IN THE COURT OF APPEALS OF IOWA

No. 17-1035

Filed November 7, 2018

STATE OF IOWA,

Plaintiff-Appellee,

vs.

RICHARD RYAN LAMB CARSON,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Clarke County, John D. Lloyd, Judge.

Defendant appeals conviction and sentencing of two counts of first-degree 

murder based on his denial of fair trial due to prosecutorial error and ineffective 

assistance of counsel. AFFIRMED. 

Mark C. Smith, State Appellate Defender, and Brenda J. Gohr, Assistant 

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney 

General, for appellee.

Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
2

VOGEL, Presiding Judge.

A jury found Richard Ryan Lamb Carson guilty of two counts of first-degree 

murder. Carson appeals his convictions and sentence after the district court 

denied his motion for a mistrial. He claims the prosecutor made multiple comments 

during closing arguments that denied him the right to a fair trial. He further asserts 

his counsel provided ineffective assistance by failing to object to the prosecutor’s 

questions during cross-examination. Because the prosecutor’s comments did not 

prejudice Carson, the district court did not abuse its discretion in denying Carson’s 

motion for mistrial. We preserve the issue of ineffective assistance of counsel for 

possible postconviction relief. 

I. Background Facts and Proceedings

The jury could have reasonably found the following facts. On January 23, 

2015, Carson and his girlfriend, Tracy Johnson, went to the home of Chris Elben 

and Lynn Sutton for dinner. Elben’s niece, Victoria Byers, was staying at the home 

and was also present that evening. Two of Byers’s friends, Noe Flores and Erick 

Reyna, came to the home to go out with her that night. According to Byers, Flores 

entered the home and told her that he would wait in the car until she was ready to 

leave. Flores went back outside where he and Reyna waited in a black Honda that 

was parked in the driveway. 

Carson left the home for a brief period while Byers prepared to go out with 

Flores and Reyna; when he came back, he told Johnson that he had “kicked 

somebody’s ass and he didn’t know what to do.”

1 Carson and Elben then left the 

 

1 Byers later testified Carson said, “I just beat the f**k out of that Mexican.” 
3

home together. Later that evening, Sutton received a phone call from Elben 

indicating that he and Carson needed a ride.2 Johnson and Sutton drove Carson’s 

truck to a house in the country and picked up the two men. The group briefly 

returned to the Elben/Sutton house before they went to Carson’s mother’s home. 

At the mother’s home, the two men went to the bathroom where they threw their 

clothes and shoes in a trash bag, showered, and washed their hands and a gun 

with bleach. Johnson heard Carson “talk[ing] about shooting one of them in the 

head and describing that it smelled terrible.” Johnson and Carson then returned 

to Johnson’s apartment.

On January 25, while Johnson and Carson were watching television at 

Johnson’s apartment, Carson said he thought someone was outside with a gun. 

After Carson asked Johnson if there was a storm drain nearby, he went to the 

bedroom and returned with a gun. She had seen him with that gun before the 

events of January 23. He put the gun in his pants and left the apartment. Later 

that night, law enforcement found Flores and Reyna dead from gunshot wounds. 

The bodies were inside a black Honda, which was located on the property of 

Carson’s former mother-in-law. The next day, law enforcement found the gun 

Carson had in Johnson’s apartment in a storm drain one-half block from the 

apartment. 

Carson testified and admitted to having shot Flores and Reyna but claimed 

he did so in self-defense. His version of the events on the evening of January 23 

began when he went outside the Elben/Sutton home to retrieve a pack of 

 

2 Machelle and Bernard Critz testified they allowed Carson and Elben to use their phone 

that night and then someone arrived to give them a ride.
4

cigarettes. Seeing the parked Honda, he knocked on the rear driver’s side window 

to ask if someone had a lighter. A voice from inside the car told him to come to 

the front passenger’s side. When he walked around the car, the window rolled 

down and the passenger pointed a gun at Carson. The passenger said, “I’ve got 

you now,” and fired a shot that missed Carson. Carson testified he grabbed the 

firearm, twisted it free from the passenger’s hand, and fired two shots at the 

passenger’s head. He then saw the driver reach for a short barrel revolver, so he 

fired two more shots at the driver. With the driver still moving, Carson fired one 

more shot, “center mass on his body,” after which the driver went into convulsions, 

dropped his firearm, and slumped over the steering wheel.

