Opinion
No. 5-353 / 04-0989
Filed July 13, 2005
Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.
Applicant appeals from the denial of his application for postconviction relief. AFFIRMED.
Scott Bandstra of the Bandstra Law Firm, P.C., Des Moines, for appellant.
Cord Christenson, Anamosa, pro se.
Thomas J. Miller, Attorney General, Sheryl Soich and Karen Doland, Assistant Attorneys General, John P. Sarcone, County Attorney, and James Ward, Assistant County Attorney, for appellee.
Heard by Mahan, P.J., Zimmer, J., and Brown, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
Cord Christenson appeals following the district court's denial of his application for postconviction relief. We affirm the district court.
I. Background Facts and Proceedings.
On August 28, 1998, a jury convicted Cord Christenson of kidnapping in the first degree in violation of Iowa Code section 710.2 (1997), burglary in the first degree in violation of section 713.2, and sex abuse in the second degree in violation of section 709.3. Christenson appealed his convictions, and the matter was submitted to this court for determination. In our decision we summarized the facts of this case as follows:
The victim, Bekki Lyons, was the former girlfriend of Christenson. Lyons testified that on the morning of February 4, 1998, Christenson broke into her home, used a stun gun on her several times, and raped her. He then forced her to pick up her son from school and travel with him to Kansas City. Once in Kansas City, he drove to a bus station. Giving her the stun gun for her protection, he left Lyons and her son and they drove back to Des Moines where she reported the incident to the police. Christenson's testimony was a strikingly different version. He claimed Lyons invited him into her home, and all events after that point were completely consensual. He cast doubt on Lyons's story, in that she had no fewer than seven opportunities to escape or alert someone for help during the ride to Kansas City.
State v. Christenson, No. 98-2013 (Iowa Ct.App. Apr. 12, 2000).
Rejecting Christenson's claim of district court error, we affirmed his kidnapping and burglary convictions. Id. However, we concluded Christenson's sex abuse conviction should have been merged with his kidnapping conviction. Id. We preserved for postconviction proceedings two claims that trial counsel was ineffective. Id.
Christenson filed a pro se application for postconviction relief. Following appointment of counsel the application was amended to present six claims of ineffective assistance of trial counsel — the two claims preserved by this court and four newly-made claims — as well as a claim that appellate counsel had been ineffective for failing to raise the newly-made claims on direct appeal. The district court considered and rejected the claims in the application, as well as forty pro se claims alleging either ineffective assistance of counsel, prosecutorial misconduct, or abuse of discretion by the trial court.
Christenson appeals. He renews all but one of the ineffective assistance of counsel claims made in the postconviction application. He also forwards additional ineffective assistance claims in a pro se supplemental brief.
II. Scope of Review.
Postconviction relief proceedings are reviewed for the correction of errors at law. DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002). However, claims that raise constitutional issues, such as the alleged ineffective assistance of counsel, are reviewed de novo. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
III. Ineffective Assistance of Counsel.
To establish the ineffective assistance of counsel, Christenson must prove his attorney's performance fell below "an objective standard of reasonableness," and "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). Prejudice is shown by a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999).
For those ineffective assistance claims not raised on direct appeal, Christenson must establish both a "sufficient reason" or "cause" for the failure to raise them, and actual prejudice. Osborn v. State, 573 N.W.2d 917, 921 (Iowa 1998). Generally, sufficient reason is provided by the ineffective assistance of appellate counsel. Id. In order to establish that he was prejudiced by the ineffectiveness of appellate counsel Christenson must demonstrate that he would have prevailed on the underlying claim of ineffective assistance of trial counsel, if that claim had been raised on direct appeal. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). With these principles in mind, we proceed to consider Christenson's ineffective assistance of counsel claims.
A. Claims Preserved on Direct Appeal.
1. Incriminating Statements.
Christenson asserts that trial counsel was ineffective when he failed to seek suppression of statements Christenson made during an audio-taped interrogation by law enforcement officers. The audio tape was played for the jury during trial. At the beginning of the tape Christenson asks, "Do I need my lawyer here, or not?", then makes reference to a public defender. Soon thereafter Christenson is read his Miranda rights and, in reading the written waiver form states, "I'm willing to make a statement and answer questions. I do not want a lawyer at this time, which I probably will, but . . . I understand and know what I am doing." After signing the waiver form, and answering some preliminary and background questions, Christenson repeatedly denies that he was at Lyons's home on February 4 or that he and Lyons had driven to Kansas City.
