IN THE COURT OF APPEALS OF IOWA
No. 20-1112 Filed August 18, 2021
JEREMY MICHAEL CORY, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Story County, James C. Ellefson,
Judge.
A prisoner appeals the denial of his second application for postconviction
relief. AFFIRMED.
Andy Dunn and Jessica Donels of Parrish Kruidenier Dunn Gentry Brown
Bergmann & Messamer L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., Tabor, J., and Potterfield, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021). 2
TABOR, Judge.
A jury convicted Jeremy Cory of first-degree murder in the 2014 shooting
death of his wife, Vallerie. We upheld his conviction on direct appeal after finding
“overwhelming evidence” supported the guilty verdict. See State v. Cory,
No. 14-1436, 2015 WL 7567527, at *1 (Iowa Ct. App. Nov. 25, 2015). He first
sought postconviction relief (PCR) in 2016. The district court dismissed his
application. We affirmed but noted Cory could pursue his ineffective-assistance-
of-counsel claims in a second PCR action. See Cory v. State, No. 16-2059, 2018
WL 2084906, at *3 (Iowa Ct. App. May 2, 2018). He did just that. But the district
court again denied relief. Cory now complains both his trial and appellate counsel
were ineffective in numerous ways. As a threshold issue, he invites us to adopt a
new harmless-error standard when resolving his ineffective-assistance-of-counsel
claims under article I, section 10 of the Iowa Constitution.
Because our supreme court has not yet addressed whether Iowa should
adopt its own standard for deciding ineffective-assistance claims under the state
constitution, we decline Cory’s invitation. And because Cory fails to meet his
burden of proving either a breach of duty or prejudice under Strickland v.
Washington, 466 U.S. 668, 687 (1984), we affirm the denial of relief.
I. Facts and Prior Proceedings
The State charged Cory with first-degree murder, a class “A” felony, after
officers found his wife’s decomposing body in an upstairs bedroom while executing 3
a search warrant at the couple’s home.1 Before trial, the defense moved to
suppress Cory’s statements to police under the Fifth and Sixth Amendments. The
motion alleged his consumption of alcohol and pain medication before the
interview rendered his statements involuntary. The district court denied the motion
to suppress.
Also before trial, the State moved to exclude all evidence of Cory’s
intoxication at the time of his arrest and his history of alcohol use based on his
failure to timely raise intoxication as an affirmative defense. The court agreed
evidence related to Cory’s alcoholism (or reputation as an alcoholic) would be
inadmissible because it related to the intoxication defense. Yet the court
suggested Cory could offer direct proof of his alcohol use during the four days
between his alleged discovery of his wife’s body and his arrest to explain his
suspicious conduct. After conferring with the attorneys, the court clarified that the
defense would still need to prove relevance to admit that evidence at trial.
Despite the court’s ruling, defense counsel sought to ask potential jurors
about their experiences with alcoholism and intoxication. Counsel urged that
knowing the jurors’ views on alcohol abuse was crucial to Cory’s case outside of
the intoxication defense. Disagreeing, the court denied the defense request.
Counsel argued for the record that her inability to weed out jurors on this basis
violated Cory’s constitutional rights. The court rejected that argument.
1 Police obtained a search warrant after Cory lied during a welfare check on the victim; Cory professed he did not want them to go upstairs because he had a marijuana growing operation there. When officers returned with the warrant to search for illegal drugs, they discovered the body. The medical examiner determined Vallerie had been dead for at least forty-eight hours and may have been killed up to seven days before police discovered her body. 4
After an eight-day trial, the jury found Cory guilty as charged. The district
court sentenced him to life in prison without the possibility of parole. On direct
appeal, Cory challenged his conviction on several grounds, including the court’s
limitation on voir dire. Plus, Cory argued his trial counsel should have moved to
suppress under article I, section 10 of the Iowa Constitution, as well as alleging
federal constitutional grounds. In resolving his claims, we acknowledged the
district court went too far by prohibiting all discussion of alcohol abuse during jury
selection. But we found the error harmless and affirmed the conviction. Cory,
2015 WL 7567527, at *10. And we preserved the ineffective-assistance claim for
further record development. Id. at *11. Procedendo issued in February 2016.
