Opinion
22-2000
03-27-2024
KENITH LAMAR LEWIS, Applicant-Appellant, v. STATE OF IOWA, Respondent-Appellee
John J. Bishop, Cedar Rapids, for appellant. Brenna Bird, Attorney General, and Sheryl Soich, Assistant Attorney General, for appellee State.
Appeal from the Iowa District Court for Scott County, Patrick A. McElyea, Judge.
Kenith Lewis appeals the denial of his application for postconviction relief.
John J. Bishop, Cedar Rapids, for appellant.
Brenna Bird, Attorney General, and Sheryl Soich, Assistant Attorney General, for appellee State.
Considered by Tabor, P.J., and Badding and Chicchelly, JJ.
BADDING, JUDGE.
Eleven months after he discharged consecutive sentences for two counts of second-degree sexual abuse, Kenith Lewis broke into another woman's home and sexually assaulted her. Lewis's first trial for first-degree burglary and third-degree sexual abuse ended in a hung jury. The jury in his second trial found him guilty as charged. We affirmed his convictions on direct appeal. See State v. Lewis, No. 17-1193, 2018 WL 4635906, at *1-2 (Iowa Ct. App. Sept. 26, 2018). Lewis then applied for postconviction relief, which the district court denied.
On appeal from that ruling, Lewis contends the court erred in denying his claims that his trial counsel was ineffective for failing to (1) call him as a witness at trial due to counsel's "belief that it would for certain result in the introduction" of the past sexual-abuse convictions; and (2) "strike a potential juror who indicated he could not be fair."
We review these claims de novo. See Sothman v. State, 967 N.W.2d 521, 522 (Iowa 2021). To prevail, Lewis must prove by a preponderance of the evidence that (1) his counsel failed to perform an essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Lopez, 907 N.W.2d 112, 116 (Iowa 2018). We "may consider either the prejudice prong or breach of duty first, and failure to find either one will preclude relief." State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017) (citation omitted).
I. Failure to Testify
In 1991, Lewis pled guilty to two counts of second-degree sexual abuse. For the first count, he explained: "I was walking. And I cut through this yard. And I saw the window was open. And I looked in the window, and I saw this lady." He broke into the house, threatened the woman with a screwdriver, forced her to have sex with him, and then left. The second count happened in much the same way: "I was walking, I saw a light on at the house. And I walked up to the window, and I saw a lady standing there." He broke into the house, "picked a fork off the kitchen table," forced the woman to have sex with him, and then left. Lewis was sentenced to twenty-five years in prison for each sexual assault, to be served consecutively. He discharged the sentences in July 2014.
In June 2015, Lewis broke into another home, sexually assaulted the woman inside, and then left. He told her that "he was walking through, and he saw me through the window and he had to have me." The woman did not see her attacker's face "because he was always behind her," but she did provide the police with some details about him. Lewis, 2018 WL 4635906, at *1. The police were also able to develop a profile from the woman's rape kit. That profile did not match the man she first identified as her attacker. "But police soon developed another lead"-Lewis, who lived about two blocks away from the woman at the time of the assault. Id. His DNA sample was a match.
Because of this DNA evidence, Lewis's defense counsel, Michael Motto, sent him a letter stating the "only viable defense (as I see it) is to claim you had consensual sex with the victim, and for some reason (embarrassment, caught by boyfriend, etc.), she claimed after the fact that she was raped." The State then filed a notice of its intent to introduce evidence of Lewis's two sexual-abuse convictions from 1991. Lewis resisted the admission of this evidence, which the State argued would be relevant to show lack of consent and identity.
As part of his guilty pleas for those offenses, Lewis admitted to seven other "incidences of breaking into women's houses and sexually assaulting them or attempting to sexually assault them" to help law enforcement "clear up" those investigations. Lewis was not charged for those crimes, and the State later agreed that it would limit itself to the two convictions.
Before the first trial in January 2017, the court held a pretrial hearing on the issue. At the hearing, when asked by the court if Lewis's defense was consent, Motto said no: "The defense is I didn't do it." In response to more questions from the court, Motto acknowledged that if Lewis chose to testify at trial, "[t]hat could open the door" to the prior bad acts evidence. The court reserved ruling on the issue, wanting to hear testimony from the victim and DNA expert first. But the State rested its case without offering the prior bad acts evidence, and Lewis chose to not testify. Deliberations resulted in a hung jury, and the court declared a mistrial. The second trial in May played out the same way-the court reserved ruling on the admissibility of the prior bad acts evidence, the State rested without offering the evidence, and Lewis chose to not testify. This time, however, the jury found him guilty as charged.
