IN THE COURT OF APPEALS OF IOWA

No. 14-1128

Filed February 10, 2016

TERRANCE JERRELL BURNETT,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, James M. 

Richardson, Judge.

An applicant appeals from the denial of his application for postconviction 

relief. AFFIRMED.

Brian S. Munnelly of Munnelly Law Office, Omaha, Nebraska, for 

appellant.

Thomas J. Miller, Attorney General, and Kevin Cmelik and Heather 

Mapes, Assistant Attorneys General, for appellee State.

Considered by Mullins, P.J., McDonald, J., and Goodhue, S.J.*

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

Terrance Jerrell Burnett appeals from the denial of his application for 

postconviction relief. 

I. Background Facts and Proceedings

Dustin Jones died from a stab wound he suffered while attending a party 

during the late evening hours of December 11, 2009. On December 23, 2009, 

Terrance Jerrell Burnett, also an attendee at the party, was charged with firstdegree murder. A jury trial was held and on January 21, 2011, the jury returned 

a verdict of guilty to the lesser-included offense of second-degree murder. The 

applicant appealed, and the verdict was affirmed. See State v. Burnett, No. 11-

0361, 2012 WL 836656, at *1 (Iowa Ct. App. Mar. 14, 2012). That opinion 

recounts the factual situation that will not be restated, except where relevant to 

the applicable claims raised in this proceeding. 

An application for postconviction relief was filed on June 29, 2012, 

requesting that the conviction be set aside and the case dismissed or,

alternatively, a new trial granted. The applicant’s postconviction-relief action is 

based on his contention trial counsel was ineffective for failing to move for a 

mistrial and in failing to object to certain testimony. He further contends that if no 

individual claim justifies relief, the cumulative effect of the individual claims taken 

together justify the requested relief. He finally claims that appellate counsel in 

his original appeal was ineffective for failing to raise the same issues as raised in 

this postconviction-relief action. The trial court denied his request. The applicant 

has appealed.
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II. Error Preservation

Error preservation is generally considered present when the issues to be

reviewed have been raised and ruled on by the district court. Meier v. Senecaut, 

641 N.W.2d 532, 537 (Iowa 2002). Other than the cumulative effect of the 

various claims, which was not raised before the postconviction court, each claim 

of ineffective assistance of counsel was raised and carefully considered and 

ruled on by the postconviction court. For purposes of this proceeding, we will 

assume individual claims of ineffective assistance counsel preserve their

cumulative effect to the extent their cumulative effect may be considered.

III. Standard of Review

Appeals from the denial of a postconviction-relief application are ordinarily 

reviewed for corrections of errors of law. Castro v. State, 795 N.W.2d 789, 792 

(Iowa 2011). Denial of effective assistance of counsel raises a constitutional 

issue, and as such the review is de novo. Lamasters v. State, 821 N.W.2d 856, 

862 (Iowa 2012). 

IV. Discussion

To prevail on a claim of ineffective assistance of counsel a claimant must 

prove by a preponderance of the evidence that (1) counsel failed to perform an 

essential duty, and (2) prejudice resulted. Ledezma v. State, 626 N.W.2d 134, 

142 (Iowa 2001). A claim of ineffective assistance must overcome the 

presumption that counsel is competent. Taylor v. State, 352 N.W.2d 683, 685 

(Iowa 1984). 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). Choices of strategy after proper 
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investigation are virtually unchallengeable. Ledezma, 626 N.W.2d at 143. In 

reviewing counsel’s effectiveness we do not take on the role of a Monday 

morning quarterback and view the proceedings with twenty-twenty hindsight. 

Fryer v. State, 325 N.W.2d 400, 414 (Iowa 1982). For relief to be granted there 

must be a determination that but for ineffective assistance, there is a reasonable 

probability the result would have been different. Ledezma, 626 N.W.2d at 145. 

Counsel is not ineffective for failing to make a meritless claim. State v. Brubaker, 

805 N.W.2d 164, 171 (Iowa 2011). 

A. The Prejudicial Clothing

The applicant’s family arrived at the courthouse the morning the jury was 

to be selected. They observed as many as eight of the victim’s family seated in 

the courtroom wearing shirts with the likeness of the victim’s face imprinted on 

the front. There were other unidentified individuals in the courtroom at the time

that might have been a part of the jury pool. Prior to voir dire the shirts were 

observed and the court ordered the shirts removed or turned inside out. The 

order was obeyed. The applicant contends that trial counsel should have moved 

for a mistrial because of the shirts. 