According to Carson’s testimony, he was scared and shaking after the 

shootings. He wiped off the gun and dropped it back into the car. The gun landed 

on metal, and Carson discovered a large automatic pistol and a magazine clip in

the passenger’s lap. After a few minutes, he went back into the house and 

declared, “I f**ked a couple of guys up.”

3

 He pulled Elben aside and said, “A couple 

guys just tried to kill me. . . . I shot them. . . . I took one of the guns away from 

them and I fired back.” When he and Elben went outside, he claimed the Honda 

had disappeared. 

After the May 1 to May 4, 2017 jury trial, Carson was found guilty of two 

counts of first-degree murder, class “A” felonies, for which two consecutive life 

sentences were imposed. He appeals. 

 

3 His testimony varied only slightly as to how he phrased his statements that he blurted 

out to the people in the house. 
5

II. Standard of Review

We review denials of mistrials and prosecutorial error claims for abuse of 

discretion. State v. Plain, 898 N.W.2d 801, 810–11 (Iowa 2017). “An abuse of 

discretion will only be found when a court acts on grounds clearly untenable or to 

an extent clearly unreasonable.” State v. Leckington, 713 N.W.2d 208, 216 (Iowa 

2006). 

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

Straw, 709 N.W.2d 128, 133 (Iowa 2006). “If an ineffective-assistance-of-counsel 

claim is raised on direct appeal from the criminal proceedings, we may decide the 

record is adequate to decide the claim or may choose to preserve the claim for 

postconviction proceedings.” Id. (citing Iowa Code § 814.7(3) (2005)). 

III. Denial of Motion for Mistrial; Prosecutorial Error4

Carson asserts he was denied a fair trial due to prosecutorial error that 

occurred during the trial. “Prosecutors have a dual function. They must prosecute 

with vigor and diligence, and, at the same time, be alert to assure the defendant a 

fair trial.” State v. Webb, 244 N.W.2d 332, 333 (Iowa 1976). “In order to establish 

a violation of the right to a fair trial, a defendant must show both (1) error or 

misconduct and (2) prejudice.” Plain, 898 N.W.2d at 818. Carson points to three 

situations where prosecutorial error allegedly occurred during closing argument: 

 

4

In State v. Schlitter, the Iowa Supreme Court distinguished the terms “prosecutorial 

misconduct” and “prosecutorial error.” 881 N.W.2d 380, 393–94 (Iowa 2016). The court 

held “[p]rosecutorial error occurs where the prosecutor exercises poor judgment and 

where the attorney made a mistake based on excusable human error, despite the 

attorney’s use of reasonable care.” Id. at 394 (internal quotations and quotation marks 

omitted). Prior cases are cited with references to “prosecutorial misconduct”; however, 

for the purposes of this opinion, this phrase should be interpreted to mean “prosecutorial 

error.” 
6

(1) the prosecutor repeatedly implied Carson was a liar, (2) the prosecutor asked 

about Carson invoking his right to an attorney, and (3) the prosecutor’s use of the 

term “insanity.” 

A. Prosecutorial Error

A prosecutor “is entitled to some latitude during closing argument in 

analyzing evidence admitted in the trial.” State v. Phillips, 226 N.W.2d 16, 19 (Iowa 

1975). “[A] prosecutor may argue the reasonable inferences and conclusions to 

be drawn from the evidence” but may not “express his or her personal beliefs.” 

State v. Graves, 668 N.W.2d 860, 874 (Iowa 2003). 

Carson objected to multiple comments from the prosecutor’s closing and 

rebuttal arguments that he argues impliedly called him a liar or were otherwise 

improper. First, the prosecutor said:

To be clear, this case is not about insanity. The defendant was 

evaluated and found competent. . . . That is not what this case is 

about. His words have been designed to mislead and to draw 

attention away from the facts. Again, my standing here saying 

something no matter how outrageous it is, does not mean it is true. 

