IN THE COURT OF APPEALS OF IOWA
No. 15-1529 Filed May 3, 2017
CHRISTOPHER JOHN SIMPSON, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Webster County, Thomas J. Bice,
Judge.
Christopher Simpson appeals the denial of his postconviction relief
application. REVERSED AND REMANDED.
R. Ben Stone of Parrish Kruidenier Dunn Boles Gribble Gentry Brown &
Bergmann L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee State.
Heard by Danilson, C.J., and Vogel and Vaitheswaran, JJ. 2
VAITHESWARAN, Judge.
A jury found Christopher Simpson guilty of four counts of third-degree
sexual abuse in connection with acts he committed on two boys, ages fourteen
and fifteen. This court affirmed his judgment and sentences, which, with
enhancements, resulted in four life terms. State v. Simpson, No. 10-1554, 2011
WL 3117888, at *3 (Iowa Ct. App. July 27, 2011).
Simpson filed a postconviction relief application. The district court denied
the application following an evidentiary hearing. On appeal, Simpson contends
his attorneys were ineffective in failing to: (1) object to expert testimony arguably
vouching for the teens’ credibility and the State’s comments about the expert
during closing argument; (2) challenge the prosecutor’s questioning about a
witness’ invocation of his Fifth Amendment right against self-incrimination; (3)
seek a jury instruction on assault with intent to commit sexual abuse as a lesser
included offense; and (4) challenge the admission of an un-redacted text
message that implied he had a criminal record. We find the first issue
dispositive.
I. Vouching
Simpson contends an expert witness called by the State impermissibly
vouched for the credibility of the teens who testified against him. He specifically
argues the State, through its expert, “engaged in point-by-point reinforcing of
[one victim’s] prior testimony, as well as foreshadowing [the other victim’s]
anticipated future testimony” and his “trial lawyer failed to object to the
continuous and cumulative inadmissible testimony as it happened, and then 3
failed to object as the State, during closing, brought home to the jury the
vouching power of its expert witness to compel a guilty verdict.”
Simpson’s postconviction attorney raised the issue at the postconviction
hearing and in a post-hearing brief. The postconviction court characterized the
“general gist of” Simpson’s claims as “ineffective assistance of counsel,”
including a claim “that trial counsel failed to object to the State’s closing
arguments suggesting that ‘grooming’ had been done of the victims for sexual
purposes.” The court summarily rejected the issue after concluding Simpson
“had a full and fair opportunity to cross-examine” the expert and the State’s
closing argument did not suggest Simpson committed “prior bad acts.” We
conclude Simpson preserved error on his claim that trial counsel was ineffective
in failing to object to expert testimony vouching for the credibility of the
complaining witnesses and in failing to object to that portion of the prosecutor’s
closing argument addressing the expert testimony. See Lamasters v. State, 821
N.W.2d 856, 864 (Iowa 2012) (“If the court’s ruling indicates that the court
considered the issue and necessarily ruled on it, even if the court’s reasoning is
‘incomplete or sparse,’ the issue has been preserved.” (citing Meier v. Senecaut,
641 N.W.2d 532, 540 (Iowa 2002))). But, even assuming the only issue
preserved is Simpson’s ineffective assistance claim relating to the prosecutor’s
closing comments about the expert testimony, that issue cannot be addressed
without first examining the expert testimony. Accordingly, we begin our
discussion of this issue with the pertinent facts and proceedings.
The State listed an expert witness to testify to perpetrators’ sexual
grooming behaviors and efforts to desensitize victims. Simpson filed a motion in 4
limine seeking to exclude the expert testimony in its entirety. The district court
denied the motion.
At trial, the State called Lana Herteen to testify to “child sexual abuse
dynamics.” Simpson objected to the “line of questioning.” The district court
reaffirmed its prior ruling.
The prosecutor asked Herteen about delayed disclosure of sex abuse by
teens. She cited statistics finding “about 86 percent of adolescents who have
been sexually abused do not tell right away, if ever, though that has to be
couched in the ones that they can confirm.”
