IN THE COURT OF APPEALS OF IOWA
No. 19-1287
Filed October 7, 2020
SHAWN TIMOTHY LEE,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Coleman McAllister,
Judge.
In this postconviction-relief (PCR) appeal, Shawn Lee contends his trial
counsel and PCR counsel were ineffective. AFFIRMED.
Gregory F. Greiner, West Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee State.
Considered by Doyle, P.J., and Mullins and Greer, JJ.
2
DOYLE, Presiding Judge.
In this postconviction-relief (PCR) appeal, Shawn Lee contends his trial
counsel and PCR counsel were ineffective. After a de novo review, see Lamasters
v. State, 821 N.W.2d 856, 862 (Iowa 2012), we find no merit to Lee’s arguments
against his trial counsel. Because the record is inadequate to allow us to decide
whether PCR counsel breached a duty and whether prejudice resulted, we cannot
resolve this new claim on appeal. We affirm the PCR court’s order denying Lee
relief.
I. Facts and Prior Proceedings.
A jury found Lee guilty of second-degree sexual abuse and of two counts of
lascivious acts with a child. We affirmed his convictions. State v. Lee, No. 17-
0778, 2018 WL 2084908, at *5 (Iowa Ct. App. May 2, 2018). Lee applied for PCR
in July 2018, claiming his trial counsel was ineffective in two ways: (1) in failing to
object to alleged inappropriate comments made by the prosecutor during opening
statement and closing argument, and (2) in failing to interview and produce two
witnesses.
Following a trial in July 2019, the PCR court denied Lee’s application. Lee
appeals, again arguing his trial counsel was ineffective, and now arguing his PCR
counsel was ineffective.1
1 In a common assertion, Lee states that he “preserved error by filing a notice of
appeal.” As we have stated time and time again (almost sixty times since our
published opinion of State v. Lange, 831 N.W.2d 844, 846-47 (Iowa Ct. App.
2013)), the filing of a notice of appeal does not preserve error for our review. See
Thomas A. Mayes & Anuradha Vaitheswaran, Error Preservation in Civil Appeals
in Iowa: Perspectives on Present Practice, 55 Drake L. Rev. 39, 48 (Fall 2006)
(“However error is preserved, it is not preserved by filing a notice of appeal. While
3
II. Standard of Review
We generally review PCR proceedings “for correction of errors at law.”
Krogmann v. State, 914 N.W.2d 293, 306 (Iowa 2018). But constitutional claims
such as ineffective assistance of counsel are reviewed de novo. See id.
III. Analysis
To support a claim of ineffective assistance of counsel, a defendant must
show (1) counsel failed to perform an essential duty and (2) prejudice resulted.
State v. Kuhse, 937 N.W.2d 622, 628 (Iowa 2020) (citing Strickland v. Washington,
466 U.S. 668, 687–88 (1984)). Lee must prove both prongs by a preponderance
of the evidence. State v. Gant, 597 N.W.2d 501, 504 (Iowa 1999).
On the breach-of-duty prong, we presume trial counsel was competent, and
Lee bears the burden of proving the representation fell below “prevailing
professional norms.” See Lamasters, 821 N.W.2d at 866 (citation omitted).
Miscalculated trial strategies or simple mistakes in judgment seldom rise to the
level of ineffective assistance of counsel. Id.
On the prejudice prong,
a 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.” This requirement does not mean a
defendant must establish “that counsel’s deficient conduct more
likely than not altered the outcome in the case.” A defendant need
only show that the probability of a different result is “sufficient to
undermine confidence in the outcome.” In determining whether this
standard has been met, we must consider the totality of the evidence,
what factual findings would have been affected by counsel’s errors,
and whether the effect was pervasive or isolated and trivial.
this is a common statement in briefs, it is erroneous, for the notice of appeal has
nothing to do with error preservation.” (footnote omitted).
4
State v. Graves, 668 N.W.2d 860, 882-83 (Iowa 2003) (quoting Strickland, 466
U.S. at 694-98).
