TIMOTHY YOUNG, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-356 / 06-0763
Filed November 15, 2007
TIMOTHY YOUNG,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, William L. Thomas,
Judge.
Timothy
Young
appeals
following
denial
of
his
application
for
postconviction relief. AFFIRMED.
Mark Meyer, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney
General, Harold Denton, County Attorney, and Todd Trip, Assistant County
Attorney, for appellee State.
Heard by Zimmer, P.J., and Eisenhauer, J., and Schechtman, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
2
ZIMMER, P.J.
Timothy Derrell Young appeals following the denial of his application for
postconviction relief. He raises two claims of ineffective assistance of appellate
counsel. Upon our review, we affirm the decision of the postconviction court.
I. Background Facts and Proceedings.
Young was charged with burglary in the first degree and sexual abuse in
the second degree, in violation of Iowa Code sections 713.1, 713.3, 709.1, and
709.3(1) (1997), stemming from allegations that he raped a woman at knife-point
after entering her home through a window.
The following evidence was
presented at his original trial.
On the evening of September 11, 1997, Melissa Frederick put her three
young children down for the night and then went to bed in her apartment. She
awoke to find a man with a knife lying on top of her. The two struggled and the
man cut Frederick’s hand with the knife. Frederick stopped struggling after her
assailant threatened her by asking if she wanted her sleeping children to be
“motherless.”
He told Frederick that he had seen photographs of her in the
possession of her boyfriend, who he knew was being released from prison that
day. Then, while pressing a knife against her neck, he ordered Frederick to take
off her pants and he raped her.
The sexual assault ended when one of Frederick’s children began to cry.
At that point, Frederick and her assailant left the bedroom and Frederick tended
to her daughter.
Meanwhile, the man, whose face was wrapped in gauze,
entered the kitchen. After quieting her child, Frederick entered the kitchen to get
a towel for her bleeding hand. Frederick could see her attacker with the light
3
from the stove in her kitchen. She saw he was “darker-skinned” and had a slight
mustache and close-cut haircut. She also stated he had a medium, muscular
build and was about five-nine. 1
When Frederick entered the kitchen, her assailant asked for her phone
number.
Frederick angrily rejected his request in a loud voice and told her
attacker to get out of her house. The exchange between Frederick and her
assailant disturbed one of Frederick’s other children who began to cry. Frederick
left the kitchen to attend to her daughter. While comforting her child, she looked
back into the kitchen and saw her attacker with his hand on a window. Frederick
had no doubt her attacker left through the kitchen window of her apartment.
Cedar Rapids Identification Officer Ron Johnson testified that a palm print found
inside Frederick’s window matched Young’s known palm print. 2 The palm print
was located in the area where Young would have placed his hand while climbing
in or out the window.
The day after the attack, Frederick spoke to her friend Stacey Ament who
was dating Young at the time. Frederick and Ament both suspected that Young
might have assaulted Frederick.
Frederick testified that she had been
menstruating during the time of the sexual assault. Ament testified that within
four hours of the assault, she had noticed blood near the zipper on the jeans that
Young was wearing. Ament also testified that she noticed blood on Young’s
penis when they had sex later that day.
1
This description generally matched Young. At trial, Frederick testified the she did not
notice any difference between Young’s size and her attacker’s size.
2
Officer Johnson also discovered a knife below the fire escape adjacent to Young’s
father’s apartment that matched the description of the one used by Frederick’s assailant.
4
After a search warrant was executed for Young’s residence, a pair of his
jeans were seized and sent to the state criminalistics laboratory. The blood,
however, was determined not to belong to either Young or Frederick. 3
Ament testified that she and Young were in his father’s apartment the day
after the attack. The apartment was “diagonally across the street” from
Frederick’s residence.
Because Young did not have a home, he sometimes
stayed with his father. Frederick testified that she discovered five liquor bottles
missing from her apartment following the attack. Ament testified that she had
noticed liquor bottles in a grocery sack in the apartment that matched the
description of the bottles that had been stolen from Frederick’s apartment.
Among the stolen liquor bottles was a distinctive “novelty” bottle of Smirnoff’s
Vodka. Frederick described a missing vodka bottle with an octagon-shaped lid
that “you could dump . . . upside down,” and Ament reported seeing a vodka
bottle “with a kind of oval-shaped top that was hollow.”
