IN THE COURT OF APPEALS OF IOWA
No. 21-0380 Filed May 11, 2022
JAMES CAIN HARRIS, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Kathleen A.
Kilnoski, Judge.
Applicant appeals from the denial of his application for post-conviction relief.
AFFIRMED.
Marti D. Nerenstone, Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Heard by May, P.J., and Greer and Chicchelly, JJ. 2
GREER, Judge.
Following his 2014 conviction1 for a 2003 murder, James Harris applied for
post-conviction relief (PCR), which was denied. Directing our attention to the trial
and appeal in the underlying criminal case, he now argues that: (1) his trial counsel
was ineffective for not moving to suppress the butterfly knife found in a car he was
riding in a decade after the killing because there was insufficient evidence to prove
it was his; (2) the court abused its discretion in failing to appoint substitute trial
counsel; (3) his counsel was ineffective in waiving his right to a speedy trial; (4) his
counsel was ineffective for waiving reporting of jury selection and opening
statements; (5) prosecutorial misconduct occurred during closing arguments when
the prosecutor made statements about the butterfly knife; (6) his counsel was
ineffective for failing to object to the no-inference-of-guilt instruction given to the
jury; (7) the PCR court erred by not presuming prejudice after Harris proved his
counsel breached an essential duty by not ensuring Harris was present for a
question submitted by the jury; (8) his counsel’s inefficacy led to cumulative error;
(9) there were internal inconsistencies in the PCR court’s order; and (10) his
counsel’s inefficacy led to structural error. As to his ineffective-assistance claims,
we find no instance where his counsel both breached an essential duty and that
breach led to prejudice. Harris did not preserve a structural-error challenge or
suffer from cumulative error. He also did not obtain a ruling from the PCR court
1Harris did appeal this conviction and a panel of our court upheld the conviction. See State v. Harris, No. 14-1393, 2015 WL 7019022 (Iowa Ct. App. Nov. 12, 2015). Procedendo issued on July 28, 2016. 3
on his challenge to the trial court’s denial of his request for substitute counsel, so
we do not consider this challenge. Accordingly, we affirm the PCR court’s denial.
Facts
On July 31, 2003, there was a disturbance outside of an apartment in
Council Bluffs. Residents of the apartment heard someone pounding on the door
and yelling. One voice in particular repeatedly called out, “Stephanie, you fucking
bitch, open the damn door.” These residents included two children who witnessed
the incident through the windows. Other individuals inside the apartment called
911.
When police arrived, they found a woman stabbed multiple times and near
death. She ultimately died from her injuries. Police found a bloody five-dollar bill
and shoe prints not belonging to the decedent or anyone else on the scene. They
determined neither the blood on the bill nor the shoe prints were the decedent’s,
and neither belonged to anyone else at the scene. Police investigated the case
unsuccessfully for months before it went cold.
However, in 2006, police received a lead from Harris’s brother, Anthony
Francis (also known as Cortez). Francis called Lieutenant Dan Flores—who
testified at trial that Francis sounded distraught—and informed Lieutenant Flores
he had information about a murder. Lieutenant Flores met with Francis and took
him to the police station for an interview, assisted by Detective John Clark.
Through the duration of the interview, Francis’s demeanor seemed distressed.
Detective Clark passed what Francis said on to Captain, then Detective, Tom
Weddum, who had been at the original scene shortly after the murder occurred
years prior. With the new information, Captain Weddum refocused the 4
investigation on Harris. Captain Weddum believed Harris had ties to Stephanie
Strange, who he went to interview. Strange, Harris’s past paramour, explained
that she had been with the decedent on the night of her murder. At the end of the
interview, Captain Weddum obtained enough information to support a
nontestimonial court order to go retrieve Harris’s DNA, which did not match that
found at the scene of the murder. The case fell cold once more.
Detective Brandon Danielson was assigned to the case in 2013. A DNA
match had been found for the bloody five-dollar bill from the scene. The DNA
match belonged to an incarcerated person who had not been a person of interest
or even connected with the case up until that point. That suspect denied any
knowledge of the murder. Detective Danielson decided to re-interview Strange;
her statements were consistent with what she had told Captain Weddum in 2006.
Ultimately, an arrest warrant went out for Harris.
