IN THE COURT OF APPEALS OF IOWA
No. 15-0765
Filed June 15, 2016
JAMES ALAN CHRISTENSEN,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Edward A.
Jacobson, Judge.
James Christensen appeals from the denial of postconviction relief.
AFFIRMED.
Alfredo Parrish of Parrish Kruidenier Dunn Boles Gribble Gentry Brown &
Bergmann L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant
Attorney General, for appellee State.
Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
2
DANILSON, Chief Judge.
James Christensen was convicted of second-degree sexual abuse by
aiding or abetting John Sickels; Christensen and Sickels were tried jointly. See
State v. Christensen, No. 09-1961, 2010 WL 4792120 (Iowa Ct. App. Nov. 24,
2010) (finding sufficient evidence to support his conviction, the verdict was not
against the weight of the evidence,1 and that the trial court did not err in
excluding irrelevant evidence or denying the motion for new trial based upon the
prosecutor’s improper surrebuttal argument on grounds of lack of prejudice).
This court affirmed Christensen’s conviction, Christensen, 2010 WL 4792120, at
*10, and the supreme court denied further review.
On August 12, 2011, Christensen filed an application for postconviction
relief (PCR) asserting trial counsel was constitutionally deficient in several
respects. One issue raised was that trial counsel was ineffective in failing to
1
In ruling on post-trial motions, the trial court concluded:
The verdict in this case is not contrary to the weight of the
evidence. . . . As previously indicated, the complaining witness’ testimony
was consistent and credible. Her testimony was corroborated by the
testimony of the Club manager who found the bar in disarray on the
morning after the incident. Further, the admissions of the defendants
support many of the salient points of the complainant’s testimony. The
testimony of the defendants was inconsistent and generally not credible
on the issue of consent.
The complainant’s testimony was believable when she said that
defendant Christensen physically herded her into the area behind the bar
and then stood across the bar from her while holding her hand, pushing
her hair back and shushing her as defendant Sickels had sex with her
from the rear without her consent. Sickels admitted the sex act. Her
testimony was compelling when she stated that she looked Christensen in
the eye while this was going on and said, “[T]his isn’t right.’’ The
complainant’s testimony that after the act was completed, Christensen
told her something like “nothing happened here” or “this never happened”
was corroborated by Christensen’s admission.
The more credible evidence in this case supports the State’s
position that it proved beyond a reasonable doubt that defendant Sickels
performed a sex act upon the victim by force and against her will while
being aided and abetted by defendant Christensen.
3
establish prejudice from prosecutorial misconduct, i.e., improper rebuttal
argument, and appellate counsel was ineffective in failing to demonstrate
prejudice on direct appeal. The district court granted the State’s motion for
partial summary judgment on this issue, concluding, “The appellate court has
already found insufficient prejudice to warrant the granting of relief. That ruling
stands as the law of the case just as the ruling stood as the law of the case in
Stringer [v. State, 522 N.W.2d 797, 800–01 (Iowa 1994)].”
The remaining issues were scheduled for a subsequent bench trial. At the
PCR trial, counsel for Christensen stated that only the claims related to the
failure to sever Christensen’s and Sickels’ trials were proceeding. Following a
hearing, the district court rejected the claims. Christensen appeals.
We review ineffective-assistance-of-counsel claims de novo. Dempsey v.
State, 860 N.W.2d 860, 868 (Iowa 2015).
To succeed on a claim of ineffective assistance of counsel, a PCR
claimant must prove trial counsel failed to perform an essential duty and
prejudice resulted. Id. “Reversal is warranted only where a claimant makes a
showing of both elements.” Id. If the claimant has failed to establish either of
these elements, we need not address the remaining element. Id.
We review “tactical or strategic decisions of counsel . . . in light of all the
circumstances to ascertain whether the actions were a product of tactics or
inattention to the responsibilities of an attorney.” State v. Brubaker, 805 N.W.2d
164, 171 (Iowa 2011) (citation omitted). “‘We begin with the presumption that the
attorney performed competently’ and ‘avoid second-guessing and hindsight.’” Id.
(citation omitted).
4
Upon our de novo review, we find no reason to set aside the district
court’s decision.
