BRETT ANDERSON, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-331 / 08-1196
Filed July 2, 2009
BRETT ANDERSON,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Donna L. Paulsen,
Judge.
Brett Anderson appeals the district court’s ruling denying his applications
for postconviction relief. AFFIRMED.
Kevin Hobbs, West Des Moines, for appellant.
Brett Anderson, Clarinda, pro se
Thomas J. Miller, Attorney General, Thomas Andrews, Assistant Attorney
General, John P. Sarcone, County Attorney, and Jeffrey Noble, Assistant County
Attorney, for appellee State.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
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VOGEL, J.
Brett Anderson appeals the district court’s denial of his application for
postconviction relief. He claims his conviction should have been reversed and
the case should have been remanded for a new trial. 1 We affirm.
After waiving his right to be tried by a jury and entering into a pre-trial
stipulation, Anderson was convicted on four counts of sexual abuse in the
second degree in violation of Iowa Code sections 709.1 and 709.3 (2003). The
convictions were based primarily on taped testimony of the children who accused
Anderson, and their accounts regarding nights spent at his house. Each child
recounted a similar story about Anderson having sexual or indecent contact with
them. Anderson’s convictions were affirmed on appeal. State v. Anderson, No.
08-1196 (Iowa Ct. App. Nov. 23, 2005). Following a postconviction hearing, the
district court denied Anderson’s application for relief and he now appeals, raising
claims of ineffective assistance of both his trial and appellate counsel.
I. Scope of Review
Our review is de novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa
2001).
In order to succeed on a claim of ineffective assistance of counsel,
Anderson must prove by a preponderance of evidence that (1) counsel failed to
perform an essential duty, and (2) prejudice resulted. Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To
establish prejudice the defendant must show there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
1
The issues Anderson raises in his pro se brief are subsumed in the issues raised by his
appellate counsel.
3
have been different. State v. Bugley, 562 N.W.2d 173, 178 (Iowa 1997). A
reasonable probability is a probability sufficient to undermine confidence in the
outcome of defendant’s trial.
Id. A claimant must also overcome a strong
presumption of counsel’s competence. Collins v. State, 588 N.W.2d 399, 402
(Iowa 1998). The ultimate test is whether under the entire record and totality of
the circumstances counsel’s performance was within the normal range of
competency. Id.
II. Objections to Statements
Anderson first asserts his trial counsel was ineffective for failing to make
hearsay and confrontation clause objections to one of the children’s statements.
“An out-of-court statement by a witness that is testimonial in nature is barred
under the Confrontation Clause unless the witness is unavailable and the
defendant had a prior opportunity to cross-examine the witness.”
Musser, 721 N.W.2d 734, 753 (Iowa 2006).
State v.
Generally, a stipulation to the
admission of testimony at trial constitutes a waiver of any objection to the
testimony raised prior to trial. State v. Brown, 656 N.W.2d 355, 360 (Iowa 2003).
In a videotaped interview of the children, one child, N.P., testified that he
had been warned by another child, R.M., not to go to Anderson’s home, as
Anderson had inappropriately touched R.M. Anderson claims that his counsel
was ineffective for not objecting to the admission of this videotaped evidence, as
it was hearsay and did not allow him a chance for cross-examination. However,
Anderson stipulated prior to trial that the videotaped evidence could be used. His
defense counsel testified that the stipulation was part of his trial strategy, in that it
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was his theory that one of his accusers planted suggestions in the minds of the
other accusers.
Ineffective-assistance-of-counsel claims
involving tactical or strategic decisions of counsel must be
examined in light of all the circumstances to ascertain whether the
actions were a product of tactics or inattention to the responsibilities
of an attorney guaranteed a defendant under the Sixth Amendment.
Ledezma, 626 N.W.2d at 143. Anderson’s counsel stated that the videotapes
were used in lieu of live testimony because it would be less prejudicial to
Anderson, and he thought he could exploit the conflicts in the children’s differing
versions of events. Anderson stated that he agreed with counsel to have the
videotapes used as testimony. Based on trial counsel’s articulated strategy and
Anderson’s acceptance of that strategy in his pre-trial stipulation, we find that
counsel did not breach an essential duty.