Harris was arrested in March 2014 and charged with first-degree murder in
violation of Iowa Code sections 707.1 and 707.2(1) and (2) (2003), to which he
pled not guilty. Officer Travis Jarzynka testified that, during the arrest a butterfly
knife with a black handle was found in the car’s center console, as well as two
knives on Harris’s person. Harris was a passenger in the car, but it did not belong
to him. After being taken to the station, Harris was interviewed for several hours.
At first, he denied knowing the decedent. But as the interview continued, he
described buying marijuana from the decedent and going back to her apartment.
Harris also admitted being next to the decedent when she was stabbed, but he
claimed an unknown man did the stabbing. His description of the evening 5
substantiated what Strange had previously told the detectives and matched
specific details about the crime scene.
Armed with the information from the interview, the case proceeded toward
trial. Around one month before the trial, Harris sent the court a letter seeking
substitute counsel. The court held a hearing and gave Harris the opportunity to
explain his concerns. Given the limited time before trial, the severity of the charge,
and Harris’s wish not to waive his right to a speedy trial, the court denied the
motion; it also noted, though, that Harris’s counsel was well-equipped to move
forward.
As Harris’s trial date grew closer, his counsel determined he needed more
time to prepare. To accommodate, counsel filed a motion for continuance and a
limited waiver of Harris’s rights to a speedy trial, affixed with Harris’s signature.
This limited waiver allowed for an additional month before trial was required.
The trial eventually began in June. Before trial, and again at the beginning
of trial, the court asked Harris if he wanted to have the jury selection and opening
statements reported. Harris’s attorney stated that would not be necessary.
In the midst of the trial, Strange took to the witness stand and testified about
the statements she had given and what she saw in 2003. In her version, she
confirmed she and Harris had been at the bar, as was the decedent, and that Harris
was wearing blue sweatpants and a blue tank top she had given him. Harris told
Strange he planned to rob the decedent, who he believed had drugs on her. He
left with the decedent despite Strange’s protests. When Strange picked Harris up
hours later, he was in different clothing and had specks of blood on his arms and
face. They went to a hotel, and Harris paid for a room—despite not having money 6
earlier in the day. While he took a shower, he told her to wash off his butterfly
knife, and she cleaned off the “red stuff.” The State showed Strange a picture of
the butterfly knife found in the car at Harris’s arrest, and she testified it looked like
the one she remembered cleaning years earlier. On cross-examination, Harris
pushed her on this point: would it make sense to get rid of the clothes he wore but
not the murder weapon?
When the State rested, Harris moved for both a directed verdict and a
judgment of acquittal. The court denied both. Harris and his counsel had a
discussion off-record; when they returned, they rested his case. The court ensured
Harris was aware that, in resting, he was waiving his opportunity to testify or
present further evidence. Harris assured the court he was aware and agreed with
the strategy. The State made a point to confirm that Harris was aware of his right
to testify; Harris again stated he understood but chose not to take the stand. When
both sides had rested, Harris renewed both his earlier motion for a directed verdict
and motion for a judgment of acquittal, which the court again denied.
Before instructions were given to the jury, the court discussed the
instructions with the parties. Both parties agreed to the proposed instructions,
including jury instruction 16, which stated: “In this case, the Defendant has decided
not to testify. The Defendant is not required to testify, and no inference of guilty
shall be drawn from that fact. The burden of proof remains upon the State to prove
the guilt of the Defendant.” Harris’s counsel stated that he reviewed the
instructions with Harris, Harris had no objections or exceptions to them, and the
parties moved on to presenting their respective closing arguments. 7
In its closing statement, the State followed up on Harris’s question to
Strange about ridding himself of bloodied clothing but keeping the murder weapon.
The prosecutor told the jury:
I’ve cobbled together the pictures that we’ve got, but you can get an idea of what kind of knife we’re talking about through [photographs of the knife and the knife itself]. But this is the weapon we’re talking about here that was found on him at the time of his arrest that [Strange] identified as consistent with—certainly not going to suggest that it is, but it is consistent with. Now, the defense counsel indicated, so are you testifying that they were smart enough to get rid of the clothing but they weren’t smart enough to get rid of the knife? Fairly good question. I’ll submit a couple of things to you about that. Number one, sometimes, folks that kill people want a trophy. Perhaps this was a trophy. I will also submit to you that probably any one of you has within the past week or two eaten a steak, and I’m going to suggest that you probably cut into that steak, and you probably got some bloody juice on it and threw your knife into the dishwasher and got it out, and you’re probably perfectly comfortable eating with that utensil again in the very near [future]. Why? Because knives are washable. It is a lot tougher to get blood out of a shirt than to wash it off of a knife blade. So you don’t have to be a genius to say I don’t have to get rid of the knife. I run it under hot water and I do that long enough that there’s no blood, no DNA, and I get to keep my cool knife that I like.
