                    IN THE COURT OF APPEALS OF IOWA

                                      No. 16-0265
                                  Filed July 19, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MICHAEL CARL BAUER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert A. Hutchison,

Judge.



      Michael Bauer appeals his conviction for willful injury resulting in bodily

injury. AFFIRMED.




      R.A. Bartolomei of Bartolomei & Lange, P.L.C., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant

Attorney General, for appellee.



      Considered by Potterfield, P.J., Bower, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
                                           2


MAHAN, Senior Judge.

          Michael Bauer appeals his conviction for willful injury resulting in bodily

injury, contending the prosecutor’s conduct during cross-examination and closing

argument violated his rights under the Iowa Constitution and denied him a fair

trial. Bauer also claims the district court’s conduct denied him a fair trial. We

affirm.

I.        Background Facts and Proceedings

          The State filed an amended trial information charging Bauer with willful

injury as a habitual offender, in violation of Iowa Code sections 708.4(1) and

902.8 (2015), following allegations that he attacked Jerald Stewart in a bar

restroom after accusing Stewart of having sexual relations with Rhiannon King, a

woman Bauer had recently given $2000 and purchased a car for and who had

accompanied Stewart to the bar that evening.

          The case proceeded to a jury trial. The State presented testimony from

Dr. Javaid Abbasi (who treated Stewart’s “serious injuries to his face and head”

in the emergency room at Iowa Methodist), Jason Ehlers (the Des Moines police

officer who responded to the incident), King, and Stewart.         Bauer elected to

testify in his defense.     Bauer and Stewart gave conflicting accounts of what

happened prior to and during the altercation.         Specifically, both Bauer and

Stewart testified the other made derogatory statements and was the first to strike.

There were no other witnesses; Bauer “got off” Stewart when a third party

entered the bathroom.

          The jury convicted Bauer of the lesser-included offense of willful injury

causing bodily injury. Bauer filed a motion for new trial, a motion in arrest of
                                            3


judgment, and a renewal of his motion for judgment of acquittal. Following a

hearing, the district court entered a ruling denying Bauer’s motions. The district

court entered judgment and sentence.            Bauer appeals. Facts specific to his

claims on appeal will be set forth below.

II.    Standards of Review

       We review a district court’s denial of a motion for new trial based on

claims of prosecutorial misconduct for abuse of discretion. See State v. Greene,

592 N.W.2d 24, 30-31 (Iowa 1999). We review questions of the admissibility of

evidence for abuse of discretion. See State v. Wilson, 878 N.W.2d 203, 210

(Iowa 2016). We also review a district court’s denial of a motion for new trial on

the basis of judicial impartiality for abuse of discretion. See State v. Millsap, 704

N.W.2d 426, 432 (Iowa 2005). We review challenges raising an alleged violation

of constitutional rights de novo. See State v. Cronkhite, 613 N.W.2d 664, 666

(Iowa 2000).

III.   Prosecutorial Misconduct1

       Bauer claims the prosecutor’s conduct during cross-examination and

closing argument violated his rights under the Iowa Constitution and denied him



1
  We acknowledge the distinction between prosecutorial misconduct and prosecutorial
error set forth by the court in State v. Schlitter, 881 N.W.2d 380, 393-94 (Iowa 2016).
We disagree with the State, however, that the claim raised by Bauer on appeal is one of
prosecutorial error. See Schlitter, 881 N.W.2d at 394 (“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.’ Prosecutorial error occurs ‘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.’” (quoting Shawn
E. Minihan, Measuring Prosecutorial Actions: An Analysis of Misconduct versus Error,
Prosecutor, Dec. 2014, at 24-25)).
                                            4

a fair trial.2 See Iowa Const. art. I, §§ 9 (“The right of trial by jury shall remain

inviolate; . . . no person shall be deprived of life, liberty, or property, without due

process of law.”); 10 (“In all criminal prosecutions, . . . the accused shall have a

right to a speedy and public trial by an impartial jury; . . . to be confronted with the

witnesses against him; to have compulsory process for his witnesses; and, to

have the assistance of counsel.”).

       On cross-examination, the prosecutor asked Bauer if having access to

particular documents or evidence in the case gave Bauer the opportunity to tailor

his testimony to the other evidence. The following colloquy is relevant to Bauer’s

contention:

               STATE: Q. Now, before you testified today you’ve had,
       through your attorney, in your possession or your attorney’s
       possession all the evidence the State has against you. Would you
       agree?
               DEFENSE COUNSEL: Objection, Your Honor. One, that
       invades the attorney/client privilege. Two, it requires him to make a
       legal determination that he would not be aware of. And, three, it is
       argumentative.
               COURT: Well, I think it does invade the attorney/client
       privilege, Mr. Salami.
               STATE: I’ll rephrase it.
               Q. You’ve had an opportunity to review the evidence we
       had—that the State has, correct, before you testified today?
               DEFENSE COUNSEL: Isn’t that the same question, Your
       Honor?
               COURT: Well, it’s not. No, it isn’t.

