Opinion
No. 5-133 / 03-1721
Filed June 15, 2005
Appeal from the Iowa District Court for Jasper County, Gregory A. Hulse, Judge.
Nicholaas Charles Vanderleest appeals his conviction for second-degree sexual abuse. REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Greta Truman and Tricia A. Johnston, Assistant Appellate Defenders, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Steve Johnson, County Attorney, and Scott Nicholson, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Mahan and Vaitheswaran, J.
A jury found Nicholaas Vanderleest guilty of second-degree sexual abuse. On appeal, Vanderleest alleges (1) counsel was ineffective in several respects, and (2) the evidence was insufficient to sustain the jury's verdict. We reverse and remand for a new trial.
I. Background Facts and Proceedings
During the summer of 1999, S.S. and her family lived close to the Vanderleest family. S.S. often played at the Vanderleest household with Vanderleest's two younger brothers. At that time, S.S. was ten years old and Vanderleest was fourteen.
When S.S. was fourteen, she read a book about a teenage girl who was raped and contracted HIV. S.S. wrote her mother a note, which said:
Dear Mom,
Don't tell dad what this letter says, I didn't want to tell you in words. But when I was younger Nick Vanderleest got down my pants. I would tell him to stop but he wouldn't. That is I why I would ask you about AIDS and stuff like that. Do you know if Nick has AIDS? Tell me later.
P.S. Don't tell dad.
[S.S.]
S.S.'s mother took the note to the police. An officer interviewed Vanderleest. He denied the allegation.
The State charged Vanderleest with second-degree sexual abuse, and the case proceeded to trial. At trial, S.S. testified Vanderleest sexually assaulted her by inserting his penis in her vagina and by kissing her face, body, and vagina. She testified no one had placed anything in her vagina before or after the incident. On cross-examination, S.S. acknowledged her story changed over time. She engaged in the following exchange with Vanderleest's trial counsel:
Q. Isn't it true, [S.S.], that once you wrote this note to your mother and she asked you about it, you were stuck, weren't you?A. Yes.
Q. You had to figure out what happened then, didn't you?A. Yes.
Q. And the story kept getting bigger and bigger?
A. Yes.
She conceded she continued to go to the Vanderleest home after the assault. She admitted she told no one about the assault until January 2003.
Vanderleest also testified. He denied sexually abusing S.S. He admitted he had a conversation with S.S's mother following the disclosure and told her "he did not need this," but he said he was referring to pending felony forgery charges. He also admitted telling S.S.'s mother that he had been telling lies his whole life and would go to hell for lying.
S.S's mother testified, as did several of Vanderleest's relatives. In addition, the State called Dr. Linda Railsback, a physician who examined S.S. in 2003.
II. Ineffective Assistance of Counsel
Vanderleest claims trial counsel was ineffective in failing to (1) object when Dr. Railsback commented on S.S.'s veracity; (2) object when the prosecutor asked him to comment on S.S.'s veracity; (3) object during "improper" closing argument; (4) object to the prosecutor's use of his forgery conviction for impeachment purposes; (5) seek removal of a juror who was acquainted with the parties; (6) object to "derisive" questioning about his truthfulness, and (7) file a motion for a new trial. On our de novo review, we find the first three claims dispositive and, accordingly, find it unnecessary to address the remaining four claims.
To establish counsel was ineffective, Vanderleest must show (A) a breach of an essential duty and (B) resulting prejudice. Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695 (1984). We generally preserve such claims for postconviction relief, unless the record is adequate to address them. State v. Shortridge, 589 N.W.2d 76, 84 (Iowa Ct. App. 1998).
As noted above, we address only the first three claims, and the record is adequate to do so. All three claims deal with established duties of counsel. All three are similar, if not identical, to ineffective-assistance-of-counsel claims considered by the Iowa Supreme Court on direct appeal. See State v. Graves, 668 N.W.2d 860, 882 (Iowa 2003); State v. Tracy, 482 N.W.2d 675, 680 (Iowa 1992).
A. Breach of Essential Duty 1. Expert Comment on S.S.'s Veracity
Dr. Railsback examined S.S. three and a half years after the event. She testified for the State, identifying several objective indicators of sexual assault. Then, in response to a prosecution question about whether S.S.'s story was consistent with these findings, Dr. Railsback stated: "These kinds of things are beyond life experience, and they [children] don't know how to create a credible story."
Vanderleest argues trial counsel should have objected to this testimony on the ground it improperly bolstered S.S.'s credibility. He also argues counsel should have requested a curative instruction or moved for a mistrial. The State concedes Dr. Railsback's testimony "would likely have been objectionable." We conclude the testimony was objectionable.
In State v. Myers, 382 N.W.2d 91, 97 (Iowa 1986), a school principal testified, "the entire time I've been at [the elementary school], for three years, that there has not been a child who has lied about something like this. So I do believe the children." 382 N.W.2d at 92. In the same case, another expert testified, "[i]n all the years I've worked, which is sixteen, I have only had one child that lied to me about sexual abuse, and it is my opinion that it is very rare for a child to lie about this subject." The court held the opinions "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.'" Id. at 98 (citation omitted).