Two months later, Cory filed his first application for PCR. He alleged (1) his
trial counsel rendered ineffective assistance by advising him not to testify; (2) the
prosecution withheld exculpatory evidence; and (3) the cumulative effect of trial
counsel’s errors denied him a fair and impartial trial. The State moved for summary
disposition. PCR counsel resisted dismissal as “premature.” Citing the lack of
“evidence, affidavits, record, or testimony” in Cory’s resistance, the district court
granted the State’s motion for summary dismissal; we affirmed. Procedendo
issued in July 2018.
In January 2019, Cory filed his second PCR application, which included new
claims against his trial, appellate, and first PCR counsel under both the Sixth
Amendment and article 1, section 10 of the Iowa Constitution. He proposed the
state constitution should recognize broader protection for criminal defendants by
shifting the burden of proving prejudice to the State. In the alternative, Cory
alleged that all the attorneys’ errors, when taken together, denied him a fair trial. 5
To remedy those violations, Cory asked the court to reverse his conviction and
order a new trial.
The district court addressed Cory’s ineffective-assistance claims under the
two-pronged Strickland test, reasoning, “This court has not seen any indication that
either the Iowa Legislature or the Iowa Supreme Court would adopt a different Iowa
standard.” Applying that framework, the court held that neither trial nor appellate
counsel breached their duties. And none of the alleged errors, individually or
cumulatively, satisfied the test for prejudice. Because Cory did not prove either
prong, the court denied relief. Finding no basis for granting a new trial, the court
declined to consider the remaining claims related to Cory’s first PCR counsel. Cory
appeals.
II. Scope and Standard of Review
We normally review PCR rulings for correction of legal error. Castro v.
State, 795 N.W.2d 789, 792 (Iowa 2011). But when the action involves
constitutional claims, such as ineffective assistance of counsel, we apply de novo
review. Linn v. State, 929 N.W.2d 717, 729 (Iowa 2019).
III. Analysis
A. Ineffective Assistance of Counsel
In challenging the denial of his second PCR, Cory abandons his claims
against his first PCR counsel. He now focuses on what his trial and appellate
counsel did or did not do that led to his conviction. Before turning to those claims,
we must address Cory’s threshold question: should a harmless-error standard
govern ineffective-assistance-of-counsel claims brought under article I, section 10
of the Iowa Constitution? 6
The State criticizes Cory’s harmless-error proposal as “an extreme
departure” from the widely accepted Strickland standard. It contends neither the
constitutional provision nor related case law supports adopting a different prejudice
standard, let alone harmless error. The State correctly notes that in recent cases,
we declined to interpret the right to counsel provision of article I, section 10
differently from the Sixth Amendment.2 See Beloved v. State, No. 17-1908, 2019
WL 1300224, at *1 (Iowa Ct. App. Mar. 20, 2019) (rejecting claim that district court
should have applied “a less deferential standard” of prejudice under Iowa
Constitution because supreme court has long followed federal framework); Hicks
v. State, No. 18-1625, 2019 WL 4297874, at *3 (Iowa Ct. App. Sept. 11, 2019)
(noting we are “not at liberty to overrule controlling supreme court precedent” and
interpret right to counsel provision of article I, section 10 broader than its federal
counterpart). Our unpublished decisions are persuasive rather than binding
precedents. Yet we agree it is not for us to adopt a new standard under the state
constitution when our supreme court has already established Strickland as the
governing framework for all ineffective-assistance-of-counsel claims. So we opt to
apply that same standard here.