The prosecutor proceeded to question Herteen about “grooming,” which
she defined as “a gradual sexualizing of the relationship between an adult” and a
child. She also questioned Herteen about “sexualization” of victims. In the
course of this questioning, the prosecutor asked Herteen about “hypothetical”
facts that focused on “teenagers specifically” and “male teenagers specifically.”
These facts mirrored the narratives of the two boys.
For example, the teens testified to an incident at Simpson’s pool in which
Simpson “pulled down [one of the teen’s] swimming trunks and threw them out of
the pool.” The prosecutor asked Herteen to address a hypothetical set of facts
that included “depantsing”:
Q. All right. Say, hypothetically speaking, depantsing somebody in a swimming pool, if that’s done by an adult and that’s the only thing that happens, it’s a joke and whatever, that can be viewed one way; but if it’s followed by more sexualization, could it be pretty much the beginning of the grooming? A. It could be. 5
The teens also testified that Simpson showed them websites with sexual
content, as well as pornographic DVDs. The prosecutor pursued this testimony
with Herteen, asking her to provide other examples of types of “sexualization”
activity. Herteen responded:
[I]t can begin with like watching R-rated movies . . . [with] lighter sexual themes. It might then progress to some talk or discussion about sex and sexuality. And then it may progress to exposure to pornography. . . . It can be photographs; it can be something that’s on the computer; it can be videos.
In the same vein, the teens testified about a video they were shown
involving sexual activity by Simpson’s roommate. The prosecutor pursued these
facts with Herteen as follows:
Q. Hypothetically speaking, say a teenager is shown a video of other children, pornography, child pornography, basically, if that person that is seeing it knows one of the people in that video, can that make it seem even more normal to the person? Does that make sense? A. Yes. I would say whether they know them or not, there might be an increased value if they did know them because there can be that sense of “Well, this person did this or that and, therefore, that is something that can be done, um, something that can go on or occur.”
The teens testified Simpson sat down with the boys as they watched
pornographic videos and he touched himself. The prosecutor proceeded to a
question about masturbation, asking, “[H]ypothetically, if an adult male was to
walk in while . . . a teenager was masturbating,” would a healthy response be to
“sit down and join in?” Herteen replied, “Absolutely not.”
The teens testified Simpson offered them memberships for an online
game in exchange for oral sex. Herteen discussed children’s “tendency to . . .
focus on the positive aspects of the relationship,” including “gifts” or “promises of
gifts.” 6
The teens stated Simpson had sex toys in his house. One of them
testified Simpson told them about the toys and told them how to use them.
Herteen discussed the presence of “sex toys that are visible or within finding of a
teenager.”
Finally, Herteen discussed a “core of truth” in victims’ testimony and
efforts to coach victims to tell false stories:
Q. . . . . Are you aware, in your training and experience . . . of any kind of research on the ability of, say, teenagers to maintain a consistent story over a long period of time if it’s false? A. Yes. What becomes important is to look at what the literature refers to as a core of truth. Over a period of time—and this is true not just of teenagers but people in general—our memories are affected by time, there can be some fade. So there can be some—I guess I would refer to it as minimal variation. But the core of truth is what becomes critical to attend to and to look at, um, what is the essence of the person’s statement, I refer to it, or their information that they’re offering. Q. And, in fact, is there not also literature that if someone is told, “you need to tell this lie . . .” for whatever reason, that over a period of time, that breaks down, that . . . adolescents in the developmental stages that you’re talking about generally cannot keep that— A. Yeah. What you’re referring to is what we refer to as coaching, coaching someone to lie or be dishonest. And yes, I would agree with that. That typically does not hold water over time. It eventually starts to unravel or come apart in a way that it lacks that core of truth.
Although Simpson’s attorney objected to Herteen’s testimony as a whole
and reasserted this objection at trial, he failed to object to the testimony
summarized above, as it was elicited.
