IN THE COURT OF APPEALS OF IOWA

No. 19-1242

Filed August 4, 2021

CARLOSS ROBINSON,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Linn County, Lars Anderson, Judge.

Carloss Robinson appeals from the denial of his postconviction relief (PCR) 

application. AFFIRMED.

Webb L. Wassmer of Wassmer Law Office, PLC, Marion, for appellant.

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

General, for appellee State.

Heard by Doyle, P.J., and Mullins and May, JJ.
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DOYLE, Presiding Judge.

Carloss Robinson appeals from the denial of his postconviction relief (PCR) 

application. He argues the PCR court erred in rejecting his prosecutorial 

misconduct argument, erred in denying his ineffective-assistance-of-counsel claim 

about evidence of his praying during a police interrogation, and erred in denying 

his request for a DNA sample. We affirm the PCR court’s ruling.

I. Background Facts and Proceedings. 

A jury found Robinson guilty of first-degree murder in 2002. He was 

sentenced to life in prison. Robinson appealed. This court affirmed his conviction. 

State v. Robinson, No. 02-767, 2003 WL 21459681, at *10 (Iowa Ct. App. June 25, 

2003). In October 2003, Robinson filed a pro se PCR application, and he was 

appointed counsel. His lawsuit simmered on the court’s backburner for almost 

fourteen years before it came to trial in August 2017. In the interim, Robinson filed 

multiple and long pro se amendments to his application. A seemingly endless 

string of motions to continue were granted. The PCR court ruled in April 2019 that 

Robinson had no right to relief. After his post-trial motion was denied, Robinson 

appealed. The appeal was transferred to this court in April 2021. 

II. Scope of Review.

“We normally review postconviction proceedings for errors at law.” Castro 

v. State, 795 N.W.2d 789, 792 (Iowa 2011). But when there are ineffectiveassistance-of-counsel claims, our review is de novo. Id. 

III. Analysis.

Robinson raises three issues on appeal. First, he contends the prosecutor’s 

closing argument comments that Robinson’s trial testimony was “ludicrous,” 
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“ridiculous,” and “bogus” were improper and prejudicial. Second, he argues his 

trial counsel provided ineffective assistance in failing to object to State’s evidence 

regarding “prayer” by Robinson during his police interview. Third, he contends the 

PCR court misconstrued Iowa Code section 81.8(5) (2019) in denying Robinson’s 

request for a DNA sample. 

A. Prosecutor’s Closing Argument.

During closing arguments, the prosecutor characterized Robinson’s trial 

testimony as “ludicrous,” “ridiculous,” and “bogus.” Robinson argues those words 

“violated the requirements of State v. Graves, 668 N.W.2d 860 (Iowa 2003), which 

prohibits a prosecutor from calling a witness a liar or using similar language.” 

Robinson’s counsel did not object to the prosecutor’s comments during trial, nor 

was the issue raised on direct appeal. Robinson first raised the Graves issue in 

his amended PCR application, and also raised it as one of ineffective assistance 

of counsel. The PCR court addressed the merits of the prosecutorial misconduct 

issue and found there was misconduct but no resulting prejudice.

In determining there was prosecutorial misconduct, the PCR court stated:

Robinson’s PCR counsel cites to State v. Graves as setting 

forth the appropriate legal standard to determine whether there was 

prosecutorial misconduct and resulting prejudice. While Graves was 

decided after Robinson’s criminal trial, I have no problem applying 

Graves to Robinson’s case. In Graves, the court noted “just two 

years prior to the trial in this matter, this court held that comments 

similar to those made by the county attorney in this case were ‘clearly

improper.’” State v. Graves, 668 N.W.2d 860, 882 (Iowa 2003) (citing

State v. Rutledge 600 N.W.2d 324, 325 (Iowa 1999)).

