                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0567
                               Filed March 8, 2017


BRUCE MARCEL BRAGGS,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Linn County, Mitchell E. Turner,

Judge.



       Bruce Braggs appeals the denial of his application for postconviction relief.

AFFIRMED.




       Wallace L. Taylor of the Law Offices of Wallace L. Taylor, Cedar Rapids,

for appellant.

       Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee State.




       Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
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DANILSON, Chief Judge.

       Bruce Braggs was convicted following a jury trial of first-degree burglary

and second-degree sexual abuse. In State v. Braggs, No. 09-1932, 2011 WL

2697740 (Iowa Ct. App. July 13, 2011), this court addressed his several

allegations of error1 and affirmed his convictions.            We will not restate the

background facts because they are set out at length in that prior opinion.

Braggs, 2011 WL 2697740, at *1-3.

       Braggs then filed an application for postconviction relief (PCR), alleging

multiple counts of ineffective assistance of trial and appellate counsel, requesting

relief based upon newly discovered evidence, and contending there is insufficient

evidence to support his convictions. The district court carefully and thoroughly

addressed each of his contentions and denied relief. On appeal, Braggs asserts

the district court erred in rejecting his claims that trial counsel was ineffective in

failing to obtain an expert witness to testify about the reliability of eyewitness

identification, and his appellate attorney was ineffective in failing to challenge the

trial court’s admission of rebuttal testimony by the DCI chemist and failing to

present a claim of prosecutorial misconduct in closing arguments.



1
 On direct appeal, Braggs asserted:
       [T]he district court erred in (1) denying his challenge to the jury panel, (2)
       denying his motion to strike potential jurors for cause, (3) overruling his
       objection to expert testimony, (4) overruling his chain of custody objection
       to the admission of evidence, (5) permitting the jury to listen to a
       recording of the 911 call during deliberations, (6) refusing to give a
       spoliation instruction, and (7) denying his motion for a new trial. In
       addition, Braggs asserts in his pro se brief the district court erred in not
       merging the burglary charge with the sexual abuse charge under section
       701.9 [(2007)], and erred in refusing to give an instruction on the lesser
       offense of attempted burglary in the first degree.
Braggs, 2011 WL 2697740, at *1.
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         Our review of PCR proceedings is generally for correction of errors at law.

Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012). However, we review

constitutional claims such as ineffective assistance of counsel de novo. Nguyen

v. State, 878 N.W.2d 744, 750 (Iowa 2016).

         In order to succeed on a claim of ineffective assistance of counsel, an

applicant must show counsel (1) breached an essential duty and (2) prejudice

resulted.    See Strickland v. Washington, 466 U.S. 668, 687 (1984).            “If we

conclude a claimant has failed to establish either of these elements, we need not

address the remaining element.” Dempsey v. State, 860 N.W.2d 860, 868 (Iowa

2015).      “[W]e begin with the presumption that the attorney performed

competently. Moreover, we avoid second-guessing and hindsight.” Ledezma v.

State, 626 N.W.2d 134, 142 (Iowa 2001) (citations omitted). An accused is not

entitled to perfect representation but only that level of representation that is within

the normal range of competency. State v. Artzer, 609 N.W.2d 526, 531 (Iowa

2000).

         I. Trial counsel. We note, first, Braggs’ trial attorney thoroughly prepared

for the criminal proceedings. We agree with the PCR court’s characterization of

his representation: “Mr. Braggs’ trial counsel, Raphael Scheetz, obviously

prepared his case meticulously and extensively. From the transcript of the trial, it

appears that Mr. Scheetz raised timely objections, engaged in effective and

focused     cross-examination,    and   raised   approximately    [nineteen]   pretrial

motions.”

         At trial three witnesses—the victim and her two roommates—were asked

to make eyewitness identifications of Braggs. The sexual abuse victim informed
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police at the time that her assailant had his face wrapped throughout the incident

and all she ever saw was his eyes, and consequently, she was never shown a

photo lineup. She did, however, identify Braggs at the time of trial about two

years later. Attorney Scheetz testified he did not consider an expert witness for

this purpose because he felt “it was of common understanding” an identification

made based on just someone’s eyes “would be unreliable.” We conclude trial

counsel’s strategic decision was reasonable. See Ledezma, 626 N.W.2d at 143

(noting “strategic decisions made after ‘thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable’” (citation omitted));

see also Osborn v. State, 573 N.W.2d 917, 924 (Iowa 1998) (noting reasonable

“[t]actical decisions . . . are immune from subsequent attack by an aggrieved

defendant claiming ineffective assistance of counsel”).

       The victim’s roommates were presented with photo lineups.            One was

unable to identify anyone in the photo lineup, and her testimony remained

consistent through the trial. The other did identify a photo of Braggs as being the

person she saw outside of the apartment complex that morning but qualified her

identification both at the time of the photo lineup and in her testimony at trial that

she was only seventy-five percent certain of her selection. Braggs asserts trial

counsel should have engaged an expert witness to testify as to the reliability of

photo lineups and eyewitness identifications. At the PCR trial, Braggs called

Professor Jason Chen, an associate professor of psychology at Iowa State

University, to testify about research investigating the reliability of photo lineups

and eyewitness identification. Our review of Professor Chen’s testimony does

not convince us such testimony at the criminal trial would likely have changed the
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result. Moreover, Scheetz cross-examined the witnesses vigorously and argued

the victim’s in-court identification of Braggs was not reliable. Yet, like the district

court, we observe,

       significant DNA evidence, circumstantial evidence surrounding
       [Braggs’] presence at the scene of the crime, his discarding the
       allegedly white T-shirt that he was wearing in his attempt to elude
       police at the scene, the finding of a red T-shirt and another T-shirt
       in the woods in the immediate vicinity, as well as the disputed
       footprint on the window ledge could all, if believed by a jury, easily
       support a conviction.