To prevail on his claims of ineffective assistance, Cory must prove his trial
and appellate counsel each failed to perform an essential duty and prejudice
resulted. See Strickland, 466 U.S. at 687; Ledezma v. State, 626 N.W.2d 134,
141 (Iowa 2001) (“We judge ineffective assistance of appellate counsel claims
against the same two-pronged test utilized for ineffective assistance of trial counsel
2 Cory does not address those decisions in his reply brief. 7
claims.”). We deny a claim if either prong is unproven. State v. Boothby, 951
N.W.2d 859, 863 (Iowa 2020). On the duty prong, Cory must show counsel
“performed below the standard demanded of a reasonably competent attorney.”
Ledezma, 626 N.W.2d at 142. In deciding what is reasonable, we consider
whether there was a strategic reason for counsel’s omissions. Id.; State v. Davis,
951 N.W.2d 8, 16 (Iowa 2020). We are more likely to find a breach of duty when
the record reveals “no possible strategic reason” for counsel’s decisions. Davis,
951 N.W.2d at 17 (quoting State v. Harris, 891 N.W.2d 182, 186–87 (Iowa 2017)).
As for prejudice, Cory must show there was a reasonable probability of a different
outcome. Boothby, 951 N.W.2d at 863 (citations omitted).
Cory argues trial and appellate counsel were ineffective in several ways.
These include: (1) failing to preserve error on juror prejudice after the denial of two
challenges for cause and then not addressing that denial on direct appeal;
(2) failing to identify article I, section 10 of the Iowa Constitution as a basis for
suppressing his statements to police and then failing to raise the Sixth Amendment
ground on appeal; (3) failing to obtain an expert witness to testify about alcohol
abuse; (4) failing to challenge evidentiary issues concerning improper opinion
testimony on appeal; and (5) failing to object to improper statements in the State’s
closing argument. We will address each claim in turn.
1. Jury Selection
Cory first contends his trial counsel performed below professional norms by
failing to identify on the record which of the seated jurors he would have removed
with peremptory challenges but for the district court’s refusal to strike two jurors for
cause. He argues under State v. Neuendorf, 509 N.W.2d 743 (Iowa 1993), 8
counsel had a duty to preserve error on the improper denial of his challenges for
cause by showing the jurors who actually rendered his verdict were not impartial.
Cory suggests that in failing to create that record, his attorney thwarted his chance
for reversal of his conviction on direct appeal because—without those crucial
facts—he could not show the court’s error was prejudicial.
But as the State points out, Cory’s argument presupposes the denial of his
for-cause challenges was improper. Under Neuendorf, reversal may be warranted
if the district court erred in denying a challenge for cause and that error led to
prejudice by the seated jury. 509 N.W.2d at 746. The supreme court abandoned
the “automatic reversal rule,” holding that an improper denial of a challenge for
cause “is not automatically a ground for reversal when the juror in question has
been removed through the use of a peremptory challenge.” Id. at 744 (overruling
State v. Beckwith, 46 N.W.2d 20 (Iowa 1951), which reiterated that prejudice would
be presumed if defendant was forced to use peremptory challenge to cure
improper ruling on challenge for cause). Instead, the record must also show the
partiality of the remaining jurors prejudiced the defendant. Cory focuses only on
that latter part. Yet we need not discuss prejudice if the court made no error. See
State v. Mootz, 808 N.W.2d 207, 222 (Iowa 2012) (noting Neuendorf provides a
“remedy for a litigant who is wrongly denied a challenge for cause”).
So we first ask whether the district court wrongly overruled Cory’s
challenges for cause. See Iowa R. Crim. P. 2.18(5)(k) (allowing challenge to
prospective jurors “[h]aving formed or expressed such an opinion as to the guilt or
innocence of the defendant as would prevent [them] from rendering a true verdict
upon the evidence submitted on the trial”). The court has “broad discretion” in 9
ruling on those challenges. Neuendorf, 509 N.W.2d at 746. Here, the defense
moved to strike prospective jurors R.D. and T.B., who had experiences with
domestic abuse. Counsel questioned their ability to remain impartial given the
State’s allegation that Cory was hostile toward his wife. The court asked them if,
despite their views, they could follow jury instructions and consider only the
evidence presented by the parties in rendering a verdict. Both assured they could
separate the evidence from their own experiences and remain objective when
applying the law to the facts. To be sure, T.B. was less definitive than R.D., saying,
“I think that I could” rather than “yes.” But she added that the allegations of
domestic violence in the State’s case had no bearing on her determination of the
defendant’s guilt.
