Opinion
No. 2-361 / 01-1333.
Filed December 11, 2002.
Appeal from the Iowa District Court for Davis County, DANIEL P. WILSON, Judge.
James Lee Jessop appeals from the trial court's denial of his application for postconviction relief following his conviction for sexual abuse in the third degree. AFFIRMED.
Rose Anne Mefford of Albers Mefford, L.L.P., Albia, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and Rick Lynch, County Attorney, for appellee.
Considered by VOGEL, P.J., and MILLER and VAITHESWARAN, JJ.
James Lee Jessop appeals from the trial court's denial of his application for postconviction relief following his conviction for sexual abuse in the third degree. He contends the court erred in finding his trial counsel was not constitutionally ineffective for failing to conduct a thorough investigation and make proper objections during the course of trial. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
James Lee Jessop was charged with sexual abuse in the third degree on May 1, 1998. The charge was based on an alleged incident of sexual abuse against his stepdaughter H.S. on April 20, 1997. Jury trial on the matter commenced July 6, 1998. H.S. testified at trial that while she was doing chores on the family farm Jessop pushed her down into the hay in the barn, got on top of her, and put his hand down her pants underneath her underwear. Jessop's other hand was squeezing H.S.'s breast under her bra. H.S. screamed but Jessop persisted until her mother called her for supper. He then let her up and she ran to the house. The incident lasted approximately ten to fifteen minutes.
H.S. wrote in her journal about this incident the day it occurred but she did not tell her mother or any other adult about the incident. However, her aunt, C.D., later read the journal entry and confronted H.S. about the incident. Initially H.S. stated the entry was not true but later told C.D. that in fact it was true.
The jury found Jessop guilty as charged. After denying Jessop's motion for new trial the court sentenced him to a term of imprisonment not to exceed ten years. Jessop appealed from his conviction and the conviction was affirmed by the Iowa Court of Appeals on December 27, 1999. State v. Jessop, No. 98-1547 (Iowa Ct.App. Dec. 27, 1999). His claims of ineffective assistance were preserved for possible postconviction relief proceedings. Id. Jessop filed a postconviction relief (PCR) application on July 28, 2000 requesting a new trial based on several claims of ineffective assistance of trial counsel. The district court held a hearing on the application and subsequently denied Jessop's PCR application. It found Jessop had failed to carry his burden to prove counsel breached an essential duty or that prejudice resulted therefrom. Jessop appeals the denial of his PCR application, alleging the district court erred in failing to find his trial counsel was ineffective on several different grounds.
II. STANDARD OF REVIEW.
We typically review postconviction relief proceedings on error. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001); Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). However, when the applicant asserts claims of a constitutional nature, such as ineffective assistance of counsel, our review is de novo. Ledezma, 626 N.W.2d at 141.
III. MERITS.
A defendant is entitled to the assistance of counsel under the Sixth Amendment to the United States Constitution and article 1, section 10 of the Iowa Constitution. The right to counsel is the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984). To establish ineffective assistance of counsel the defendant must show "(1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom." Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). A reviewing court may look to either prong to dispose of an ineffective assistance claim. Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984). The defendant has the burden of proving by a preponderance of the evidence both of the two elements of an ineffective assistance claim. Ledezma, 626 N.W.2d at 145; State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996). We may affirm on appeal if either element is lacking. State v. Terry, 544 N.W.2d 449, 453 (Iowa 1996).
We need not decide whether counsel's performance is deficient before examining the prejudice component. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). In order to prove prejudice the defendant must show a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2069, 80 L.Ed.2d at 698. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
"Improvident trial strategy, miscalculated tactics, mistake, carelessness or inexperience do not necessarily amount to ineffective counsel." State v. Aldape, 307 N.W.2d 32, 42 (Iowa 1981) (quoting Parsons v. Brewer, 202 N.W.2d 49, 54 (Iowa 1972)). A defendant is not entitled to perfect representation, but rather only that which is within the range of normal competency. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000); Cuevas v. State, 415 N.W.2d 630, 632 (Iowa 1987). To warrant a finding of ineffective assistance of counsel, the circumstances must include an affirmative factual basis demonstrating counsel's inadequacy of representation. Aldape, 307 N.W.2d at 42.