In the midst of jury deliberations, the jury submitted a question seeking
statements or depositions from some of the witnesses. The court and the
attorneys met to discuss the question, but Harris was not brought back to the
courtroom. The court simply wrote back “no.”
After deliberating, the jury found Harris guilty of first-degree murder, and he
was sentenced to life without parole. He appealed his conviction, which a panel
of this court upheld. See Harris, 2015 WL 7019022, at *8. Harris then filed for
PCR in 2016, which was denied in 2021. He timely appealed. 8
Discussion.
We typically review a PCR action for errors at law. Castro v. State, 795
N.W.2d 789, 792 (Iowa 2011). But, when the review implicates a constitutional
issue, such as ineffective assistance of counsel, our review is de novo. Id.
As Harris raises a number of ineffective-assistance-of-counsel claims, we
provide the framework we use to address them here. To prove that counsel was
ineffective, Harris must satisfy a two-prong test by showing both that his counsel
breached an essential duty and that the breach resulted in prejudice. See State v.
Kuhse, 937 N.W.2d 622, 628 (Iowa 2020) (citing Strickland v. Washington, 466
U.S. 668, 687–88 (1984)). Failing to prove either prong is fatal to the claim. See
State v. Dalton, 674 N.W.2d 111, 119 (Iowa 2004).
To prove there was a breach, the applicant is required to show “his
counsel’s performance fell ‘below the standard demanded of a reasonably
competent attorney.’” Krogmann v. State, 914 N.W.2d 293, 306 (Iowa 2018)
(citation omitted). There is a presumption that counsel acted competently, and the
applicant can only overcome this presumption by “prov[ing] his counsel’s
performance ‘fell below the normal range of competency.’” Id. (citation omitted).
“[I]neffective assistance is more likely to be established when the alleged actions
or inactions of counsel are attributed to a lack of diligence as opposed to the
exercise of judgment. Improvident trial strategy, miscalculated tactics or mistakes
in judgment do not necessarily amount to ineffective counsel.” Lamasters v. State,
821 N.W.2d 856, 866 (Iowa 2012) (alteration in original) (internal quotation marks
and citations omitted). 9
Turning to the prejudice prong, the applicant is required to prove that their
counsel’s error was serious enough to deprive them of a fair trial. Id. The error
cannot have simply conceivably influenced the proceeding’s outcome. Id. “Rather,
the effect must be affirmatively proven by 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. (citation omitted). As Harris challenges his
criminal conviction, “the appropriate question to ask is ‘whether there is a
reasonable probability that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt.’” Id. (citation omitted). We address both the
claims preserved for this appeal and those not preserved because they were not
raised and ruled on below. See Goode v. State, 920 N.W.2d 520, 526–27 (Iowa
2018) (carving out an exception to the error-preservation rules for claims of
ineffective assistance of trial counsel that were first raised on appeal—not to the
district court—“when the appellate record is adequate”).
1. Ineffective Assistance of Counsel: Motion to Suppress the Knife.
Harris’s first claim is that his trial counsel was ineffective because counsel
did not file a motion to suppress the butterfly knife found in the center console of
the car he was riding in when arrested. Specifically, Harris believes his counsel
should have challenged whether there was enough evidence to prove the knife
belonged to Harris.
The State argues that Harris has not preserved error on this issue, and we
agree. “It is a fundamental doctrine of appellate review that issues must ordinarily
be both raised and decided by the district court before we will decide them on
appeal.” Lamasters, 821 N.W.2d at 862 (citation omitted). To the PCR court, 10
Harris argued that the search was illegal, not that there was insufficient proof the
knife was his. The PCR court’s ruling reflects this and contemplates only the
search’s validity.2 Because Harris neither raised the issue below nor received a
ruling on the issue, we need not address it here.