In Graves the court stated that “[i]t is improper for a prosecutor 

to call the defendant a liar, to state the defendant is lying, or to make 

similar disparaging remarks.” Id. at 876. “Notwithstanding this 

prohibition, a prosecutor is still free ‘to craft an argument that 

includes reasonable inferences based on the evidence and . . . when 

a case turns on which of two conflicting stories is true, [to argue that] 
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certain testimony is not believable.’” Id. (quoting State v. Davis, 275 

Kan. 107, 61 P.3d 701, 710–11 (2003)). It is only misconduct “when 

the prosecutor seeks [to tarnish the defendant’s credibility] through 

unnecessary and overinflammatory means that go outside the record 

or threaten to improperly incite the passions of the jury. State v. 

Carey, 709 N.W.2d 547, 556 (Iowa 2006).” To determine whether 

the line between zealous advocacy and misconduct has been 

crossed, courts are to consider three factors:

(1) Could one legitimately infer from the 

evidence that the defendant lied? (2) Were the 

prosecutor’s statements that the defendant lied

conveyed to the jury as the prosecutor’s personal 

opinion of the defendant’s credibility, or was such 

argument related to specific evidence that tended to 

show the defendant had been untruthful? And (3) Was 

the argument made in a professional manner, or did it

unfairly disparage the defendant and tend to cause the 

jury to decide the case based on emotion rather than 

upon a dispassionate review of the evidence?

Graves, 668 N.W.2d at 874–75. Applying these factors to the 

objected to statements, I find that that line was crossed with the 

statements involving the words ludicrous, ridiculous, and bogus.

Robinson admitted that he lied to the police. Including his trial 

testimony, he gave three different versions about what happened. 

Some of the objected to statements by the prosecutor were 

permissible comments on Robinson’s credibility. The ludicrous, 

ridiculous, and bogus statements, however, were statements that 

were unduly disparaging and risked creating an emotional reaction.

They crossed the line.

 

The PCR court continued its analysis, weighing all the Graves prejudice 

factors together, and concluded Robinson did not establish that he was prejudiced 

by the statements at issue:

First, the conduct at issue was neither severe nor pervasive. 

The statements, while crossing the line, were made as part of an 

otherwise permissible argument. The prosecutor never used the 

word liar. The words used were inflammatory by a matter of degree. 

There are five statements in all that are at issue, all grouped closely 

together. In the context of a multi-day trial and 2000 plus page 

transcript, the statements are limited.

Second, the statements all relate to Robinson’s credibility. 

Clearly, that was an important issue at trial. However, Robinson’s 

credibility would have been at issue regardless of the statements. 
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The limited statements at issue were not themselves significant on 

the issue of credibility when compared to the record as whole.

Third, as for the strength of the State’s case, it can be said to 

be a middling case. As noted by the Court of Appeals in its decision 

on direct appeal, it was a circumstantial case. But, it was a solid 

circumstantial evidence, as summarized by the Court of Appeals in 

reviewing the sufficiency of the evidence and quoted previously. In 

short, the case against Robinson was not so strong that the

misconduct can essentially be overlooked, nor was it so weak that it 

mandates reversal.

Fourth, there were no cautionary instruction or curative 

measures taken as a direct result of the statements made by the 

prosecutor. However, the statements were made during closing 

arguments and the jury was instructed that the attorney’s statements 

and arguments were not evidence. This mitigates against any

prejudice resulting from the statements. See State v. Plain, 898 

N.W.2d 801, 821 (Iowa 2017) (“the district court instructed jurors that 

‘[the] summations and closing arguments of counsel are not 

evidence,’ thus mitigating the term’s prejudicial effect.”).

Lastly, it cannot be said that Robinson invited the misconduct 

in this case. Again, his numerous contradictory statements did justify 

the prosecutor attacking his credibility. They did not allow for the 

manner in which it was done.

Weighing all the factors together then, I find that Robinson has 

not established that he was prejudiced by the statements at issue.