Jessop alleges trial counsel was ineffective for failing to conduct a thorough investigation and to make proper objections. More specifically, he alleges his counsel was ineffective for failing to (1) investigate information and call a witness which would have shown a lack of credibility of State's witness C.D., (2) call exculpatory witnesses Summer Green and Mike Perry, (3) object to certain portions of Sheriff Harsch's testimony, (4) object to certain portions of a note written by the victim (State's Exhibit 1) as hearsay within hearsay, irrelevant, and prejudicial, (5) object to various other testimony as improper allegations of prior bad acts, the cumulative affect of which caused him prejudice, and (6) object to jury instruction No. 13, which limited the purpose for which the jury could consider the evidence of Jessop's alleged prior sex acts with H.S. We address these issues separately.
A. C.D.
Jessop contends his counsel breached his essential duty of investigation by failing to obtain certain information that demonstrated a lack of credibility of the State's witness, C.D., H.S.'s aunt. C.D. testified at Jessop's criminal trial regarding H.S.'s journal entry of the incident in the barn as well as to having observed an "inappropriate kiss" between H.S. and Jessop. Jessop alleges he requested his counsel obtain the records from a different, earlier criminal proceeding in which C.D., under oath, allegedly denied knowledge of any written or verbal allegations of sexual abuse of H.S. by Jessop. He also claims he requested his counsel contact Mark Williams, a child protective investigator, to whom he believed C.D. also denied any knowledge of allegations of sexual abuse of the victim by Jessop. Jessop contends his counsel's failure to properly investigate this information and contact these potential witnesses was a breach of an essential duty which was prejudicial to him because counsel failed to impeach C.D.
Trial counsel testified at the PCR hearing that he did attempt to obtain the records of the other, earlier criminal proceeding from the county courthouse but he assumed he had not received anything from the magistrate clerk's office because there was nothing in his file. Counsel could not recall any information regarding Williams, however he conceded that if his case file did not refer to Williams it was fair to say he did not contact him.
We find no competent proof in the record before us of C.D.'s allegedly impeaching statements, whether made during the other, earlier criminal proceeding or to Williams. Only allegations that C.D. had made such statements came into the PCR record, and only through the questions asked by PCR counsel, questions which assume facts not in evidence. Although Jessop alleges his appellate attorney was able to obtain the magistrate's notes relating to statements made by C.D. at the earlier criminal proceeding no such notes were offered into evidence at the PCR trial. Furthermore, neither C.D., Williams, or appellate counsel testified at the PCR hearing regarding C.D.'s alleged impeaching statements. Innuendo or intimation in questions is not substantial evidence of facts and is not competent proof of breach of an essential duty or resulting prejudice.
It is Jessop's burden to prove both that counsel breached an essential duty and that he was prejudiced by that breach. Ledezma, 626 N.W.2d at 145. Assuming without deciding that trial counsel did breach an essential duty in failing to further investigate to determine if the allegedly impeaching evidence in fact existed, we find the record lacking in any substantial evidence of what would have been discovered or what the witnesses' testimony would have been had there been no breach. Jessop has thus failed to prove that but for counsel's breach the outcome of the trial would probably have been different. This claim of ineffective assistance fails on the prejudice prong.
B. Alleged Exculpatory Witnesses.
Jessop next claims his counsel was ineffective for failing to timely subpoena witnesses Summer Green and Mike Perry, who he asserts would have provided exculpatory testimony. Green did not testify at Jessop's criminal trial but she did testify at the PCR hearing. Green stated that she made a statement to Sheriff Harsch that H.S. had told her Jessop had sexual intercourse with her against her will and that he made her perform oral sex on him against her will.
Trial counsel did subpoena Summer Green but only the day before he intended to call her as a witness.
Jessop's argument, however, relates only to Green and how her testimony might have been helpful. He makes no argument as to Perry, what his testimony might have been, or how it might have been helpful. Accordingly, we deem any issue with regard to Perry to have been waived. Iowa R.App.P. 6.14(1)(c).
Green's testimony is inconsistent with H.S.'s testimony regarding the extent of the abuse by Jessop in that H.S.'s testimony only related several incidents similar to the incident in the barn, incidents in which Jessop would lay on top of her and touch her vagina and breasts underneath her clothing. H.S. did not testify that Jessop had intercourse with her or had her perform oral sex on him. Greene's testimony thus would have been impeaching, but not exculpatory as asserted by Jessop on appeal. Green would not have testified that Jessop did not sexually abuse H.S. Her testimony would have shown only that H.S.'s stories were inconsistent with regard to the extent of the abuse.