A spectator’s conduct can be grounds for a mistrial, but the conduct must 

be such as to prejudice the defendant or influence the verdict. State v. Curtis, 

192 N.W.2d 758, 760-61 (Iowa 1971) (citing State v. Peters, 352 P.2d 329, 332 

(Haw. 1959)). There is no concrete evidence that any juror saw the shirts in 

question. Furthermore, there was no evidence that even if seen, why or how 

viewing a likeness of the victim would have prejudiced the jury. Finally, to the 

extent the shirts were objectionable, the problem was resolved, even before voir 
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dire commenced. The court obviously considered its order an appropriate 

resolution of the problem, and it is highly unlikely it would have granted a motion 

for mistrial, even if made. Counsel had no duty to make such a motion.

B. Blood or Bloods Issue

The applicant’s background indicated he had some relationship with an 

organization or gang known as the Bloods. Prior to trial the applicant filed a 

motion in limine in an effort to keep out any suggestion that he was affiliated with 

the Bloods. The motion was granted with the court noting it was not intending to 

indicate that things that were a part of the res gestae were not admissible. The

court gave the further caveat that if circumstances should change, counsel 

should approach the court before offering evidence on the prohibited subject. 

In the State’s opening statement, the prosecutor gave a preview of the 

anticipated testimony. He stated that immediately after the stabbing one witness 

would quote the applicant as stating, “He was a Blood. I’ll stab him, I’ll stab him.” 

The applicant’s counsel did not object. In the State’s redirect, one of the State’s 

witnesses stated, “I can’t recall anything else. Something about blood.” Counsel 

objected and after a sidebar the objection was overruled because there was no 

linkage between the word “blood” and any gang. The prosecution later asked the 

witness, “And you heard him say ‘blood’ as he walked out?” and the witness 

answered, “Yes. Yes, sir.” The applicant’s counsel did not further object or 

move for a mistrial. 

In the State’s closing argument the prosecution made mention of the 

demeanor of one of the witnesses, who was a friend of the applicant, stating, 

“[He] got up here, took the stand wearing that kind of white puffy coat, and he hits
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what I like to call the gangster slouch. He gets up there and kind of wants to 

pose a little bit.” The applicant’s counsel did not object. 

Counsel’s objective was to prevent any comment that would indicate the 

applicant’s gang relationship from being inserted into the record. He accordingly 

made the motion in limine, and we assume it was correctly granted. The 

applicant’s trial counsel testified that he did not object or move for mistrial when 

references to blood or Bloods were made because he was concerned it would 

only emphasize what he was attempting to avoid. It was a part of his strategy,

and it was effective. An objective reading of the transcript does not imply or even 

suggest the applicant was a member of the Bloods or any other gang. The 

prosecutor’s opening statement suggested the victim might have been a member 

of the Bloods, but not the applicant. It is only speculative what impression might 

have been raised in the jury’s mind or what would have been said if objections or 

motions had followed the statements set out above. Left as they were, there was 

not even an inference the applicant had any association with a gang. 

C. Prosecutor’s Alleged Misconduct

The applicant contends the prosecutor’s statements, questions, and 

closing argument constituted prosecutorial misconduct and trial counsel was 

ineffective for failing to move for a mistrial. In order to obtain relief based on 

prosecutorial misconduct the applicant must prove both the misconduct and that 

prejudice resulted. State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003). It is a 

duty of a prosecutor to present the State’s cases zealously and to attempt to 

tarnish a defendant’s credibility within the proper bounds. State v. Comes, 62 

N.W.2d 753, 757 (Iowa 1954). Counsel is not permitted during closing 
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arguments to create evidence or vouch personally as to the defendant’s guilt or a 

witness’s credibility based on personal experience or knowledge of facts not 

before the jury, but he is entitled to analyze the facts and draw conclusions and 

argue all permissible inferences that reasonably flow from the record. State v. 

Williams, 334 N.W.2d 742, 744 (Iowa 1983). To the extent the prosecutor used 

the word “blood,” it was not connected to the applicant’s relationship to a gang,

nor did it constitute misconduct.