Simpson’s attorney also failed to object to the prosecutor’s closing summary
of the grooming activities described by Herteen and the following portion of the
State’s closing argument: 7
That is grooming, ladies and gentlemen. That is exactly what the expert came in here and told you about. And that’s what the Defendant did in this case. Now, to follow the train of thought for the defense in this case, we need to believe the absurd. We have to believe that . . . the boys just happen to luck into coming up with a series of facts that match, amazingly match, what known convicted sex child abusers thrive on to victimize their victims. And that’s what Lana Herteen came in and talked about. She’s not talking about this case. She’s talking about known convicted sex offenders, what they do, how they get their victims primed for sexual abuse and then sexually abuse them. And boy, aren’t these people really lucky that they happen to come up with the same facts that match that? They don’t just luck into that, ladies and gentlemen. What happened is that he groomed them, and their facts corroborate that. They don’t just happen to luck into showing the core truth that Lana Herteen tells you is a way to weed out false stories. She gave you the pieces of information that you would need to be able to weed out false stories, and that’s not here. They don’t just happen to show a lack of coaching as Lana Herteen told you about. They weren’t coached, so that’s why you can’t find that in this case. They do tell you what happened in this case. It’s not a false story.
Because counsel failed to object, we review the issue under an ineffective-
assistance-of-counsel rubric, as Simpson requests. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). Simpson must prove the breach of an
essential duty and prejudice. See id.
To determine whether there was a breach, we turn to our precedent on
expert testimony in sexual abuse cases. More than thirty years ago, the
supreme court concluded “expert opinions as to the truthfulness of a witness is
not admissible pursuant to [Iowa Rule of Evidence] 702.” State v. Myers, 382
N.W.2d 91, 97 (Iowa 1986). The court found expert testimony that young
children do not lie about sexual matters crossed the “‘fine but essential’ line
between an ‘opinion which would be truly helpful to the jury and that which 8
merely conveys a conclusion concerning defendant’s legal guilt.’” Id. at 98
(citation omitted).
As noted, Herteen opined on several matters. We will separately address
each category of her opinions: (A) her reference to statistics on delayed
reporting; (B) her response to hypothetical questions on perpetrators’ grooming
behaviors; and (C) her discussion of a “core of truth” in victims’ testimony and
coaching of victims.
A. Statistics
Statistics regarding the truthfulness of children alleging sexual abuse are
inadmissible. See State v. Tracy, 482 N.W.2d 675, 678 (Iowa 1992) (concluding
an expert’s testimony that “there are probably no more than two or three children
per thousand who come forth with such a serious [sexual abuse] allegation who
are found later to be dishonest” was improper); Myers, 382 N.W.2d 91, 92 (Iowa
1986) (reversing admission of expert testimony that included a statement that
“out of about . . . 75 cases, there was only one . . . where the child was not telling
the truth” and “one in 2500 children . . . did not tell the truth, which would make it
exceedingly rare”); State v. Pitsenbarger, No. 14-0060, 2015 WL 1815989, at *3,
*5 (Iowa Ct. App. Apr. 22, 2015) (reversing admission of expert testimony where
expert testified “research shows that there is 4.7 or about 5 percent of children
who make . . . false allegations”).1 However, statistics on the prevalence of
1 In Pitsenbarger, we noted that the expert relied on the following statistics in her testimony: 72 to 100 percent of kids do not disclose abuse; only 11 percent of children actively disclose at first opportunity; 53 percent of mothers are not protective of children after they disclose; 65 percent of mothers are not supportive of a disclosing child; and only 5 percent of children who allege sexual abuse make false allegations and ‘most’ of those are caused by collusion with an adult. 9
delayed reporting of sex abuse have been deemed admissible. See State v.
Payton, 481 N.W.2d 325, 327 (Iowa 1992) (“The general subject of . . . [‘delayed
reporting syndrome’] is proper for expert testimony.”); State v. Tjernagel, No. 15-
1519, 2017 WL 108291, at *9 (Iowa Ct. App. Jan. 11, 2017) (concluding counsel
was not ineffective in failing to object to expert’s testimony because “[h]er use of
statistics at trial and comments that ‘most disclosures’ or ‘most children do not
tell right away’ were not comments on whether children lie about sexual abuse,
but rather, comments about when children typically disclose sexual abuse”);
State v. Royce, No. 12-0574, 2013 WL 5508428, at *9 (Iowa Ct App. Oct. 2,
2013) (“The evidence was helpful and relevant to the jury in making their decision
upon the right reasons—the evidence presented—and not based upon a
common misconception or myth that delayed reporting necessarily means the
claim is false.”).