He makes these outrageous claims, but they’re mostly designed to 

keep him from being held accountable. 

Carson argues this comment raised the issue of competency to “improperly cause 

the jury to draw the inference that the defendant was a liar.” Competency was first

discussed during cross-examination after Carson struggled to answer the 

prosecutor’s questions:

Q. Okay. Tracy Johnson was your girlfriend? A. Yes, she 

was.

Q. You were living with her? A. I was staying part time at my 

mother’s—Marjorie—house, and then I would stay over at her house 

once in a while.

But I had my oldest boy, Colton. He was right around fifteen 

years old. When he hit about fourteen or fifteen, him and his mom 
7

started bumping heads. I don’t have forty-nine percent custody now 

because he turned eighteen years old on the twenty-seventh of this 

last month, but I had forty-nine percent custody of him and his mom 

had fifty-one percent custody, and they were bumping heads, so he 

was staying with me and my mother and going to school. 

Q. My question to you: Tracy Johnson, you were pretty much 

living with her, and she was your girlfriend? A. I didn’t live with her 

full time. I stayed there off and on.

Q. Let’s be clear about something. You have been evaluated 

and found to be competent to stand trial; correct? A. I had to fight to 

do that.

Q. And so you have been evaluated and found competent? 

A. I took—

Q. Is that a yes? A. Yes, it is.

Carson had issues directly answering the questions throughout his entire 

testimony. The court even admonished him to only answer the questions or his 

testimony would be stricken:

Mr. Carson, let me make this suggestion to you.

If you don’t want your entire testimony stricken from this 

record, you will answer counsel’s questions. And you will answer 

them, and then you will quit talking, and you will not ask counsel 

questions.

But if you keep going the way you are, your version of this 

event is going to be stricken from this record. 

You are capable of listening to the question and answering it. 

Please do so.

Defense counsel attempted to explain Carson’s testimony, by providing the 

following commentary:

He is a poor advocate for himself. He doesn’t talk—and I don’t mean 

to be unkind—but he doesn’t talk the way we talk in court. He doesn’t 

relate to others the way we relate to each other in court.

And, again, I don’t want to be unkind, and I certainly hope I’m 

not. It’s just the way that he is. He has beliefs, and he expresses 

them, and I guess the best example is the Judge reminding him to 

answer the question and then shut up. That’s how we do things in 

court. We ask questions, we give answers, and we shut up. He 

doesn’t speak that way, okay? But take that into account when you 

analyze his testimony. 
8

Outside the presence of the jury, the prosecutor stated her comment was 

meant to provide guidance to the jury. She stated the jury has “no way of knowing 

that [the insanity defense] has to be affirmatively brought up by the defense before 

that can be considered. Given the defendant’s testimony and actions . . . , I think 

it was a valid argument, and it certainly needed to be addressed.” The court then 

found the prosecutor’s statement “reiterated what was part of the record”; while “[i]t 

may have been unfortunate that at some point [the prosecutor] used the word 

‘insanity,’” the usage was not “particularly meaningful” as part of the argument.

Second, the prosecutor stated during closing arguments: 

Is he telling you the truth that that’s not his gun, and if he’s not, why 

not? Because, gosh, that certainly makes his story to you about selfdefense seem more ridiculous.

The jury instructions are going to tell you that you can 

disregard any or all of Carson’s testimony if you find him untruthful. 

That’s your determination, ladies and gentlemen, but you get to use 

your common sense. And if he is not telling you the truth, you don’t 

have to believe this idea that there was anything to do with selfdefense. It’s not a defense if you make it up. Self-defense is there 

for those times that it is true, not for those times that you come in and 

make it up. Let’s see how his claim matches up with common sense.

Carson argues this comment improperly implied that he lied because his 

testimony was based on his version of the killings. The State notes Carson’s 

version of the events differed greatly with numerous witnesses, including Tracy 

Johnson, Victoria Byers, Officer Michael Cody Smith, and Machelle and Bernard 

Critz. The State argues the prosecutor’s statement was an attempt to instruct the 

jury to consider the different versions of events and decide which it believed to be 

true. 