2. Request for Substitute Counsel.
Harris next claims that the trial court should have granted his pro se motion
seeking substitute counsel. As our court has previously held:
A defendant has a right to counsel at all critical stages of the criminal process. No defendant, however, has an absolute right to be represented by a particular counsel. The grounds to justify the appointment of substitute counsel include a conflict of interest, irreconcilable conflict, or a complete breakdown in communication between the defendant and counsel. The court must balance the defendant’s right to counsel of his [or her] choice and the public’s interest in the prompt and efficient administration of justice.
State v. Mott, 759 N.W.2d 140, 148–49 (Iowa Ct. App. 2008) (internal citations
omitted).
Of the grounds laid out in Mott, the only one Harris identifies for our
consideration is a breakdown in communication. And it is true that when a trial
court receives a request for substitute counsel, it has a duty to inquire into the
issue. State v. Lopez, 633 N.W.2d 774, 780 (Iowa 2001). But the State argues
that we need not determine if the trial court’s inquiry into Harris’s request was
sufficient because, as the PCR court did not rule on the issue, error has not been
preserved. Again, the State is correct.3 While Harris testified to the issue at his
2 Harris also filed a rule 1.904 motion to enlarge the court’s findings after the order came out. The motion pointed out the faults in the search but made no mention of the knife’s provenance. 3 “[W]e have consistently held that any claim not properly raised on direct appeal
may not be litigated in a [PCR] action unless sufficient reason or cause is shown 11
PCR hearing, the trial court’s inquiry and ultimate decision not to appoint him new
counsel were not reviewed by the PCR court, and Harris did not mention the
request in his 1.904 motion to enlarge. As the PCR court did not rule on the issue,
error was not preserved for our review on appeal. See Lamasters, 821 N.W.2d at
862. We address it no further.
3. Ineffective Assistance of Trial Counsel: Speedy Trial Waiver.
Harris next challenges the waiver of his right to a speedy trial. He concedes
that his counsel waived this right on May 28, 2014, 4 and that counsel has the ability
to do this on the defendant’s behalf. See State v. LeFlore, 308 N.W.2d 39, 41
(Iowa 1981) (reinforcing counsel’s ability to waive speedy trial rights with
continuance motions). Still, he argues that because he did not have counsel he
was confident in, in part because the court told him he was too close to trial to be
appointed new counsel, “[his] rights were trampled upon.”
Before the PCR court, Harris argued that his trial counsel was ineffective
for waiving his right to a speedy trial when the upcoming trial was the basis for not
allowing him new counsel. Yet, Harris admits that his counsel could waive speedy
trial on his behalf, and Harris testified he signed the partial waiver of speedy trial
for not previously raising the claim, and actual prejudice result from the claim of error.” Everett v. State, 789 N.W.2d 151, 156 (Iowa 2010); see also Iowa Code § 822.8 (2016). Harris does not attempt to justify why this issue was not raised on direct appeal, and he did not bring this claim under the guise of ineffective assistance of appellate counsel. See Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (“We have found the ineffective assistance of appellate counsel to constitute a sufficient reason for failing to raise the issue . . . on direct appeal.”). He cannot raise this claim for the first time in PCR. 4 Harris’s testimony confirmed that he remembered discussing the form with
counsel and signing it, though he denies that he understood what rights he was giving up. 12
after discussion and agreement with his trial counsel. Because Harris is making
this same argument to our court, we note he has not established how any breach
of his right to a speedy trial was prejudicial.5 See Dalton, 674 N.W.2d at 119
(noting that failure to satisfy either the breach or prejudice prong is fatal to a claim
of ineffective assistance of counsel). We cannot, then, find his counsel was
ineffective in this limited waiver of Harris’s right to a speedy trial.
4. Ineffective Assistance of Trial Counsel: Failure to Report Jury Selection
and Opening Statements.