Herteen testified that “about 86 percent of adolescents who have been
sexually abused do not tell right away, if ever.” Her statistical reference focused
on delayed reporting rather than false allegations and, standing alone, was not
improper. That said, we cannot view her reference in a vacuum. We turn to
whether her answers to hypothetical questions on grooming crossed the “fine
line.”
B. Hypothetical Questions on Grooming
In deciding whether expert responses fall on the right or wrong side of the
line, our courts have focused on how closely the responses were tied to the facts
of the particular case. For example, an expert “was allowed to testify to the
2015 WL 1815989, at *8 n.4. 10
classic characteristics that are exhibited after people have experienced a
trauma.” State v. Gettier, 438 N.W.2d 1, 4 (Iowa 1989). The court found no
abuse of discretion in the admission of this testimony because “[w]hile [the
expert’s] testimony centered around a particular aspect of [a] syndrome,
commonly described as ‘rape trauma syndrome,’ . . . this term was not
specifically referred to in the trial,” the “testimony was framed in a general
context,” and “[t]here was independent evidence presented that the victim
exhibited some of the listed symptoms.” Id. (citations omitted).
This general/specific distinction was reiterated in State v. Payton, 481
N.W.2d 325 (Iowa 1992). The court found no abuse of discretion in the district
court’s admission of expert testimony that “did not relate to the specific children
in this case.” Payton, 481 N.W.2d at 327. In the court’s view, the expert “was
called only to explain why child sex abuse victims often delay reporting” sex
abuse and the “testimony concerning typical psychological symptoms clearly fell
on the proper side of the line drawn in Myers.” Id.; see also State v. Allen, 565
N.W.2d 333, 338 (Iowa 1997) (concluding experts “did not directly evaluate [the
complaining witness’s] credibility” but “gave their opinions concerning the effects
of her mental condition on her ability to tell the truth” and the “testimony was
permissible to help the jury understand the evidence it heard about [the
complaining witness’s] mental illnesses”); State v. Westmoreland, No. 15-1951,
2017 WL 512479, at *4 (Iowa Ct. App. Feb. 8, 2017) (concluding an expert
“testified to her general practices when interviewing child victims and the process
by which children delay in reporting information about their abuse” and “did not
attempt to improperly link [the child’s] behavior to behaviors observed in known 11
sex abuse victims”); State v. Ingram, No. 15-1984, 2017 WL 514403, at *5 (Iowa
Ct. App. Feb. 8, 2017) (concluding counsel was not ineffective in failing to object
to expert testimony where the expert “discussed generally the symptoms or
behaviors common to children who have experienced sexual abuse,” “explained
behaviors exhibited by both young children and young teens,” and “did not
provide an expert opinion regarding ‘every significant purported and disputed
fact’” (citations omitted)); State v. Lusk, No. 15-1294, 2016 WL 4384672, at *3
(Iowa Ct. App. Aug. 17, 2016) (affirming admission of expert testimony where
forensic interviewer “did not testify the demeanors of [the victims] were consistent
with sexual abuse” but “testified generally about whether child victims of sexual
abuse sometimes delay reporting the abuse”); State v. Huffman, No. 14-1143,
2015 WL 5278980, at *6 (Iowa Ct. App. Sept. 10, 2015) (concluding expert
testimony that children used developmentally appropriate language did not cross
the line); Royce, 2013 WL 5508428, at *9 (concluding testimony did not cross the
line where the expert “testified generally as to the mental state of the child sex
abuse victims and why they may delay reporting sex abuse,” “offered no
testimony as to the truthfulness of [the victim’s] testimony or whether sexual
abuse did or did not occur,” and “did not testify if allegations of child sex abuse
are generally true”); State v. Seevanhsa, 495 N.W.2d 354, 357 (Iowa Ct. App.