2
  The State claims Bauer’s objections were insufficient to preserve error on the claims he
now makes on appeal. See, e.g., State v. Krogmann, 804 N.W.2d 518, 526 (Iowa 2011)
(“We do not believe . . . Krogmann has preserved a claim of prosecutorial misconduct.
He objected only that the question was argumentative; the district court sustained the
objection and the question was withdrawn; Krogmann then asked for no further relief
such as a mistrial. Krogmann cannot obtain a new trial based on prosecutorial
misconduct when he failed to move for a mistrial at the time.”). We acknowledge the
district court ruled on at least part of Bauer’s claim in denying his posttrial motions. We
elect to bypass the error-preservation concern. See State v. Taylor, 596 N.W.2d 55, 56
(Iowa 1999) (bypassing an error-preservation problem and proceeding to the merits of
the appeal).
                                        5


             DEFENSE COUNSEL: I would object to the form.
             COURT: On what basis?
             DEFENSE COUNSEL: Not specific enough. And it asks to
      assume something that there would be no evidence as to how
      much he’s reviewed or not reviewed.
             COURT: I think it would be better if you asked him about
      specific things he’s seen.
             STATE: Thank you. Thank you.
             Q. Have you seen the police report in this case? A. No.
             Q. You haven’t seen the police report in this case? A. No.
             Q. Have you seen the Minutes of Testimony in this case?
             DEFENSE COUNSEL: Objection, Your Honor. The charging
      documents are specifically not evidence. He is not permitted to
      inquire about them.
             COURT: Well, the question is, has he seen them. You can
      answer that “yes” or “no.” A. No.
             STATE: Q. So you’ve seen nothing about the paperwork in
      this case; is that your testimony to this jury? A. Yes.
             Q. Fair enough.        You’ve been present, though, since
      Monday; correct? A. Yes.
             Q. And before you testified, you’ve heard what Ms. King had
      to say; correct? A. Yes.
             Q. You’ve heard what the officer who investigated the case
      had to say; correct? A. Yes.
             Q. You’ve heard what the victim in this case had to say;
      correct? A. Yes.
             Q. All while you were seated there; correct? A. Yes.
             Q. All before you took the stand today; correct? A. Yes.
             Q. So you—that’s an advantage; would you agree?
             DEFENSE COUNSEL: Objection, Your Honor.                    No
      relevance whatsoever and is argumentative per se.
             COURT: You can testify if you know, sir.
             DEFENDANT: Excuse me?
             COURT: You can testify if you know or if you have an
      opinion. Would you like to have the question read back?
             DEFENDANT: Yes, please.
             (Requested portion of the record was read by the court
      reporter.) A. No. Because I’ve stuck with the truth.

Later, in closing argument, the prosecutor stated:

             Mr. Stewart went to the bathroom. Now, that appears to be
      coincidental. The video shows it. I don’t need a diagram. The
      video shows it. Mr. Stewart’s coming out. Defendant passes him.
      One of two things happen. At best, Mr. Stewart said something.
      Mr. Stewart said, “At the very most I may have said hi, that man
      thing when you’re going to a bathroom, you see another person,
                                         6


       you kind of acknowledge, ‘Hey, hey, it’s all good in there.’ I’m going
       in. You’re coming out.” He said at best that’s what he said.
               Now, the defendant, knowing all the evidence we have
       against him now, tells you he said—he called him the bad word, the
       insulting word. You know that. You get to judge the credibility of
       who you believe.

(Emphasis added.)

       Bauer contends “the prosecutor engaged in both improper, generic cross-

examination, and improper, generic argument, to imply tailoring of [his]

testimony.” According to Bauer, the prosecutor’s conduct was “intrinsically unfair

and contrary to proper trial practice because [it] tend[ed] to mislead the jury into

deciding credibility, not upon evidence in the record, but upon [his] mere

presence at trial, which is mandatory, and the order of proof, over which [he] has

no control.”

       The district court rejected Bauer’s claim, distinguishing it from State v.

