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State v. Grey12/13/1999
, 65 (Iowa App. 1983); State v. Webb, 244 N.W.2d 332, 333 (Iowa 1976). Considering the totality of the conduct discussed above, we conclude this prosecutor stepped over the line between "zealous advocacy" and misconduct.
We next consider whether Grey was prejudiced by the prosecutor's misconduct. Prejudice ordinarily results from the persistent efforts to inject prejudicial matter before the jury. Escobedo, 573 N.W.2d at 277. Prejudice to both of the Greys has been shown here. Even after the court sustained an objection, the prosecutor persisted with her improper line of questioning. Several times the court had to instruct her to move on. The prejudicial effect of such misconduct can ordinarily be eliminated by an admonition from the trial court. State v. Williams, 315 N.W.2d 45, 56 (Iowa 1982). In this case, however, the trial court did not instruct the jury to disregard the behavior of the prosecutor. Even if it had, it is unlikely such instruction could have cured the misconduct in this case. Prosecutorial misconduct coupled with the resulting prejudice deprived Grey of a fair trial.
Grey raises the issue of prosecutorial misconduct as a claim of ineffective assistance of counsel because her trial counsel failed to preserve error on this issue by failing to request a mistrial. Because the misconduct of the prosecutor was pervasive, we hold defendant's trial counsel failed in an essential duty by not requesting a mistrial. Grey was prejudiced by this failure as she ultimately was denied a fair trial as a result of prosecutorial misconduct. Therefore, we reverse and remand this case for a new trial.
V. Other Claims.
Having granted Grey a new trial on the above stated grounds, we do not address the other issues presented to us on appeal.
REVERSED AND REMANDED.
Huitink, P.J., concurs; Mahan, J., specially concurs.
MAHAN, J. (concurring specially)
I concur specially. An attorney for the state is under a duty to ensure both the state and the defendant receive a fair trial. State v. Tate, 341 N.W.2d 63, 65 (Iowa App. 1983). I agree with the conclusion in this case that the prosecutor "stepped over the line, between 'zealous advocacy' and misconduct." The prosecutor used bad judgment in allowing personal animosity and overzealousness to overshadow her duties of professional responsibility. As a result, the right of the defendant to a fair trial was compromised.
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