1992) (stating “expert testimony regarding [child sexual abuse accommodation
syndrome (CSAAS)] may, in some instances, assist the trier of fact to both
understand the evidence and to determine facts in issue” and concluding the
expert testimony in that case was admissible because “the expert limited her
discussion of CSAAS to generalities,” “did not testify she believed the 12
complainant was credible,” and did not “testify that she believed the complainant
had been sexually abused”); State v. Fox, 480 N.W.2d 897, 899 (Iowa Ct. App.
1991) (finding expert testimony on general criteria used for verifying the
truthfulness of sexual abuse allegations was permissible where the expert “was
testifying about children in general” and “made no assessment of the
complainants’ credibility”); State v. Tonn, 441 N.W.2d 403, 405 (Iowa Ct. App.
1989) (concluding opinion testimony “could help the jury in understanding the
evidence because it explained the delayed reporting symptom that existed in
children who were sexually abused”).
In stark contrast to the expert testimony in Gettier and Payton, an expert in
another case “testified, without objection, that” a child suffered “from child sexual
abuse accommodation syndrome” and “was telling the truth when she first
reported sexual abuse by her stepfather.” Tracy, 482 N.W2d at 678. The court
concluded the defendant’s attorney breached “an essential duty in failing to make
a timely objection to the testimony.” Id. at 680. The court further found the
prejudice element satisfied based on “the cumulation of this evidence with []
other inadmissible testimony.” Id.
This court similarly reversed the admission of expert testimony about
sexual abuse trauma where the expert was presented with a hypothetical
question which “outlined all the events the alleged victim had testified preceded
the alleged rape,” thereby “personaliz[ing] the opinion and conclusion.” State v.
Pansegrau, 524 N.W.2d 207, 211 (Iowa Ct. App. 1994). We concluded “[t]he
testimony exceeded the permissible limits.” Id.; see also Pitsenbarger, 2015 WL
1815989, at *8 (reversing for a new trial where, although the State did “not 13
specifically referenc[e] the testimony, past statements, past actions, and past
behaviors of [the victim],” the expert “in a methodical process . . . bolstered [the
victim’s] credibility by testimony via statistics . . . . including behaviors . . . as
being consistent with the statistics . . . and thus, corroborating [the victim’s]
testimony and lending credence to it”).
The hypothetical questions posed to Herteen were not as egregious as the
hypothetical question posed to the expert in Pansegrau. And, arguably, some of
the questions simply focused on the general characteristics of abused children.
However, Herteen’s testimony about “depantsing,” exposure to pornography,
masturbation, and gift giving—all based on the teenagers’ unique experiences
with Simpson—have to be viewed in the context of what followed—an exchange
about the “core of truth” in children’s statements and their inability to persist in
telling an untruth. To determine whether this “core of truth” testimony crossed
the line, we return to Myers.
C. “Core of Truth” and Coaching Testimony
Myers categorically prohibited expert testimony on the truthfulness of
witnesses. That holding was reinforced in a trio of recent opinions addressing
expert testimony in child sex abuse cases. See generally State v. Brown, 856
N.W.2d 685 (Iowa 2014); State v. Dudley, 856 N.W.2d 668 (Iowa 2014); State v.
Jaquez, 856 N.W.2d 663 (Iowa 2014).
In Brown, the court concluded a forensic examiner’s statement that a
child’s disclosure was “significant” and warranted “an investigation” “indirectly
convey[ed] to the jury that [the child was] telling the truth about the alleged abuse
because the authorities should conduct a further investigation into the matter.” 14
856 N.W.2d at 688-89. In Jaquez, the court similarly concluded expert testimony
that a child’s “demeanor was ‘completely consistent with a child who has been
traumatized, particularly multiple times’” was improper because it “indirectly
vouched for [the child’s] credibility thereby commenting on the defendant’s guilt
or innocence.” 856 N.W.2d at 665. And, in Dudley, the court held expert
testimony that a child’s physical manifestations or symptoms were consistent
with sexual abuse trauma and testimony that the child should receive therapy
and stay away from the defendant “crossed the line.” 856 N.W.2d at 677-78.
As discussed, Herteen was asked whether an adolescent told to tell a lie
could maintain the lie over a period of time. She responded:
What you’re referring to is what we refer to as coaching, coaching someone to lie or be dishonest. And yes, I would agree with that. That typically does not hold water over time. It eventually starts to unravel or come apart in a way that it lacks that core of truth.