Graves, in which the Iowa Supreme Court observed prosecutorial tactics of

“asking the defendant whether another witness is lying” and “[u]nfairly

questioning the defendant simply to make the defendant look bad in front of the

jury” were improper, diverted the jury’s proper focus, and distorted the State’s

burden of proof. 668 N.W.2d 860, 873 (Iowa 2003) (“[W]e hold ‘were-they-lying’

questions are improper under any circumstance.”); see also Bowman v. State,

710 N.W.2d 200, 206-07 (Iowa 2006) (holding the “prosecutor initiated an all-out,

name-calling attack on [the defendant’s] credibility using an impermissible line of

questioning at least eight different times during his cross-examination” and six

additional improper comments in closing, which impermissibly shifted the case
                                           7


from “the real issue—what really happened based on the admissible evidence”).

The district court found:

              Perhaps more than in most cases, this case required a
       credibility determination by the jury based upon two entirely
       different versions of events set forth by the State’s witnesses on the
       one hand and the defendant on the other hand. The questions
       asked by the State of defendant on cross-examination were
       intended to demonstrate to the jury that defendant had the
       opportunity to hear and know what the testimony of the State’s
       witnesses was and would be prior to having to take the stand
       himself. Neither Graves nor any other case of which the Court is
       aware has suggested that the State is prohibited from challenging a
       defendant’s credibility on cross-examination. The assistant county
       attorney here never used the “L” word by asking defendant whether
       he was lying, asking whether the State’s witnesses were lying, or
       stating in closing that anyone was or was not lying. The State is
       most certainly permitted to challenge the credibility of the defendant
       and his witnesses, and that is what was done here.

       We agree the prosecutor’s questioning of Bauer about his having been

present throughout the trial before having to testify was permissible cross-

examination.    See Portuando v. Agard, 529 U.S. 61, 70 (2000) (“Once a

defendant takes the stand, he is ‘subject to cross-examination impeaching his

credibility just like any other witness.’” (citation omitted)); id. at 78 (Ginsburg, J.,

dissenting) (agreeing with the lower court’s ruling, under which “on cross-

examination, a prosecutor would be free to challenge a defendant’s overall

credibility by pointing out that the defendant had the opportunity to tailor his

testimony in general, even if the prosecutor could point to no facts suggesting

that the defendant had actually engaged in tailoring”); Rosales-Martinez v. State,

No. 10-2078, 2011 WL 6740152, at *8 (Iowa Ct. App. Dec. 21, 2011); see also

State v. Parker, 747 N.W.2d 196, 205 (Iowa 2008) (recognizing “defendants in

criminal cases who take the stand and testify in their defense place their
                                         8


credibility in issue and are typically subject to cross-examination the same as any

other witness”).

       We further conclude the prosecutor’s statement directing the jury to “judge

the credibility of who you believe” during closing argument was permissible. As

noted above, a defendant who takes the stand places his credibility at issue.

See Parker, 747 N.W.2d at 205. Moreover, Bauer had an opportunity to respond

to the prosecutor’s comment in his closing argument.            In Portuondo, the

prosecutor argued during summation:

       You know, ladies and gentlemen, unlike all the other witnesses in
       this case the defendant has a benefit . . . he gets to sit here and
       listen to the testimony of all the other witnesses before he
       testifies. . . . That gives you a big advantage, doesn’t it[?] You get
       to sit here and think what am I going to say and how am I going to
       say it? How am I going to fit it into the evidence? . . . He used
       everything to his advantage.

529 U.S. at 64. The Court concluded, “Allowing comment upon the fact that a

defendant’s presence in the courtroom provides him a unique opportunity to tailor

his testimony is appropriate—and indeed, given the inability to sequester the

defendant, sometimes essential—to the central function of the trial, which is to

discover the truth.” Id. at 73.

       Bauer acknowledges the Court’s ruling in Portuondo, but he asks us to

extend the protections of the Iowa Constitution to shield a testifying defendant

from a prosecutor’s challenge to his credibility. But we see no reason to deviate

from the persuasive reasoning and holding of the Court in Portuondo on this

issue, which is in accord with Iowa law and has been previously relied on by this

court in Rosales-Martinez. In sum, we find no violation of Bauer’s constitutional
                                           9


right to a fair trial and no abuse of discretion by the district court in denying

Bauer’s claim of prosecutorial misconduct. We affirm on this issue.3

IV.    Questions regarding “Inadmissible Documents”

       Bauer challenges the prosecutor’s questions during cross-examination as

to whether he had “seen” “the police report,” “the minutes of testimony,” or “the

paperwork in this case.” Bauer answered “No” to the questions. Bauer claims

the prosecutor’s questions denied him a fair trial because the charging

documents were not admissible evidence.