Following trial, the jury returned a guilty verdict on both charges. Young
appealed and this court affirmed his conviction. State v. Young, No. 98-422
(Iowa Ct. App. Feb. 24, 1999). Our supreme court denied Young’s application for
further review.
Young subsequently filed a pro se postconviction relief application
asserting a variety of claims.
The district court appointed an attorney to
represent him, and his application was amended. In his amended application,
3
Standing in her kitchen following the sexual assault, Frederick was able to see the
jeans that her attacker wore. She noted they were a faded blue color with a Levi Silver
Tab label above the right pocket. However, the pair sent to the state criminalistics
laboratory did not have this same label.
5
Young claimed that his appellate counsel was ineffective for failing to argue the
facts of his case more persuasively and for failing to assert prosecutorial
misconduct on appeal.
In a pro se brief, Young also asserted that his trial
counsel was ineffective for failing to preserve several issues for appeal, and he
argued that his sentence was unconstitutional.
Following a hearing, the
postconviction court rejected all of Young’s claims and denied his application for
relief in a ruling filed May 1, 2006.
On appeal from the postconviction court’s ruling, Young asserts that his
appellate counsel was ineffective because he: (1) failed to raise a prosecutorial
misconduct claim based on the prosecutor’s “serial rapist” statement made
during closing arguments and (2) failed to challenge the submission of a uniform
jury instruction stating that Young’s admissions could be used for any purpose. 4
II. Scope and Standards of Review.
Ordinarily, we review postconviction relief proceedings for errors of law.
Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). However, because Young
raises a constitutional issue, alleging the denial of his right to effective assistance
of counsel, we conduct a de novo review. Id.
III. Discussion.
To establish ineffective assistance of counsel, Young must prove: (1) his
attorney's performance fell below “an objective standard of reasonableness” and
(2) “the deficient performance prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To
4
The supreme court denied Young’s request for an extension of time to file a pro se brief
in an order entered January 10, 2007.
6
establish breach of duty, Young must overcome the presumption that counsel
was competent and prove that counsel’s performance was not within the range of
normal competency. State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994). Young
may establish prejudice by showing a reasonable probability that, but for
counsel's errors, the result of the proceeding would have differed.
Atwood, 602 N.W.2d 775, 784 (Iowa 1999).
State v.
We may dispose of Young’s
ineffective assistance claims if he fails to prove either prong. State v. Query, 594
N.W.2d 438, 445 (Iowa Ct. App. 1999). In this case, Young asserts that his
appellate counsel was ineffective.
Appellate counsel is judged by the same
standards as trial counsel. Cox v. State, 554 N.W.2d 712, 715 (Iowa Ct. App.
1996).
A. Prosecutorial Misconduct Claim.
Young first claims that his appellate counsel was ineffective for failing to
assert on appeal that the trial court committed reversible error by not granting a
motion for mistrial after the prosecutor used the term “serial rapist” during the
rebuttal phase of his closing argument. Because closing arguments were not
reported, the recollections of the lawyers during a hearing after closing
arguments and in later proceedings provide the only record of the statement and
the circumstances surrounding it.
During closing arguments, Young’s counsel apparently made reference to
the fact that Young’s jeans contained an unidentified blood stain, and suggested
that one of Young’s friends could have cut his hand and bled on the jeans. In
response, the prosecutor mentioned that one possible explanation for the blood
on Young’s jeans was that Young was a serial rapist and therefore the blood
7
could have come from another woman. Defense counsel immediately objected
to the prosecutor’s statement.
The trial court sustained defense counsel’s
objection and instructed the jury to disregard the statement.
Immediately after closing arguments, Young’s trial counsel moved for a
mistrial based on the prosecutor’s comment. The district court denied Young’s
motion for a mistrial. Young subsequently filed a motion for new trial reasserting
his claim of prosecutorial misconduct. That motion was also denied. Young’s
appellate attorney chose not to challenge the denial of the motion for mistrial on
direct appeal. Young now argues this issue should have been pursued because
the prosecutor labeled him a “serial rapist” without any evidence to support the
claim.
After
considering
the
context
of
the
prosecutor’s
remark,
the
postconviction court concluded the remark was not intended to brand Young.
The court stated, “the prosecutor’s comment was made in response to Mr.