Eventually, Christenson states, "You're going to have to talk to my lawyer, `cause I'm going to have a lawyer." Following this statement police continue to question Christenson, and he makes various statements, including continued denials that he was with Lyons during the time in question.
As articulated in Christenson's pre-hearing brief and the postconviction court's decision, Christenson asserted that this latter statement was an invocation of his right to counsel, that any questions subsequent to the statement were asked in violation of that right, and thus that any responsive statements should be suppressed. In its ruling the district court agreed that Christenson invoked his right to counsel when he informed police that they were "going to have to talk to [his] lawyer," but concluded Christenson was not prejudiced by counsel's failure to seek suppression of statements made subsequent to the invocation. We agree with the district court.
On appeal Christenson focuses on his initial question about the need for a lawyer, his following statement regarding a public defender, and his statement during the Miranda waiver that he "probably will" want a lawyer, and appears to argue that, in light of the question and statements, the State failed to prove a knowing and voluntary waiver of his right to counsel. It does not appear that this issue was raised to and ruled upon by the postconviction court, and thus it is not preserved for our review. State v. Escobedo, 573 N.W.2d 271, 276-77 (Iowa Ct.App. 1997). Moreover, assuming without deciding that either Fifth Amendment or Sixth Amendment rights were implicated during any point in the interrogation, Christenson cannot demonstrate prejudice. He made no incriminating or contradictory statements prior to his Miranda waiver and, despite the reference to future counsel, the totality of his verbal and written statements adequately demonstrate a knowing and voluntary waiver of the right to counsel. See State v. Peterson, 663 N.W.2d 417, 424, 426 (Iowa 2003) (noting requirements for valid waiver of Fifth and Sixth Amendment rights to counsel).
Christenson also appears to argue, in his reply brief, that the statements were used in violation of his Fourth Amendment rights, as they were obtained during an illegal detention. As with the prior claim, it does not appear that this issue was raised to and ruled upon by the postconviction court, and thus it is not preserved for our review. Escobedo, 573 N.W.2d at 276-77. Moreover, we do not address on appeal claims 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). Finally, while Christenson asserts he was seized and taken to the police station against his will, he makes no effort to point this court to where in the record there appears proof of such fact, as is required of him by our rules of appellate procedure. See Iowa R. App. P. 6.14(1)( d), ( f). Under such circumstances we need not consider his claim. In re Estate of DeTar, 572 N.W.2d 178, 181 (Iowa Ct.App. 1997).
The prejudice Christenson alleges is the fact that his post-invocation statements were inconsistent with his trial testimony that he was in fact with Lyons on the day in question, but that all acts were voluntary and consensual. However, as the district court correctly noted, even if counsel had successfully moved to suppress the post-invocation statements, similar denials made prior to the invocation would have been admitted into evidence. As those denials were equally inconsistent with Christenson's consent defense, suppression of the post-invocation statements would not create a reasonably probability of a different outcome. See Atwood, 602 N.W.2d at 784.
2. Prior Bad Acts.
Christenson next asserts that trial counsel was ineffective for failing to object to evidence of and eliciting testimony regarding a prior burglary conviction that also involved Lyons. Evidence was admitted that Christenson and Lyons dated briefly in 1995 but that Lyons ended the relationship; that Christenson had viewed their relationship as leading to a long-term commitment, and that after the breakup Christenson continued to initiate contact with Lyons; that in September 1996 Christenson broke into Lyons's home and physically accosted her, telling Lyons that he wanted "answers"; that as a result Christenson was charged with kidnapping; and that in March 1997 Christenson pled guilty to burglary in the second degree, and as a condition of his two-year probation was to have no contact with Lyons. Christenson asserts that evidence of the burglary conviction and its surrounding circumstances was inadmissible, highly prejudicial, prior acts evidence.
