cut on his head.   Although  Carey  testified
she did not remember doing this, Karla Schwaegler  and  Melissa  Dakin,  who
witnessed the events outside  The  Circle,  saw  Carey  push  Bowman’s  head
against the wall.
      Schwaegler and Dakin then saw Bowman place his hands on Carey’s throat
in an effort to choke her.  When that occurred,  the  two  women  intervened
seeking to  separate  Bowman  and  Carey.   At  about  the  same  time,  two
unidentified men arrived on the scene, threw Bowman to the ground, and  beat
him up causing abrasions on his  body  that  were  the  sources  of  profuse
bleeding.  At the conclusion of the beating, Bowman  testified  one  of  the
assailants told him that he had not seen the last of them.
      At this point, Bowman asked Carey to leave  with  him.   She  refused.
Carey asked Schwaegler and Dakin, whom she did not  know,  to  retrieve  her
purse from Bowman’s vehicle.  Schwaegler complied, and  Bowman  drove  away.
Carey, Schwaegler, and Dakin went back into The Circle and  ordered  drinks.
Schwaegler  admitted  to  having  about  six  drinks  that   evening.    She
acknowledged and Dakin confirmed she had a buzz.
      After awhile, Todd Williams, an acquaintance of Dakin, joined them  at
their table.  Williams worked that morning until 2:00 a.m.   He  arrived  at
The Circle about 2:30 a.m.  He admitted to having three to  four  drinks  at
The Circle.  Williams offered to drive Schwaegler, Dakin, and Carey back  to
Dubuque  to  retrieve  Carey’s  automobile  parked  in  front  of   Bowman’s
residence.  The plan was to have Carey and  Dakin  wait  at  a  Kmart  store
parking lot while Williams and Schwaegler retrieved the car and  brought  it
to the Kmart.
      In the meantime, Bowman returned home to tend to his  injuries.   When
he arrived at his  house,  he  retrieved  two  handguns  from  the  basement
thinking the two assailants from East Dubuque would come to  his  house  and
make good on their threat.  Bowman  had  been  bleeding  so  profusely  that
blood saturated his  clothes  and  there  were  bloodstains  throughout  his
house.  Around 3:40 a.m., Bowman saw  somebody  lurking  around  his  house.
Williams admits he was in the neighborhood at  that  time  with  Schwaegler.
Bowman thought the person he  saw  was  one  of  the  assailants  from  East
Dubuque.  He grabbed a gun and started to  the  door.   At  this  point,  he
heard someone trying to start Carey’s  vehicle.   Bowman  was  able  to  see
Carey was not the driver, and he feared someone  was  trying  to  steal  her
car.  From this point on, the evidence is in dispute.
      Bowman testified upon seeing someone in Carey’s car, he fired  a  shot
in the air.  He then approached the vehicle with the gun  at  his  side  and
told the driver, Schwaegler, that two people  just  assaulted  him  in  East
Dubuque.  He also told her he thought  someone  was  there  to  assault  him
again, and then asked her to come inside while he  called  the  police.   He
stated she obliged and entered his house voluntarily.   He  testified  while
in the house they drank beer together, smoked cigarettes, and  talked  about
what  happened  in  East  Dubuque.   Bowman  testified  their   conversation
convinced him Schwaegler was not involved in the East Dubuque  assault.   He
further testified that the telephone rang and he left  the  room  to  get  a
cordless phone.  Upon returning to the room, Schwaegler  grabbed  the  phone
and answered it.  At this point, Bowman saw the police were outside  of  his
house.  He proceeded to exit the  house  with  his  gun  in  his  hand.   He
returned to the house, put his gun  down,  and  re-exited  the  house.   The
police tackled him as he exited the second  time.   As  the  police  tackled
him, he told the officers he was just trying to defend himself.
      Schwaegler testified when she and Williams arrived at Bowman’s  house,
Williams stayed in the background of a neighbor’s  yard  while  she  entered
Carey’s automobile and started the engine.  At this point,  both  Schwaegler
and Williams heard a  gunshot  and  soon  observed  Bowman  standing  nearby
pointing a gun at Carey’s car.  Williams retreated to a Motel 6  and  caused
the attendant there to call the police.   Bowman,  who  was  still  bleeding
profusely, approached  the  vehicle  and  questioned  Schwaegler  concerning
Carey’s whereabouts.  She testified Bowman threatened to shoot  her  if  she
did not accompany him into his house.   Schwaegler  entered  Bowman’s  house
and, at his direction, sat on a stool in the kitchen.
      Schwaegler  further  testified  Bowman  continued  to   question   her
concerning Carey’s whereabouts and he accused her of somehow being  involved
with the two unidentified men who had roughed him  up  outside  The  Circle.
Schwaegler testified that Bowman kept his gun pointed at her and  threatened
to kill her  several  times  while  she  was  in  his  kitchen.   Schwaegler
contradicted this statement later in her testimony when she admitted  Bowman
left the room for twenty to thirty seconds to get the phone when the  police
called.  Based on the size  and  layout  of  the  house,  twenty  to  thirty
seconds would have given her ample time to walk out the door.
      When police officer Eric Schneider arrived at the scene,  he  observed
Bowman’s front door was open.  He testified he saw Bowman walk by the  front
door, but did not  observe  Bowman  with  a  gun  in  his  possession.   The
officers confirmed Bowman first  exited  the  house  with  the  gun  in  his
possession.  After the police told him to put the gun  down,  Bowman  walked
back in the house, put the gun on the counter, and  immediately  exited  the
house without using Schwaegler as a hostage or human shield.   The  officers
also confirmed Bowman’s state of mind when they testified Bowman  stated  he
was only trying to defend himself as they were tackling him to place him  in
handcuffs.
      After the police subdued Bowman, Schneider interviewed Schwaegler  and
Williams.  As to Schwaegler’s intoxication, Schneider testified he  believed
she was intoxicated, but on further questioning, he stated  she  might  also
have been upset because she was crying.  Regarding  Williams’  intoxication,
Schneider testified he did not  have  an  opportunity  to  assess  Williams’
intoxication when he interviewed him.  He further testified:

           I really didn’t spend a lot of time with him.   I’ve  known  Mr.
      Williams slightly to see and so on.  I mean, he’s always struck me  as
      being, I don’t know, oafish maybe so I wasn’t really looking for a lot
      of intelligence from him on this particular morning.
      The jury convicted Bowman of second-degree kidnapping, terrorism  with
intent, and assault while participating in a felony.  On direct appeal,  our
court  of  appeals  affirmed  the  convictions.   Bowman   then   filed   an
application for  postconviction  relief.   The  district  court  denied  the
application.  Bowman appealed the denial.  The  court  of  appeals  affirmed
the denial of his application.  We granted Bowman’s application for  further
review.
      II.  Issue.
      Although Bowman raised numerous issues in his appeal from the district
court’s postconviction ruling, this appeal may be resolved on the  basis  of
Bowman’s claim that he received  ineffective  assistance  of  trial  counsel
based on the failure of his defense counsel to object  to  the  prosecutor’s
questions asking Bowman  whether  the  State’s  witnesses  fabricated  their
testimony at trial.
      III.  Scope of Review.
      A claim of ineffective  assistance  of  counsel  requires  a  de  novo
review because the claim is derived from the Sixth Amendment of  the  United
States Constitution.  State v. Wills, 696 N.W.2d 20,  22  (Iowa  2005).   In
order to succeed  on  a  claim  of  ineffective  assistance  of  counsel,  a
defendant must prove (1) counsel failed to perform  an  essential  duty  and
(2) prejudice resulted.  State v. Artzer, 609 N.W.2d 526, 531  (Iowa  2000).
When “ ‘there is a  reasonable  probability  that,  but  for  the  counsel’s
unprofessional  errors,  the  result  of  the  proceeding  would  have  been
different,’ ” prejudice results.  State v.  Hopkins,  576  N.W.2d  374,  378
(Iowa 1998) (quoting Strickland  v.  Washington,  466  U.S.  668,  694,  104
S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984)).
      IV.  Analysis.
      A.  Counsel’s failure to perform  an  essential  duty.   It  is  well-
settled law in Iowa that a bright-line rule prohibits the questioning  of  a
witness on whether another witness is telling the truth.   State  v.  Carey,
709 N.W.2d 547, 557 (Iowa 2006); Nguyen v. State,  707  N.W.2d  317,  323-24
(Iowa 2005); State v. Graves, 668 N.W.2d 860, 873 (Iowa  2003).   There  are
no exceptions to  this  rule.   See  Graves,  668  N.W.2d  at  873  (stating
“prosecutors and trial judges will have more  guidance  in  assuring  proper
examination of witnesses with a bright-line rule that  bars  such  inquiries
without exception”).
      The prosecutor asked Bowman whether another witness  was  telling  the
truth at least eight different times in  his  cross-examination  of  Bowman.
Near the  beginning  of  his  cross-examination,  the  questioning  went  as
follows:

            Q.  Okay.  So if it  was  Todd  [Williams],  then  he  obviously
      didn’t tell the truth when he testified that he didn’t come any closer
      than the yard?  A.  That would be correct.  I think a  police  officer
      said that he told him he was in the corner of my house  at  one  point
      too.
A little later in the cross-examination the following occurred:

            Q.  So when [Williams] testified that you brought the  gun  down
      in the shooter’s position, he just made that all up,  didn’t  he?   A.
      He had to have because I didn’t do it.
Soon after that exchange the following occurred:

            Q.  Did you force Karla [Schwaegler] into that house that night?
       A.  No, I did not.

            Q.  Did she lie when she said you did?  A.  Obviously she did.

            Q.  Did she lie when she said you threatened to kill her five or
      six times?  A.  Yes, she did.

            Q.  Do you remember her going into great detail about this phone
      – or this conversation she alleged you had where she told you she  was
      a school teacher and she didn’t  want  to  die  this  way  and  please
      promise not to shoot her in the back?  Did that ever occur?  A.   That
      never occurred, and to be honest with you, I didn’t hear  or  see  her
      story until I got out of jail and I was shocked beyond belief at  what
      I was reading.

            Q.  She just made up that whole elaborate story?   A.   I’m  not
      accusing her of doing anything but it’s on paper and it didn’t  happen
      so I’d have to say, yes.
A few questions later the following exchange took place:

           Q.  But you’re saying [Schwaegler is] lying  about  pretty  much
      everything else that happened at your house?  A.  She was – it  was  a
      totally different situation.  She was in East Dubuque.  She was at  my
      house, so again, I don’t know.  I don’t know why she did what she  did
      but she did.
Another exchange went as follows:

            Q.  So when Karla [Schwaegler] and  Missy  [Dakin]  and  Theresa
      [Carey] all said she didn’t want to go with you, that wasn’t the truth
      either?  A.  All I can say, Mr. Potter, is that I reached my hand out,
      I said, Let’s go, honey, and they wouldn’t – by they, I don’t know who
      they were.  It was, like, within a second or  two.   I  wasn’t  really
      looking at anybody.  I was just  kind  of  in  a  shock,  blank  stare
      basically.
Later in Bowman’s cross-examination, the following exchange took place:

           Q.  Can you explain why Karla [Schwaegler] said she didn’t  even
      get [the car] into gear how it moved?  A.  No, I can’t explain that.
At the conclusion of  Bowman’s  cross-examination,  the  following  exchange
took place:

           Q.  Okay.  In summary, Mr. Bowman, would it be fair to say  that
      Karla Schwaegler got up here and told a lot of lies?  A.  She  had  to
      have because it didn’t happen that way.
       On  redirect  examination,  Bowman’s  trial  counsel   attempted   to
rehabilitate Bowman’s testimony by  pursuing  the  following  questions  and
answers:

            Q.  Mr. Bowman, I know Mr. Potter’s  been  using  the  term  did
      Karla Schwaegler lie.   Is  that  maybe  a  bit  strong  in  terms  of
      terminology?  A.  Yes.  I’m not accusing her of lying.  I  just  think
      her perception and the mood she was  in,  the  alcohol,  she  possibly
      didn’t see things, you know, clearly.

            Q.  So mistaken would probably be a better word?  A.  Yeah, much
      better.

            Q.  You’re  not  saying  that  she’s  up  here  doing  something
      intentionally against you or whatever?  A.  Not whatsoever.
      On his recross-examination of Bowman, the prosecutor continued to  ask
Bowman to comment on the credibility of the  State’s  witnesses.   He  asked
and Bowman answered as follows:

            Q.  So you’re saying that when [Schwaegler] said – well,  you’re
      saying that for five or six times when she said you threatened to kill
      her, she was misperceiving the situation,  not  lying  about  it?   A.
      Maybe in her own mind that’s what she thought she heard, but  I  can’t
      speak for her mind.  I’m sorry.

            Q.  And for two or three times  she  thought  you  heard  –  she
      thought she heard you say you’re going to shoot her?  A.  Yeah,  could
      have been 20.  I mean, I can’t explain that.  That’s beyond my  power.



            Q.  Are you suggesting she’s delusional?  A.  I’m not suggesting
      anything.  I’m just suggesting that –  I’m  not  suggesting  anything.
      I’m just thinking that she’s not clear in her thoughts.

            Q.  Let’s put it another way.   Is  it  true  or  not  that  you
      pointed a gun at her?  A.  It’s not true.

            Q.  And she said you did it the whole time, so was  she  telling
      the truth?  A.  I don’t know how to explain.  I don’t want to call her
      a liar because I don’t think she is a liar, but I  don’t  –  what  she
      said was not true.

            Q.  And the same with Mr.  Williams,  are  you  saying  he  just
      simply misperceived you in a three-pointed – or in a stance, shooter’s
      stance shooting that gun?  A.  He had to.

            Q.  You’ve indicated that maybe she misheard you.  How about her
      story that she said she told you about not wanting to get shot in  the
      back and wanting to live for something as a school  teacher,  did  she
      make that up?  A.  I know she didn’t say that.   I’m  not  saying  she
      made it up or not.  Obviously she did not say that  so  it  came  from
      somewhere.
      The prosecutor’s questions asked Bowman to comment on the  credibility
of the State’s witnesses.  Such questions are  improper  under  our  bright-
line rule and Bowman’s trial counsel had a duty to make a  proper  objection
to these questions.  Had counsel done so, the trial court was  obligated  to
sustain the objection.  Consequently, Bowman has established  trial  counsel
failed  to  perform  an  essential  duty  by  failing  to  object  to  these
questions.
      B.  Prejudice.  We have previously addressed the  prejudice  prong  of
the Strickland test in the context of a prosecutor  asking  a  defendant  to
comment on the veracity of another witness by asking the  defendant  whether
the other witness lied on the witness stand.  Graves, 668 N.W.2d at  882-83.
 There we said the prejudice prong of the Strickland test