Severance. The record shows that trial counsel considered and weighed
the advantages and disadvantages of a joint trial at the outset of the
proceedings. Trial counsel believed that Sickels’ testimony could benefit
Christensen and that Christensen might not be able to secure Sickels’ testimony
if the two were tried separately. We agree with the district court that decision has
not been shown to be unreasonable or constitutionally deficient.
Christensen also contends that trial counsel was ineffective in failing to
move to sever as the trial neared and during the trial, arguing he was prejudiced
by testimony of prior incidents of bad acts admitted against Sickels. In this
regard, the PCR court ruled:
The court again notes that the State never said that
Christensen was present at these incidents, let alone participated in
them. Rather, the State respected Christensen’s choice as to
whether or not to open the door to character evidence against
himself.
Additionally, the court finds it difficult to believe that the
State’s questions, and Smith’s and Hartsock’s answers, could have
caused spill-over prejudice to Christensen. From these questions
and answers, the jury learned that on one occasion during the fall
prior to the alleged crime, Sickels had been rowdy at a bar and had
repeatedly asked a female bartender to flash her breasts to him.
The jury also learned that Sickels had been involved in an assault
at age eighteen. The court is not willing to conclude that merely
being tried jointly with a defendant who committed these prior bad
acts was “so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Strickland v. Washington, 466 U.S. [668,]
687 [(1984)]. The court does not believe that this questioning and
the accompanying testimony was so prejudicial that its prejudicial
effect could have, without more, “spilled over” to Christensen and
could have led a jury to convict him solely based on his association
with his codefendant.
5
A defendant cannot obtain a severance just because evidence is admitted
against his co-defendant that is inadmissible to the defendant. See State v.
Williams, 574 N.W.2d 293, 300 (Iowa 1998) (“Severing the trials of co-defendants
is required in two instances: (1) where the trial is so complex and the evidence so
voluminous that the jury will be confused and cannot compartmentalize the
evidence; or (2) where the evidence admitted by or against one defendant is so
prejudicial to a co-defendant, the jury is likely to wrongly use it against the co-
defendant.”).
The bad-acts testimony about which Christensen complains did not
directly implicate him. Even Sickels’ attorney noted during the discussion of a
motion for mistrial (which he joined), “We said nothing about Mr. Christensen, nor
was Mr. Christensen discussed.”
Christensen’s counsel moved for a mistrial based upon the spillover effect
of the testimony implicating Sickels. Christensen’s counsel argued:
Your Honor, if I may, one other thing that I would like to state
for the record—and this kind of dovetails into what Mr. McConville
[Sickels’ counsel] just stated—while our defenses are not
antagonistic to each other, we are separate parties, and the
characterization that they presented this evidence is a
misstatement of the record. We are separate defendants. We are
not presenting a joint defense. This is not—we are not co-counsel,
and we are separate parties in this criminal prosecution. And
therefore what Mr. McConville introduces into evidence, I have
absolutely no control over that. And I just wanted to make that
clear because [the prosecutor] said they put that evidence in, and
they didn’t put that evidence in. We didn’t put that evidence in.
And that’s all I wanted to clarify on that, Your Honor.
The trial court ruled, in part:
This is a joint trial. The State is entitled to cross-examine a
defendant’s witnesses. And the fact that this occurred is not
6
grounds for a mistrial for Defendant Christensen, and certainly not
for Defendant Sickels.
The Defendant Christensen this morning proposed some
requested jury instructions that are limiting instructions or
cautionary instructions that the Court will certainly consider that will
indicate to the jury that the evidence that the character evidence
offered with regard to Defendant Sickels shall not be considered by
the jury with regard to Defendant Christensen. And during the
course of the presentation of that evidence, there was no reference
to Defendant Christensen. So the defendants’ motion for mistrial is
overruled.
A limiting instruction was given to the jury that character evidence related
to Sickels could not be used against Christensen and each defendant was
entitled to have his case decided solely on the evidence which applies to him.2
Christensen claims this was a “he said—he said—she said” case, and that
any evidence that served to undercut Sickels necessarily “undercut Christensen
by association.”3 We are not convinced any association caused an unfair trial.