The district court found,
trial counsel should have made a better effort to subpoena and bring into court potentially exculpatory witnesses Summer Green and Mike Perry. However, the testimony that might have been elicited from witnesses Green and Perry was otherwise brought out in the trial record of this case. Jessop has failed to show that he was prejudiced by his trial counsel's failure to have Green and Perry in court and testify at trial.
We agree with the trial court on this issue with regard to Green. Assuming without deciding that trial counsel did breach an essential duty in failing to timely subpoena Green, we cannot find this breach to have prejudiced Jessop. Any testimony given by Green would at best have shown H.S.'s descriptions of Jessop's sex acts toward her were inconsistent. Jessop's counsel elicited similar evidence of inconsistencies in H.S.'s versions of what happened on the cross-examination of at least two other witnesses and H.S. herself. Thus, Green's impeachment testimony would merely have been cumulative. Failure to call a witness who would have offered only cumulative evidence is not ordinarily sufficiently prejudicial to support a finding of ineffective assistance. Taylor, 352 N.W.2d at 687; Schrier v. State, 347 N.W.2d 657, 664 (Iowa 1984). We find the absence of Green's testimony was not prejudicial to Jessop as it was merely cumulative and thus this allegation of ineffective assistance must also fail.
C. Sheriff Harsch.
During the State's case-in-chief the State called Sheriff Harsch. During his testimony he referred to the observations of St. Luke's Child Protection Center and the conclusions of its report following the examination of H.S. as being "founded." Jessop argues his counsel was ineffective for failing to object to Harsch's testimony that the report was "founded" because this allowed the jury to assume at least one previous fact finder had concluded Jessop was guilty. At the PCR hearing defense counsel testified that although he could not speak specifically to that one statement by Sheriff Harsch, during trial he considered all reasonable objections and their possible impact on the jury. He testified that at times he did not make possible objections so as not to annoy the jury or draw attention to matters that would not be noticed otherwise.
It is clear from the transcript of the exchange between Harsch and the prosecutor that Harsch's answer contained unsolicited information that was not responsive to the State's question. Once Harsch volunteered the information the prosecutor quickly cut him off in mid-sentence and moved on to a different line of questioning. Further, nothing in the record explains what St. Luke's "observations" or the report's "conclusions" being "founded" means.
As set forth above, "Improvident trial strategy, miscalculated tactics, mistake, carelessness or inexperience do not necessarily amount to ineffective counsel." Aldape, 307 N.W.2d at 42. A defendant is not entitled to perfect representation, but rather only that which is within the range of normal competency. Artzer, 609 N.W.2d at 531. A reasonable decision by counsel concerning strategy will not be interfered with simply because the chosen strategy was unsuccessful. State v. Losee, 354 N.W.2d 239, 243 (Iowa 1984). Where counsel's decisions are made pursuant to reasonable trial strategy we will not find ineffective assistance of counsel. State v. Johnson, 604 N.W.2d 669, 673 (Iowa Ct.App. 1999).
We conclude defense counsel's failure to object was made pursuant to a reasonable trial strategy, not wanting to draw undue attention or emphasis to the sheriff's unresponsive, unsolicited, unexplained, and truncated answer. Whether this strategy was a good or bad, it was a tactic that is not so unreasonable that it shows ineffectiveness. Losee, 354 N.W.2d at 244; Frank v. State, 376 N.W.2d 637, 641 (Iowa Ct.App. 1985). In evaluating counsel's performance, we presume counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695; Losee, 354 N.W.2d at 244. Jessop has failed to overcome the strong presumption of counsel's competence necessary to show breach of an essential duty concerning this testimony.
Jessop also briefly asserts defense counsel should have objected on hearsay grounds to Harsch's testimony regarding a note allegedly written by H.S. in her journal (State's Exhibit 1) on the day of the incident that led to the charge against Jessop, and should not have initiated testimony from Harsch regarding his comparison of H.S.'s handwriting to the note without first qualifying him as a handwriting expert. On cross-examination Harsch stated he had secured a handwriting sample from H.S. and her handwriting in the sample was consistent with the writing in the note.