Third, the prosecutor stated:
9

And Carson goes outside, has this happen, kills these men, and fails 

to call the police after shooting them, okay? He takes the car and he 

hides it on an abandoned property, a property he has ties to. 

Now, he claims this is all part of this setup, but let’s really think 

about that for a moment. He knows it is gated. He knows it is remote, 

and that’s where he takes the bodies. Self-defense? You have to 

kill two men because they have just tried to do something to you, and 

you go and you hide their bodies? He tries to spin a tale for the 

police. 

Carson made an objection, which the court overruled but warned the prosecutor 

not to go further. The prosecutor continued with her closing argument:

What he tells the police is that he goes outside and there’s a 

shoving match and these two men leave. Now, he tries to tell you 

now, “I only said that because I was only testing the cops. I was 

trying to find out what they knew.” Sounds like a person that was 

validly interested in letting them know that this was self-defense?

Do you test the cops to see what they know before you tell 

them the truth? Or better yet, “Well, they lied to me so I get to lie to 

them.” 

Outside the presence of the jury, defense counsel argued the prosecutor 

essentially called Carson a liar with this comment. The prosecutor replied, “I did 

not call him a liar, which is actually what Graves said. He did spin a tale. We have 

evidence to show that. That’s for the jury to decide and I believe I made that clear.” 

The district court found a “single phrase in the context of the entire argument does 

not implicate, on the part of the State, to grant or call the Defendant a liar, or to 

make any kind of inflammatory comments about the Defendant’s credibility that the 

Appellate Courts in Iowa have found to be improper.” The State argues to us that 

the prosecutor’s comment calls attention to Carson’s own admission of his 

untruthfulness in an interview with law enforcement. Carson admitted he did not 

tell law enforcement the truth in the initial interviews because he was “feeling the 

cops out to see what they had on [him].”
10

Fourth, when discussing Carson’s trial testimony about his police interview, 

the prosecutor stated during closing argument, “His story doesn’t work so then he 

tries to get into they had a gun, but when he’s questioned, he stops. I don’t want 

to answer any more questions.” Carson argues this comment improperly referred 

to his earlier testimony about ending the police interview. 

Carson provided the following testimony during his cross-examination:

Q. You would agree with me that you did not tell the police in 

your first interview that they ever fired a gun at you; correct? A. No.

My first interview was with DCI, and I did say that they fired the gun,

that it went off, and I turned the gun on them, and that they got hurt, 

and it was self-defense is what I said in my first interview. So where 

all of the parts that says unintelligible in [the interview transcript], they 

couldn’t hear the tape. You have all these unintelligibles. That’s 

pretty convenient.

. . . .

Q. You would agree, sir, that does not show up in the 

transcript? A. I understand that, but running a magnet over that tape 

will take that off of there too.

Q. Okay. So you ended that police interview; correct? A. Yes, 

I did.

Q. All right. And you ended it yourself? A. Yes, I did.

Q. When they started questioning you about this self-defense 

that you say you talked about in the unintelligible portion of your 

statement— A. I said they pulled a gun, it went off, and they got hurt, 

and it was self-defense, and my friends and family didn’t see it and 

weren’t involved in it, and it was just me and those two guys outside.

Q. And when they started to question you on— A. Once that 

was said—once that was said, I said I wanted a lawyer. I said I want 

a lawyer.

THE COURT: That’s all you need to say, Mr. Carson. Next 

question, [prosecutor]. 

Outside the presence of the jury, the prosecutor provided the following 

rationalization for her comment on the interview during her closing argument: 

The defendant ended the conversation with the police when they 

started to question him about [the] second version of events. It’s a 

fair comment on how that ended . . . . I did not talk about his asking 

for a lawyer. I didn’t ask him if he asked for a lawyer in testimony. I 

simply asked him if he stopped the testimony—stopped the 
11

questioning, and that’s when he volunteered the information about 

the lawyer. Again, I commented on something that is in evidence. 