Christensen’s defense emphasized that Sickels stated Christensen played no
part in the encounter with the complaining witness, which Sickels testified was
consensual. The jury was properly instructed to give separate consideration to
the evidence presented against each defendant. We presume the jury adhered
2
Instruction 15 states:
As you know, there are two defendants on trial here: John Sickels
and James Christensen. Each defendant is entitled to have his case
decided solely on the evidence which applies to him. Some of the
evidence in this case is limited under the rules of evidence to one of the
defendants, and cannot be considered against the others.
Character evidence regarding defendant John Sickels can be
considered only in the case against defendant Sickels. You must not
consider that evidence when you are deciding if the State has proved,
beyond a reasonable doubt, its case against defendant James
Christensen.
3
As found by the appellate court on direct appeal, “Christensen ignores the testimony
from both the club manager and the club bookkeeper describing the disarray in the bar
area the morning after the assault. His argument also completely ignores both his own
statements to the DCI consistent with [the complaining witness’s] description of the
assault and the confirming statements of Sickels. Christensen, 2010 WL 4792120, at *5.
7
to the trial court’s instructions. State v. Proctor, 585 N.W.2d 841, 845 (Iowa
1998).
Christensen argues the motion for mistrial was “too little too late,” inferring
counsel should have anticipated the situation and moved to sever at least after
trial began and before Sickels opened the door to character evidence. We are
“to avoid second-guessing and hindsight” in our review of counsel’s performance.
Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). “Considering the standard
of reasonableness utilized in determining ineffective assistance claims,
ineffective assistance is more likely to be established when the alleged actions or
inactions of counsel are attributed to a lack of diligence as opposed to the
exercise of judgment.” Id. Christensen has not proved counsel did not
reasonably exercise professional judgment. He has not proved counsel
breached an essential duty in failing to move for to sever immediately before the
trial or after trial had begun.4 Even though the bad-acts evidence against Sickels
would not have been admissible against Christensen in a separate trial, a
defendant is not entitled to severance simply because the defendant now
believes he may have had a better chance of acquittal in separate trials. See
Zafiro v. United States, 506 U.S. 534, 540 (1993).
Prejudice from prosecutorial misconduct. Christensen maintains the PCR
court erred in granting summary judgment for the State on the issue of prejudice
4
On appeal, Christensen asserts the PCR court erred in failing to analyze the issue
under the Iowa Constitution, despite his having asserted a violation of Article 1, section
10 in his application. However, Christensen did not ask the district court to address this
issue, and thus it is not properly before us. See Lamasters v. State, 821 N.W.2d 856,
863–64 (Iowa 2012) (reiterating the rule that when a court fails to rule on a matter, a
party must request a ruling by some means).
8
related to prosecutorial misconduct. The issue of the prosecutor’s rebuttal
argument was thoroughly argued at trial and on appeal. The district court found
the rebuttal was improper in some respects, but did not deprive the defendant of
a fair trial and thus was not prejudicial. On direct appeal, this court considered
the matter and also concluded the argument was not prejudicial. See
Christensen, 2010 WL 4792120, at *6–9. Because the argument was found
“insufficient prejudice to warrant the granting of relief,” “[t]hat ruling stands as the
law of the case concerning the prejudicial effect.” Stringer, 522 N.W.2d at 801.
Christensen asserts his claim is different, in that there were actions trial
counsel could have taken to develop prejudice more fully. Specifically, he
asserts PCR counsel should have been allowed to depose the prosecutor who
made the rebuttal argument to establish her improper comments were
intentional.
We must keep the posture of this case in mind. It is the applicant’s burden
to prove both deficient performance and prejudice. Dempsey, 860 N.W.2d at
868. “Prejudice exists where a claimant proves a reasonable probability that, but
for the counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. (citations omitted). Even presuming trial counsel should have
performed some additional action, there has already been a determination that
the improper argument did not prejudice Christensen. See Christensen, 2010
WL 4792120, at *9 (concluding, “[w]hen we view the prosecutor’s misstatements
in the context of the entire trial, we are convinced the misstatements did not
deprive Christensen of a fair trial and conclude he has failed to prove prejudice”).
Because Christensen cannot relitigate the prejudicial effect of the rebuttal closing
9
argument, he cannot prove trial counsel was ineffective. The PCR court did not
err in granting partial summary judgment.
We affirm the denial of the PCR application.
AFFIRMED.