1. Prosecutors Use of the Word “Lie”

The applicant testified that when the victim left the house where they had 

been partying, he did not know the victim had been stabbed. He also stated that 

the victim had pulled the knife first and he had only acted in self-defense. His 

counsel, in a somewhat inconsistent vein, argued in his closing statements the 

stabbing was done in the heat of passion and if the jury found the applicant guilty

of murder, it should only be as to second degree. The prosecutor, in his rebuttal 

argument, pointed out the applicant’s counsel was saying “I hope you believe my 

client, but if you don’t believe my client, then I hope the lie that he told you that—I 

hope the thing you believe he was lying about was being enraged and in the heat 

of passion and being seriously provoked.” The applicant’s counsel asked to 

approach the bench and the court sustained what was apparently an unreported 

objection made at the bench and admonished the prosecutor not to use the word 

“lie.” The prosecution restated his analysis and without using the word “lie” in his 

comments and summed up his contentions by stating, “You can’t have it both 

ways, ladies and gentlemen. Either the defendant’s story as he took the stand, 

was it the truth or it was not the truth?” The applicant’s counsel did not object or 
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move for a mistrial. The use of the word “lie” was unnecessary and unfortunate, 

but it is highly unlikely a mistrial would have been granted even if a motion had 

been made by defense counsel. The prosecution was challenging the applicant’s 

credibility based on the record and the inconsistent positions the applicant had 

taken.

2. Victim’s Mothers’ Grief

In closing argument the prosecution referred to the victim’s mother, who 

had actually found his body. “No mother should have to find their son lying dead 

on a darkened sidewalk in the snow, the son that she gave birth to, the same son 

she tried to breathe life back into his dead body twenty-three years after she 

gave birth.” Prosecutors have a duty to keep the record free from inflammatory 

utterances. State v. Werts, 677 N.W.2d 734, 739 (Iowa 2004). The applicant’s 

counsel did not object or move for a mistrial. 

The prosecutor’s comments concerning the victim’s mother’s grief would 

have been better left unsaid. However, the fact that the victim’s mother had 

found her son’s body, her grief, and attempt to resuscitate him were in evidence. 

Both counsel in argument and the court in its instructions admonished the jury 

not to decide the case based on sympathy. Even if the statements are 

considered misconduct, it can hardly be considered prejudicial to the point of 

having an impact on the overall fairness of the trial. The prosecutor’s statement

did not introduce any factor into the evidence not already before the court. This 

one reference to the mother’s grief does not even approach the specter of 

prejudicial misconduct present in Werts, 677 N.W.2d at 739, on which the 

applicant relies.
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3. Use of Slides Using the Word “Proven” or Phrase “No Reasonable 

Doubt”

As a part of his final argument, the prosecutor used slides setting out the 

elements of the offense followed by the word “Proven” or the phrase “No 

Reasonable Doubt.” Counsel in fact was not improperly stating his own opinion, 

vouching as to the applicant’s guilt, or relying on personal experience or facts 

outside the record, but was drawing conclusions based on the facts before the 

jury. Furthermore, the jury was instructed that counsel’s statements were not 

evidence and should not be considered as such. The applicant in his brief 

appears to concede that the use of the words “Proven” or “No Reasonable 

Doubt” would have been acceptable when accompanied by the court’s cautionary 

instructions if they had been stated in oral argument. Instead, he contends that 

to put it in writing and show it as a part of a slide is different and unacceptable 

but cites no authority for such a proposition. Generally, visual aids can be used 

to assist in the analysis of the facts in evidence. State v. Pepples, 250 N.W.2d 

390, 396 (Iowa 1977).

In summary, factors to be considered in determining whether prosecutorial 

misconduct constitutes the required prejudice are the severity and pervasiveness 

of misconduct, the significance of the misconduct to the central issues of the 

case, the strength of the State’s evidence, the use of cautionary instructions or 

other preventative measures, and the extent to which the defendant invited the 

improper conduct. State v. Musser, 721 N.W.2d 734, 755 (Iowa 2006). Overall, 

the prosecutor’s conduct cannot be considered severe or pervasive, and 

cautionary instructions were used. The evidence of the applicant’s guilt, as set 
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out in Burnett, 2012 WL 836656, at *4-5, was overwhelming. If counsel had 

moved for a mistrial based on the prosecutor’s misconduct or any part thereof, 

denial of such a motion would have been expected and justified.

D. The Cumulative Effect

The cumulative effect may be taken into consideration when the prejudice 

prong of ineffective assistance of counsel is being considered. State v.Clay, 824 

N.W.2d 488, 501-02 (Iowa 2012). The postconviction trial court found no breach 

of duty on the part of trial counsel and neither do we. The cumulative effect as to 

the issue of prejudice need not be considered. See id.

E. Appellate Counsel’s Ineffectiveness

The applicant contends his appellate counsel was ineffective for failing to 

raise the issues of trial counsel’s ineffectiveness. The appellant has failed to 

establish trial counsel’s ineffectiveness. The claim of ineffective appellate 

counsel necessarily fails.

We affirm the decision of the district court denying Burnett’s application for 

postconviction relief.

AFFIRMED.