Harris makes the claim his trial attorneys were ineffective for failing to have
jury selection and opening statements reported but offers no specifics about how
any error occurred during those parts of the trial. The State contends that we need
not reach the merits as the issue was not preserved. We agree. To preserve error
for appeal, the party must raise the issue and receive a ruling from the PCR court.6
See Lamasters, 821 N.W.2d at 862. And while Harris made brief mention in the
PCR trial of the lack of reporting of voir dire, he did so in the process of making a
fair cross-section claim, which he does not challenge on appeal. So, the PCR
5 The PCR court, in its order, spoke to the lack of prejudice: Harris failed to demonstrate how he was prejudiced by the limited waiver. . . . There is nothing to indicate that the result of the trial would have been different if Harris had waived his speedy trial rights in open court after a colloquy with the judge. The court finds that this allegation is without merit. 6 Harris could have bypassed our error-preservation rules by raising this issue
through the framework of whether PCR counsel was ineffective in failing to adequately raise or obtain a ruling on the issue, but Harris did not do so. See, e.g., Harryman v. State, No. 14-1334, 2015 WL 4935640, at *5 (Iowa Ct. App. Aug. 19, 2015) (“Nevertheless, an applicant may raise an ineffective-assistance-of-PCR- counsel claim on appeal from the denial of a PCR application. (citing Dunbar v. State, 515 N.W.2d 12, 15–16 (Iowa 1994))). 13
court ruled only on the fair cross-section claim.7 Further, the PCR court never
received arguments about opening statements that Harris now raises on appeal.8
As neither claim was properly preserved, we discuss them no further.
5. Ineffective Assistance of Trial Counsel: Prosecutorial Misconduct.
Harris next argues that his case was tainted by the prosecutor’s misconduct
in front of the jury and that his trial counsel was ineffective for not objecting to the
conduct during the trial. He pinpoints misconduct when the prosecutor (1) elicited
testimony from Strange that the butterfly knife found in the car during Harris’s
arrest was the same kind she saw him with in 2003 and (2) claimed, during closing
arguments, the butterfly knife found in the car was a “trophy” from the murder.9
Harris argues that portraying the butterfly knife as the murder weapon was not
supported by evidence and went against the purpose of its admission into
evidence, and his counsel should have objected in both instances.
7 Harris also made no effort to raise the recording issue in his rule 1.904 motion to enlarge. See Lamasters, 821 N.W.2d at 863 (requiring a party to file a rule 1.904 motion requesting a ruling to preserve error when the court fails to rule on the issue in its initial order). 8 Even if the argument were preserved, Harris neglected to establish any specific
error that occurred during the jury selection or opening statements or how he was prejudiced; therefore, his challenge must fail. See State v. Oetken, 613 N.W.2d 679, 689 (Iowa 2000) (finding counsel was not ineffective when the defendant did not “assert any specific error occurred during the course of those proceedings, or that he was prejudiced as a result of his trial counsel’s representation”). 9 Harris also claims his counsel was ineffective for not objecting when the State
“improperly shifted the burden [of proof]” to Harris during closing statements. This claim was not raised to the PCR court nor addressed in Harris’s rule 1.904 motion to enlarge, and so we do not consider the issue further. See Lamasters, 821 N.W.2d at 862 (requiring the issue to be both raised and ruled upon in order to be preserved). 14
When the State offered the knives collected at Harris’s arrest into
evidence,10 including the butterfly knife, the following discussion occurred outside
the presence of the jury:
PROSECUTOR: . . . [T]he butterfly knife that is depicted in 55C, D, and E, as well as an actual exhibit 56, I’m not saying that’s not the murder weapon in this case, Your Honor. It is consistent with the description that [Strange] gave, and I think you’re going to find when she takes the stand, . . . Strange, I don’t know she’s actually been shown it, but she certainly will be in court, and she said it was a black-handled butterfly knife that was used—that he stabbed [the decedent] with, and it’s a black-handled butterfly knife that’s in his possession when he was arrested. So I think at the very least, it is certainly relevant. And I think that’s probative. We’re not going to submit that we have any sort of DNA test on it. It is 11 years later, but certainly any prejudicial effect of him arguing that he possesses these knives when he admits it throughout his statement we think is minimal. It certainly has a significant amount of probative value about his enjoyment— THE COURT: So you intend to link up this butterfly knife? I will confess, I was concerned about that getting in if we were just going to say person stabbed, and oh by the way he has a knife we can’t link up to the case even remotely, but apparently there’s evidence in here that I wasn’t particularly aware of. One is through a witness who will identify a knife that matches the description of this knife, and the other is his statement where he repeatedly refers to having these knives. .... . . . [There is a] difference between admissibility and weight and sufficiency. It sounds to me, [defense counsel], like you’ve got some pretty good weight and sufficiency arguments, but I don’t think it keeps the evidence out. I might change my mind if somebody says this is the murder weapon, because if you don’t link that up real clearly, I’m probably not going to let you go that far; okay? All right.