Herteen’s testimony was not as direct a comment on witness credibility as
the testimony found impermissible in Myers but was a more direct comment on
the teens’ credibility than the vouching testimony found impermissible in Brown,
Jaquez, and Dudley. While she did not state the teens’ conduct or demeanor
was “consistent with” a syndrome or trauma, and she did not refer to Simpson or
the teens by name, she essentially opined that teens would be unable to sustain
a false story over time or, in other words, lie.
We recognize expert opinions on the consistency of child statements are
permissible. See Brown, 856 N.W.2d at 688-89 (concluding expert’s statement
that victim “has been consistent in what she has reported to her mother and to
this examiner” were permissible and gave “the jury insight into the witness’s 15
memory and knowledge of the facts”); Dudley, 856 N.W.2d at 678 (“The first
statement by [the expert] was that [the victim’s] statements were consistent
throughout the interview. We do not find this statement crossed the line.”). But
Herteen did more than opine that the teens said the same thing to one witness as
they did to another; she basically said they would be incapable of doing anything
else.
We also recognize a general statement about coaching may be
permissible. See Dudley, 856 N.W.2d at 678 (concluding a statement about
“participation in therapy, in and of itself, does not mean the therapist is coaching
the victim”). But Herteen did not speak in generalities; she opined that coaching
of adolescents to give false statements “does not hold water over time.”
Herteen’s opinions, when viewed in their totality, crossed the line. See
Tjernagel, 2017 WL 108291, at *5 (“[N]ot all testimony relating to the subject of
coaching is admissible.”). As in Pitsenbarger, the State methodically elicited
testimony from her that bolstered the teens’ credibility. Cf. id., 2015 WL
1815989, at *8. We conclude Simpson’s trial attorney had a duty to object to her
testimony as it was elicited and breached that essential duty. Id. (“We conclude
the State crossed the line in its direct examination of [the expert] and defense
counsel failed to object to the form of questioning.”). We further conclude
Simpson’s attorney had a duty to object to the prosecutor’s discussion of this
testimony in closing argument.
We turn to the Strickland prejudice prong of the ineffective assistance test.
To satisfy the prejudice prong, an applicant must show “a reasonable probability
that, but for counsel’s unprofessional errors, the results of the proceeding would 16
have been different.” Strickland, 466 U.S. at 694. We have found this standard
satisfied when the evidence of guilt was overwhelming. See State v. Ambrose,
861 N.W.2d 550, 559 (Iowa 2015) (concluding “there was no reasonable
probability the result of the trial would have been different” where “[t]he evidence
of guilt was overwhelming”). However, in opinions raising the propriety of expert
testimony in sex abuse cases, our court has analyzed Strickland prejudice in the
context of witness credibility. See, e.g., Tjernagel, 2017 WL 108291, at *8
(finding prejudice where “the State’s case . . . rested entirely on the credibility of
the witnesses[,] . . . [t]here was no physical evidence of the alleged abuse and no
witnesses other than the complaining witness,” and “the expert witnesses’
vouching testimony here ‘was pervasive—not just a single statement’”);
Pitsenbarger, 2015 WL 1815989, at *10 (concluding “the result may have been
different if proper objections had been made to exclude the improper testimony”
because “the State’s case . . . rested entirely on the credibility of the witnesses”).
As discussed, Herteen’s “core of truth” colloquy with the prosecutor was
an endorsement of the teens’ credibility. While the State argues “[a]ny expert
called by the State in a criminal case will offer testimony that supports or
corroborates the victim’s version of events in some fashion,” Herteen’s assertion
that adolescents were essentially incapable of perpetuating falsehoods
amounted to a comment on these teens’ credibility and generated a reasonable
probability that the outcome would have been different had counsel objected and
had the court sustained the objection.