Our court followed this precedent in Johnson v. State, 495 N.W.2d 528, 531 (Iowa Ct.App. 1992). We affirmed a district court's conclusion that trial counsel breached an essential duty in failing to object to expert testimony concerning the truthfulness and credibility of child sexual abuse victims.
Based on this case law, we conclude trial counsel breached an essential duty in failing to object to Dr. Railsback's testimony concerning S.S.'s credibility and in failing to seek a curative instruction or move for mistrial.
2. Request to Comment on Veracity of S.S.
On cross-examination of Vanderleest, the prosecutor engaged in the following exchange:
Q. Well, you have told us here today that you did not do what [S.S.] has alleged that you did?A. That's true.
Q. [S.S.] testified in this case today that, in fact, you did do what she alleged. Is [S.S.] lying?A. Yes, she is.
. . . .
Q. Well, let me ask you today, can you think of a reason or motivation why [S.S.] would make this story up?
A. I could think of a few. These are just theories that I have. I don't have any, you know, evidence behind them or anything like that. I would say maybe not really neglective parents, but kind of not being around the parents that much, attention, needing attention, things like that that just — it makes — it's things like that that I think of.
Vanderleest contends trial counsel should have objected to this line of questioning as an inappropriate attempt to have one witness comment on another's credibility. See Graves, 668 N.W.2d at 872 (holding "`were-they-lying' questions are improper under any circumstance"). The State concedes the question "Is [S.S.] lying" is impermissible under Graves.
Therefore, the only question is whether trial counsel should have been charged with predicting the holding of Graves, decided after trial in this matter. The court in Graves addressed this very issue, noting that its holding was presaged in earlier opinions. Id. at 882. Given the risk of prejudice, the court concluded defense counsel's failure to object to the "were-they-lying" questions could not be "justified as a trial strategy that fell within the range of reasonable professional assistance." Id.
As will be discussed, credibility was as central to this case as it was to Graves. Under these circumstances, we conclude defense counsel breached an essential duty in failing to object to the prosecutor's cited questioning of his client.
3. Closing Argument
In Graves, the court stated that a prosecutor should not "express his or her personal beliefs" and may not vouch personally as to a defendant's guilt or a witness's credibility. This is true whether the personal belief is purportedly based on knowledge of facts not possessed by the jury, counsel's experience in similar cases, or any ground other than the weight of the evidence in the trial. A defendant is entitled to have the case tried solely on the evidence.
Id. at 874 (quoting State v. Williams, 334 N.W.2d 742, 744 (Iowa 1982)).
The prosecutor made several comments in closing argument and on rebuttal that Vanderleest contends violated these precepts. He suggests, for example, that the prosecutor personally vouched for the credibility of S.S. when he said the following:
[S.S.] has testified in depositions twice with Mr. Vanderleest in the room. She's told a real detective the story. She's told a doctor the story. She's told me the story, and now she's told you the story. At no time-given plenty of opportunity to do so, at no time did she tell me or her parents or Detective Guthrie or Dr. Railsback, hold on. Hold on. Hold on. I'm making this up to frame Nick Vanderleest. Never did that. Never did that, but she definitely could have.
. . . .
[S.S.] had to go through trial preparation with me. I will tell you that, yes, I did prepare [S.S.] for this trial. She's fourteen years of age, and it is my common practice to prepare witnesses for trial, no matter what kind of trial it is. That's what I do. That's what we, as attorneys, do to get ready for trial. So, again, she had to tell me details about what happened. . . . During this trial, you didn't hear any evidence or any suggestion that [S.S.] is a liar.
Vanderleest also suggests the prosecutor vouched for the credibility of the investigating police officer, when he stated:
When Detective Guthrie files a charge, a conviction is always the goal, if you will, for any detective, any officer, if they file a charge. They're not in the habit, because of the duties of their job, in falsely accusing people. They try to do an investigation before they file the charge, and Detective Guthrie did. Detective Guthrie really only got to tell you what he did during the course of his investigation. That's what I asked him. That's what he was allowed to tell you.
We agree the comment "at no time did she tell me . . . I'm making this up to frame Nick Vanderleest" and the comment that officers are "not in the habit, because of the duties of their job, in falsely accusing people" were improper personal attestations concerning the credibility of S.S. and Detective Guthrie. Graves, 668 N.W.2d at 875, 879-90 (discussing improper attempt to enhance credibility of investigating officer). Defense counsel breached an essential duty in failing to object to these comments.
B. Prejudice
On the prejudice prong of his ineffective-assistance-of-counsel claims, Vanderleest argues:
The prejudice to the defendant based upon all the preceding errors by counsel for the defendant was great. Individually, and cumulatively, it led to an unfair result in this trial, which truly came down to a matter of whether to believe S.S. or Nicholaas about something that may or may have happened four years prior, when both parties were children.