Although not entirely clear from the trial testimony, testimony at the postconviction hearing indicated that Christenson had initially been charged with kidnapping, which early in the prosecution was amended to a charge of burglary in the first degree.
For prior bad acts evidence to be admissible, it must be probative of a disputed fact or issue other than the defendant's criminal disposition, and the probative value cannot be substantially outweighed by the danger of unfair prejudice. State v. Taylor, 689 N.W.2d 116, 123-24 (Iowa 2004); see also Iowa Rs. Evid. 5.403, .404( b). In determining the latter question, the court looks to the need for the evidence, whether the prior act is shown by clear proof, the strength or weakness of the evidence, and the degree to which the fact finder will be prompted to decide the case on an improper basis. Taylor, 689 N.W.2d at 124.
In rejecting Christenson's ineffective assistance claim, the postconviction court concluded the prior acts evidence was relevant to establish Christenson's motive or intent because it was demonstrative of Christenson's "seeming mental fixation with [Lyons]" and corroborated Lyons's assertions that Christenson had committed the underlying acts without her consent. The court also determined that the evidence's probative value outweighed any resulting prejudice. The court further concluded that trial counsel had made a reasonable tactical decision. We agree with the district court in all regards.
The court correctly determined that Christenson's motive and intent were matters in dispute, and that the prior acts evidence was relevant to both. See Taylor, 689 N.W.2d at 125 ("[T]he defendant's prior conduct directed to the victim of a crime, whether loving or violent, reveals the emotional relationship between the defendant and the victim and is highly probative of the defendant's probable motivation and intent in subsequent situations."). We also agree with the court's conclusion that the evidence was more probative than prejudicial.
In cases such as this, which turn largely upon the conflicting testimony of the defendant and the victim, the actual need for the evidence is significant. This is particularly true where the evidence relates to motive and intent, which are seldom proved by direct evidence. In addition, the evidence was established by clear proof, including witness testimony and a copy of the sentencing order for the burglary conviction. The evidence is also strong proof on the question of why Christenson would engage in the charged acts, because it indicates that Christenson desired to engage in a romantic or sexual relationship with Lyons, and was frustrated that his feelings were not reciprocated. Christenson does not seriously challenge any of the foregoing, but asserts that in light of the similar nature of the two crimes, the only conclusion to be drawn by the jury is that, if Christenson was guilty of the 1996 crime, he must be guilty of the current charges.
In assessing Christenson's claim we note that a certain level of prejudice is inherent in prior-bad-acts evidence, and that this type of prejudice will not substantially outweigh the evidence's probative value. See Taylor, 689 N.W.2d at 130. The danger of a prejudicial response that can be sufficient to exclude otherwise relevant evidence is a danger that the evidence is likely to prompt the jury to find the defendant guilty based upon an emotional response. See id. In light of the nature of this case, where there is a connection between the past crime and the current charge, and the past crime is relevant to understanding the true nature of the relationship between the defendant and the victim, we conclude the danger of unfair prejudice does not outweigh the evidence's probative value. See Taylor, 689 N.W.2d at 130 (noting importance that jury is presented with a true picture of the relationship between the defendant and the victim).
In light of the foregoing, the trial court would not have abused its discretion in admitting the burglary conviction and its surrounding circumstances, and thus trial counsel cannot be deemed ineffective for failing to object to this evidence or for eliciting it. Moreover, trial counsel articulated a tactical basis for his actions. See Origer v. State, 495 N.W.2d 132, 136 (Iowa Ct.App. 1992) (noting that even when trial counsel elicits evidence that would have been inadmissible if offered by the State, the question is whether counsel's trial strategy was reasonable under the circumstances and fell within the normal range of competency). Given that Lyons's credibility was a key consideration, counsel believed the dismissal of the prior kidnapping charge supported Christenson's theory of defense — the implication that Lyons had lied or exaggerated before, under similar circumstances, supported the claim that Lyons was lying or exaggerating now. Even if, in hindsight, the decision was unwise, a strategy is not unreasonable merely because it was improvident or miscalculated. State v. Oetken, 613 N.W.2d 679, 683-84 (Iowa 2000). We conclude that, under the circumstances, counsel engaged in a reasonable tactical decision that will not be second guessed by this court. See State v. Johnson, 604 N.W.2d 669, 673 (Iowa Ct.App. 1999).
