Johnny Louis Arthur Anderson, Applicant-Appellant v. State of Iowa ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0307
Filed July 9, 2015
JOHNNY LOUIS ARTHUR ANDERSON,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, David F,
Staudt (criminal trial) and George L. Stigler (postconviction trial), Judges.
An applicant appeals the district court’s dismissal of his application for
postconviction relief. AFFIRMED.
Thomas M. Mc Intee, Waterloo, for appellant.
Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Kimberly A. Griffith,
Assistant County Attorney, for appellee State.
Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
2
VAITHESWARAN, J.
A jury found John Anderson guilty of possessing simulated marijuana and
marijuana with the intent to deliver while in the immediate possession of a
firearm. On direct appeal, this court affirmed Anderson’s judgment and
sentence. See generally State v. Anderson, No. 12-0197, 2012 WL 5356150(Iowa Ct. App. Oct. 31, 2012).
Anderson petitioned for postconviction relief, alleging “the [trial] court did
not grant immunity for a witness when he was ready to tell the truth.” At a
hearing, Anderson’s attorney explained that a man named Bradley Woods was
ready to admit he planted the marijuana in Anderson’s residence, “intending to
get Anderson in trouble.” The attorney contended the “information was not
discoverable” at trial because Woods declined to waive his Fifth Amendment
right against self-incrimination. She introduced a portion of the trial transcript,
which contained a discussion of Woods’s possible testimony, his unwillingness to
testify absent a grant of immunity, defense counsel’s request for such a grant
under the court’s “inherent” powers, and the trial court’s denial of the request.
The postconviction court allowed Woods to testify. Without a grant of
immunity, Woods stated he “stashed an extra firearm . . . and some marijuana”
where Anderson lived because he believed Anderson had “set [him] up.”
The postconviction court asked Woods some follow-up questions, which
uncovered inconsistencies between Woods’s recollection of where he stashed
the contraband and police summaries of the location. The court disallowed
further questioning of Woods and prohibited Anderson from testifying.
3
The court subsequently determined Woods was “not telling the truth by
any stretch of the imagination.” The court concluded, “This is a classic case of
cooperative perjury as mentioned in State v. Simpson,”1 the “trial judge was
correct in not granting immunity to Mr. Woods,” and “trial counsel and appellate
criminal [] counsel [on direct appeal] did not breach any standard of duty to Mr.
Anderson.”
On appeal, Anderson raises two multi-pronged issues. First, he contends
the trial court should have granted Woods immunity at his original trial, Woods’s
“actual testimony at the PCR trial is sufficient new evidence to require a new
trial,” and appellate counsel on direct appeal and postconviction trial counsel
were ineffective. Second, he takes issue with the postconviction court’s
questioning of Woods, contending the court “assum[ed] the role of the prosecutor
and advocate for the State.” Under the same subheading, he challenges the
court’s decision to cut the postconviction hearing short, raising this issue under
an ineffective-assistance-of-counsel rubric in the event we find the issue
unpreserved.
I. Woods’s Testimony
As noted, the postconviction court considered Woods’s proffered
testimony and approved the trial court’s refusal to grant him immunity. On
appeal, Anderson asks us to revisit the issue. Because the postconviction court
1
In State v. Simpson, the court addressed the “effective defense theory,” which “holds
that a court has the inherent power to immunize witnesses whose testimony is essential
to an effective defense.” 587 N.W.2d 770, 772 (Iowa 1998) (citing United States v.
Angiulo, 897 F.2d 1169, 1190 (1st Cir. 1990)). The court concluded “no reasonable
person would believe [the witness’s] proffered testimony. Rather than being ‘clearly
exculpatory,’ such testimony borders on ‘cooperative perjury among law violators,’ a
policy reason frequently cited for rejecting the effective defense theory.” Id. at 774.
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addressed the immunity issue, we find it unnecessary to proceed under an
ineffective-assistance-of-counsel rubric.
The law on judicial grants of immunity was articulated in State v. Simpson,
587 N.W.2d 770 (Iowa 1998). “[T]he district court has no statutory authority to
grant use immunity.” Simpson, 587 N.W.2d at 772.2 The authority, if it exists,
“must arise from the court’s inherent powers.” Id. Two theories are available for
exercising this inherent power: (1) the effective defense theory, and (2) the
prosecutorial misconduct theory. Id. at 772-73.
The effective defense theory has been “almost universally reject[ed].” Id.
at 773. Indeed, the opinion cited by the Simpson court as espousing this theory
has since been abrogated. See Gov’t of the Virgin Islands v. Smith, 615 F.2d
964, 964 (3d Cir. 1980) abrogated by United States v. Quinn, 728 F.3d 243 (3d
Cir. 2013). Like other courts, the Iowa Supreme Court has afforded the theory
little credence. See Simpson, 587 N.W.2d at 774 (stating “[e]ven were we to
adopt this theory,” it would fail); State v. Fox, 491 N.W.2d 527, 533-34 (Iowa
1998) (“[U]se immunity—if available at all—should be considered only in
circumstances in which the prosecution has improperly prevented a defense
witness from giving essential exculpatory evidence.”). Given Fox’s effective
rejection of the theory, we decline to apply it.
The second theory is viable where a prosecutor intimidates or harasses a
potential defense witness or deliberately withholds use immunity from a
prospective defense witness to keep exculpatory evidence from the jury.
2
Anderson requested use and transactional immunity, but the opinions he cites only
address use immunity. Accordingly, we will limit our discussion to use immunity.
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Simpson, 587 N.W.2d at 773. During trial, Anderson’s attorney conceded the
prosecutor could not have harassed or intimidated Woods because he did not
“believe the State of Iowa ha[d] actually spoke[n] directly with Mr. Woods.”
