Opinion
No. 1-621 / 00-1241.
Filed January 28, 2002.
Appeal from the Iowa District Court for Scott County, NANCY TABOR, Judge.
Christopher Coleman appeals from the denial of his application for postconviction relief. REVERSED AND REMANDED.
Kent A. Simmons, Davenport, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, and William E. Davis, County Attorney, for appellee.
Heard by MAHAN, P.J., and MILLER, and HECHT, JJ.
Christopher Coleman appeals from the denial of his application for postconviction relief. He contends the court erred in denying his application as trial counsel was ineffective in failing to(1) move to exclude details of his prior conviction; (2) move to sever his trial from that of his codefendant, Sean Terrell; (3) challenge testimony of an eyewitness pursuant to Bruton v. United States, 39 U.S. 123, 135-136, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476, 485 (1968), regarding statements made by Terrell that incriminated Coleman; (4) move for a marshalling instruction on the lesser-included offense of third-degree sexual abuse; and (5) raise equal protection and cruel and unusual punishment challenges to the mandatory minimum sentence imposed on his conviction for second-degree sexual abuse pursuant to Iowa Code sections 902.12 and 903A.2 (1997) (eighty-five percent rule). Coleman also contends his appellate counsel was ineffective in failing to raise the above issues on appeal and his postconviction counsel was ineffective in failing to adequately pursue issues 1, 3, 4, and 5. We reverse and remand.
I. Background Facts and Proceedings. In 1998 Christopher Coleman was convicted of second-degree sexual abuse, first-degree burglary, felon in possession of a firearm, and false imprisonment in violation of Iowa Code sections 709.3, 710.7, 713.3, and 724.26 (1997). The district court sentenced Coleman to twenty-five years on the sexual abuse charge, a consecutive indeterminate twenty-five years sentence on the burglary charge, a concurrent indeterminate sentence of five years on the firearm charge, and concurrent one-year sentence on the false-imprisonment charge.
Coleman filed an appeal from the judgment and sentence. After reviewing the record, his court-appointed appellate counsel filed a motion to withdraw pursuant to Iowa Rule of Appellate Procedure 104. A brief accompanied the motion that analyzed four potential issues for appeal, including claims that trial counsel was ineffective, and concluded they were without merit. Appellate counsel sent Coleman a copy of the motion and a letter informing him to raise any points in support of his appeal with the supreme court within thirty days if he disagreed with the motion. The letter also informed Coleman his appeal would be dismissed if he failed to contact the supreme court. Coleman did resist the motion to withdraw. Following a review of the motion, our supreme court dismissed the appeal as frivolous pursuant to rule 104.
In analyzing the potential issues on appeal, severance was not one of them.
Coleman subsequently filed an application for postconviction relief. He raised several claims, including his trial and appellate counsel were ineffective in several respects. Following a trial on the merits the district court denied Coleman's application for postconviction relief. Coleman appeals.
In his application for postconviction relief, Coleman asserted essentially three claims: (1) ineffective assistance of appellate counsel in failure to raise several viable claims; (2) ineffective assistance of trial counsel in (a) failing to move for severance of trial from codefendant, (b) admitting Coleman's guilt for the charge of felon in possession; and (c) failing to object to the sentencing under Iowa Code section 902.12; and (3) abuse of discretion by the district court by not granting a continuance in his trial.
II. Standard of Review. We ordinarily review postconviction relief proceedings on error. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). However, when the applicant asserts claims of a constitutional nature, our review is de novo. Id. Thus, we review claims of ineffective assistance of counsel de novo. Id. We also review ineffective assistance of postconviction counsel claims under a de novo standard of review as well. Osborn v. State, 578 N.W.2d 917, 920 (Iowa 1998). In addition, we give weight to the lower court's findings concerning witness credibility. Ledezma, 626 N.W.2d at 141.
III. Preservation of Applicant's Claims. The State argues that Coleman's appeal from the denial of postconviction relief presents error preservation and procedural difficulties. "[A]ny claim not properly raised on direct appeal may not be litigated in a postconviction relief action unless sufficient reason or cause is shown for not previously raising the claim, and actual prejudice resulted from the claim of error." Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). To prove prejudice, the applicant must show that the alleged error actually and substantially disadvantaged him. Ledezma, 626 N.W.2d at 141.