Finally, we conclude that Christenson did not establish that counsel's actions prejudiced the defense. The record contained persuasive evidence of Christenson's guilt. In addition to Lyons's consistent and articulate testimony, the State presented evidence of Lyons's physical injuries, that Lyons's home was in disarray and furniture had been broken, and that Lyons had written "Mexico" on a bathroom cabinet door to alert authorities to the location Christenson said he was taking her. In light of the totality of the record, exclusion of the robbery charge would not have given rise to a reasonable probability of a different outcome. See Atwood, 602 N.W.2d at 784.
B. Claims Raised for First Time in Postconviction Application.
1. Failure to Investigate.
Christenson asserts trial counsel was ineffective in failing to obtain evidence which would demonstrate that Lyons's phone line had not been disconnected or cut at the time of the incident. Christenson contends the absence of this evidence was highly prejudicial in light of Lyons's assertions that the phone lines were "dead" on February 4, and that Christenson told her "not to bother trying to call for help this time [referring to the 1996 incident] because he had cut the phone lines."
During trial the State introduced photographs, taken after the incident, that showed the phone lines in Lyons's basement had been unplugged, and that another thin utility line, one used by the water company and located in close proximity to the basement phone line, had been cut. However, other photographs, not introduced at trial, and taken from a distance, can be interpreted as showing an intact water line and a connected phone line. The record indicates that these latter photographs were not provided to trial counsel. Christenson contends he told counsel he had not cut Lyons's phone line, and that if counsel had independently obtained photographs, he would have discovered the discrepancy.
Lyons's home was processed twice. Assuming Christenson has correctly identified which pictures were taken at which processing, the pictures taken by the initial technicians appear to show intact and connected lines, while those taken by a follow-up technician show severed and disconnected lines. Although Christenson asserts the reports of the initial technicians verify that the phone lines were intact and connected during initial processing, the reports in fact state only that the technicians were informed Christenson had cut phone lines outside of the home, and that while the initial technicians took exterior photographs of the front of the home, they "neglected to photograph or locate the cut telephone lines." The job of locating and photographing the cut lines was accordingly assigned to the follow-up technician.
Upon reviewing the record, we cannot conclude that trial counsel was ineffective for failing to obtain the undisclosed photographs. The duty to investigate is not limitless. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001). Rather, "[c]ounsel is required to conduct a reasonable investigation or make reasonable decisions that make a particular investigation unnecessary." Id. The reasonableness of the investigation is judged by reference to the underlying circumstances of each case. Id. Here, as the district court noted, trial counsel relied on the photographs turned over by the State. This was reasonable in light of the State's ongoing duty to disclose evidence that may be favorable to an accused. See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963).
2. Failure to Call Witness.
Christenson asserts trial counsel was ineffective because he failed to call Darcy Scott to testify at trial. Scott, a friend of Christenson, testified at the postconviction hearing that on February 3, the day before the incident, Scott witnessed Christenson standing in the street speaking with a woman in a car. Scott heard the woman tell Christenson something like "get in the car," but could not clearly make out the words. Although Scott had met Lyons, and stated the woman in the car looked similar to a woman Christenson had previously dated, she did not identify the woman as Lyons.
Christenson asserts he was prejudiced by the absence of Scott's testimony at trial, because it would have substantiated his own trial testimony that Lyons was voluntarily interacting with him the day before the incident, and that all acts on the day of the incident were in fact consensual. In rejecting this assertion, the postconviction court noted Scott could not "confidently or accurately declare that the female she viewed [Christenson] talking to was indeed Ms. Lyons." While we recognize the importance of corroborating testimony in a case such as this, where the issue of consent largely turns upon the testimony of the victim and the defendant, we agree with the district court that Scott's failure to positively identify Lyons, a woman with whom she was familiar, seriously weakens the impact of her testimony. In light of the testimony and physical evidence presented at trial, Scott's testimony would not have created a reasonable probability of a different outcome. Atwood, 602 N.W.2d at 784.