State's Exhibit 1 was admitted in evidence and H.S. was questioned about it on both direct examination and cross-examination. Jessop does not claim, and the record does not show, that anything in Harsch's testimony about the substance of the note goes beyond the contents of the note and H.S.'s testimony concerning its contents. Furthermore, Harsch's testimony concerning the handwriting comparison was merely cumulative to H.S.'s own testimony that she had written the note, State's Exhibit 1. Because all of Harsch's testimony concerning the note and handwriting comparison was merely cumulative of other evidence in the record, Jessop was not prejudiced by Harsch's testimony, see Taylor, 352 N.W.2d at 687, unless defense counsel was ineffective in failing to properly object to admission of the note or a portion of it, a claim to which we next turn.
D. State's Exhibit 1.
Jessop next alleges defense counsel breached an essential duty in failing to object to the admission of a portion of State's Exhibit 1 on the grounds it was hearsay within hearsay, irrelevant, and prejudicial. State's Exhibit 1 is a note allegedly written by H.S. discussing how she hated Jessop, referring to the incident in the barn as well as other instances of his sex acts toward her, and stating that Jessop "does things to Joanna to[o] probably" and "probably touched her someplaces where she doesn't like." Jessop complains specifically about the portion of the note speculating that he might have abused Joanna, and argues that counsel should have requested that this "irrelevant and inflammatory" portion of the note be kept from the jury and a redacted version be given to the jury.
Counsel did object to the offer of the note as a whole as hearsay. Following H.S.'s testimony the court overruled the objection and admitted State's Exhibit 1.
Joanna is C.D.'s daughter who was five years old at the time.
H.S.'s note not only states she hates Jessop because of his alleged abuse, but also asserts as another reason his opposition to her having a boyfriend. In addition, her note's version of how and where Jessop touched her during the barn incident varies substantially from the description she gave in her testimony at trial. Further yet, the complained of portion of the note does not assert as fact that Jessop abused Joanna, that H.S. had observed such an event, or that anyone had ever told H.S. that such abuse had occurred. Rather, H.S.'s note merely contains a wholly unsupported suspicion and accusation that such abuse may have occurred, arguably suggesting H.S. was inclined to engage in innuendo and unsupported accusations in order to attack Jessop.
Defense counsel apparently had mixed feelings about admission of the note, and after initially objecting to its admission decided he wanted it admitted and could use it to good advantage. Counsel testified at the PCR hearing that in his opinion the case was a "he said, she said" case, he intended to focus on reasonable doubt by attacking H.S.'s credibility, and he intended to do so by bringing out the differences between H.S.'s several differing versions of the facts. He testified that in his opinion the note showed yet another story by H.S., different from other versions she had given. He testified he believed the note showed H.S.'s motivation to lie and that her motivation was to get Jessop kicked out of the house. He testified his decision to not further object to the note was a tactical decision, as by the time H.S. had testified he knew he could impeach her at trial. Defense counsel did secure H.S.'s admission, on cross-examination, that the note was not the complete truth and she had no explanation as to why it was not more accurate.
Jessop is not entitled to perfect representation, only that within the normal range of competency. Artzer, 609 N.W.2d at 531. H.S.'s note can quite reasonably be viewed as containing matters supporting defense counsel's approach to the case. We conclude Jessop has not shown that defense counsel's strategy was unreasonable or that the tactic of not further objecting to the note was unreasonable. We will not find ineffective assistance of counsel where counsel has made a reasonable decision concerning trial strategy or tactics, even if such judgments fail to achieve the desired result. See Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989); State v. Wilkins, 346 N.W.2d 16, 18 (Iowa 1984).
E. Other Bad Acts Testimony
Jessop briefly complains about certain additional items of testimony, alleging their admission violated Iowa Rules of Evidence 6.401, 5.402, and 5.403. He contends that any one of the "bad acts" alleged in the testimony would have caused him prejudice and therefore the cumulative effect certainly did so.
On direct appeal we found H.S.'s brief testimony about both a "two minute kiss" and Jessop's abusive relationship with and treatment of H.S.'s mother to be admissible evidence. See State v. Jessop, No. 98-1547 (Iowa Ct.App. Dec. 27, 1999). Counsel is not ineffective for failing to pursue meritless issues, State v. Hochmuth, 585 N.W.2d 234, 238 (Iowa 1998), or in failing to make questionable objections. State v. Atwood, 342 N.W.2d 474, 477 (Iowa 1984). Postconviction relief proceedings are not a means for litigating issues that have already been properly presented and decided by a court. Iowa Code § 822.8 (2001); Osborn, 573 N.W.2d at 921. As this court already determined on direct appeal that this evidence was admissible, counsel had no duty to object to it at trial and was not ineffective for failing to do so.