A. Failure to Object During Opening Statement and Closing Argument.
To succeed on an ineffective-assistance-of-counsel claim based on failure
to object to prosecutorial misconduct, a defendant must establish both proof of the
misconduct and that “the misconduct resulted in prejudice to such an extent that
the defendant was denied a fair trial.” Id. at 869. “A defendant’s inability to prove
either element is fatal.” Id.
Lee claims his counsel was ineffective in failing to object when the
prosecutor interjected “inappropriate comments” about an alleged incident of
vaginal bleeding when the child was about ten years old. During the prosecutor’s
opening statement, she stated:
You’ll hear some statements from [the child]’s mom about some of
the timing of things. For instance, there was a time when she got
called to school because school thought [the child] was starting her
period. [The child] was bleeding. It was about the time that her dad
first forced vaginal sex on her. But then she never had a period for
the next couple years. At the time her mom didn’t put it together.
Lee insists that this information “was intentionally included by the State to unfairly
infer that the vaginal bleeding was caused by vaginal intercourse with Mr. Lee.”
In its ruling, the PCR court found the challenged statement was “in line with
the expected trial testimony of the child based on pre-trial discovery.” We agree
the opening statement was not inappropriate because it reflected what the
prosecutor expected the evidence to show. Pre-trial testimony showed that the
child did not have her menarche around the time of the vaginal bleeding incident
but much later. During opening statements, neither of the parties’ attorneys knew
5
exactly how the evidence at trial would turn out. Pretrial discovery reflected that
the statement was not out of bounds. There would have been no merit to an
objection by trial counsel during the prosecutor’s opening statement. “Counsel
does not fail to perform an essential duty by failing to raise a meritless objection.”
State v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015).
Turning to the prosecutor’s closing, Lee complains in his PCR application
that:
In closing the prosecutor pointed to the only physical evidence in the
state's case, that [the child] went to the nurse’s office with bleeding
from her vaginal area. The prosecutor indicated “Presumably they
thought she had her period, because she was ten. That's about the
time she would. But she didn’t have a period again for another
couple of years.” While there is a vague statement made by the
mother that she took [the child] to a gynecological exam “When she
wasn’t having her period after that.” There is no testimony to suggest
a timeframe of several years between the incident at school and
when [the child] had regular menstrual periods.
The State concedes the statement—“But she didn’t have a period again for another
couple of years”—was a misstatement of trial testimony because no precise
timeframe had been given. But the State defends its position and points our
attention to Lee’s trial counsel’s reasoning given during her deposition. Trial
counsel explained that the timing of the child’s menarche was not the material
issue for Lee’s criminal trial. Instead, the material issue was that the child was not
menstruating when the vaginal bleeding occurred. The child’s mother also
confirmed this approximate timeframe when she took the child to the gynecologist
“when she was not having her period after” the bleeding incident. This sequence
of events provided circumstantial evidence that the unexplained vaginal bleeding
could have resulted from Lee having intercourse with the ten-year-old child. And
6
trial counsel testified that she made the strategic decision not to interrupt the
prosecutor to avoid appearing rude and inappropriate to the jury and inadvertently
prejudicing Lee.
The PCR court found trial counsel testified credibly as to her strategic
reasoning. The PCR court found trial counsel had a right to be concerned that if
she objected during the prosecutor’s closing argument the jury might perceive this
interruption as rude or needless. Also, trial counsel testified she wanted, as a
matter of trial strategy, leeway for herself in closing argument and wanted to draw
inferences from the evidence. She wanted to do so without the State objecting to
her inferences. We, like the PCR court, do not find trial counsel’s strategic decision
to remain silent in closing argument sufficient to rise to the level of ineffective
assistance of counsel. See Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001)
(noting strategic decisions made after “thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable” (citation omitted)). And
Lee seems to concede his trial counsel’s strategy “may be reasonable under the
circumstances.”
Lee now argues on appeal for the first time that his trial counsel should have
requested a curative instruction, or requested an admonition, or moved for mistrial,
or moved for a new trial in response to the prosecutor’s statements.2 He also
complains his trial counsel
2 In its ruling, the PCR court noted the trial court admonished the jury prior to
opening and closing that the statements of counsel were not evidence, and further
admonished the jury that if the attorneys’ recollection of the evidence was different
than the jury’s own, that the jury should rely on their own recollection of the
evidence. Our review of the record confirms this observation.