      does not mean a defendant must  establish  “that  counsel’s  deficient
      conduct more likely than not altered the  outcome  in  the  case.”   A
      defendant need only show that the probability of a different result is
      “sufficient to undermine confidence in the outcome.”   In  determining
      whether this standard has been met, we must consider the  totality  of
      the evidence, what  factual  findings  would  have  been  affected  by
      counsel’s errors, and whether the effect was pervasive or isolated and
      trivial.
Id. (citations omitted).  To determine whether the prosecutor’s  conduct  in
this case was prejudicial under the standard articulated by  us  in  Graves,
we must  examine  the  entire  record,  not  just  the  prosecutor’s  cross-
examination.
      It is apparent from our review of  the  entire  record  the  jury  was
required to determine Bowman’s guilt or  innocence  by  determining  whether
they believed the State’s witnesses’ version  or  Bowman’s  version  of  the
facts.  Realizing the crucial role the credibility of the  witnesses  played
in Bowman’s defense, Bowman’s trial counsel retained  two  expert  witnesses
to testify concerning the ability of a frightened, stressed,  fatigued,  and
intoxicated person  to  perceive  and  recall  facts  and  events.   One  of
Bowman’s  experts  testified  when  confronted  with  a  situation  such  as
Schwaegler was at the time of this incident, a person thinks  she  is  being
truthful, but in reality, she is being  unwittingly  inaccurate  as  to  the
events she is recalling.
      The State retained its own expert to refute the testimony of  Bowman’s
experts.  The  State’s  expert  testified  that  the  type  of  inaccuracies
referred to by Bowman’s experts only apply to the unimportant  details,  not
to the type of details Schwaegler relayed to the jury in her testimony.
      Knowing that  the  verdict  would  turn  on  the  credibility  of  the
witnesses, the prosecutor  initiated  an  all-out,  name-calling  attack  on
Bowman’s credibility using an impermissible line  of  questioning  at  least
eight different  times  during  his  cross-examination.   Nevertheless,  the
prosecutor did not stop  there.   In  his  final  argument,  the  prosecutor
commented:

      Why would Karla [Schwaegler] make up this story?  That’s back when  he
      was still saying she was lying and not just misperceiving it.  And  he
      says, Well, she’s a school teacher and she might be embarrassed  about
      being  in  East  Dubuque  and,  you  know,  Karla  Schwaegler  is  not
      embarrassed  by  being  in  East  Dubuque.   Karla  Schwaegler  was  a
      bartender for a number of years.  She’s out with a friend going  to  a
      dance place and to suggest, as he did, that, gee, that’s  probably  or
      could be the reason why she’s making up these gigantic fibs is  rather
      ludicrous.
At another point in his final argument, he commented:

           Theresa [Carey] – and when we start talking about whether people
      are trying to pile on on Mr. Bowman or whether people  are  trying  to
      lie to get him into trouble, Theresa – the easiest thing  for  her  to
      have said was, yeah, yeah, he had both hands on my throat  and  I  was
      off the ground.  She says, I know he’s choking me; I don’t know if  my
      feet are off the ground, I just know I can’t breathe.
A third time during his final argument, he commented:

      [Schwaegler] says he threatens  to  kill  her  at  least  five  times,
      threatens to shoot her at least two to three times if she did  not  do
      what he demanded.  She is not a liar,  ladies  and  gentlemen  of  the
      jury, what the Defendant agreed she was before he  took  a  break  and
      then decided, well, gee, she’s  misperceiving  things.   She’s  not  a
      liar.  She’s not delusional.  And to  acquit  him  on  the  kidnapping
      charge or the assault while participating in a felony  charge,  you’re
      going to have to find she’s a liar or delusional.
A fourth time during his final argument, he commented:

           And to acquit him on the terrorism charge, you’re going to  have
      to find Todd Williams is a liar and that he made up this whole  three-
      point stance story, which I’ve already got into as how he  would  know
      this guy’s an expert marksman – or a trained marksman, I  should  say,
      if he just fired the gun in the air.
A fifth time during his final argument, he commented:

      [Schwaegler would] sit there and  think  for  awhile  and  say,  yeah,
      that’s exactly  what  he  said.   That  would  be  lying,  ladies  and
      gentlemen, if she did that.  If he didn’t do that then and threaten to
      kill her or do all this, she’s a world class liar or she’s  delusional
      and there’s nothing in the facts to support either one of those.
Finally, for a sixth time during his final argument, he commented:

      I must have asked him what, ten, eleven times during the course of  my
      first cross-examination is [Schwaegler] lying?  And my final  question
      was:  Did she get up here and tell a pack of lies?  Yeah.  He takes  a
      break  and  says,  whoa,  whoa,   whoa,   it’s   misperception,   it’s
      misperception.  And I still say to you, ladies and  gentlemen,  if  it
      didn’t happen, she’s lying.
      The prosecutor’s all-out, name-calling attack on Bowman’s  credibility
shifted the focus of the trial from  the  real  issue—what  really  happened
based on the admissible evidence in this case.  A trial is not a modern  day
political campaign where a  voter  usually  makes  a  decision  after  being
bombarded by name-calling attack ads.  Our criminal justice system  requires
a jury to decide a criminal case on a thorough and thoughtful review of  the
evidence to determine whether the State proved the defendant’s guilt  beyond
a reasonable doubt.  The defendant’s guilt is not supposed to be  determined
by the jurors answering the simple question of whether the defendant or  the
State’s witnesses were lying.  By distorting the State’s  burden  of  proof,
the prosecutor took the jury’s focus away from  the  State’s  obligation  to
prove the defendant’s guilt beyond a reasonable doubt.
      Finally, the State’s case was  not  particularly  strong.   The  State
relied on the credibility of witnesses who had been drinking  in  the  hours
before the incident.  The experts disagreed on the effect the events of  the
evening had on the witnesses’ recollection of the facts.  Additionally,  the
events leading up to the alleged kidnapping were bizarre  and  left  largely
unexplained.  Why did Schwaegler and Dakin not call the  police  after  they
witnessed the initial assault?  Why did Schwaegler and  Dakin  get  involved
in a complete stranger’s domestic dispute?  Finally, why did Schwaegler  and
Dakin enlist the help of a third party to retrieve Carey’s  vehicle,  rather
than requesting police intervention?
      Instead of presenting the evidence for the jury to consider under  the
instructions of the court, the prosecutor chose to  engage  in  an  all-out,
name-calling attack.  The pervasiveness of the prosecutor’s conduct  coupled
with the relative weakness of the State’s case shows there is  a  reasonable
probability that the result of  this  case  would  have  been  different  if
Bowman’s  trial  counsel  had  objected  to  the   prosecutor’s   questions.
Therefore, our confidence  in  the  outcome  of  this  case  is  undermined.
Compare Graves, 668 N.W.2d  at  883  (finding  prejudice  where  the  county
attorney’s misconduct “related to a critical issue in the case and  was  the
centerpiece of the prosecution’s trial strategy” and  the  evidence  of  the
defendant’s guilt was not strong), with Carey, 709 N.W.2d  at  558  (finding
no prejudice in asking a witness to comment on the  credibility  of  another
witness on a collateral  issue  when  the  State’s  case  was  strong),  and
Nguyen, 707 N.W.2d at 326-27 (finding no prejudice in asking  a  witness  to
comment on the credibility of another witness, which did not become a  theme
in the case and did not amount to name-calling when  the  State’s  case  was
strong).
      Accordingly, Bowman established his  ineffective-assistance-of-counsel
claim and is entitled to a new trial.
      V.  Disposition.
      Because Bowman established his  claim  of  ineffective  assistance  of
counsel, we vacate the decision of the court of appeals, reverse the
judgment of the district court, and remand  the  case  for  retrial  of  the
criminal charges in the district court.
      DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED
AND CASE REMANDED FOR RETRIAL.
      All  justices  concur  except  Carter,  Larson,  and  Cady,  JJ.,  who