As explained above, to prove Harris received ineffective assistance of
counsel, he must establish both that his counsel breached an essential duty and
that the breach resulted in prejudice. See State v. Graves, 668 N.W.2d 860, 869
10The butterfly knife’s admission into evidence was challenged and upheld by a panel of this court in 2015. Harris, 2015 WL 7019022, at *7. 15
(Iowa 2003). Here, Harris claims this breach occurred when counsel failed to
object to prosecutorial misconduct as the prosecutor flouted the limitations placed
on the admission of the knife into evidence. Prosecutorial misconduct violates a
defendant’s due process rights when there is both misconduct and prejudice
results from the misconduct. State v. Leedom, 938 N.W.2d 177, 192 (Iowa 2020).
Prosecutorial misconduct has been broadly defined, as “trial conduct of a
prosecutor in a criminal case that is claimed to deprive the defendant of a fair trial.”
State v. Schlitter, 881 N.W.2d 380, 393 (Iowa 2016), abrogated on other grounds
by State v. Crawford, ___ N.W.2d ___, ___ 2022 WL 815299, at *5, *9 (Iowa 2022).
Misconduct can include “questioning witnesses about others’ deceit, distorting
testimony, making unsupported statements during closing argument, stating the
defendant lied during testimony, diverting the jury from deciding the case based
on the evidence, making other inflammatory or prejudicial statements about the
defendant, and more.” Id.
Still, “[a] prosecutor’s misconduct does not warrant relief unless the conduct
was so ‘prejudicial as to deprive the defendant of a fair trial.’” State v. Sempek,
No. 10-0586, 2011 WL 5396362, at *6 (Iowa Ct. App. Nov. 9, 2011) (quoting State
v. Anderson, 448 N.W.2d 32, 33 (Iowa 1989)); see also State v. Carey, 709 N.W.2d
547, 556 (Iowa 2006) (“The obvious threat addressed by Graves and other of our
cases is the possibility that a jury might convict the defendant for reasons other
than those found in the evidence. . . . [M]isconduct occurs when the prosecutor
seeks [to tarnish the defendant’s credibility or boost that of the State’s witnesses]
through unnecessary and over inflammatory means that go outside the record or
threaten to improperly incite the passions of the jury.”). “The party claiming 16
prejudice bears the burden of establishing it.” Anderson, 448 N.W.2d at 33. In
considering prejudice, we look at a number of factors including “(1) the severity
and pervasiveness of the misconduct; (2) the significance of the misconduct to the
central issues in the case; (3) the strength of the State’s evidence; (4) the use of
cautionary instructions or other curative measures; and (5) the extent to which the
defense invited the misconduct.” Graves, 668 N.W.2d at 869 (internal citations
Looking first at Strange’s statement about the knife she remembered from
2003 matching the knife found at the time of Harris’s arrest, Harris argues that
eliciting this testimony was prosecutorial misconduct because it could be taken to
imply the knife in the car was the murder weapon. But, considering the directions
the court gave when it admitted the knife into evidence, the State was well within
its bounds to ask Strange to compare the knife in evidence to the knife she
remembered from the night of the killing. Turning next to the prosecutor’s
statements at closing arguments, we note that the statements in the closing
argument did come closer to saying the butterfly knife found in the car was the
murder weapon, but it still did not reach the level of prosecutorial misconduct. The
State made clear that the knife was consistent with the murder weapon rather than
declaring it was the murder weapon; this inference found support in Strange’s
testimony—offering the “link” required by the trial court. Moreover, it was defense
counsel’s question of Strange, surrounding why Harris would get rid of his clothing
but keep his knife, that opened the door to the prosecutor’s inference about the
knife. See Leedom, 938 N.W.2d at 194 (“Counsel can draw inferences from the
evidence in closing arguments, but they cannot misstate or create the record.”). 17
Because the State stayed in the lane constructed by the trial court, Harris’s
counsel breached no duty by failing to object to the question. See State v.
Tompkins, 859 N.W.2d 631, 637 (Iowa 2015) (“Further, where a claimant alleges
counsel’s failure to pursue a particular course breached an essential duty, there is
no such duty when the suggested course would have been meritless.”). Without
this breach, Harris’s ineffective-assistance-of-counsel claim must fail. See Dalton,
674 N.W.2d at 119 (“Failure to prove either prong of the Strickland test results in
failure of the defendant's ineffective-assistance-of-counsel claim.”).