7
did not challenge the alleged vaginal bleeding incident by filing a
pretrial motion, or by producing evidence of an innocent injury or
medical cause of the bleeding, or by requesting and presenting any
type of records, medical or otherwise, to raise doubt regarding the
evidence of vaginal bleeding near the time of the alleged first vaginal
intercourse with Mr. Lee.
We decline to address these new arguments. See Meier v. Senecaut, 641 N.W.2d
532, 537 (Iowa 2002) (noting arguments not raised and ruled on during trial cannot
be raised on appeal).
B. Failure to Call Witnesses.
At the PCR hearing, Lee testified that his trial attorney failed to call two other
witnesses. Lee testified that he wanted his attorney to call one of his former
roommates to testify. He abandons that claim, so we do not consider it. He also
wanted testimony from a Des Moines police detective who took a sexual-abuse
complaint from the child in 2014. He expands his contention in his appellate brief,
now arguing his attorney was not only ineffective in failing to call the police
detective who took the child’s 2014 complaint, but was also ineffective in not calling
the police detective who took the child’s 2010 sexual-abuse complaint. Apparently
both investigations were closed after the child recanted. Lee speculates the
detectives’ testimony could have strengthened his case and shown that the child
was simply fabricating the claims. We do not consider Lee’s new complaint about
the 2010 report. See id.
In denying Lee’s failure-to-further-investigate-and-call-witnesses claim, the
PCR court determined, “Even if the court would consider the evidence offered by
8
[Lee] in his offer of proof,[3] [Lee]’s claim must fail. [Lee] could not identify with any
degree of specificity what those potential witnesses would have to offer that would
have probably changed the outcome of the trial.” We agree. Lee provides no
evidence beyond his own, self-serving statements that the police detective who
took the child’s recanted statements in 2014 would have testified and refuted the
child’s testimony so the outcome of the trial probably would have been different.
Lee’s statement in his brief—“We do not know the nature of what the officers could
have added to the case.”—is telling. Lee did not present to the PCR court any
affidavits or testimony from his potential witnesses explaining with specificity what
the witnesses’ testimony would have been and how it would have changed Lee’s
case. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (claiming that defense
counsel did not fully investigate a case requires an applicant to state what an
investigation would have revealed or how anything discovered would have affected
the result of the trial); Nichol v. State, 309 N.W.2d 468, 470 (Iowa 1981) (noting
“complaints about failure to call witnesses should be accompanied by a showing
their testimony would have been beneficial”). Moreover, the child admitted at trial
she had recanted allegations against Lee in the past. Lee failed to show a
reasonable probability of a different outcome had the officer or officers testified at
trial. Lee did not provide enough information to show a breach of duty by trial
counsel or prejudice to him for failure to call witnesses. See id.; see also Nims v.
State, 401 N.W.2d 231, 235 (Iowa Ct. App. 1986).
3The PCR court denied Lee’s offer of proof about the roommate and the police
detective who investigated the victim’s recanted sexual abuse claims.
9
Lastly, Lee alludes to his trial counsel’s ineffectiveness in failing to attempt
to offer “the previous unfounded and recanted police reports into evidence.” Again,
we do not consider an issue raised for the first time on appeal. See Meier, 641
N.W.2d at 537.
C. Ineffective Assistance of PCR Counsel.
Lee also contends his PCR counsel failed to effectively represent him in
several respects. Because the record is inadequate to allow us to decide whether
PCR counsel breached a duty and whether prejudice resulted, we cannot resolve
this new claim on appeal. See State v. Harris, 919 N.W.2d 753, 754 (Iowa 2018)
(“If the development of the ineffective assistance claim in the appellate brief was
insufficient to allow its consideration, the court of appeals should not consider the
claim, but it should not outright reject it.”), see also Goode v. State, 920 N.W.2d
520, 526-27 (Iowa 2018). The proper mechanism for resolving claims of ineffective
assistance of PCR counsel raised for the first time on appeal is for an applicant to
file a separate PCR application in the district court. See id.
IV. Conclusion.
We affirm the denial of Lee’s PCR application.
AFFIRMED.