The jury also found Lewis had twice before been convicted of second-degree sexual abuse, thus enhancing his conviction to a class "A" felony under Iowa Code section 902.14 (2016).
In his February 2019 application for postconviction relief, Lewis claimed defense counsel was ineffective for failing "to properly advise [him] concerning the need, dangers/risks, and significance of" testifying at his criminal trial. At the hearing on his application, Lewis asserted that in 2015, he had "a habit of being openly promiscuous with women" and "picked strangers up often." He testified that he told Motto that he did not sexually assault the victim, but he may have had a casual sexual encounter with her. Lewis agreed that when he saw the victim at trial, he did not recognize her. Although he was willing to testify at trial, Lewis said Motto advised him not to because "the State would very likely be able to present evidence" of the two prior sexual-abuse convictions.
Motto testified keeping that evidence out "was probably the most important thing" in the trial-"If those priors come in, then the case is over immediately." He explained, "I had to just make the jury look at this and go, boy, this isn't adding up, I bet this was consensual and she's lying. But I can't say that specifically, because I worry about the priors coming in. We were really stuck." So Motto's strategy was to imply consent to the jury, without having Lewis testify to that, by focusing on evidence that the victim wasn't injured, there was no forced entry, and there were other individuals present in the home at the time of the assault. That strategy worked the first time-nine jurors at Lewis's first trial voted for acquittal-so Motto tried it again at the second trial. While he didn't want to chance putting Lewis on the witness stand, Motto testified that it was Lewis's decision in the end. Lewis understood that too, testifying: "it was my decision." And he agreed that he discussed the pros and cons of that decision with Motto.
In rejecting this claim, the district court observed "[t]his is a case of an attorney being placed in a very difficult tactical situation based on his client's criminal history and the nature and circumstances of the instant offense." The court found:
It was clearly a strategic decision by [defense counsel] to advise his client not to testify as an effort to mitigate any cross-examination about prior offenses. Additionally, there was substantial risk with
minimal reward if Lewis testified at trial, as he did during the [postconviction-relief] hearing, that he simply had consensual sex with a number of women during that time in his life but couldn't remember this encounter specifically. Combining that lack of specificity with the prior bad acts evidence likely would have been fatal to the defense. From the Court's review of the record, [counsel's] advice to Lewis not to testify was sound legal advice which gave their overall defense strategy a chance at success.
Lewis challenges this finding on appeal, arguing that Motto "clearly believed that if Mr. Lewis testified that the sex was consensual then the [prior bad acts] evidence would have been automatically introduced." So, Lewis surmises, Motto's advice to him was "surely the same-if you testify, then those acts will (not might) come into evidence and Mr. Lewis then followed this erroneous recommendation and chose not to testify."
As the last part of Lewis's argument recognizes, the "decision whether or not to testify belongs to the defendant, and the role of counsel is to provide advice to enable a defendant to make the decision." Ledezma v. State, 626 N.W.2d 134, 146 (Iowa 2001). "[W]hen a defendant follows the misinformed advice of counsel concerning the consequences of testifying, ineffective assistance of counsel may occur." Id. at 147. Lewis argues that counsel misinformed him about the admissibility of his prior sexual abuse convictions because it was "arguably unlikely that" the evidence would have come in if he had testified. Cf. Blackburn v. Foltz, 828 F.3d 1177, 1182 (6th Cir. 1987) (finding counsel's "recitation of the law regarding admissibility of prior convictions was clearly wrong . . . and cannot be said to constitute reasonable strategy"). Implicit in this argument is the possibility the convictions could have been found admissible. See State v. Plaster, 424 N.W.2d 226, 230-31 (Iowa 1988) (permitting evidence that the defendant had committed a "strikingly similar" prior act of sexual abuse with a different victim to rebut the defendant's consent defense). And Motto advised Lewis to not take that chance by testifying.