Braggs has failed to establish either a breach of duty or prejudice on this

ineffectiveness claim.

       II. Appellate counsel. Braggs contends appellate counsel was ineffective

in failing to raise two additional issues on appeal. First, he contends appellate

counsel should have argued the State was improperly allowed to present rebuttal

evidence over trial counsel’s objection.

       At trial in the State’s case-in-chief, Dr. Amy Pollpeter testified about the

results of the DNA testing done on Braggs’ underwear and on a penile swab

taken from Braggs. The defense called Dr. David Soll, who was critical of the

analysis done by Dr. Pollpeter and the criminalistics lab and asserted the test

results could be explained by contamination of the samples. Over Scheetz’s

objections, the State was allowed to recall Dr. Pollpeter for the limited purpose of

addressing the issue of the contamination of the samples raised by the defense

expert.

       Rebuttal testimony is testimony that “explains, repels, controverts, or

disproves evidence produced by the opposing party.”           State v. Johnson, 539

N.W.2d 160, 162-63 (Iowa 1995). “The trial court has considerable discretion in
                                             6


admitting rebuttal evidence, including the discretion to admit evidence that

technically could have been offered as part of the plaintiff’s case-in-chief.”

Carolan v. Hill, 553 N.W.2d 882, 889 (Iowa 1996). And a “trial court’s ruling will

be disturbed only upon a clear abuse of discretion.”              Id.   We acknowledge

rebuttal is not intended to give a party a second bite at the apple and is not to be

“merely cumulative.” Id. But even if appellate counsel had raised the issue on

appeal, the trial court did not clearly abuse its discretion in allowing the limited

rebuttal testimony of Dr. Pollpeter to address the defense expert’s specific

criticisms.2 Braggs has failed to prove appellate counsel was ineffective in this

regard.

       Second, Braggs maintains appellate counsel should have argued the

prosecutor’s closing argument improperly vouched for the credibility of the

victim.3 A prosecutor may not vouch for the credibility of a witness. Graves, 668

N.W.2d at 874. As explained by our supreme court:

            A prosecutor “is entitled to some latitude during closing
       argument in analyzing the evidence admitted in the trial.” State v.

2
  Defense counsel specifically raised the issue of the limits of rebuttal testimony during
the trial, before Dr. Pollpeter testified on rebuttal, and the district court informed all
parties of such limitations.
3
  Braggs’ brief labels appellate counsel’s ineffectiveness as a failure to raise the issue of
prosecutorial misconduct. We note the Iowa Supreme Court recently cautioned against
conflating the terms prosecutorial misconduct, which generally describes “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,’” and prosecutorial error, which includes situations “‘where the prosecutor
exercises poor judgment’ and ‘where the attorney has made a mistake’ based on
‘excusable human error, despite the attorney’s use of reasonable care.’” State v.
Schlitter, 881 N.W.2d 380, 394 (Iowa 2016) (citations omitted).
        We are to apply the multi-factor test outlined in State v. Graves, 668 N.W.2d 860,
877-78 (Iowa 2003), either way. See Schlitter, 881 N.W2d at 394 (stating the multifactor
test set out to evaluate the statements in determining if there was misconduct and if that
misconduct was prejudicial “easily translate to an evaluation of prosecutorial error”).
                                         7

      Phillips, 226 N.W.2d 16, 19 (Iowa 1975). Moreover, a prosecutor
      may argue the reasonable inferences and conclusions to be drawn
      from the evidence. Id. A prosecutor may not, however, express his
      or her personal beliefs. Id.
                     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.
      State v. Williams, 334 N.W.2d 742, 744 (Iowa 1983); accord State
      v. Martens, 521 N.W.2d 768, 772 (Iowa Ct. App. 1994) (stating,
      “vouching for a witness may induce the jury to trust the judgment of
      the prosecutor rather than their view of the evidence since the
      prosecutor’s opinion carries the imprimatur of the Government”).

Id.

      To succeed on an ineffective-assistance-of-counsel claim based on

prosecutorial misconduct, a defendant must establish: (1) proof of misconduct

and (2) “the misconduct resulted in prejudice to such an extent that the defendant

was denied a fair trial.” Id. at 869. Having reviewed the closing arguments of

counsel, we agree with the PCR court’s findings and adopt them as our own:

               A fair review of the closing arguments convinces this court
      that the rebuttal argument of Harold Denton [the prosecutor] is not
      only fairly responsive but directly responsive to the closing
      arguments of Mr. Scheetz. There was no attempt to inflame the
      jury, and Mr. Denton does not personally vouch for [the complaining
      witness]. He appropriately commented that what [the complaining
      witness] had to endure provided no motivation for her to make the
      whole thing up. He further appropriately argued that other evidence
      substantiates the fact that this was not something that she
      fabricated. This court notes that defense counsel did object to the
      State’s closing argument, but the objection was overruled by the
      trial judge. . . . Mr. Braggs has categorically failed to prove, even if
      the closing was somehow improper, that there was any resulting
      prejudice.
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          Braggs has failed to show either trial or appellate counsel provided

constitutionally deficient representation. We affirm the denial of postconviction

relief.

          AFFIRMED.