6. Ineffective Assistance of Trial Counsel: No-Inference-of-Guilt Instruction.
Harris also challenges a jury instruction that was given to the jury in his
criminal trial—one providing no inference of guilt could be drawn from Harris’s
choice not to testify. In his PCR trial brief, he argued that this was ineffective
assistance of counsel. Deposition testimony of his trial counsel was offered as
evidence to the PCR court; one attorney admitted she had not discussed the
instruction with Harris, while the other could not remember specifically addressing
that instruction. In State v. Kimball, 176 N.W.2d 864, 869 (Iowa 1970), our
supreme court discussed such an instruction:
We must recognize, however, that the [no-inference-of-guilt] instruction is a comment on defendant’s failure to testify even though it is supposedly for defendant’s benefit and is designed to keep the jury from speculating on the reasons for his failure to take the stand and drawing improper inferences therefrom. There are those who believe the instruction is more harmful than helpful and regardless of how favorably to the accused the instruction may be worded it may inadvertently cause the jurors to consider certain adverse inferences which would not otherwise have entered their minds. Because of the divergent opinions in this sensitive area . . . we believe it is advisable for us to take a definitive position on this issue. We now hold that such instruction should not be given in any future trial unless it is requested by defendant, and that it will 18
be considered error if it is given, absent such request, in any trial started after the date this opinion is filed.
The PCR court acknowledged this precedent, but it did not decide whether such a
breach of duty had occurred in Harris’s case.11 Instead, considering the claim
through the ineffective-assistance-of-counsel framework,12 it pivoted to the
prejudice prong that Harris was still required to prove. See State v. Stewart, 691
N.W.2d 747, 749 (Iowa 2004) (“The defendant bears the burden of demonstrating
ineffective assistance of counsel.”).
The PCR court found no such showing. As we sit here today, Harris has
yet to argue specific prejudice and instead hangs his hat on a reversible error
claim. See Lamasters, 821 N.W.2d at 866 (“Even if [the applicant] can show his
counsel made a professionally unreasonable error, the judgment shall not be set
aside unless it can be shown the error had an effect on the judgment. A showing
that the error ‘conceivably could have influenced the outcome’ of the proceeding
is not enough.” (citations omitted)). Harris offered no analysis as to how omitting
the instruction would have helped his case. As Harris has not proved he was
prejudiced by his trial counsel’s choice to proceed with the jury instruction, we
cannot find counsel was ineffective. See Ledezma, 626 N.W.2d at 142 (“If the
11 We acknowledge, as the State points out, that it is not clear a breach occurred. See Gibler v. State, No. 15-2222, 2017 WL 5124485, at *4–5 (Iowa Ct. App. Feb. 8, 2017) (“Gibler’s counsel clearly indicated he had no objections to the final set of instructions, which had included the no-inference instruction as to Gibler. It is obvious counsel knew the no-inference instruction was included and had made the decision to have it submitted. . . . To have the no-inference instruction included was a trial strategy of counsel. Miscalculated trial strategies do not rise to the level of ineffective assistance.”). 12 Kimball was a case on direct appeal, not an application for PCR. Harris drew
no issue with the instruction in his direct appeal. 19
claim lacks prejudice, it can be decided on that ground alone without deciding
whether the attorney performed deficiently.”).
7. Ineffective Assistance of Trial Counsel: Jury Question.
Next, Harris asserts the PCR court erred in its analysis over the July 1, 2014
jury question. Harris argued to the PCR court that his trial counsel was ineffective
for failing to ensure he was present for discussion of the jury question in the midst
of deliberations. See Everett, 789 N.W.2d at 159 (“We conclude counsel had a
duty in this instance to ensure his client’s statutory and constitutional rights were
protected.”). But see id. at 160 (leaving open the question of whether failing to
ensure the defendant is present “would always constitute a breach of an essential
duty”). While the PCR court agreed with Harris that his counsel breached an
essential duty here, it also found Harris had not proved prejudice and so had not
established his counsel was ineffective. Harris now argues that, because the court
found his counsel had breached an essential duty, it erred in not finding prejudice.
Harris is mistaken in believing this breach created some presumption of
prejudice. To prove his counsel was ineffective, Harris must establish both that
counsel breached an essential duty and that the breach resulted in prejudice.
