Opinion
No. 5-656 / 03-0351
Filed December 21, 2005
Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.
Michael Tornquist appeals from the district court's dismissal of his application for post-conviction relief. AFFIRMED.
Susan R. Stockdale of Terrill, Martens, Hulting Stockdale, Ames, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, John P. Sarcone, County Attorney, and Nan Horvat and James Ward, Assistant County Attorneys, for appellee.
Considered by Zimmer, P.J., and Hecht and Vaitheswaran, JJ.
Michael Tornquist appeals from the district court's dismissal of his application for post-conviction relief. We affirm.
Factual Background and Proceedings.
Tornquist was convicted of sexual abuse in the second degree and indecent contact with a child and sentenced to a prison term not to exceed fifty years in 1998. As a consequence of his direct appeal, Tornquist's 1998 sentence on the sexual abuse charge was vacated, and he was subsequently resentenced to serve a term not to exceed twenty-five years consecutive to a two-year sentence on the indecent contact conviction.
Tornquist entered an Alford plea and was convicted of third-degree sexual abuse in 1992. In his direct appeal from the 1998 conviction, Tornquist successfully asserted the 1992 conviction could not serve as the basis to enhance his sentence pursuant to Iowa Code section 901A.2(3) which became effective on July 1, 1996.
In July of 2000, Tornquist filed a pro se application for post-conviction relief contending his defense counsel was ineffective in failing to (1) adequately investigate the allegation that the perpetrator of the sexual abuse against the two female victims was their father, (2) offer evidence of Tornquist's good character, and (3) know the applicable law would permit impeachment of Tornquist with evidence of his prior sexual abuse conviction if he testified, and follow a trial strategy consistent with that law.
After a trial on the merits of Tornquist's post-conviction claims, the district court found neither a breach of an essential duty nor resulting prejudice. Tornquist appeals the dismissal of his application, contending the district court erred in failing to find defense counsel rendered ineffective assistance in (1) failing to anticipate the admissibility for impeachment purposes of the 1992 sexual abuse conviction, and (2) pursuing an inept trial strategy which included counsel's assurance to the jury during the opening statement that Tornquist would testify and deny the allegations leveled against him in the 1998 case. Tornquist further asserts his direct appeal counsel provided ineffective assistance in failing to challenge as an abuse of discretion the district court's ruling that evidence of the prior sexual abuse conviction based on Tornquist's 1992 Alford plea was admissible for impeachment purposes pursuant to Iowa Rule of Evidence 5.609. Finally, Tornquist asserts his post-conviction counsel was ineffective in failing to assert direct appeal counsel was ineffective in failing to challenge the same evidentiary ruling by the district court.
Scope and Standards of Review.
Discussion. a.) Claim of defense counsel's ineffectiveness.
Defense counsel challenged by pretrial motion the admissibility of evidence of Tornquist's 1992 conviction under both rules 5.404(b) and 5.609. The district court entered a pre-trial ruling holding that the State would not be permitted to offer evidence of the conviction under rule 5.404(b). The court reasoned that the circumstances surrounding the 1992 offense were not sufficiently similar to those alleged against Tornquist in the 1998 trial to justify the admission pursuant to rule 5.404(b) of evidence of the prior crime. This pretrial ruling by the court did not address the State's contention that evidence of the prior crime should be admitted on cross-examination if Tornquist should elect to testify.
Defense counsel apparently misinterpreted the district court's ruling under rule 5.404(b) as an indication that the court had decided not to receive evidence of the prior conviction for any purpose. Having obtained what he believed was a favorable ruling excluding the evidence, counsel did not request the court to address Tornquist's contention that the State should not be permitted to utilize the prior conviction to impeach the accused because the prejudicial effect of such evidence would outweigh its probative value. During his opening statement, defense counsel represented to the jurors that Tornquist would take the stand during the trial, look them in the eye, and tell them he did not commit the crimes with which he was charged.
After the State rested, the prosecutor asked the court to revisit the question of whether the State could cross-examine Tornquist on the subject of his prior conviction if he should testify. The prosecutor contended the evidence was relevant because, when interviewed by a police investigator, Tornquist had denied that he would ever commit a sexual crime against a little child. Although evidence of this denial had not been presented by the State in its case in chief, the district court nonetheless concluded that
the prosecutor would be able to bring out evidence that arguably impeaches [Tornquist's] statement to the investigating officer that he's never fondled children.
Defense counsel objected strenuously to the ruling, noting that he had made a representation to the jury during the opening statement that Tornquist would testify and deny the charges. Addressing the reliance and prejudice issues, counsel noted that he made his opening statement
in reliance on the Court's [earlier ruling] that no mention of [the prior] conviction would be given to the jury. And I relied on that ruling that [such evidence] would not come in unless [Tornquist] opened the door. And now I'm being told merely by the fact of him taking the stand, he's going to be impeached by this obviously prejudicial material.
The district court was not persuaded by defense counsel's arguments, however. Confronted with the prospect of cross-examination on the prior conviction, Tornquist elected not to testify.
We now turn to the question of whether the district court erred in concluding that defense counsel did not breach an essential duty in representing to the jury that Tornquist would testify before knowing how the district court would rule on his rule 5.609 objection. We note that when defense counsel made his opening statement, he believed, incorrectly, that the court's pre-trial ruling precluding the State from offering evidence of the prior crime under rule 5.404(b) signaled that the court would similarly prohibit use of such evidence during cross-examination because of its overwhelming prejudicial effect. We agree with the district court's conclusion that defense counsel made a mistake in judgment when he failed to obtain a ruling before making the opening statement on the question of whether the State would be permitted to impeach Tornquist with evidence of the prior sexual abuse conviction. We also find apt the post-conviction court's assessment that
it was not unreasonable for defense counsel to expect he would be able to keep defendant's prior conviction out under [rule 5.609] based upon the Court's ruling under [rule 5.404(b) since both rulings require the same [rule 5.403] balance of prejudice against probative value.
Mistakes in judgment do not necessarily constitute breaches of essential duties. See State v. Kone, 557 N.W.2d 97, 102 (Iowa Ct. App. 1996) (stating "[i]mprovident trial strategy, miscalculated tactic, or mistakes in judgment do not necessarily amount to ineffective assistance"). We find that defense counsel's mistake was one of judgment that did not constitute a breach of an essential duty. Because we affirm the district court's ruling on the duty issue, we need not reach the prejudice issue in connection with this particular claim.
b.) Claim of direct appeal counsel's ineffectiveness.
We next consider Tornquist's assertion that direct appeal counsel was ineffective in failing to challenge the district court's evidentiary ruling permitting the State to cross-examine on the subject of the prior crime. Although we question the reasoning supporting the evidentiary ruling, we find no reasonable probability that the outcome would have been different had direct appeal counsel successfully challenged the ruling. We share the post-conviction court's assessment that "[g]iven the overwhelming weight of the evidence against [Tornquist], it is highly unlikely the verdict would have been different had Tornquist looked the jury in the eye and told them he didn't do it." Because we conclude that Tornquist has failed to establish prejudice resulting from direct appeal counsel's failure to assign the evidentiary ruling as error, we affirm the district court's ruling on this issue.
As noted above, the district court apparently concluded the prior crime was an appropriate subject of cross-examination when, after the State rested, the prosecutor recounted Tornquist's denial, during questioning by an investigator, that he would ever do such a thing to a child. This denial had not been disclosed to the jury during the State's case. The district court's ruling on the rule 5.609 issue gives no indication that the court engaged in the probative value — prejudical effect calculus called for in the rule.