Given the jurors’ responses, we discern no abuse of discretion in the denial
of Cory’s challenges for cause. The district court had no reason to believe that
either R.D. or T.B. could not overcome their biases if seated on the jury. See id.
(distinguishing State v. Simmons, 454 N.W.2d 866, 868 (Iowa 1990), in which the
jurors affirmatively told the court “they would withhold judgment and presume the
defendant innocent until the evidence proved otherwise”). The record shows
neither potential juror held preconceived opinions about Cory’s guilt or other
aspects of the case based on their past experiences. So the court did not err in
refusing to disqualify them for cause. Because the denial was proper, trial counsel
had no duty to preserve error on juror prejudice following voir dire.
For that same reason, we reject Cory’s claim that appellate counsel was
ineffective by not addressing the improper denial of his challenges for cause. As
the PCR court noted, “[t]here was nothing for trial counsel to preserve” and “this 10
was not an issue that presented any likelihood of success on appeal.” Thus, Cory
failed to prove trial and appellate counsel performed deficiently in handling issues
related to jury selection.
2. Motion to Suppress Statements
As his second complaint, Cory argues he received ineffective assistance
when trial counsel failed to raise an argument under article I, section 10 of the Iowa
Constitution in moving to suppress his incriminating statements. Inversely, he
asserts appellate counsel was remiss in raising the article I, section 10 argument
on direct appeal but failing to address the preserved Sixth Amendment claim.
According to Cory, those omissions constituted deficient performance and led to
prejudice. But for trial counsel’s error, Cory claims the court would have
suppressed his statements under article I, section 10 because his right to counsel
attached before the criminal complaint. As for appellate counsel’s omission, Cory
contends her failure to pursue his Sixth Amendment claim prevented him from
seeking habeas corpus relief.
In denying both claims in the second PCR, the district court found neither
trial nor appellate counsel breached a duty. See State v. Evans, 495 N.W.2d 760
(Iowa 1993). The Evans court acknowledged “the right to counsel may attach prior
to the filing of a trial information or indictment, depending, in part, on the level of
prosecutorial involvement.” Id. at 764–65 (citing State v. Jackson, 380 N.W.2d
420, 423 (Iowa 1986)). But the court reiterated its preference for the bright-line
federal rule—requiring “institution of formal proceedings.” See Evans, 495 N.W.2d
at 765. After reviewing Evans and related cases, the district court held: 11
Whether the bright-line approach ultimately prevails in Article I, section 10 law, which seems likely, or the totality of the circumstances wins the day, the facts of this case would not support a finding or conclusion that Mr. Cory’s right to counsel had attached at the time of the [Division of Criminal Investigation (DCI)] interrogation at the Huxley police station under either approach.
The court reasoned the prosecutors involved in Cory’s case “did not have sufficient
participation in the interrogation to cause the right to counsel to attach even under
the totality of the circumstances approach.”
On appeal, Cory insists the “extensive involvement of three prosecuting
attorneys” after his arrest, but before the filing of a criminal complaint, triggered his
right to counsel under article I, section 10.3 The State counters that the broader
protection afforded under the state constitution does not apply before a criminal
case is initiated. We agree with the State on this point.
Cory acknowledges his interview with police occurred six hours before a
DCI agent filed the criminal complaint. Yet he argues: “Holding that he was not
entitled to an attorney merely because the complaint had yet to be filed would allow
the government to zero in on a suspect and question him in violation of his right to
counsel.” He suggests the only reason the criminal complaint had not been filed
when police questioned him was because the clerk’s office was closed. Even if
we agreed with that premise, Cory’s argument fails.