Even if the issue were closer than counsel thought, "'[i]mprovident trial strategy or miscalculated tactics' typically do not constitute ineffective assistance of counsel." State v. Polly, 657 N.W.2d 462, 468 (Iowa 2003) (citation omitted). The risk of the prior convictions being admitted into evidence provided counsel with "a sound tactical reason" to not "roll the dice" by having Lewis testify to consent, and that decision "was objectively reasonable." Coonradt v. State, No. 21-0771, 2022 WL 1234896, at *3 (Iowa Ct. App. Apr. 27, 2022) (citation omitted); accord Polly, 657 N.W.2d at 468 ("Trial counsel's decision not to call [the defendant] to testify clearly was a strategical decision we will not second-guess."). We accordingly conclude that Lewis failed to prove that "counsel's representation fell below an objective standard of reasonableness." State v. Lorenzo Baltazar, 935 N.W.2d 862, 868 (Iowa 2019) (cleaned up).
II. Failure to Strike Juror
During jury selection for the second trial, prospective juror T.M. disclosed that his ex-girlfriend had been a victim of sexual abuse. When asked by the prosecutor whether that would factor into his "ability to be fair and impartial in this case," T.M. said, "It probably would." He explained: "I just have no tolerance for that, at all." He also volunteered that he has "a first cousin that's going through it in Alabama right now," having been accused of sexual abuse of his two stepdaughters. Asked "bottom line" whether he "can be fair towards Mr. Lewis, who's accused of this," T.M. answered, "I don't think I can be fair." But in response to defense questioning, he stated, "I probably could listen to the evidence." And he agreed during group voir dire that he could "decide this case without bias or sympathy towards either side" based solely on the evidence presented. The defense passed T.M. for cause, and he served on the jury.
At the postconviction-relief hearing, Lewis testified that Motto should have struck this juror because he "said that in the beginning of his voir dire that he was unable to be fair and unbiased." Yet on cross-examination, Lewis agreed that Motto consulted him about which jurors to strike. Motto testified to the same:
To drive this point home, the State offered into evidence a phone call Lewis made to his girlfriend from jail before the second trial. Lewis told her that at the first trial before jury selection, Motto asked him whether there was "anybody on there that you really don't like?" Lewis pointed out three people, and "they were not on the jury."
I absolutely would have talked about it with Mr. Lewis, give him my opinion, if I have a very strong opinion. But, ultimately, if he says, I want this guy or I want this guy, he's going to win. So, [the juror] was kept. He-he didn't tell me he wanted him off. We absolutely would have talked about it.The district court found counsel "credible that he would have discussed the jury selection and strikes with his client during the trial" and concluded "there were strategic advantages to keeping [the juror] on the jury despite concerning statements he may have made during selection." See Sothman, 967 N.W.2d at 522 (giving weight to the court's findings on witness credibility on de novo review). Looking back at his notes from jury selection, Motto testified at the postconviction-relief hearing that one of those advantages was that the juror was African American like Lewis. He thought that "was a big deal" when it came to the victim's misidentification of the perpetrator. Other points in favor of keeping the juror, according to Motto, included T.M.'s past adverse case with the county attorney's office, his belief that minorities were treated unfairly by correctional officers, and "that he had a cousin who he thought was being falsely accused."
On appeal, Lewis focuses on this last point, arguing it was incorrect-"in fact T.M. seemed to believe that the cousin was fairly accused." But T.M. never said whether he thought his cousin was rightly or wrongly accused. He only said it's a "toss-up" and he's "kinda not" standing behind the cousin like the rest of his family because he wasn't "living down there" in Alabama. And he offered reservations about why the allegations against the cousin could be false: "he's saying he's falsely accused because he's just trying to raise them, and it's hard to raise little girls, and if they think you're unfair, they might say something, so."
Further, as Motto pointed out during his individual voir dire with the juror, "nobody likes sex abuse or has tolerance for it." The important thing, according to Motto at the postconviction-relief hearing, is whether the juror "can listen to the evidence," which T.M. said he could. See State v. Walters, 426 N.W.2d 136, 139 (Iowa 1988) ("It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." (citation omitted)). As the State points out, even assuming T.M. "did not believe in his cousin's innocence, that would not be a reason to strike him, especially given his other positive characteristics." In the end, Lewis agreed with counsel to pass the juror for cause and keep him on the jury. See State v. Smith, 573 N.W.2d 14, 21 (Iowa 1997) (rejecting ineffective-assistance claim where the record showed "that counsel's decision not to challenge those jurors was a strategic one that was made with Smith's participation"). We accordingly conclude Lewis has not overcome the presumption of competence on this claim either.
For these reasons, we affirm the district court's decision denying Lewis's application for postconviction relief.
AFFIRMED.