The court did not specifically address the attendant ineffective-assistanceof-counsel claim:

In the final sections of his brief, Robinson first clams ineffective 

assistance of trial and/or appellate counsel with respect to the 

alleged thirty significant trial errors discussed above [which included 

the prosecutorial closing argument error/misconduct issue]. As 

those have already been addressed, I will not again address them.

But the PCR court denied Robinson’s entire application, so it is implicit in its ruling 

that it denied the ineffective-assistance-of-counsel claim. Robinson moved to 

amend or enlarge the court’s findings. He addressed the merits of the Graves

claim but mentioned nothing about the attendant ineffective-assistance claim. The 

PCR court denied the motion. 
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On appeal, Robinson argues the merits of his prosecutorial misconduct 

claim under a Graves analysis, but makes no argument under the rubric of an 

ineffective-assistance-of-counsel claim. He gives ineffective-assistance only 

passing reference by stating the PCR court found the comments improper, “which 

means that the [PCR] court found that defense counsel provided ineffective 

assistance of counsel in failing to object.” The PCR court made no such finding. 

In mentioning one of the Graves factors, curative measures, Robinson states, “[n]o 

curative action was taken as defense counsel breached a duty in failing to object.” 

See Graves, 668 N.W.2d at 869. In responding to the State’s error preservation 

argument, Robinson replies that because he did not raise a Graves violation claim 

on direct appeal, that “is why the claim is raised as one of ineffective assistance of 

counsel” on PCR.1 The ineffective-assistance-of-counsel issue was raised in his 

application and decided, even if only implicitly, by the PCR court. But Robinson 

does not make or flesh out an ineffective-assistance-of-counsel argument on 

appeal. Random mention of an issue, without elaboration or supportive authority,

is not enough to raise the issue for our review. EnviroGas, L.P. v. Cedar 

Rapids/Linn Cnty. Solid Waste Auth., 641 N.W.2d 776, 785 (Iowa 2002); Soo Line 

R.R. v. Iowa Dep’t of Transp., 521 N.W.2d 685, 689 (Iowa 1994) (stating court will 

 

1 Our supreme court has “long held [PCR] is not a means for relitigating claims that 

were or should have been properly presented on direct appeal.” Osborn v. State, 

573 N.W.2d 917, 921 (Iowa 1998) (citations omitted). See also Iowa Code § 822.8 

(2003); Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001) (“Generally, a claim 

not raised on direct appeal cannot be raised in a postconviction relief proceeding 

unless the applicant can demonstrate a sufficient cause or reason for not properly 

raising the issue previously.” (citing Iowa Code § 822.8)). And Robinson makes 

no such argument here. Thus, his only option was to raise the issue under an 

ineffective-assistance framework.
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not consider issues about which an appellant cites no authority nor offers any 

substantive argument). So we need not consider Robinson’s ineffectiveassistance of-counsel claim about his counsel’s failure to object to the prosecutor’s 

closing argument comments. 

But even if we chose to bypass this serious preservation-of-error problem, 

see State v. Taylor, 596 N.W.2d 55.56 (Iowa 1999), we would find no ineffective 

assistance on trial counsel’s part for failing to object. Assuming without deciding 

the PCR court's Graves analysis and conclusion that the prosecutor engaged in 

misconduct was correct, Robinson was not prejudiced thereby. The prosecutor’s 

remarks did not deprive Robinson of a fair trial. With no Graves prejudice, there 

is no foundation on which to build an ineffective-assistance-of-counsel claim for 

failure to object to the prosecutor’s comments. Put another way, because 

Robinson did not establish a due process violation based on prosecutorial 

misconduct, his trial counsel had no duty to make an objection to the prosecutor’s 

comments. See State v. Braggs, 784 N.W.2d 31, 35 (Iowa 2010) (Counsel has no

duty to make an objection or raise an issue that has no merit”). Thus, Robinson’s

ineffective-assistance-of-counsel claim must fail.

B. Prayer.

Robinson argues that his trial counsel provided ineffective assistance of 

counsel in failing to object to evidence that he prayed during his police 

interrogation. To prevail on a claim of ineffective assistance of counsel, Robinson 

must prove both that (1) his counsel failed to perform an essential duty and (2) he 

suffered prejudice as a result of his counsel’s failure. See Strickland v. 

