IN THE COURT OF APPEALS OF IOWA
No. 3-236 / 01-2013
Filed June 13, 2003
KEVIN R. JOHNSON,
STATE OF IOWA,
Appeal from the Iowa District Court for Pottawattamie County, Charles
L. Smith, Judge.
An applicant appeals from a ruling denying postconviction relief.
Martha McMinn, Sioux City, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney
General, Richard Crowl, County Attorney, and Robert Wichser, Assistant
County Attorney, for appellee.
Heard by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Kevin R. Johnson appeals from the district court's denial of
postconviction relief. He contends the district court erred in (1) finding
he did not meet the "newly discovered evidence" standard required for
postconviction relief under Iowa Code section 822.2(4) (1999), and (2)
finding he had not demonstrated that his trial counsel had been ineffective
by not obtaining expert testimony. We affirm.
Background Facts and Proceedings. In November 1980, following a bench
trial, Kevin Johnson (Johnson) was convicted of the murder of his two-month-
old son, Kevin Jr. (Kevin). Johnson's conviction was affirmed in 1982, and
the denial of his federal habeas corpus petition was affirmed in 1985.
Johnson v. Nix, 763 F.2d 344 (8th Cir. 1985); State v. Johnson, 318 N.W.2d
417 (Iowa 1982). He did not raise a claim of ineffective assistance of
counsel in either proceeding.
Given the lengthy history of this case, we find it unnecessary to
fully reiterate the facts presented at trial. There are, however, a number
of salient details that bear repeating. The State's trial experts
testified that Kevin had a large hematoma at the top and back of his head,
and that the child's death resulted from intracranial swelling caused by a
blow to the head. Testimony from Johnson's wife, Kristi, indicated that
physical abuse from Johnson was the sole cause of Kevin's death. The
evidence, including Kristi's testimony and Johnson's own pre-trial
inculpatory statements, tied Johnson to the disposal of Kevin's body and
the baby's things.
In addition, trial testimony from Kristi and her family indicated that
Johnson had engaged in a pattern of violent abuse towards and severe
neglect of Kevin, and had frequently expressed a wish that Kevin would die.
The lay testimony regarding Kevin's abuse was supported by testimony from
an experienced pediatric radiologist, Dr. Bickers, who opined that Kevin's
postmortem x-rays showed signs of multiple healing fractures.
Johnson did not call any medical experts at trial, or testify in his
own defense. He presented only minimal lay testimony that seemed aimed at
discrediting and implicating Kristi. The theory of the defense appeared to
be discrediting Kristi to the point the jury would disregard her testimony,
in the hopes it would then find the remainder of the evidence insufficient
to tie Johnson to Kevin's death.
In July 1999, over seventeen years after his conviction was affirmed
on direct appeal, Johnson filed a pro se application for postconviction
relief. Counsel later filed an amended application, which raised two
claims. Both were founded on expert opinions obtained in 1998 or 1999,
opinions which challenged the cause of death testified to at trial by the
State's experts. Johnson claimed these opinions constituted newly
discovered evidence. At the same time, he claimed trial counsel was
ineffective for failing to call a medical expert in his defense, as these
"new" opinions were available in 1980, and could have been presented at
At the postconviction hearing Johnson called three experts-Dr.
Plunkett, Dr. Stephens, and Dr. Rose-who testified that, based on the
available physical evidence, it could not be concluded, to a reasonable
degree of medical certainty, that Kevin had died from traumatic causes.
With one limited exception, these opinions were based on medical principles
known and established in 1980. Dr. Rose did attribute one portion of his
opinion, regarding the cause of soft-tissue bleeding, to forensic
principles developed after trial. In addition, Dr. Plunkett opined, based
on post-trial science, that Dr. Bickers had misidentified certain things on
Kevin's x-rays as constituting healing fractures.
The State responded by calling Dr. Roffman, the pathologist who had
performed the autopsy on Kevin and testified at trial as to the cause of
death. Dr. Roffman stated that even in light of these new opinions, he
would not have changed his testimony. Dr. Roffman continued to agree with
Dr. Bickers's opinion that Kevin's bones showed signs of healing fractures.
The district court dismissed Johnson's postconviction relief
application. The court found that Johnson could not demonstrate the
opinion testimony of his experts constituted newly discovered evidence. It
also noted the need to demonstrate a sufficient reason for failing to raise
an ineffective assistance of trial counsel claim on direct appeal, and that
Johnson had not alleged ineffectiveness of appellate counsel as such a
reason. Rather than addressing Johnson's ability to raise his ineffective
assistance claim in the postconviction proceedings, the court denied the
claim on the merits. It determined that trial counsel not calling a
defense expert was a tactical decision from which no prejudice resulted.