III. Jury Trial
Anderson next claims his trial counsel was ineffective for erroneously
advising him to waive his right to a jury trial, and the right to confront his
accusers.2 In order to waive a trial by jury, a defendant must make a knowing,
voluntary, and intelligent decision to do so, both by written waiver and on the
record. Iowa R. Crim. P. 2.17(1).
Prior to trial, defense counsel stated on the record that Anderson chose to
waive his right to a jury trial, and Anderson confirmed this decision. The court
then addressed Anderson, and fully advised him of the rights he would be
waiving should he persist in his waiver of a jury trial. To each inquiry by the
2
For the reasons cited above, we affirm the postconviction court’s conclusion this was a
reasonable trial strategy.
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court, Anderson indicated he understood the rights encompassed in a jury trial
and that he wished to waive those rights. He did so both in writing and on the
record, as required. State v. Liddell, 672 N.W.2d 805, 812 (Iowa 2003). The
record affirmatively and convincingly refutes any claim that Anderson’s waiver of
a jury trial was unknowing, involuntary or unintelligent, or that his counsel
inadequately represented him. Moreover, his counsel provided strategic reasons
for advising Anderson to waive a trial by jury. These were acknowledged by
Anderson, and included the notion that a judge would be less negatively
influenced than a jury by the testimony of six young boys as to the accusations
against Anderson. Where counsel’s decisions are made pursuant to reasonable
trial strategy, we will not find ineffective assistance of counsel. State v. Johnson,
604 N.W.2d 669, 673 (Iowa Ct. App. 1999). We agree with the postconviction
court that Anderson has failed to establish either a breach of his counsel’s duty
or prejudice.
IV. Failure to Object to Cross-Examination
Anderson next claims his trial counsel was ineffective for failing to object
to part of the State’s cross-examination of him, as being beyond the scope of
direct examination. He also claims his appellate counsel was ineffective in failing
to raise this issue on direct appeal. Anderson specifically asserts that prior to
being charged with a crime, one of the children accusing him placed a “cold call”
to him while being taped by the police. During cross-examination, the State
questioned Anderson about this phone call and a follow-up police interview.
Generally speaking, “when the direct examination opens a general
subject, the cross-examination may go into any phase, and may not be restricted
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to mere parts which constitute a unity, or to the specific facts developed by the
direct examination.”
State v. Damme, 522 N.W.2d 321, 325 (Iowa Ct. App.
1994). During direct examination, Anderson was questioned and denied any
sexual conduct with the boys. On cross-examination, the State asked questions
regarding the “cold call.” Although Anderson said nothing incriminating during
the call, he later revealed to the police that the child had accused him of specific
acts. These specific acts were not revealed to Anderson during the phone call;
he disclosed this information during the subsequent police interview, based on
his own knowledge. The district court determined that the line of questioning
regarding the cold call was used as a follow-up to Anderson’s general denial of
the sexual contact. We agree that these questions did not exceed the scope of
direct examination. Counsel was therefore not ineffective for failing to lodge any
objections to the questions.
Moreover, as the postconviction court found,
Anderson asserted no legal or factual basis to challenge the cross-examination.
As such, appellate counsel was not ineffective for failing to raise this argument
on appeal.
IV. Failing to Challenge Cross-Examination of Motive
Anderson next asserts his appellate counsel was ineffective for failing to
challenge the trial court’s ruling allowing the State to ask Anderson to speculate
as to the motives of his accusers, thereby seeming to shift the burden of proof to
him. Prior to filing the direct appeal, appellate counsel spoke with Anderson. As
appellate counsel recalled, he chose not to raise this as an issue. With very little
record of this in the postconviction proceedings, we agree with the district court
that Anderson has failed to show any evidence of a reasonable probability that
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the outcome of this appeal would have been different had the issue been raised.
Finding no prejudice, we affirm. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064,
80 L. Ed. 2d at 693.
We affirm the postconviction court’s dismissal of Anderson’s application
for postconviction relief.
AFFIRMED.
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