The court then largely agreed with the prosecutor:

Defendant was asked something about explaining to the police what 

was going on, and he volunteered—that he decided to quit talking so 

he could ask for a lawyer. That was not elicited by the question. It 

was consistent with the defendant’s pattern of being particularly 

responsive to the questions he was asked, and it is in the record 

because of his voluntary statement. 

Beyond that, the closing argument of counsel did not mention 

the request for counsel. It just simply said he ended the interview. 

That is factually accurate and is part of the record, and I don’t believe 

in the context of the argument that it conflicts with the defendant’s 

assertions of his constitutional rights. 

Fifth, the prosecutor said during her rebuttal argument without objection:

I bring this up . . . these unanswered questions because those 

are the things we talked about in jury selection. I can’t always have 

an answer for you for everything.

. . . .

Oh, but the State couldn’t tell you why he did it. Nope. I can’t 

tell you why he sat on this stand and said two officers drove up and 

looked at him and give him a look like, “I’m sorry you lived through 

this.” Really? Does anybody here believe that’s what happened? 

We will probably never know why he did it. And, you know what, 

there’s not a single jury instruction that tells you we need to. And do 

you know why that is? Because we know you can’t really always rely 

on somebody that murders another person to tell you the truth. 

Carson claims this comment improperly implied he was a murderer and a liar. 

However, the prosecutor repeatedly reminded the jury it was their job to decide 

who was telling the truth. For example, the prosecutor told the jury:

The crime scene tells you all of Carson’s stories are incorrect, and 

common sense tells you that there was no self-defense.

And, again, I’m going to stress there are a lot of jury 

instructions on self-defense. You don’t even get to them if you don’t 

believe this is self-defense. You don’t have to go through, well, was 

it justified, or was it that he reasonably believed, or whatever. If you 

think he’s telling you a lie about that, you decide that. I’m not saying 

whether he is or not. That’s your job.
12

Carson argues all of these comments constitute prosecutorial error. 

Moreover, he argues he is entitled to a new trial because of these errors. Even 

assuming these comments amount to prosecutorial error, Carson must also 

demonstrate he was prejudiced by the comments. 

B. Prejudice

If we were to disagree with the district court’s ruling on the motion for mistrial

and find prosecutorial error transpired, we also need to analyze whether Carson 

was prejudiced by any such error. “The grant of a new trial based on prosecutorial 

misconduct does not hinge on the misconduct, but the resulting prejudice which 

prevents the trial from being fair.” State v. Escobedo, 573 N.W.2d 271, 278–79 

(Iowa Ct. App. 1997). “Trial courts have broad discretion to determine whether 

prejudice resulted from misconduct. As a firsthand observer to both the claimed 

misconduct and any reaction by the jury, the trial court is better equipped than an 

appellate court to determine the presence of prejudice.” Id. at 277. To determine 

whether prejudice has occurred, we consider the following factors: “(1) the severity 

and pervasiveness of the misconduct; (2) the significance of the misconduct to the 

central issues in the case; (3) the strength of the State’s evidence; (4) the use of 

cautionary instructions or other curative measures; and (5) the extent to which the 

defense invited the misconduct.” Graves, 668 N.W.2d at 877. 

1. Severity and Pervasiveness of Error

Carson argues the error was severe and pervasive because it began during 

his cross-examination and continued in the closing argument. It is important to 

remember the prosecutor’s closing argument is not considered evidence and the 

jury was so instructed. See Plain, 898 N.W.2d at 821 (finding the error of using 
13

the term “victim” instead of “alleged victim” was not prejudicial because the use 

was limited to closing arguments and any potential prejudicial effect was mitigated 

by the district court’s instructions that closing arguments are not evidence). During 

voir dire, the court advised the jury that “[a]ny statements that the attorneys may 

make . . . during jury selection, opening statement, or closing argument are not 

evidence and their statements should not be considered by [the jury] as evidence.” 

Before closing arguments commenced, the court told the jury the closing 

arguments “are not evidence, and they should not be construed by you as 

evidence, and they are not instructions on the law of this case.” Additionally, jury 

instruction number five specified what evidence the jury could base the verdict on. 