3. Failure to Question Witness.
Christenson asserts trial counsel was ineffective for failing to thoroughly question trial witness Robert Miles Corey. Corey testified at trial as a general character witness for Christenson, but was not asked about the fact that a day or two before the incident he had given Christenson a ride to both the police station and to the probation office. Christenson asserts that, if this testimony had been presented at trial, it would have contradicted Lyons's testimony that Christenson told her there was a warrant for his arrest. The district court correctly rejected Christenson's claim by concluding there was a lack of prejudice.
Lyons testified that Christenson told her there was a warrant out for his arrest because he had violated the no-contact order protecting Lyons, and that as a result he needed to leave the country. According to Lyons she told Christenson that she was unaware of any violation of the no-contact order, offered to help him "straighten this out" with police, and said there was no need to leave the country. She stated that Christenson refused her assistance, insisting that he was going to Mexico and that he was taking Lyons with him. Corey's testimony, which does no more than indicate Christenson's belief that there was not a warrant for his arrest a day or two before the incident, would have done little to impact the import of Lyons's testimony. Once again, in light of the remaining evidence, this testimony would not have created a reasonable probability of a different outcome. Atwood, 602 N.W.2d at 784.
4. Failure to Object to Jury Instruction No. 38.
Christenson asserts that trial counsel was ineffective for failing to object to Jury Instruction No. 38, which instructed the jury that they could consider evidence of prior acts committed by Christenson and involving Lyons only "to determine whether defendant has a sexual passion or desire for Rebecca Lyons." Christenson points to the uniform jury instruction, which states prior acts evidence "must be shown by clear proof, [and] can only be used to show" the relevant non-character fact or issue, such as motive or intent. I Iowa Crim. Jury Instructions 200.24 (1988). Christenson asserts Instruction No. 38 was objectionable because it did not inform the jury that the State needed to prove his 1996 burglary conviction by "clear proof." Assuming this claim was actually made to and decided by the postconviction court in its denial of Christenson's challenge to this instruction, and thus is properly before us on review, we conclude Christenson was not prejudiced by the absence of the "clear proof" language.
The entire instruction reads as follows:
You have heard evidence that defendant allegedly committed other acts with Rebecca Lyons before February 4, 1998. If you decide that defendant committed these other crimes, you may consider those acts only to determine whether defendant has a sexual passion or desire for Rebecca Lyons. You may not consider them as proving that defendant actually committed the acts charged in this case.
Clear proof of a prior act is that which is sufficient to "`prevent the jury from engaging in speculation or drawing inferences based on mere suspicion.'" State v. Brown, 569 N.W.2d 113, 117 (Iowa 1997) (citation omitted). Here, Christenson's 1996 burglary conviction was established through not only trial testimony, but admission into evidence of the sentencing order. This is "clear proof" of the conviction. Thus, even if it were error to omit the "clear proof" language from the instruction, such error was harmless. See State v. Fintel, 689 N.W.2d 95, 99 (Iowa 2004) ("Error in giving a jury instruction does not merit reversal unless it results in prejudice to the defendant.").
C. Pro Se Claims.
Finally, we turn to the claims in Christenson's pro se brief. Some claims mirror those addressed above, and our analysis of those claims need not be repeated here. We decline to address other claims as they are not sufficiently clear and specific to allow this court to consider them on their merits. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (finding a defendant must state the specific way in which counsel's performance was deficient and identify how competent representation probably would have changed the outcome). There is one new and additional claim that can be addressed by this court. However, like all of Christenson's prior claims, it too is without merit.
Christenson argues that trial and appellate counsel were ineffective for failing to object to admission of the police interrogation as a violation of Iowa Rule of Evidence 5.613( b). However, rule 5.613, which limits the admissibility of prior inconsistent statements by a witness, is inapplicable to statements of party-opponents, such as Christenson. See Iowa R. Evid. 5.801( d)(2) (defining party-opponent).
IV. Conclusion.
We have considered all of Christenson's claims, whether or not specifically discussed. We conclude that Christenson has failed to establish ineffective assistance of trial or appellate counsel. Accordingly, we affirm the district court.