Opinion
No. 04-0990.
March 31, 2005.
Appeal from the Iowa District Court for Adair County, Gary G. Kimes, Judge.
Jeffrey Kindschuh appeals the denial of his application for postconviction relief. AFFIRMED.
Unes Booth of the Booth Law Firm, Osceola, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, and Clint Hight, County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
Jeffrey Kindschuh appeals the denial of his application for postconviction relief. We affirm.
Background Facts and Proceedings.
Jeffrey Kindschuh was convicted of second-degree sexual abuse, in violation of Iowa Code sections 709.1 and 709.3(2) (1999). His conviction was affirmed by this court in State v. Kindschuh, No. 00-1192 (Iowa Ct.App. Oct 12, 2001). There, we laid out the following facts:
Defendant lived for a period of time with the mother of the two alleged child victims. In 1999, about a year after defendant's relationship with the mother ended, the victims, a female child born in 1992 and a male child born in 1991, engaged in inappropriate sexual behavior. Their mother sought assistance and the children were examined by Dr. Christine Nevin-Woods in August of 1999. The doctor found both children exhibited physical abnormalities and infections consistent with sexual abuse. The doctor then interviewed the children, each of whom stated that defendant had engaged in sexual behavior with them.
At trial the female child testified she was in kindergarten and first grade when the abuse occurred while she stayed with the defendant when her mother worked. She said the defendant sometimes touched her "privates," both front and back, with his "privates." The male child testified that defendant had squeezed his front "privates" with his hand and had stuck something up his back "privates."
There was evidence, however, that the victim's mother had men in her home and evidence to suggest someone other than defendant was the perpetrator. There was also testimony that the female child may have been sexually abused by one of her mother's male friends earlier and that the children's mother may have been vindictive enough to want to lash out at former male friends. Testimony further showed that she had threatened to get even with defendant when their relationship ended.
Dr. Nevin-Woods' examination showed the female child had a scar on the lower part of her vagina, which extended onto her hymen, and that there was a break in her hymen. The child also had a discharge that the doctor said was an indication of an infection. Dr. Nevin-Woods opined these were clear indicators of some type of penetration. The child's anus was normal in appearance.
The doctor testified that her physical examination of the male child showed he had an abnormal anus with an elongated and irregularly dilated opening not of recent origin. The doctor testified these findings were consistent with penile-anal penetration.
After the doctor testified to what the children told her and to the results of her physical examination of them, she was asked twice if she believed the female child was coached. In response to both questions the doctor said she believed the child was not coached. When asked why this was her belief, the doctor said that the female child gave a clear and consistent history developmentally appropriate for her age. The doctor also stated that in order to coach a child to lie about sexual abuse, the coach must have familiarity with developmentally appropriate behavior of a child of that age, must review sexual abuse histories for children of similar age who have experienced penetration, and must take the time to teach the child what to say. The doctor was next asked if the male child was coached. She gave the opinion that he had not been, and again related similar information about what it would take to coach a child.
In that direct appeal we preserved for a possible postconviction relief application Kindschuh's claim that trial counsel provided ineffective assistance by failing to object to the doctor's opinions which, he maintained, impermissibly attested to the credibility of the victims.
Kindschuh later filed an application for postconviction relief which, in pertinent part, alleged trial counsel provided ineffective assistance by failing to object to Dr. Nevin-Wods' testimony in four particular areas: (1) that the children were not coached; (2) that she believed one child's statement that he had been anally penetrated; (3) that the children were, in fact, sexually abused; and (4) her use of sexual abuse classification charts. The last two claims were raised in the context of ineffective assistance of appellate counsel for failing to raise these claims on direct appeal.
The postconviction court denied the application. It first concluded that, although Dr. Nevin-Woods' testimony that the children were not coached and that she believed their allegations was inadmissible, Kindschuh was not prejudiced by such testimony. The court further determined that counsel did not breach an essential duty by failing to object to Dr. Nevin-Woods' testimony that "within a reasonable degree of medical certainty" the children had been abused, and therefore that appellate counsel did not breach an essential duty in not raising the issue on direct appeal. Finally, the court concluded that both trial and appellate counsel breached an essential duty in not objecting to nor raising the issue regarding some of Dr. Nevin-Woods' testimony on the application of the sexual abuse charts. However, even that inadmissible testimony was nonetheless found not prejudicial, so Kindschuh's petition for postconviction relief was dismissed. Kindschuh appeals.
Scope of Review.
Ordinarily, our review of postconviction relief proceedings is for errors of law. Hinkle v. State, 290 N.W.2d 28, 30 (Iowa 1980). However, when a postconviction petitioner asserts a violation of constitutional safeguards — such as ineffective assistance of counsel — we make our own evaluation based on the totality of the circumstances. This is the equivalent of de novo review. Id. Ineffective Assistance Standards.
To establish ineffectiveness assistance of counsel, Kindschuh must prove his attorney's performance fell below "an objective standard of reasonableness," and "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Prejudice is shown by a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). The ineffective assistance claims may be disposed of if Kindschuh fails to prove either prong. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999).