The instruction also specified what was not considered evidence, which included 

“[s]tatements, arguments, questions and comments by the lawyers.” 

The prosecutor’s comments were made in her closing argument, and the 

district court found the comments minor when assessing the entire argument and 

the entire record evidence. Since these comments were not considered evidence, 

the prosecutor’s central theme was not calling Carson a liar but recalling how his 

testimony varied in stark contrast from all the other witnesses’ testimony. See 

State v. Coleman, 907 N.W.2d 124, 141 (Iowa 2018). Moreover, not all of these 

comments were directed at the credibility of Carson’s testimony during trial. For 

example, the statement about him “spin[ning] a tale” was in reference to the police 

interview where he admitted he did not tell law enforcement everything because 

he was trying to “feel them out.” Moreover, any potential prejudicial effect was 

mitigated by the district court’s instructions to the jury. See Plain, 898 N.W.2d at 

821.
14

2. Significance of the Error to the Central Issues

Carson argues the central issue in the case, self-defense, requires the jury 

to find his testimony credible, which rested on his perception of the events. Thus, 

we agree the central issue of his defense depends on the jury finding his testimony 

credible and any comment on his veracity would be significant to this issue. 

3. Strength of State’s Evidence

“The most important factor under the test for prejudice is the strength of the 

State’s case.” State v. Carey, 709 N.W.2d 547, 559 (Iowa 2006). Thus, “the 

stronger the case against the defendant, the less likely the jury is to look beyond 

the record.” Id. Carson argues that the State’s evidence was weak because there 

were no eyewitnesses to the shooting and the lack of gunshot residue on his body

does not rebut his testimony of self-defense. 

In Carey, the court found the State’s case was “overwhelming” because the 

defendant conceded to the elements of the crime and there were “inconsistencies 

in [his] testimony.” Id. at 559–60. Here, Carson admitted to shooting both men

but claimed he acted in self-defense after the passenger shot at Carson and the 

driver reached for a gun. He asserts that the gun he used belonged to the men

and there were a total of three guns in the Honda. However, law enforcement 

found no guns in the Honda, law enforcement found the specific gun used to kill 

the men in a storm drain near Johnson’s apartment, and Johnson testified Carson 

had possession of the specific gun prior to the killings. Carson asserts he does 

not know how the Honda was moved from the Elben/Sutton residence to his exmother-in-law’s abandoned property. Johnson testified about picking up Elben and 

Carson from a house in the country after Sutton received a phone call from Elben. 
15

Bernard and Machelle Critz testified that Elben used their phone to call for a ride 

after claiming he and Carson had car trouble. Johnson also testified that after 

picking up the men, they went to Carson’s mother’s home where the two men 

showered, washed their hands and the gun with bleach, and put their clothes and 

shoes in a trash bag. Based on this evidence, the State’s case is strong. See id.

at 559–60. 

4. Use of Curative Measures

Carson asserts that the standard cautionary instruction was insufficient to 

provide curative measures and the district court failed to provide an adequate 

instruction. In Graves, no specific instruction was provided and the court 

suspected this was due to defense counsel’s lack of objection. Graves, 668 

N.W.2d at 878. Conversely, in this case, the district court specifically ruled on a 

special instruction after defense counsel made a request and stated “any 

instruction that would be given would unduly emphasize to the jury . . . or potentially 

call to the jury’s attention matters that they shouldn’t be considering, and . . . an 

instruction would do more harm than any good it could possible do.” We agree 

with the district court. 

5. Extent to Which Defense Invited the Error

Finally, Carson argues the defense did not invite the error because his 

counsel did not comment on his truthfulness. It is true the defense did not make 

any direct comment about Carson telling the truth, however, a central issue in this 

case was whether Carson’s version of events occurred. If a jury found his version 

of events plausible, then self-defense could justify the killings of Flores and Reyna. 

However, testimony from numerous witnesses contradicted Carson. While the 
16

defense did not specifically “invite” comments about Carson’s veracity, the 

contradicting testimony provided a fair inference of lying. See id. at 875. 

