Johnson v. State

495 N.W.2d 528, 1992 Iowa App. LEXIS 308, 1992 WL 425187
CourtCourt of Appeals of Iowa
DecidedNovember 30, 1992
Docket92-294
StatusPublished
Cited by1 cases

This text of 495 N.W.2d 528 (Johnson v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. State, 495 N.W.2d 528, 1992 Iowa App. LEXIS 308, 1992 WL 425187 (iowactapp 1992).

Opinions

[529]*529SCHLEGEL, Judge.

The State appeals a district court ruling granting James Johnson’s application for postconviction relief. The State contends the district court erred in determining Johnson’s trial counsel rendered ineffective assistance by failing to object to certain testimony.

On July 10, 1987, the State charged James Johnson by amended trial information with three counts of second-degree sexual abuse. At trial, the following exchange occurred, without objection, between the prosecutor and a State’s witness:

Q. Ms. Harlan [defense counsel] asked you about whether children can make accusations as to sexual abuse. Do you have any opinion with relation to Lora and Kora? A. Yes I do.
Q. What would that opinion be? A. My opinion is that they are telling the truth and that they are credible.

The jury convicted Johnson on two of the three charges. The district court then entered judgment and sentenced Johnson to consecutive terms of imprisonment not to exceed twenty-five years each. The supreme court affirmed Johnson’s convictions on further review in State v. Johnson, 445 N.W.2d 337 (Iowa 1989).

On October 12, 1989, Johnson filed an application for postconviction relief. He alleged his trial counsel rendered ineffective assistance by failing to object to the above testimony, which he claimed was in direct violation of the supreme court’s decision in State v. Myers, 382 N.W.2d 91 (Iowa 1986).

At the postconviction hearing, Johnson’s trial counsel testified that while she was not familiar with Myers she was aware that the challenged testimony was improper. She maintained, however, that she chose not to object to such testimony because it would detract from her theory of defense. She stated that her theory was to undermine the social worker’s credibility by demonstrating that the worker had not noticed any signs of sexual abuse in her long relationship with the family until the allegations against Johnson arose. Counsel also pointed out that it was her practice to raise very few objections before the jury.

On January 22, 1992, the district court entered its ruling on the application for postconviction relief. The court ruled that Johnson’s trial counsel rendered ineffective assistance by failing to object to the challenged testimony either at trial or in a pretrial motion in limine. The court noted that the testimony was elicited solely to bolster the testimony of the alleged victims. The children’s testimony apparently was the only link between the defendant and the sexual abuse.

The State appeals, contending trial counsel’s actions were justifiable in light of the theory of defense. Johnson responds, claiming the State has waived error on the issue of whether Johnson was prejudiced by counsel’s alleged failure since the State did not argue prejudice during Johnson’s postconviction trial or appeal.

Ordinarily, our review of postconviction relief proceedings is for errors of law. Hinkle v. State, 290 N.W.2d 28, 30 (Iowa 1980). However, when a postconviction petitioner asserts violation of constitutional safeguards — such as ineffective assistance of counsel — we make our own evaluation based on the totality of the circumstances. This is the equivalent of de novo review. Id.

Our ultimate concern in claims of ineffective assistance is with the “fundamental fairness of the proceeding whose result is being challenged.” State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987) (quoting Strickland v. Washington, 466 U.S. 668, 696, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674, 699 (1984)). Ineffective assistance is measured by whether “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064, 80 L.Ed.2d at 692-93; see Schertz v. State, 380 N.W.2d 404, 408 (Iowa 1985).

In order for the appellant to prevail, the record must indicate (1) counsel failed to perform an essential duty and (2) prejudice resulted therefrom. State v. [530]*530Hrbek, 336 N.W.2d 431, 436 (Iowa 1983). In evaluating counsel’s performance, we presume that counsel acted competently. See Risdal, 404 N.W.2d at 131.

In the present case, the postconviction trial court concluded that Johnson’s trial counsel was ineffective by not objecting to testimony by a social worker that, in the social worker’s opinion, the complainant children were truthful and credible. We affirm. The social worker’s opinion testimony that the complainant children were credible witnesses who were telling the truth clearly violates the supreme court’s holding in Myers.

In Myers the defendant appealed his conviction and sentence for indecent contact with a child because the State’s expert was permitted to testify, over defendant’s objection, that children almost never lie about sexual abuse. The Myers court reversed the conviction and remanded the case for a new trial after concluding the trial court abused its discretion in admitting the challenged expert testimony, thereby depriving the defendant of a fair trial. The court determined the expert opinions in the case had the same effect as directly opining on the truthfulness of the complaining witness, and the court held, “we conclude that expert opinions as to the truthfulness of a witness is (sic) not admissible pursuant to [Iowa Rule of Evidence] 702.” Id. at 97. The court explained:

The ultimate determination of the credibility or truthfulness of a witness is not “a fact in issue,” but a matter to be generally determined solely by the jury.... A witness is not permitted to express an opinion as to the ultimate fact of the accused’s guilt or innocence. [Citation omitted]. In this case the trial court admitted expert testimony relating to the truthfulness of the complaining witness. We believe the effect of the opinion testimony was to improperly suggest the complainant was telling the truth and, consequently, the defendant was guilty. We conclude the opinion testimony crossed that “fine but essential” line between an “opinion which would be truly helpful to the jury and that which merely conveys a conclusion concerning defendant’s legal guilt.” [Citation omitted.]

Id. at 97-98.

In the present case the social worker directly opined on the truthfulness and credibility of the complaining witnesses, and defense counsel failed to object. The court in State v. Tracy, 482 N.W.2d 675 (Iowa 1992), faced a similar situation. There the defendant appealed his conviction of third-degree sexual abuse after the State’s expert witness testified, “there are probably no more than two or three children per thousand who come forth with such a serious allegation who are found later to be dishonest.” Id. at 678.

In Tracy

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Related

Johnson v. State
495 N.W.2d 528 (Court of Appeals of Iowa, 1992)

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Bluebook (online)
495 N.W.2d 528, 1992 Iowa App. LEXIS 308, 1992 WL 425187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-state-iowactapp-1992.