Instead, defense counsel focused on the prosecutor’s refusal to grant Woods
immunity. But, as the prosecutor stated and the trial court confirmed, the
decision to withhold a grant of immunity was based on the prosecutor’s view that
Woods’s proposed testimony failed to exculpate Anderson. The trial court
specifically stated the prosecutor was not withholding immunity “to penalize the
defendant,” but “because he doesn’t believe the witness is going to testify
truthfully.”
After hearing Woods’s testimony, the postconviction court concurred. On
our de novo review of this constitutionally-grounded issue, we agree with the
postconviction court.
“The common meaning of exculpate is to free one from a charge of guilt or
fault.” Id. at 774 (citation omitted). Wood’s proffered testimony was meant to
exculpate Anderson. It did nothing of the sort. Police discovered marijuana,
simulated marijuana, and a .45 caliber handgun in Anderson’s portion of a home.
Woods testified he stashed “weed” in the home but had no recollection of
whether some of the weed was “simulated.” He also identified a different caliber
gun than the gun discovered by police. In sum, his testimony did little if anything
to undermine the State’s evidence against Anderson.
Nor was Woods’s testimony “newly discovered evidence,” as Anderson
also argues. Anderson was aware of his testimony at trial and proffered the
substance of it through trial counsel. See Fox, 491 N.W.2d at 534 (concluding
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defense was aware of anticipated testimony at time of trial and evidence was not
newly discovered simply because witness invoked her Fifth Amendment right
against self-incrimination).
We conclude the postconviction court appropriately denied Anderson’s
claim that he was entitled to a new trial based on Woods’s testimony.
II. Court’s Conduct of Postconviction Hearing
Anderson argues the postconviction court’s “actions were a blatant
violation of the Petitioner’s constitutional right to a Fair Trial under the 6th and
14th Amendments to the U.S. Constitution, as well as Article I Sections 9 and 10
of the Iowa Constitution.” The State counters that these constitutional
protections are inapplicable in a postconviction relief action.3
The State is correct in noting Anderson imports constitutional principles
applicable in the criminal context to civil postconviction-relief proceedings. That
said, we believe the Iowa Supreme Court’s “caution[] against” judicial
interrogation of witnesses applies equally in the civil context. See State v.
Cuevas, 288 N.W.2d 525, 532-33 (Iowa 1980).
The postconviction court cut to the chase, efficiently and effectively
highlighting problems with Woods’s assertions. While questioning was perhaps
better left to the prosecutor, the general concern about judicial sway over
impressionable jurors was absent, and holes in Woods’s testimony were readily
apparent even without the court’s questions.
3
Although Anderson did not object to the court’s questioning, it is apparent he was
dissatisfied with the progress of the hearing. Accordingly, we will review his general
challenge to the conduct of the postconviction hearing directly rather than under an
ineffective-assistance-of-counsel rubric.
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As for Anderson’s assertion that the court prematurely ended the hearing,
the only issue raised at the hearing was the trial court’s failure to grant Woods
immunity. Under these circumstances, the postconviction court could reasonably
have concluded no testimony from anyone other than Woods was necessary to
resolve the issue. While, ideally, Anderson should have been allowed to
comment on Wood’s statements, we discern no abuse of discretion in the district
court’s decision to close the record once it became clear Woods’s testimony
lacked credibility. See id. at 531 (stating judge may intervene “to stay the pursuit
of a patently irrelevant line of inquiry” to “avert unnecessary repetition,” or “to
require that the proceedings move forward without undue delay”). We conclude
the court’s conduct of the postconviction-relief hearing did not amount to
reversible error.
We affirm the district court’s denial of Anderson’s postconviction relief
petition.
AFFIRMED.
Doyle, J., concurs; Danilson, C.J., dissents.
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DANILSON, C.J. (dissenting)
I respectfully dissent. Although this was a civil bench trial where there is
no concern about influencing jurors, whenever the court enters the fray and
examines witnesses, “the court becomes vulnerable to a multiplicity of criticisms.”
State v Cuevas, 288 N.W.2d 525, 533 (Iowa 1980). Here, the district court’s
interrogation began as a harmless attempt to clarify the testimony of the witness.
But once the testimony was clarified, the district court’s interrogation was aimed
at discrediting and impeaching the witness. In a jury trial, such action may be an
implied comment on the weight of the evidence. Mills v. State, 383 N.W.2d 574,
578 (Iowa 1986). Even in a bench trial, the impact of the judge interrogating the
witness may serve to intimidate a witness and drive a witness into an admission.
U.S. v. Worcester, 190 F. Supp. 548, 561 (D. Mass. 1960). Examination aimed
at discrediting or impeaching a witness is the responsibility of counsel. There is
no reasonable trial strategy to support PCR counsel’s failure to object to how
these proceedings were handled, and counsel’s ineffectiveness is an exception
to our error-preservation rules. See State v. Allen, 708 N.W.2d 361, 365 (Iowa
2006). I would further find that “assistance of counsel was denied entirely” and
permit a new trial without the need to show a probable effect on the outcome of
the case. See Mickens v. Taylor, 535 U.S. 162, 166 (2002) (concluding prejudice
need not be shown “where assistance of counsel has been denied entirely or
during a critical stage of the proceeding”). Our supreme court has described
such a circumstance as a “structural error” that does not require proof of
prejudice “as the adversary process itself is presumptively reliable.” Lado v.
State, 804 N.W.2d 248, 252 (Iowa 2011) (internal quotation marks omitted). I
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would reverse and require a new trial upon appellant’s application for
postconviction relief before a different judge.