Washington, 466 U.S. 668, 687 (1984); Dempsey v. State, 860 N.W.2d 860, 868 
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(Iowa 2015). “We can resolve ineffective-assistance-of-counsel claims under 

either prong of the analysis.” State v. Ambrose, 861 N.W.2d 550, 556 (Iowa 2015). 

At the criminal trial a police officer testified that when he was outside the 

interrogation room during a break he observed Robinson praying. He asked 

Robinson if he was praying and he said he had been. On cross-examination, 

Robinson denied praying and denied telling the officer he was praying. During his 

closing argument, the prosecutor mentioned that Robinson came up with a new 

version of his story “after he had been interrogated over three hours, three hours 

during which he had certainly some time to do some real soul searching, some 

time for prayer, over three hours of serious contemplation.” Robinson’s counsel 

did not object to the “prayer” testimony or the prosecutor’s comment. Robinson 

claims the evidence was not admissible under Iowa Rule of Evidence 5.404(b) and 

lacked probative value. With no real elaboration, Robinson also claims the 

prosecutor’s comment was improper. 

The PCR court found there was no error in not objecting to the evidence of 

prayer because the evidence was admissible under rule 5.404(b) as it was 

probative of Robinson’s awareness of guilt. We agree the evidence was 

admissible, but part ways with the PCR court’s holding that the evidence of prayer 

was of awareness of guilt. Here, there is no evidence on what Robinson was 

praying about. An inference of guilt should not and cannot be made by the mere 

act of praying. There are a myriad of speculative reasons Robinson may have 

been praying. And here, there are no additional facts on which to infer guilt by the 

act of praying. 
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Rule 5.404(b) excludes evidence of other crimes not on grounds 

of relevance but “based on the premise that a jury will tend to give other crimes, 

wrongs, or acts evidence excessive weight and the belief that a jury should not 

convict a person based on his or her previous misdeeds.” State v. Nelson, 791 

N.W.2d 414, 425 (Iowa 2010). But the rule expressly permits evidence of other 

crimes, wrongs, or acts for “proof of motive, opportunity, intent, preparation, plan, 

knowledge, identity, absence of mistake, or lack of accident.” Iowa R. Evid. 

5.404(b)(2).

A court may admit evidence of other crimes, wrongs, or acts if there is a 

non-character theory of relevance and the evidence is material to a legitimate 

issue other than the defendant’s general criminal disposition. Nelson, 791 N.W.2d 

at 425. Even if there is a non-character theory of relevance, “the probative value 

of the evidence [must] not [be] substantially outweighed by the danger of unfair 

prejudice to the defendant.” State v. Cox, 781 N.W.2d 757, 761 (Iowa 2010).

In general, relevant evidence is admissible and irrelevant evidence is not 

admissible. See Iowa R. Evid. 5.402. Relevant evidence is evidence “having any 

tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be without 

the evidence.” Iowa R. Evid. 5.401. Even when evidence is relevant, it “may be 

excluded if its probative value is substantially outweighed by the danger of unfair 

prejudice.” Iowa R. Evid. 5.403, State v. Taylor, 689 N.W.2d 116, 123 (Iowa 2004). 

The general test of relevancy is “whether a reasonable person might believe the 

probability of the truth of the consequential fact to be different if the person knew 

of the proffered evidence.” State v. Putman, 848 N.W.2d 1, 9 (Iowa 2014).
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Evidence of Robinson’s praying was just part of a chain of events and 

relevant to explaining the context, background, or circumstances surrounding the 

interrogation. Its probative value is not substantially outweighed by the danger of 

unfair prejudice. There was plenty of evidence establishing Robinson’s guilt. And 

as the State points out in its brief, the officer’s “brief testimony and Robinson’s 

refutation were negligible when considered against the backdrop of Robinson’s 

trial.” So even if Robinson’s trial counsel breached an essential duty in not 

objecting to the testimony, we find no resulting Strickland prejudice. Thus,

Robinson's ineffective-assistance-of-counsel claim must fail. 