Scope of Review. We typically review postconviction relief
proceedings for the correction of errors at law. Ledezma v. State, 626
N.W.2d 134, 141 (Iowa 2001). Where a request for a new trial is based on
newly discovered evidence, and the district court denies the request, we
look to see whether the court abused its discretion. State v. Smith, 573
N.W.2d 14, 17 (Iowa 1997). In contrast, we review claims of ineffective
assistance of counsel de novo. Wemark v. State, 602 N.W.2d 810, 814 (Iowa
Newly Discovered Evidence. To establish a claim of newly discovered
evidence, Johnson must show that the evidence 1) was discovered after his
trial, 2) could not have been discovered earlier in the exercise of due
diligence, 3) was material, rather than cumulative or impeaching, and 4)
would probably change the outcome of the proceedings if a new trial were
granted. Summage v. State, 579 N.W.2d 821, 822 (Iowa 1998). The parties
agree the first prong has been met. As to the second prong, any expert
opinions based on 1980 science could have been discovered earlier in the
exercise of due diligence. Thus, we are only concerned with the portions
of the opinion testimony based on post-1980 scientific advances or
Only two portions of the expert testimony were even arguably based on
post-1980 science. The first is Dr. Rose's opinion that Kevin's sub-scalp
bleeding was the result of normal postmortem lividity, rather than head
trauma. The second is Dr. Plunkett's opinion that Kevin's x-rays
revealed "an artifact called physiologic periosteal changes," a "normal
variant," rather than non-fatal, healing fractures. The State's claim that
this testimony only impeaches its trial experts takes a rather narrow view
of the evidence and facts in issue. See State v. Adamson, 542 N.W.2d 12,
14 (Iowa Ct. App. 1995) (finding evidence that a victim lied about abuse
went to the "central factual issue" of whether the victim was telling the
truth about the defendant's actions, even though it also impeached the
Even if we were to find the testimony material, however, Johnson's
newly discovered evidence claim must fail. He has not shown that admission
of these limited opinions would probably change the result of the
proceeding. Dr. Plunkett was a pathologist, not a radiologist. He did not
view Kevin's x-rays, but challenged Dr. Bickers's opinion based on
descriptions contained within her trial testimony. More importantly, Dr.
Plunkett's opinion addressed some, but not all of the fractures noted by
Dr. Bickers. While those other fractures were not listed in the autopsy
report, Dr. Roffman explained that he would not have made a finding as to a
healing, or non-acute fracture. Finally, the medical testimony must be
viewed in light of the independent lay testimony that Johnson physically
The strength of Dr. Rose's testimony also suffers in light of its
basis. He reviewed only Dr. Roffman's autopsy report and deposition
testimony, the death certificate and some physician reports. He did not
witness the autopsy, or review the microscopic slides, photographs or x-
rays. Moreover, neither Dr. Plunkett nor Dr. Rose questioned Dr. Roffman's
qualifications, or his physical findings. They disagreed only with the
interpretations or conclusions that Dr. Roffman drew from those findings.
"[M]otions for new trial on the basis of newly discovered evidence should
be looked upon with disfavor and granted sparingly." Whitsel v. State, 525
N.W.2d 860, 863 (Iowa 1994). In assessing the district court's decision to
deny Johnson's new trial request, we view the limited testimony of Dr. Rose
and Dr. Plunkett in light of the remaining record. This includes not only
the large portion of the State's medical evidence that remains
unchallenged, but also the incriminating lay testimony from Kristi and her
family. Under such a record, we cannot conclude the district court erred
in denying Johnson's new trial motion.
Ineffective Assistance of Trial Counsel. Johnson did not raise any
ineffective assistance of counsel claims on direct appeal, or in his
federal habeas corpus petition. Johnson v. Nix, 763 F.2d 344 (8th Cir.
1985); State v. Johnson, 318 N.W.2d 417 (Iowa 1982). Accordingly, he
cannot raise an ineffective assistance claim in his postconviction relief
application unless he shows a "sufficient reason" for his failure to raise
the claim in prior proceedings for relief. Iowa Code § 822.8 (1999);
accord Iowa Code § 663A.8 (1981). See also Osborn v. State, 573 N.W.2d
917, 921 (Iowa 1998). While the ineffective assistance of appellate
counsel can constitute such a reason, Osborn, 573 N.W.2d at 921, Johnson
has not raised, much less demonstrated, that his appellate counsel was
ineffective. Nor has he shown other sufficient reason for his failure.
He is therefore precluded from raising his ineffective assistance claim for
the first time in this proceeding. Jones v. State, 479 N.W.2d 265,
271 (Iowa 1991).
 In Grissom v. State, 572 N.W.2d 183, 184 (Iowa Ct. App. 1997), this
court held that newly discovered evidence was, by definition, evidence
existing at the time of trial, and that evidence which came into existence
after trial should only be considered in those "extraordinary cases" where
an "utter failure of justice will unequivocally result." This raises the
question of whether the opinions of Johnson's experts are newly discovered,
or newly existing. We presume the evidence in this matter falls into the
former category, as is the case when newly developed scientific principles
are applied to existing evidence. See, e.g., Whitsel v. State, 525 N.W.2d
860, 863 (Iowa 1994); State v. Brown, 470 N.W.2d 30, 33 (Iowa 1991).
 We note Dr. Plunkett also testified the bleeding in Kevin's brain
could have resulted from post-mortem lividity. Unlike Dr. Rose, however,
Dr. Plunkett stated that his opinion was based on scientific principles
"well known" in 1980.
 In his reply brief, Johnson claims sufficient reason exists because he
was unable to personally identify the "errors" in Dr. Roffman's and Dr.
Bickers's trial testimony. We do not typically address an issue raised for
the first time in a reply brief. Sun Valley Iowa Lake Ass'n v. Anderson,
551 N.W.2d 621, 642 (Iowa 1996). Moreover, sufficient reasons for failure
to raise an ineffective assistance claim are circumscribed, and include
those "factual or legal matters which were excusably unknown at the time of
the trial." Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999) (emphasis
added). We presume appellate counsel was competent, and presented the most
viable issues on appeal. See Osborn v. State, 573 N.W.2d 917, 922 (Iowa
1998). Under such circumstances, we are unable to find that Johnson's
personal lack of medical knowledge constituted a sufficient reason for his
failure to claim ineffective assistance of trial counsel in his direct