Kuhse, 937 N.W.2d at 628. “The defendant bears the burden of demonstrating
ineffective assistance of counsel,” Stewart, 691 N.W.2d at 749, and failure to prove
either prong is fatal, Dalton, 674 N.W.2d at 119. Harris must do more than just say
he was prejudiced. To establish prejudice, Harris must show “the probability of a
different result [had he been present for the jury question] is ‘sufficient to
undermine confidence in the outcome.’” Everett, 789 N.W.2d at 158 (citation
omitted). The PCR court was not wrong to require Harris to prove both prongs, 20
and on appeal he presents only conclusory statements that do not establish
prejudice. See State v. Myers, 653 N.W.2d 574, 579 (Iowa 2002) (finding
conclusory statements were insufficient to prove prejudice). Harris did not, and
does not now, prove the necessary prejudice to establish his counsel was
ineffective, so his claim must fail.
8. Cumulative Error.
Harris asserts that when combined, the cumulative effect of counsels’
alleged errors amount to Strickland prejudice.13
If the defendant raises one or more claims of ineffective assistance of counsel, and the court analyzes the prejudice prong of Strickland without considering trial counsel’s failure to perform an essential duty, the court can only dismiss the post-conviction claim if the alleged errors, cumulatively, do not amount to Strickland prejudice.
State v. Clay, 824 N.W.2d 488, 501 (Iowa 2012). We employ this analysis here as
we disposed of more than one claim of ineffective assistance on prejudice grounds.
Still, even considering these charges collectively, we do not find Strickland-level
prejudice has occurred. See Strickland, 466 U.S. at 696 (establishing that
prejudice is shown when the defendant shows “the decision reached would
reasonably likely have been different absent the errors”).
9. PCR Court’s Opinion.
Harris next questions the consistency of the PCR court’s opinion, largely
reiterating earlier arguments we have already resolved. Harris points first to the
13Harris also puts forward two of purported errors that the court disposed of on prejudice below, as well as another he did not raise. As these arguments are underdeveloped with no supporting authority, we consider the issue waived. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of an issue may be deemed waiver of that issue.”). 21
PCR court’s decision regarding prosecutorial misconduct, which we have already
upheld and discuss no further. Next, he argues that the PCR court ought not to
have placed the burden of proving prejudice on him when considering the use of
the no-inference-of-guilt jury instruction or answering the jury question. The PCR
court was correct to rule Harris was responsible for this burden. See Stewart, 691
N.W.2d at 749 (“The defendant bears the burden of demonstrating ineffective
assistance of counsel.”). As we find no error with the issues Harris raises as
inconsistent, we can provide him no relief.
10. Structural Error.
Harris’s final contention14 is that his counsel was so ineffective as to
constitute structural error. “Structural errors are not merely errors in a legal
proceeding, but errors ‘affecting the framework within which the trial proceeds.’”
Lado v. State, 804 N.W.2d 248, 252 (Iowa 2011) (citation omitted). There are
limited instances where Iowa courts have recognized structural error in the past
when:
(1) counsel is completely denied, actually or constructively, at a crucial stage of the proceeding; (2) where counsel does not place the prosecution’s case against meaningful adversarial testing; or (3) where surrounding circumstances justify a presumption of ineffectiveness, such as where counsel has an actual conflict of interest in jointly representing multiple defendants.
Id.
14 After raising a number of specific instances he believes constituted ineffective assistance by trial counsel, Harris also makes a broad, general claim at the end of his brief that his trial counsel was ineffective. As we have already discussed cumulative error and his individual ineffective-assistance allegations above when preserved, we will not re-hash them here. 22
We do not need to determine if Harris falls into these narrow parameters,
because he never raised the issue to the PCR court nor received a ruling on the
matter; therefore, he has not preserved error. See Lamasters, 821 N.W.2d at 862
(“It is a fundamental doctrine of appellate review that issues must ordinarily be both
raised and decided by the district court before we will decide them on appeal.”
(citation omitted)); see also Riddle v. State, No. 20-0536, 2021 WL 2708937, at *2
(Iowa Ct. App. June 30, 2021) (noting that structural-error claims regarding trial
counsel on appeal from PCR are subject to the rules of error preservation).
Therefore, his claim of structural error cannot proceed.
Conclusion.
For all the reasons discussed above, we affirm the PCR court’s denial of
Harris’s application for post-conviction relief.