Jessop also alleges Dr. Opdebeek's testimony that H.S. told her Jessop had a drinking problem was inadmissible bad acts testimony and should have been objected to by defense counsel. Dr. Opdebeek is the developmental pediatrician at St. Luke's hospital who examined H.S. for possible sexual abuse. She testified it is her general practice, as part of a regular examination for sexual abuse, to take both a family history and a medical history from each patient. Opdebeek testified that as part of H.S.'s medical and family history H.S. stated to her that H.S.'s stepfather (Jessop) had some drinking problems.
The evidence shows that H.S.'s family and medical history was pertinent to Dr. Opdebeek's diagnosis and treatment of H.S. H.S.'s statement that Jessop had a drinking problem was part of that history and can thus reasonably be viewed as a statement made for purposes of medical diagnosis or treatment and thus admissible under the hearsay exception contained in Iowa Rule of Evidence 5.803(4). Further, the potential impact of this evidence pales in comparison to other "bad acts" evidence that was properly admitted, evidence of other sexual acts by Jessop towards H.S. and evidence of Jessop's abuse of H.S.'s mother. There is thus no reasonable probability that exclusion of the statement would have led to a different result. We conclude Jessop has not shown either that counsel breached an essential duty by not objecting to the statement's admission or that he was prejudiced by its admission.
F. Jury Instruction No. 13.
Finally, Jessop argues counsel should have objected to jury instruction No. 13. Instruction No. 13 was the limiting instruction concerning evidence that Jessop had perpetrated other acts of a sexual nature on H.S. Jessop alleges counsel should have objected that the evidence did not show the other acts were "close in time to the crime charged" and there was "no substantiation" that Jessop committed the acts. Instruction No. 13 states:
You have heard evidence that the defendant allegedly committed other acts with [H.S.] before April 20, 1997. If you decide the defendant committed these other acts, you may consider those acts only to determine whether the defendant has a sexual passion or desire for [H.S.]. You may not consider them as proving that the defendant actually committed the act charged in this case.
The instruction given is Iowa Criminal Jury Instruction 900.11 and uses language from prior Iowa Supreme Court opinions. See State v. Munz, 355 N.W.2d 576, 581 (Iowa 1984); State v. Spaulding; 313 N.W.2d 878, 880 (Iowa 1981). We are reluctant to disapprove of uniform jury instructions. State v. Beets, 528 N.W.2d 521, 523 (Iowa 1995). Jessop apparently is arguing that the instruction is objectionable because it does not require the jury to find that the other alleged acts occurred close in time. However, he cites no authority and makes no argument in support of this proposition. Accordingly, we deem this issue waived pursuant to Iowa Rule of Appellate Procedure 6.14(1)(c). However, we need not rest our determination of the issue solely on principles of waiver, as we also find the argument to be without merit.
If evidence is highly probative it may be admissible even though remote in time. State v. Spargo, 364 N.W.2d 203, 209 (Iowa 1985). The remoteness in time of any particular act with the same victim goes only to the weight of the evidence and not its admissibility. State v. Seevanhsa, 495 N.W.2d 354, 358 (Iowa Ct.App. 1992); State v. Tharp, 372 N.W.2d 280, 281 (Iowa Ct.App. 1985). Therefore, the jury is not required to find or believe that the prior acts occurred recently in time. The jury merely has to determine how much weight to give the testimony regarding the alleged acts. Jury instruction No. 13 is a correct statement of the law and thus counsel had no duty to object to it. Jessop's final claim of ineffective assistance must also fail.
IV. CONCLUSION.
Based on our de novo review of the record, we conclude Jessop was not prejudiced by his trial counsel's failure to conduct a thorough investigation or to make various objections during the course of the trial proceedings. Assuming without deciding one or more of Jessop's complained instances of ineffective assistance do demonstrate counsel breached an essential duty, we cannot find Jessop has proven that but for such breach there is a reasonable probability the outcome of the proceeding would have been different. We find Jessop was not denied his Sixth Amendment right to effective assistance of counsel. We have considered all grounds of ineffective assistance of counsel asserted on appeal, whether or not specifically discussed herein, and find them to be without merit. Accordingly, we affirm the district court's dismissal of Jessop's postconviction relief application.