The State counters that the impermissible references were "brief," "isolated" or "flowed directly from the evidence."
Strickland remains instructive both on the standard for establishing prejudice and the quantum of proof. The Court there stated that, to establish prejudice,
The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Strickland, 466 U.S.at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698 (emphasis added). The Court continued:
In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.
Id. at 695-696, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699 (emphasis added).
As noted, the fighting issue was witness credibility. S.S. stated Vanderleest sexually abused her. Vanderleest denied he did. Each of the three errors considered above had a direct connection with this fighting issue.
First, Dr. Railsback said S.S.'s verbal history was "beyond life experience" and children "don't know how to create a credible story." This comment was an unequivocal affirmation of S.S's credibility. As the court stated in Myers, "the effect of the opinion testimony was to improperly suggest the complainant was telling the truth and, consequently, the defendant was guilty." 382 N.W.2d at 97-98.
Second, the prosecutor asked Vanderleest if S.S. "lied." As the court stated in Graves, "the predominate, if not sole purpose of such questioning is simply to make the defendant look bad." 668 N.W.2d at 872. That purpose, the court said, is inconsistent "with the prosecutor's duty to the defendant to ensure a fair trial." Id. at 673.
We recognize the comment was isolated. We are not persuaded, however, that this fact rendered the comment "inconsequential," as the State contends. While the court in Graves stated an isolated act of prosecutorial misconduct may not amount to a constitutional violation, the court did not adopt a numeric litmus test. See id. at 880. Instead, the court articulated several fact-specific considerations to determine whether prosecutorial misconduct deprived a defendant of a fair trial, including "the significance of the misconduct to the central issues in the case" and "the strength of the State's evidence." Id. at 877. Here, the "did she lie" question went to the heart of the case: did the State prove that Vanderleest engaged in sexual abuse? Under this circumstance, the prosecutor's question took on added significance.
This discussion came in the context of deciding whether there was a due process violation. However, the court stated that much of that analysis was "equally applicable" in deciding the prejudice prong of the ineffective-assistance-of-counsel claim. Graves, 668 N.W.2d at 883.
Third, the prosecutor said S.S. didn't tell him she was "making this up" and the officer was "not in the habit" of "falsely accusing people." Again, these statements enhanced the credibility of the State's witnesses in a case that turned on credibility. Id.
We agree with Vanderleest that each error, individually, undermined our confidence in the outcome. We also agree that the errors, in combination, "had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture." Strickland, 466 U.S. at 695-96, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699.
In addition to examining the errors, we have examined the entire record to determine the degree of evidentiary support for the verdict. We conclude the verdict was "only weakly supported by the record," rendering it more likely to have been affected by the errors than a verdict "with overwhelming record support." Id. Although S.S. furnished compelling testimony of abuse, Vanderleest categorically denied the abuse. In addition, both witnesses were impeached, leaving the status of the record essentially in equipoise.
We have not overlooked Dr. Railsback's testimony concerning her examination of S.S. and the objective indicators of sexual abuse she discerned. Her physical findings are offset by the fact she could not rule out causes other than sexual abuse. At best, she was able to opine that the results of her examination were consistent with S.S.'s verbal history, but that verbal history was taken three and a half years after the incident and after S.S. read two teenage books on sexuality.
We conclude Vanderleest established Strickland prejudice, namely that, but for the errors, there was a reasonable probability of a different outcome.
III. Sufficiency of the Evidence
Vanderleest also raises a challenge to the sufficiency of the evidence. Our Supreme Court has stated, "when a reviewing court determines prejudicial trial error occurred in a criminal trial, the case will not be remanded for retrial when the evidence at trial was insufficient to support the conviction." State v. Dullard, 668 N.W.2d 585, 597 (Iowa 2003). We must, therefore determine whether the evidence was insufficient. In making this determination, we consider "all the evidence admitted during the trial, including erroneously admitted evidence." Id.
The record actually made supports the jury's verdict. Reasonable minds could have found S.S.'s testimony credible and could have concluded that the State proved all elements of the crime charged beyond a reasonable doubt. State v. Smith, 508 N.W.2d 101, 102 (Iowa Ct.App. 1993). As the evidence was sufficient to support the verdict, double-jeopardy principles do not preclude a retrial. Dullard, 668 N.W.2d at 597.
IV. Disposition
Based on the three successful ineffective-assistance-of-counsel claims, we reverse and remand for a new trial. REVERSED AND REMANDED.
Two ineffective-assistance-of-counsel claims that may arise on retrial were not addressed: (1) counsel's failure to object to the prosecutor's questions concerning the nature of Vanderleest's forgery convictions and (2) counsel's failure to object to the "derisive" cross-examination of Vanderleest. On the first issue, we question the necessity of delving into the specifics of the prior convictions. On the second, the State correctly points out that "Vanderleest himself disparaged his own veracity." We assume without deciding, therefore, that the prosecutor's subsequent questions about Vanderleest's lies may have been "a fair line of inquiry."