When a claim in a postconviction relief proceeding is premised on either trial error or the ineffective assistance of trial counsel and that claim was not raised on direct appeal, the applicant must establish both a "sufficient reason" or "cause" for the failure to raise the claim on direct appeal and actual prejudice. Osborn v. State, 573 N.W.2d 917, 921 (Iowa 1998). Cf. 2004 Iowa Acts ch. 1017, § 2 (codified at Iowa Code § 814.7 (2005)) (providing, effective July 1, 2004, and thereafter, that ineffective assistance of counsel claims can be determined in the first instance in a postconviction proceeding, even if not raised in a direct appeal). Generally, however, a sufficient reason or cause is provided by the ineffective assistance of appellate counsel. Osborn, 573 N.W.2d at 921.
Merits.
I. Testimony Implicating Credibility of Child Victims.
We first address, in conjunction, Kindschuh's first two contentions — that counsel provided ineffective assistance in failing to object to two portions of Dr. Nevin's-Woods' testimony: (1) that the children were not coached and (2) that she believed the children's claims they had been sexually abused. These claims were preserved by raising them on direct appeal. In addition, they both implicate the same general issue, that Dr. Nevin-Woods improperly commented on the credibility or truthfulness of the child witnesses.
As we previously acknowledged on Kindschuh's direct appeal, Iowa courts have determined that experts should not be allowed to testify to matters that either directly or indirectly render an opinion on the credibility or truthfulness of a witness. See State v. Brotherton, 384 N.W.2d 375, 378 (Iowa 1986). Experts should not be allowed to give testimony that essentially passes on the guilt or innocence of the defendant, State v. Myers, 382 N.W.2d 91, 97 (Iowa 1986), nor should experts be allowed to testify directly on the credibility of a witness. State v. Tonn, 441 N.W.2d 403, 405 (Iowa Ct.App. 1989). The credibility or truthfulness of a witness is a determination solely for the trier of fact. See State v. Taylor, 516 N.W.2d 38, 40 (Iowa Ct.App. 1994).
We further note our previous determination that the testimony in question did impermissibly render an opinion on the credibility of the child victims in this case. See State v. Kindschuh, No. 00-1192 (Iowa Ct.App. Oct 12, 2001). We thus proceed to address the prejudice component of Kindschuh's claim. See State v. Atwood, 602 N.W.2d 775, 787 (Iowa 1999) (noting that prejudice is established if there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different). After doing so, we agree with the postconviction court's determination that Kindschuh was not prejudiced.
Initially, we find it significant that both children testified at trial. This allowed jurors the opportunity to assess, based on their first-hand observations, the credibility of the children. See, e.g., State v. Hulbert, 481 N.W.2d 329, 332 (Iowa 1992) ("Assessment of a witness's credibility is uniquely within a lay jury's common understanding."). This had the effect of blunting or minimizing the significance of Dr. Nevin-Woods' improper testimony regarding their credibility. The jury was capable of relying on its own assessment of credibility. Substantial evidence and indicia of the children's credibility, above and beyond Dr. Nevin-Woods' testimony, were available to the jury.
In addition, a substantial amount of additional testimony and evidence supports the conviction. Dr. Nevin-Woods testified at length at the trial. The vast majority of that testimony was proper and entered the record without objection. Moreover, the children quite specifically described the incidents of abuse and identified Kindschuh as the perpetrator. Evidence also established Kindschuh's unmonitored access to the children during the relevant timeframe. Although evidence was presented that other men had access to the children and potentially could have abused them, the children themselves rejected this assertion.
Based on the relatively isolated instances of improper testimony, placed in the context of the extensive evidence properly admitted at trial, we conclude Kindschuh was not prejudiced as contemplated by the Strickland standard. Simply put, our confidence in the outcome of this case is not undermined by the improper testimony.
II. Sexual Abuse Opinion.
The postconviction court concluded counsel had no duty to object to Dr. Nevin-Woods' testimony that to "a reasonable degree of medical certainty" the children had been abused. In particular, the court determined that because she testified to a "higher degree of certainty required in sexual abuse cases" no breach of duty occurred. Now on appeal, Kindschuh maintains the court improperly "re-cast" the issues to focus on the degree-of-certainty language, rather than on the admissibility of the testimony. Accordingly, he argues regardless of how the expert opinion was couched, it was an opinion of the children's credibility, and thus inadmissible. Kindschuh concedes this claim was not addressed by the postconviction court. We conclude it has not been preserved for our review, and we therefore do not reach it. State v. Jefferson, 574 N.W.2d 268, 278 (Iowa 1997) (noting issues must be presented to and passed upon by the district court before they can be raised and decided on appeal).
III. Classification Charts.
As noted, Kindschuh claimed below that counsel was ineffective in failing to challenge the State's use of sexual abuse classification charts, as brought out in Dr. Nevin-Woods' testimony. The postconviction court concluded that the specific testimony about the charts and their particular application to the victims in this case was not admissible in that it implied an opinion that the children were credible. However, the court further determined this limited testimony did not prejudice Kindschuh.
We agree with the court's conclusion that prejudice was not established. Again, any objectionable testimony was limited, minimized in light of additional evidence on the children's credibility, and outweighed by the substantial amount of evidence supporting the jury's verdict.