Young’s conclusions about the blood stains found on Mr. Young’s jeans. The
State argued other conclusions could be drawn and used serial rapist as an
example but noted the evidence did not support such a conclusion.” 5 The trial
court reinforced the fact that such a conclusion was unsubstantiated when it
granted defense counsel’s objection and instructed the jury to disregard the
prosecutor’s comment. The postconviction court ultimately concluded that the
5
In response to the defendant’s motion for mistrial, the prosecutor argued that the
context of his remarks to the jury was neither explanation offered regarding the blood
stain would be an appropriate conclusion for the jury to reach. It does not appear that
Young’s trial counsel disputed the prosecutor’s explanation. During argument regarding
Young’s motion for new trial, counsel stated, “I will obviously stipulate that Mr. Dillard in
no way said, ‘Find him guilty because he is a serial rapist.’”
8
prosecutor’s statement was not prejudicial to such a degree that it deprived the
defendant of a fair trial and went on to reject Young’s claim of ineffective
assistance of counsel.
At Young’s postconviction trial, his appellate counsel testified that it was
not his practice to raise every arguable claim because weaker arguments tend to
take attention away from the best arguments and generally weaken the appeal.
Appellate counsel also noted that while claims of prosecutorial misconduct are
frequently raised on appeal, they are not often successful. In this case, Young’s
counsel chose to focus his appellate argument on an evidentiary issue dealing
with the exclusion of DNA evidence. Selecting assignments of error to assert as
grounds for reversal is a professional judgment call which we are reluctant to
second guess Osborn v. State, 573 N.W.2d 917, 922 (Iowa 1998); Cuevas v.
State, 415 N.W.2d 630, 633 (Iowa 1987). Waiving issues on appeal is within
appellate counsel’s reasonable tactical decision, as appellate counsel may be
better served by reducing the number of issues raised on appeal to the strongest
claims.
Stringer v. State, 522 N.W.2d 797, 799 (Iowa 1994); Cuevas, 415
N.W.2d at 633.
Given the context of the challenged remark, the trial court’s curative
actions, the broad discretion that trial courts enjoy in ruling on motions for
mistrial, 6 and the deference given to appellate counsel’s strategy, we do not
believe Young’s appellate counsel provided ineffective assistance by failing to
6
We recognize that the trial court is best equipped to determine what effect, if any, the
comment at issue here had on the jury. State v. Jones, 511 N.W.2d 400, 408 (Iowa Ct.
App. 1993).
9
include the denial of Young’s motion for mistrial as a claim on direct appeal. Like
the postconviction court, we reject this assignment of error.
B. Improper Jury Instruction Claim.
Young next claims that appellate counsel was ineffective for failing to
challenge the submission of a jury instruction regarding admissions. Young did
not testify at his trial; however, Stacey Ament testified regarding several
statements Young made to her.
Young argues that none of the statements
recounted by Ament were confessions or acknowledgments of guilt. We agree.
The State also acknowledges that no witness testified that Young admitted
committing the crimes with which he was charged.
Jury Instruction No. 19 stated: “Evidence has been offered to show
Timothy Derrell Young made statements at an earlier time and place while not
under oath. These statements are called admissions. You may consider an
admission for any purpose.”
The instruction was modeled after a uniform
instruction. See II Iowa Uniform Jury Instruction 200.44. Trial counsel objected
to Instruction No. 19, stating, “We feel that the admissions more properly would
be introduced if [Young] had made some admissions of actually committing the
crime, not just making any particular statement to be allowed into evidence.” The
trial court denied the objection and submitted the instruction to the jury. Young’s
appellate counsel did not to raise this issue on direct appeal. He chose instead
to focus on the issue he found most compelling – the exclusion of a DNA sample.
Young argues appellate counsel should have challenged the instruction on
direct appeal because it is not supported by the record, is misleading, gave
undue prominence to certain evidence, and deprived him of a fair trial. He also
10
argues the jury should have been made aware that the term “admission” as used
in Instruction No. 19, does “not comport with the plain meaning of the term.”