In reaching this conclusion, we have considered our comments in
Simpson’s direct appeal about the strength of the State’s evidence. See 17
Simpson, 2011 WL 3117888, at *2. There, we addressed a challenge to the
admission of a text message. We concluded a sufficient foundation was laid for
admission of the text message but, regardless, “[o]ther evidence supporting
Simpson’s convictions was overwhelming.” Id. Then and now, we have no
quarrel with the strength of the State’s evidence relative to the text message. But
in this appeal, we are dealing with something far more insidious: an expert’s
usurpation of the fact finder’s role in determining witness credibility. See Myers,
382 N.W.2d at 95 (“Weighing the truthfulness of a witness is a matter reserved
exclusively to the fact finder.”). And, we are dealing with a constitutional
prejudice standard rather than the non-constitutional harmless error standard at
issue on direct appeal. For these reasons, our statements on direct appeal do
not control our prejudice determination here. Strickland prejudice was
established.
II. Conclusion
We conclude counsel was ineffective in failing to object to Herteen’s
testimony that vouched for the credibility of the teenagers and in failing to object
to the prosecutor’s discussion of the testimony in closing argument. We reverse
the denial of Simpson’s postconviction relief application and remand for a new
trial. In light of our disposition, we find it unnecessary to address the remaining
issues raised by Simpson.
REVERSED AND REMANDED.
Danilson, C.J., concurs; Vogel, J., concurs specially. 18
VOGEL, Judge. (concurring specially)
While I agree with the majority that the expert testimony from Lana
Herteen regarding grooming behavior crossed the line into impermissible
vouching in this case, I write separately to note Simpson’s claim on appeal—that
trial counsel was ineffective in failing to object to the admission of Herteen’s
expert testimony—was not preserved for our review at the postconviction relief
proceeding below.
At the PCR hearing on July 16, 2015, Simpson’s counsel submitted three
issues to be considered, which were outlined in Simpson’s PCR application: (1)
direct appeal counsel was ineffective for failing to raise the issue of the denial of
the mistrial motion; (2) trial counsel was ineffective for failing to object to the
State’s cross-examination of a witness’s invocation of his Fifth Amendment right
against self-incrimination; and (3) trial counsel was ineffective in not objecting to
the State’s reference in the rebuttal closing argument to Herteen’s discussion of
grooming behaviors. Following the hearing, the court gave both parties two
weeks to file additional briefing or authorities. On August 10, beyond the two
week deadline set by the court, PCR counsel filed a document entitled “Merits
Brief,” in which he again raised the three issues above and for the first time
raised a challenge to trial counsel’s failure to object to the admission of Herteen’s
testimony under a “miscellaneous issues” heading. In that section PCR counsel
states:
After his comprehensive review of the Trial Transcript, the undersigned counsel identified the first three issues; however, after his extensive review of the case law, he also now believes that he should have raised the following issues: 19
A. Count IV: Trial counsel rendered ineffective counsel in failing to object to Expert Herteen’s testimony on pages 245 and 246, to wit: Expert’s Herteen testimony about teenagers not lying, or tell the truth about sexual abuse was inadmissible under Myers.
At the end of the discussion of this issue, counsel goes further to say:
Counsel believes he should have raised this issue in the original application. He understands that the State will likely object; however, if the underlying issue has merit, one way, or another it will be addressed since counsel offers no reason for not raising it other than mere oversight. See Dunbar v. State, 515 N. W.2d 12 (Iowa 1994) (ineffective assistance of counsel excuses procedural default of an issue). So to promote judicial economy, the Court might as well address it now. Counsel of course does not object if the State needs additional time to address this issue, or to reopen record if necessary.
The next issue raised by PCR counsel in his post-PCR “Merits brief” asserted
direct appeal counsel was also ineffective in not raising a challenge to Herteen’s
grooming behavior testimony. PCR counsel goes on to say:
Again, Counsel candidly admits that he missed this issue. He understands either way whether the State, or this Court will rule that it is untimely, but believes it makes more sense to go ahead and address it now since it will be addressed on post-conviction appeal: (1) if the appellate court agrees that the issue has merit; and (2) if the court finds that the undersigned counsel should have raised it. He believes that he should have, and that it makes more sense to address it now rather than on remand 15 months from now.