Our supreme court has stated ineffective assistance of appellate counsel or postconviction counsel may furnish sufficient reason for failure to raise an issue on direct appeal. Osborn, 573 N.W.2d at 921; Collins v. State, 588 N.W.2d 399, 402-03 (Iowa 1998). We judge ineffective assistance of appellate and postconviction counsel claims against the same two-pronged test utilized for ineffective assistance of trial counsel claims. Osborn, 573 N.W.2d at 922; Collins, 588 N.W.2d at 401-02. Before we can determine whether error has been preserved, we must analyze the merits of Coleman's ineffective assistance of counsel claims.
IV. Ineffective Assistance of Counsel.
A. Law Governing Ineffective of Assistance of Counsel. A defendant receives ineffective assistance of counsel when (1) the defense attorney fails in an essential duty and (2) prejudice results. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997). The defendant bears the burden of demonstrating both elements of ineffective assistance of counsel by a preponderance of the evidence. Ledezma, 626 N.W.2d at 142. An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997). The purpose of the effective assistance guarantee of the Sixth Amendment is " simply to ensure that criminal defendants receive a fair trial." Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140, 148 (1988) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694) (emphasis added). Defendants are entitled not only to counsel, but also to counsel that is "zealous and active." Powell v. Alabama, 287 U.S. 45, 58, 53 S.Ct. 55, 60, 77 L.Ed. 158, 165 (1932).
B. Coleman's Ineffective Assistance of Counsel Claims. We first consider the ineffective assistance claims against Coleman's trial counsel. If we find Coleman does not establish a sufficient ineffective assistance claim against his trial counsel, we need not address his ineffective assistance of appellate counsel or postconviction counsel claims.
1. Severance of Trial . The general rule is that defendants who are indicted together are tried together. Iowa R. Crim. P. 6(1), 10(2)(e); State v. Sauls, 356 N.W.2d 516, 517 (Iowa 1984). However, Iowa Rule of Criminal Procedure 6(4)(b) provides:
When an indictment or information jointly charges two or more defendants, those defendants may be tried jointly if in the discretion of the court a joint trial will not result in prejudice to one or more of the parties. Otherwise, defendants shall be tried separately. When jointly tried, defendants shall be adjudged separately on each count.
Iowa R. Civ. P. 6(4)(b). Under this rule, defendants may be jointly tried if in the discretion of the trial court a joint trial will not prejudice a defendant's right to a fair trial. State v. Brown, 597 N.W.2d 689, 695 (Iowa 1986).
Our supreme court has set forth the following factors to determine whether a severance of trial is warranted: (1) if evidence admissible in a joint trial would have been inadmissible and prejudicial if a defendant was tried alone; (2) if a joint trial prevents one defendant from presenting exculpatory testimony of a codefendant; (3) if consolidation will produce a trial of such complexity and length that the jury will be unable to effectively compartmentalize the evidence against each defendant; and (4) if defenses presented by different defendants conflict to the point of being irreconcilable and mutually exclusive. State v. Clark, 464 N.W.2d 861, 863-64 (Iowa 1991).
Relying on the fourth element listed in the Clark factors, Coleman contends his trial counsel was ineffective in failing to seek a severance of his case from that of his codefendant, Sean Terrell. Specifically, he argues his defense to the crimes charged was so antagonistic and conflicting to Terrell's defense that severance was mandated. We agree.
To prevail on this ground, defendants facing joint trial must show more than "the mere presence of conflict, antagonism, or hostility." State v. Snodgrass, 346 N.W.2d 472, 475 (Iowa 1984). Defendants must also show more than the attempt by one defendant to exculpate himself or herself by incriminating the other defendant. Brown, 597 N.W.2d at 696. To cause the type of prejudice that prevents codefendants from obtaining a fair trial, the defenses "must conflict to the point of being irreconcilable and mutually exclusive." Snodgrass, 346 N.W.2d at 475. "This level of conflict and antagonism is reached if the jury, in order to believe the core testimony offered on behalf of one defendant, must necessarily disbelieve the testimony offered on behalf of a codefendant." Clark, 464 N.W.2d at 864. "In other words, the defendants' guilt will have been derived not from the evidence presented but rather from the mere presence of irreconcilable and mutually exclusive defenses." Brown, 597 N.W.2d at 696. With these principles in mind, we turn to the contentions before us.