In response, the State argues that appellate counsel’s failure to challenge
the jury instruction on direct appeal finds support in State v. Tejada, 677 N.W.2d
744 (Iowa 2004). In Tejada, the trial court submitted an instruction identical to
Jury Instruction No. 19. Tejada claimed that trial counsel was ineffective for not
objecting to submission of the instruction because Tejada had not made any
statements. He claimed that the instruction was “inherently confusing and may
have wrongly led the jurors to believe he made an admission.” Tejada, 677
N.W.2d at 754. The supreme court rejected the defendant’s claim, however,
finding that he could not establish that the superfluous jury instruction resulted in
prejudice against him. The court stated, “The jury, as the arbiter of the facts,
should have disregarded the court’s suggestion that the prosecution had offered
evidence to show Tejada had made an admission, and we think that such is the
inevitable conclusion to be drawn about the jury in this case.” Id. at 755.
We believe the jurors in Young’s case were in a similar position. They
were instructed that the State had to prove its case by proof beyond a
reasonable doubt and were told the presumption of innocence remained with
Young throughout the trial. The instructions made clear that the jury was to
decide the facts of the case. There is no indication that the jurors failed to base
their verdict on the evidence and were instead moved to convict Young because
of Instruction No. 19. See Tejada, 677 N.W.2d at 755 (instructions must be
considered as a whole). Although Young’s appellate counsel might reasonably
have chosen to challenge Instruction No. 19, we do not believe he breached a
11
duty by choosing to concentrate on another issue in prosecuting Young’s direct
appeal. Accordingly, we reject this assignment of error.
IV. Conclusion.
We have considered all of Young’s claims, whether or not specifically
discussed.
Finding them all to be without merit, the decision of the
postconviction court is affirmed.
AFFIRMED.
Eisenhauer, J., concurs; Schechtman, S.J., concurs specially.
12
SCHECHTMAN, S.J. (concurring specially)
I have some difficulty with the trial court’s submission of the instruction
referencing admissions.
I have similar difficulty with the wording of the
instruction itself, and likely inferences drawn therefrom.
Unlike Uniform Civil Jury Instruction 100.15, its subject criminal
counterpart does not require the jury to “find an admission was made”; its
threshold is merely that “evidence has been offered to show the Defendant made
statements . . . .” (emphasis added). Suppose, for argument, that a witness
testifies that on a certain day and place, the defendant made a statement with
some inculpatory content; further suppose that other exculpatory evidence
reflected that the defendant was in another state at the time and place; this
instruction would direct the jury to treat the alleged statement as an admission, 7
because it was offered; and “to consider it for any other purpose,”
notwithstanding the alibi.
An admission, absent a definition in the instructions, has a lay meaning of
“a voluntary acknowledgement of truth; a concession.”
American Heritage
College Dictionary 17 (3d ed. 1993).
State v. Tejada, 677 N.W.2d 744, 754-55 (Iowa 2004), addressed this
instruction.
Tejada had not made any out-of-court statements.
Tejada, 677
N.W.2d at 754. His ineffective assistance of counsel claim was denied as he
failed to prove that any prejudice resulted from his counsel’s failure to object to
its submission. Id. at 755.
7
Iowa Rule of Evidence 5.801(d)(2) characterizes any statement by a party as an “admission.”
13
Tejada is factually distinguishable as there were statements made by this
defendant; some were made to the victim during the assault; others were made
to his girlfriend after the assault. Some were contradicted by other evidence. 8
This instruction dangerously infers that all statements, offered as uttered
by the defendant, implies, or arguably directs, their truth. This impeaches, surely
shakes, any contrary exculpatory evidence offered to rebut its content.
But the failure of appellate counsel to allege error relating to trial counsel’s
failure to object to the instruction was not prejudicial as it would not have
produced any difference in the result. Id. at 755. The evidence against the
defendant included victim identification, a latent print on the entry window, blood
on his penis (victim was menstruating), seizure of liquor bottles at his home
missing from the victim’s kitchen, proximity of residences, knowledge of victim
and site of the assault, and other inculpatory evidence.
The defendant has failed to prove that prejudice resulted from appellate
counsel’s choice to concentrate on other alleged errors in prosecuting the direct
appeal, rather than this instruction.
I concur in the result.
8
The victim testified that the assailant told her, during the sexual assault, that he had seen
pictures of her that her boyfriend, who had been confined in prison, had previously shown the
assailant. Yet, the victim’s boyfriend denied knowing the defendant, though the boyfriend did
have two photographs of her.
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