3 Our supreme court has interpreted that provision as extending broader protections than the Sixth Amendment because not only does the right to counsel attach in “all criminal prosecutions,” but also in “cases involving the life, or liberty of an individual.” See State v. Young, 863 N.W.2d 249, 279 (Iowa 2016) (clarifying “cases” language guarantees protections where “no formal criminal prosecution was or could be instituted”). 12
Cory had no right to counsel under article I, section 10 during the police
interview. See State v. Green, 896 N.W.2d 770, 778 (Iowa 2017) (“The adversarial
process that gives rise to the right to counsel includes the accusatory stage, but
excludes the investigatory stage.”); see also State v. Sewell, 960 N.W.2d 640, 650
(Iowa 2021) (reiterating “view that the article I, section 10 right to counsel does not
attach prior to the initiation of a case or prosecution”). While police were
interviewing Cory at the station, prosecutors were at his home, assisting DCI
agents in obtaining a second search warrant. In her deposition, then Story County
Attorney Jessica Reynolds recalled waiting outside with other prosecutors for
several hours as DCI agents executed the search warrant and secured the crime
scene. According to her testimony, Reynolds had no interactions with Cory, who
had left the house “long” before their investigation.
Thus, any involvement by prosecutors was to advance an ongoing police
investigation. Contrary to Cory’s claim that “prosecutorial forces” targeted him as
the sole perpetrator from the onset, none of the prosecutors confronted Cory about
his wife’s murder. Nor did the prosecutors participate in or observe the police
interview. Instead, they focused on assisting law enforcement with the search
warrant and observing the crime scene. Once that investigation concluded, it was
the DCI that filed the criminal complaint. The trial information came eight days
after the complaint. Given this timeline, Cory’s interview occurred during the
investigatory stage, before he was entitled to the assistance of counsel under
article I, section 10. See Green, 896 N.W.2d at 779 (noting “our constitution does
not give the right to counsel as a protection from all police encounters”). Because
his right to counsel had not attached at the time of the interview, counsel had no 13
duty to raise that argument in the motion to suppress. And the Sixth Amendment
did not cover Cory’s statements to police before formal charges were filed. So
appellate counsel exercised proper judgment in declining to challenge the
suppression ruling on that ground. Because neither claim is supported by law,
Cory suffered no prejudice.
3. Expert Testimony
Cory next asserts trial counsel should have offered an expert opinion on his
alcohol abuse and how “a chronic alcoholic would respond to a stressful situation.”
According to Cory, information “relating to his alcoholism and medication abuse, [4]
particularly expert evidence explaining to the jury [his] state of mind at the time that
his wife was shot, would have been immensely valuable.”
Perhaps an expert opinion may have helped the jury understand why Cory
stayed in the house for days after purportedly discovering Vallerie’s body. But
Cory now contends such evidence should have been offered to help explain his
mental state “at the time his wife was shot.” Expert testimony for that purpose was
inadmissible as it went to the specific intent element of first-degree murder.
Indeed, defense counsel testified that she refrained from hiring a toxicology expert
because Cory decided not to pursue diminished capacity and intoxication
defenses, which would have negated the specific intent element.
Counsel continued:
And then as far as what we did want to introduce evidence of his intoxication for, we were just using it as an explanation of why he wouldn’t have called the police right away ultimately. And, frankly, he was so obviously an alcoholic, and every single person that we
4 Cory contends his counsel knew he abused Tramadol, a pain killer, and that “Tramadol interacted with his alcohol.” 14
talked to was saying he was an alcoholic, and alcoholism is such just—frankly, something that’s so common and so many people have so much understanding about, we didn’t think we needed an expert to testify to that.
Counsel also noted that hiring an expert would require providing notice to
the State. And in her view, the State could then predict what the defense strategy
was for trial. Based on counsel’s reasoning, we believe the failure to obtain a
toxicology expert was a reasonable tactical decision. See Heaton v. State, 420
N.W.2d 429, 432 (Iowa 1988) (holding question “whether or not to call an expert
witness is a matter of trial strategy”). Thus, counsel breached no duty.