The district court issued its decision the very next day following the filing of
PCR counsel’s “Merits Brief” that raised these two additional claims. In the PCR
ruling, the district court did not take note of the “Merits Brief” filing or either of the
additional two issues that were raised in the brief. Instead, it confined its ruling to
the three issues raised in the PCR application and during the hearing. PCR
counsel did not file a posttrial motion under Iowa Rule of Civil Procedure 1.904(2)
asking the court to address the two additional claims raised in the “Merits Brief”; 20
instead, thirty days after the court issued its decision, PCR counsel filed a notice
of appeal.
For an issue to be raised and preserved for review on appeal, the issue
must have been presented to and ruled on by the district court. Meier v.
Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). “When a district court fails to rule
on an issue properly raised by a party, the party who raised the issue must file a
motion requesting a ruling in order to preserve error for appeal.” Id. While we
are not concerned with the “substance, logic, or detail in the district court’s
decision,” the ruling still needs to indicate that the court “considered the issue
and necessarily ruled on it, even if the court’s reasoning is ‘incomplete or
sparse.’” Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012). Here, I see no
indication the court considered the issue of the admissibility of Herteen’s
grooming testimony; it only considered whether trial counsel should have
objected to the State’s closing rebuttal argument that recounted that testimony.
While the majority in this case combines the challenge to the rebuttal
argument with the challenge to the admissibility of Herteen’s testimony, I see the
two issues as distinctly different. So did PCR counsel as he acknowledged in the
“Merits Brief” that he had not previously raised a challenge to the admissibility of
Herteen’s grooming testimony and pleaded with the PCR court to address the
issue despite its untimeliness. I would thus conclude that Simpson failed to
preserve error on his claim that trial counsel was ineffective when counsel failed
to object to Herteen’s testimony on grooming, but that does not end my analysis.
Simpson’s PCR appellate counsel alternatively raises the challenge
through an ineffective-assistance-of-PCR-counsel claim. See Dunbar, 515 21
N.W.2d at 14-15 (recognizing a PCR applicant has the right to effective
assistance of PCR counsel once counsel is appointed and can raise a claim on
appeal that PCR counsel was ineffective in inadequately raising issues in the
PCR proceeding); see also State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010)
(“Ineffective-assistance-of-counsel claims are an exception to the traditional
error-preservation rules.”). Simpson claims his PCR counsel was ineffective at
the district court for failing to timely assert his trial counsel was ineffective for not
objecting to Herteen’s grooming testimony.
When an ineffective-assistance claim is raised for the first time on appeal,
we must determine if the record is adequate to address the claim. Fountain, 786
N.W.2d at 263. If the record is not adequate, it must be preserved for PCR
proceedings. Id. I consider the record here adequate to address the claim of
PCR counsel’s ineffectiveness in light of PCR counsel’s concession in the “Merits
Brief” that the failure to raise the challenge to Herteen’s grooming testimony was
not based on any strategic decision but was “mere oversight.” See State v.
Bentley, 757 N.W.2d 257, 264 (Iowa 2008) (noting ineffective-assistance claims
are often preserved because “[e]ven a lawyer is entitled to his day in court,
especially when his professional reputation is impugned”). Because there is no
need for additional record to establish why PCR counsel failed to challenge to the
admissibility of Herteen’s testimony, I conclude the claim of PCR counsel
ineffectiveness should be addressed.
To establish PCR counsel was ineffective, Simpson must demonstrate
counsel failed to perform an essential duty and he suffered prejudice as a result.
See id. at 263. PCR counsel admits to failing to perform an essential duty by 22
failing to raise the challenge to Herteen’s testimony. For all the reasons stated in
the majority opinion, I conclude Herteen’s testimony regarding grooming, when
viewed in its totality, crossed the line into impermissible vouching and trial
counsel breached an essential duty by failing to object to its admission. I agree
Simpson suffered prejudice as a result of trial counsel’s failure to object to the
testimony, and therefore, I also conclude he suffered prejudice by PCR counsel’s
failure to timely raise this issue at PCR. I agree with the majority’s decision to
reverse the denial of Simpson’s PCR application and remand for the entry of an
order granting Simpson a new trial on the criminal charges.