We find Coleman's defense and Terrell's defense were irreconcilable and mutually exclusive, which prevented the jury from making a reliable judgment about Coleman's guilt or innocence. The record is clear that Coleman's defense was that his entry into the victim's home was with consent, either express or implied, and that the kidnapping and sexual abuse did not occur. Terrell's defense to the burglary charge was identical to Coleman's, but Terrell did not deny the kidnapping and sexual abuse occurred. Instead, he argued Coleman was the perpetrator and his own involvement was coerced. Each defense theory contradicted the other in such a way that the acquittal of one necessitates conviction of the other. If the jury accepted Terrell's defense that Coleman coerced him to participate in these acts, it necessarily had to convict Coleman. The defenses were mutually exclusive because "the core of the codefendant's defense is so irreconcilable with the core of [Coleman's] own defense that the acceptance of the codefendant's theory by the jury precludes acquittal of the defendant." United States v. Throckmorton, 87 F.3d 1069, 1072 (9th Cir. 1996).
Having found the defenses were irreconcilable and mutually exclusive, we must now determine whether prejudice did in fact occur which would mandate severance. A defendant has the burden to establish that "separate trials are necessary to avoid prejudice that would deny him a fair trial." Clark, 464 N.W.2d at 863. In meeting this burden, our supreme court has repeatedly stated "a defendant must show more than the attempt by one defendant to exculpate himself or herself by incriminating the other defendant." Id. A defendant must show that he was unfairly prejudiced by the joint trial. Id. The Ninth Circuit has described how mutually exclusive defenses can have a prejudicial effect upon the jury and the defendants:
Defendants who accuse each other bring the effect of a second prosecutor into the case with respect to their codefendant. . . . Cross examination of the government's witnesses becomes an opportunity to emphasize the exclusive guilt of the other defendant. . . . Closing arguments allow a final opening for codefendant's counsel to portray the other defendant as the sole perpetrator of the crime. . . . Each point the government makes about a given defendant is echoed and reinforced by the codefendant's counsel.United States v. Tootick, 952 F.2d 1078, 1082 (9th Cir. 1991).
The situation envisioned by Tootick is precisely what happened in the present case. The record discloses several prejudicial incidents, which exemplifies that Coleman's defense and Terrell's defense were irreconcilable and mutually exclusive. Terrell's counsel used every opportunity to prove Coleman was the guilty party in order to support his client's compulsion defense. At the outset of the trial, Terrell's counsel commented in the opening statement:
Coleman's attorney waived opening statement.
[A[t that point, Mr. Coleman pulled out a gun, the first time anyone knew he had a gun or had seen anything of this gun.
He had the gun, and he's waiving it around in the living room where Mr. Joyce was and the children and number of other people. As this point most of the people in the house ran. They ran through various doors and got out of the house, including Terrell.
. . . .
Ms. Clark apparently ran around the house and ended up in the back yard, which is also where Mr. Coleman ended up. Mr. Coleman had the gun and grabbed ahold of Ms. Clark and had the gun and was threatening her with the gun.
Mr. Terrell, from the testimony of Ms. Clark, went up and told Mr. Coleman to let her go. She, in fact, tried to pull away and run away but didn't get far and lost a shoe. Mr. Terrell picked up her shoe and brought her shoe back to her and tried to persuade Mr. Coleman to let her go.
. . . .
At some point during this ordeal Ms. Clark, Mr. Coleman, and Mr. Terrell, according to the testimony of Ms. Clark, went behind a house and at that time Mr. Coleman, who had the gun, threatened Ms. Clark and told her that she had to perform oral sex on Mr. Terrell.