C. Access to DNA record.

Robinson moved the PCR court to order the Iowa Department of Public 

safety to provide the DNA profile of an individual (individual “A”), a felon on 

probation whose probation terms required him to furnish a DNA sample to the 

Department of Corrections. Robinson states there was evidence presented at the 

murder trial of DNA obtained from the victim. A vaginal swab showed the presence 

of Robinson’s DNA and that of the victim. There was also the presence of DNA 

from a “minor contributor” who was not identified. According to Robinson, the 

evidence suggested the victim had sex with the unidentified person (along with 

Robinson) within a few days of the murder. Robinson alleges individual “A” was 

likely the “minor contributor” of DNA found on the murder victim. Robinson wanted 

to compare individual “A’s” DNA profile with the “minor contributor” DNA. Testing 

would enable Robinson to rule in or out individual “A” as the “minor contributor.” If 

not ruled out, Robinson suggests an investigation should continue to determine 

whether individual “A” had a role in the murder.
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After a hearing on Robinson’s motion, the court held that Iowa Code 

section 81.8 provides for a default of confidentiality of DNA records, with certain 

limited exceptions—those exceptions applying to pending criminal cases. The 

court reasoned that since a PCR action is a civil action, the section 81.8 exceptions 

did not apply. The court denied Robinson’s motion. 

DNA records are considered confidential “and disclosure of a DNA record 

is only authorized pursuant to this section.” Iowa Code § 81.8(1). Applicable 

exceptions are:

4. A DNA record or other forensic information developed 

pursuant to this chapter may be released for use in a criminal or 

juvenile delinquency proceeding in which the state is a party and 

where the DNA record or forensic information is relevant and material 

to the subject of the proceeding. Such a record or information may 

become part of a public transcript or other public recording of such a 

proceeding.

5. A DNA record or other forensic information may be released 

pursuant to a court order for criminal defense purposes to a 

defendant, who shall have access to DNA samples and DNA profiles 

related to the case in which the defendant is charged.

Iowa Code § 81.8 (4)-(5).

Robinson agrees the section 81.8(4) exception is limited to criminal or 

juvenile delinquency proceedings. Since a PCR action is a civil action, see Jones 

v. State, 545 N.W.2d 313, 314 (Iowa 1996), the section 81.8(4) exception does not 

apply. But Robinson argues the section 81.8(5) exception must have a broader 

applicability than a “criminal or juvenile delinquency proceeding” as stated in 

section 81.8(4). We disagree. The section 81.8(5) exception is limited to allowing 

the release of DNA information for criminal defense purposes to a defendant. 

Robinson is not a defendant in this proceeding. He is a PCR applicant in a civil 

proceeding. If the legislature had intended to make section 81.8(5) available in
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PCR cases it would have said so. It did not. We cannot rewrite the statute and 

allow access in civil cases to DNA records under Iowa Code section 81.8(5). The 

PCR court committed no error in denying Robinson’s motion.

Lastly, Robinson claims his PCR counsel was ineffective for failing to obtain 

a DNA sample directly from the suspected individual. The record is insufficient 

about this claim at this time and we will not decide whether PCR counsel was 

ineffective in failing to obtain a DNA sample directly from the suspected individual.

D. Pro se supplemental brief.

Because he is represented by counsel, we cannot consider Robinson’s pro 

se supplemental brief. Iowa Code § 822.3A (Supp. 2019); see also Hrbek v. State, 

958 N.W.2d 799, 781-84 (Iowa 2021).

IV. Conclusion.

Robinson’s ineffective-assistance-of-counsel arguments lack merit. The 

PCR court properly denied Robinson’s request for a DNA sample. Thus, we affirm 

the denial of Robinson’s PCR application.

AFFIRMED.