4. Opinion Testimony
Cory next contends he was convicted on improper opinion testimony from
Vallerie’s niece and DCI Agent Don Schnitker. First, he complains that over trial
counsel’s objection, the niece testified that Vallerie was reluctant to allow visitors
into the house, insinuating Cory was dangerous. Second, Cory points to
Schnitker’s testimony, likewise admitted over counsel’s objection, that Cory listed
all of his other firearms, but “intentional[ly]” failed to mention a Ruger Mini-14 .223
rifle—determined to be the murder weapon.
Cory acknowledges trial counsel lodged proper objections, but argues
appellate counsel was ineffective in not challenging the court’s admission of that
evidence. He urges “there is a reasonable probability that, but for this inadmissible
evidence, Cory could have received a different result.” We disagree.
Even if we accepted that the challenged statements were improper
opinions, appellate counsel does not have a duty to raise every conceivable
complaint. Cory’s experienced state appellate defender testified that choosing 15
more viable issues to brief is a matter of strategy. Indeed, “[s]electing assignments
to assert as grounds for reversal is a professional judgment call we are reluctant
to second-guess.” Osborn v. State, 573 N.W.2d 917, 922 (Iowa 1998). “Highly
competent appellate lawyers generally assign only the strongest points and rely
on them for reversal. That is what counsel sought to do here.” Cuevas v. State,
415 N.W.2d 630, 633 (Iowa 1987). Cory’s appellate counsel performed
competently.
Cory also falls short on the prejudice prong. As we noted on direct appeal:
“[T]he State presented overwhelming evidence that Cory, a man with an explosive
temper and an unstable marriage, used his own rifle to shoot his wife eighteen
times.” Cory, 2015 WL 7567527, at *9. We see no reasonable probability of a
different outcome had counsel raised those evidentiary issues on direct appeal.
5. Prosecutorial Misconduct
Finally, Cory claims trial counsel should have objected to statements in the
prosecutor’s closing argument. He maintains the prosecutor committed
misconduct when he commented that the State’s timeline showing the victim died
on Friday tracked “Mr. Cory’s failure to truly explain where he was on Wednesday
and Thursday, his refusal to answer.” In Cory’s view, the phrases “failure to truly
explain” and “refusal to answer” were objectionable remarks on his decision not to
testify. See Griffin v. California, 380 U.S. 609, 612–15 (1965) (holding prosecutor’s
comment on defendant’s failure to testify violates self-incrimination clause).
But Cory takes those phrases out of context. As the State explains, “the
prosecutor was actually referencing Cory’s police interview,” and not his refusal to
testify at trial. During a lengthy closing argument, the prosecutor reminded the 16
jury: “Agent Schnitker pressed Mr. Cory hard for a timeline in those days, and
remember Mr. Cory’s answers started to get vague on Wednesday and Thursday.
He made an occasional reference to being with [the victim], but then he didn’t say
really anything specific.” The prosecutor’s rebuttal returned to Cory’s inability to
account for his actions in the two days before the victim’s death.
Even if the comments had been error or misconduct, trial counsel provided
a reasonable explanation for not objecting. She recalled: “The thing about a really
terrible closing argument is that it’s more likely to put the jurors to sleep. When I
was watching the jurors during closing arguments . . . they weren’t interested too
much in what he was saying.” Counsel continued: “Now, as soon as I start
objecting that’s going to perk up their ears and they’re going to be paying a lot
more attention. Tactically I just thought let’s not highlight the objectionable
statements that otherwise, frankly, they’re probably sleeping through at this point
in time.” We decline to second-guess that tactical decision. See Williams v. State,
No. 19-1848, 2020 WL 7021779, at *5 (Iowa Ct. App. Nov. 30, 2020).
Having no basis for reversal on ineffective-assistance grounds, we affirm
the denial of Cory’s second PCR application.
AFFIRMED.