dissent.
                                               #117/03-1769, Bowman v. State
CARTER, Justice (dissenting).
      I respectfully dissent.
      Prosecutorial misconduct by itself is not a basis  for  overturning  a
criminal conviction.  It must  be  shown  that  the  misconduct  denied  the
defendant a fair trial.  State v. Wilkins, 693 N.W.2d 348, 352 (Iowa  2005).
 This requirement to demonstrate prejudice exists even  in  those  cases  in
which error has been preserved at trial.  Id.; State v.  Piper,  663  N.W.2d
894, 913 (Iowa 2003).  When, as here, the issue is raised in the context  of
an ineffective-assistance-of-counsel claim, the  degree  of  prejudice  that
must be shown is that set forth in Strickland v. Washington, 466  U.S.  668,
694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984).
       To  sustain  an  ineffective-assistance-of-counsel  claim  under  the
Strickland  standard  the  applicant  must  show  “there  is  a   reasonable
probability that, but for counsel’s unprofessional  errors,  the  result  of
the proceeding would have been different.”  Strickland,  466  U.S.  at  669,
104 S. Ct. at 2068, 80 L. Ed. 2d at 698.  We have articulated this  standard
in terms of our confidence  level  with  respect  to  the  validity  of  the
outcome in the face of counsel’s omissions.  State  v.  Graves,  668  N.W.2d
860, 883 (Iowa 2003).  In applying  this  standard,  the  court  of  appeals
determined that Bowman had not demonstrated sufficient prejudice to  warrant
the granting of relief.  I agree with the court of appeals.
      Our opinion in  Graves  considered  the  views  of  some  courts  that
approved questioning an  accused  concerning  the  truthfulness  of  another
witness’s testimony in those situations in which the  contradiction  between
the  defendant’s  testimony  and  that  of  the  other  witness  cannot   be
attributed to a difference in perception or inaccuracies in memory, but  can
only be explained by the conclusion that  someone  is  lying.   We  rejected
that exception for purposes of determining whether prosecutorial  misconduct
has occurred.  We  recognized,  however,  that  this  may  be  a  factor  in
determining the extent to which a  defendant  has  been  prejudiced  by  the
improper questioning.  Id. at 873.
      In the present case, the contradiction between Bowman’s  testimony  on
the one hand and that of Karla Schwaegler and Todd  Williams  on  the  other
may not in  the  ordinary  course  of  human  experience  be  attributed  to
differences in perception or  inaccuracies  in  memory.   The  testimony  of
Schwaegler and Williams concerned  emotionally  charged  events  that  would
leave a vivid impression as to whether an abduction at gunpoint occurred  or
did not occur, notwithstanding possible misimpressions as to the details  of
how it occurred.  I am convinced that this is  the  way  in  which  ordinary
jurors  would  view  the  conflict  in  testimony  and   that   they   would
conscientiously  consider  and  reject  the  possibility  that  the  State’s
witnesses might be lying even if that suggestion had not been  presented  in
the cross-examination of Bowman and the prosecutor’s final argument.
      Although an investigating officer expressed  the  opinion  that  Karla
appeared to be intoxicated when police came on the  scene,  he  believed  it
was also possible that her demeanor may have been an emotional  reaction  to
what had occurred to her.  Karla was able to provide a lucid account of  the
events that had transpired, and her account was  corroborated  by  Williams.
The possibility that these witnesses’ description of the alleged  abduction,
so soon after the event, was an  innocent  mistake  is  sufficiently  slight
that the prosecutor’s failure to admit that possibility  was  not  something
that would divert the jurors’ focus from the essential components  of  their
fact-finding mission.  I am  confident  that  the  prosecutorial  misconduct
that occurred when considered within the context of  the  entire  trial  did
not result in sufficient prejudice to satisfy the  Strickland  standard  for
granting relief.  I would affirm the decision of the court  of  appeals  and
the judgment of the district court.
      Larson and Cady, JJ., join this dissent.