6. Conclusion

Even assuming the prosecutor’s comments constitute error, Carson has 

failed to demonstrate he was prejudiced by such error and should be awarded a 

new trial. As previously stated, the strength of the State’s case is typically 

considered the most important factor. See Carey, 709 N.W.2d at 560. The State 

had a strong case against Carson. In addition, the alleged errors were limited to 

the closing arguments and any potential prejudicial effect was mitigated by the 

district court’s instructions to the jury that closing arguments are not to be 

considered as evidence. See Plain, 898 N.W.2d at 821. We find the district court 

did not abuse its discretion by dismissing the motion for mistrial.

IV. Ineffective Assistance of Counsel

Carson alleges that his counsel was ineffective by failing to object to the 

prosecutor’s question about competency and the question about the termination 

of the police interview. “Even a lawyer is entitled to his day in court, especially 

when his professional reputation is impugned.” State v. Coil, 264 N.W.2d 293, 296

(Iowa 1978). Therefore, we preserve this issue for possible postconviction relief, 

“where a full evidentiary hearing may be had and where counsel will have an 

opportunity to respond to defendant’s charges.” Id.
17

V. Conclusion

We conclude the defendant was not prejudiced by the prosecutor’s 

comments. Additionally, we preserve the issue of ineffective assistance of counsel 

for possible postconviction relief. 

AFFIRMED. 

McDonald, J., concurs; Vaitheswaran, J., specially concurs.
18

VAITHESWARAN, Judge. (concurring specially)

I specially concur. “[W]hile a prosecutor is properly an advocate for the 

State within the bounds of the law, the prosecutor’s primary interest should be to 

see that justice is done, not to obtain a conviction.” State v. Graves, 668 N.W.2d 

860, 870 (Iowa 2003). “In addition, the prosecutor is not allowed to make 

inflammatory or prejudicial statements regarding a defendant in a criminal action.” 

Id. at 874 (citation and internal quotations omitted). Nor may a prosecutor “unfairly 

disparage the defendant in an effort to inflame the passions of the jury.” Id. at 875. 

I believe the State lost sight of these signature principles. 

I am particularly troubled by the State’s comment during rebuttal closing 

argument that “you can’t really always rely on somebody that murders another 

person to tell you the truth.” If it is improper to use the term “victim” during closing 

argument, as the Iowa Supreme Court found in State v. Plain, 898 N.W.2d 801, 

820 (Iowa 2017), then it must be improper to refer to a defendant as a murderer. 

And if it is “improper for a prosecutor to call the defendant a liar, to state the 

defendant is lying, or to make similar disparaging comments,” as the court found 

in Graves, 668 N.W.2d at 876, surely it must be improper to refer to a “murderer’s”

inability to tell the truth. 

True, the State tied some of the comments to the evidence. But the State 

did not “limit [the] argument to a discussion of whose testimony was most 

believable based on reasonable inferences from the evidence.” Instead, the State 

resorted “to inflammatory characterizations of the defendant’s testimony.” Graves, 

668 N.W.2d at 876. Consider the following statements: (1) “It’s not a defense if 

you make it up. Self-defense is there for those times that it is true, not for those 
19

times that you come in and make it up.”; (2) “[G]osh, that certainly makes his story 

to you about self-defense seem even more ridiculous . . . .”; (3) “[M]y standing here 

saying something no matter how outrageous it is, does not mean it is true . . . .”; 

(4) “He makes these outrageous claims, but they’re mostly designed to keep him 

from being held accountable . . . .”; and (5) “‘Well, they lied to me so I get to lie to 

them.’ Neener neener. Two dead bodies, but they lied to me so I get to lie to 

them.” Intentional or not, these statements, in my view, violated Graves.

That said, Carson’s claim requires a showing of prejudice. Id. at 877–80. I 

would conclude Carson’s credibility was critical to his self-defense theory, Carson 

did not invite the State’s comments impugning his credibility, the State’s 

commentary permeated its closing arguments, and the cautionary instructions 

“were only those routinely given in criminal trials.” Id. But, unlike Graves, the 

State’s evidence was exceptionally strong. Id. at 877. Given the strength of the 

evidence, I agree Carson was not entitled to a new trial.