She said she didn't want to, and Mr. Coleman told her that if she didn't do it, she was going to get hit over the head or shot in the head and, in fact, was forced to perform oral sex on Mr. Terrell, according to her testimony. And she will be, of course, describing that when she testifies.
In addition, Terrell's counsel throughout the trial elicited facts and evidence to incriminate Coleman. In closing argument, Coleman and Terrell again maintained mutually exclusive positions. Terrell's counsel continued to argue Coleman was the perpetrator and his client's own involvement was coerced. Most notably, Terrell's counsel argued that if Terrell did not go along with Coleman's directives, Coleman would have shot both Clark and Terrell:
Chris threatened her, threatened to shoot her or hit her over the head with a gun.
You've seen the gun, seen the bullets, seen the fingerprint. You've seen that from the position of the fingerprint where the trigger finger very likely was. You've seen there was a bullet in there ready to be fired and more in the slip. It wasn't just one bullet in there.
So Leah says she agrees to perform oral sex on Sean to save her life. That's what she said happened.
. . . .
Now [Sean's] under the same legal obligation as an adult. Don't get me wrong. But he's still allowed to make reasonable decisions under the circumstances to do what he thinks is gonna help somebody out. And it's not just at the risk of Leah Clark's life. Don't kid yourself. If he doesn't do what Coleman says, as I said, there is more than one bullet in that gun.
Well, I'd just like to close with one more comment. A lot of case in murder cases [sic] — Mr. Davis has tried a number of murder cases, and good prosecutors like Mr. Davis all around the country when they are trying murder cases, what they like to do is have a picture of the victim on their table.
The reason they do that, of course, is because in a murder case the victim can't come in here and sit on this chair and tell the jury what happened. What I want you to think about is, if there is anybody here in this courtroom, including you, including the police and Mr. Davis, who can tell you for absolute certainty or even beyond a reasonable doubt that if it wasn't for Sean Terrell that you would be sitting here hearing a case with this picture like this setting on Mr. Davis's desk. Thank you.
A fair trial was impossible under these inherently prejudicial conditions. "It is incumbent upon the trial judge to take appropriate steps to ensure that the jury determines the guilt and innocence on each defendant on an individual and independent basis." Tootick, 952 F.2d at 1086. Safeguards were inadequate in this case. No cautionary instructions were given directly after the damaging opening arguments by Terrell's counsel. No reins were placed on Terrell's counsel as he acted as unsanctioned prosecutor during the course of the trial. Clearly Coleman had to confront not only incriminating evidence presented by the State, but also incriminating evidence presented by his codefendant. "This sort of conflict between defendants creates the impelling prejudice that mandates severance." Snodgrass, 346 N.W.2d at 475 (quoting United States v. Berkowitz, 662 F.2d 1127, 1134 (5th Cir. 1981)). Under these circumstances, Coleman has demonstrated that the trial, as conducted, resulted in unfair prejudice, which mandated severance. As a result, Coleman's counsel failed to perform an essential duty when counsel failed to request a severance of trial from his codefendant. Accordingly, such failure rendered trial counsel's assistance ineffective.
Once Coleman proves ineffective assistance, he must also show such error caused prejudice. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067, 80 L.Ed.2d at 697. This standard requires a showing "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The ultimate concern must be the issue of the fundamental fairness of the proceeding. Id.
In light of our conclusions above that Coleman was unfairly prejudiced by the joint trial, we cannot say with confidence that the outcome of his trial would have been the same if Coleman was tried separate from his codefendant. Under the unique facts and circumstances present in the instant case, our confidence in the outcome has been undermined. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. Because we hold Coleman's ineffective assistance of trial counsel claim to be successful, appellate counsel prejudiced Coleman by not bringing the claim on direct appeal. Thus, Coleman adequately preserved error. Accordingly, we reverse the order of the postconviction court, grant the application for postconviction relief, and remand for a new trial.
2. Remaining Issues. Because we reverse the order of the postconviction court, and remand for a new trial, we need not to address the remaining issues raised by Coleman in his appeal.
REVERSED AND REMANDED.
HECHT, J., concurs; MILLER, J., concurs specially.
I concur in the result.