       As the State points out, “[T]he purpose of the prosecutor’s questions was

not whether the content of these documents accurately described the facts of the

night in question” but rather “whether Bauer had seen them and tailored his

version of the fight accordingly.” This was a permissible impeachment tactic to

challenge Bauer’s credibility.      See Iowa R. Evid. 5.611(b) (providing that

questions challenging a witness’s credibility are permissible on cross-

examination); see also Rosales-Martinez, 2011 WL 6740152, at *9. In any event,

we further conclude any potential prejudice from the prosecutor’s reference to the

challenged documents was mitigated by the court’s instructions to the jury with

regard to the evidence the jury should consider in reaching its verdict. 4 We affirm

on this issue.



3
  We further observe that considering the facts presented here, Bauer’s distinction
between generic and specific tailoring is inapplicable and unpersuasive.
4
  For example, the jury was instructed the trial information was “not evidence,” the jury
should base its verdict “only upon the evidence,” and that
       [s]ometimes, during a trial, references are made to pre-trial statements
       and reports, witnesses’ depositions, or other miscellaneous items. Only
       those things formally offered and received by the court are available to
       you during your deliberations. Documents or items read from or referred
                                           10


V.     Judicial Comment and Intervention

       Bauer contends “the judge impermissibly commented directly upon [his]

credibility . . . in front of the jury” by asking Bauer, “Can you answer any better

than you have?” When the court’s question is placed in context, however, it is

clear Bauer cannot sustain his burden to prove the court acted with “personal

bias or prejudice.” See State v. Smith, 282 N.W.2d 138, 142 (Iowa 1979) (“[O]nly

personal bias or prejudice, as distinguished from judicial predilection, constitutes

a disqualifying factor.” (alteration in original) (citation omitted)). The following

colloquy is relevant to this issue:

               STATE: Q. 6000-plus dollars [for the car]. That’s a check
       you wrote for her; correct? A. The actual amount was $6085, and
       that was tax, title, and license.
               Q. My question to you, though, is $6000, that’s a lot of
       money; is that correct?
               DEFENSE COUNSEL: Objection, Your Honor. One, no
       issue has been raised in my direct testimony about the amount.
       Two, what is the relevance?
               COURT: Overruled.
               Q. 6000-plus dollars is a lot of money; correct? A. I would
       think that would depend upon who you are.
               Q. $6000 is a lot of money? Yes or no.
               DEFENSE COUNSEL: Asked and answered.
               COURT: Sir, can you answer any better than you have?
               BAUER: Excuse me?
               COURT: Can you answer any better than you have?
               A. I don’t think it’s a lot of money, no.

       In ruling on Bauer’s challenge that the court improperly commented on

Bauer’s “credibility and forthrightness,” the court stated:

       The court has reviewed the transcript of testimony of defendant and
       can find the following instance where it stated: “Sir, can you answer
       any better than you have?” . . . As may be seen above [given the
       context of the question], the defendant’s answer to the question

       to, which were not offered and received into evidence, are not available to
       you.
                                            11


       was ambiguous. If the defendant had answered the court’s inquiry
       that he had answered the question to the best of his ability, the
       objection would have been sustained. As it turned out, the
       defendant simply clarified his answer.

The court further noted:

              The first inkling that the court had that defendant had any
       concerns about the colloquy quoted above was in the footnote
       appearing on page 2 of his reply brief filed in conjunction with the
       motion for new trial.[5] Had defendant raised this issue with the
       Court at the time, or even prior to jury instructions being given to
       the jury, any possible prejudice to defendant could have been
       easily remedied. In any event, the jurors were given a uniform
       instruction to the effect that nothing done or said by the Court
       during the case was intended to convey any opinion as to the
       merits of the case. To say the least, the Court is troubled by
       defendant raising the issue at this late date, and further troubled
       that the colloquy was either intended or perceived by anyone as a
       comment on defendant’s credibility.

       We see nothing here rising to the level of judicial misconduct, and we

discern no abuse of discretion in the court’s ruling denying Bauer’s claim. See

State v. Gentile, 515 N.W.2d 16, 17-18 (Iowa 1994) (rejecting claim of judicial

misconduct based on court’s comment during witness testimony); Smith, 282

N.W.2d at 142 (“Trial court’s decision will not be overturned unless there has

been an abuse of discretion.”).

VI.    Conclusion

       Upon consideration of the issues raised on appeal, we affirm Bauer’s

conviction for willful injury resulting in bodily injury.

       AFFIRMED.




5
  The State claims Bauer failed to preserve error on this claim; the district court
acknowledged Bauer first raised his challenge in his motion-for-new-trial reply brief. We
elect to address the merits of the claim. See Taylor, 596 N.W.2d at 56.
