James Randall Tyson, Applicant-Appellant v. State of Iowa ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-1158
Filed September 27, 2017
JAMES RANDALL TYSON,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Mills County, Mark J. Eveloff (trial)
and Susan Larson Christensen (postconviction), Judges.
James Tyson appeals from the denial of his application for postconviction
relief. REVERSED AND REMANDED.
Patrick A. Sondag of Sondag Law Office, Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee State.
Considered by Danilson, C.J., Tabor, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
2
DANILSON, Chief Judge.
James Tyson appeals from the denial of his application for postconviction
relief (PCR). Tyson contends he is entitled to a new trial because trial and
appellate counsel rendered ineffective assistance. He asserts trial counsel was
ineffective in eliciting and failing to object to improper credibility-vouching
testimony by an expert witness, in failing to object to an improper supplemental
jury instruction, and in failing to ensure Tyson’s participation in answering jury
questions. Tyson submits appellate counsel rendered ineffective assistance in
failing to raise these issues on appeal and he was prejudiced by the cumulative
effect of trial and appellate counsel’s errors. Because we agree he was
prejudiced by the cumulative effect of the alleged errors, we conclude Tyson is
entitled to a new trial. We reverse the order denying Tyson’s PCR application,
reverse the judgment of conviction and sentence, and remand for a new trial.
I. Background Facts & Proceedings.
In 2010, then nine-year-old D.B. stayed at Tyson’s home for a weekend
with her best friend, Ashley, whose family lived with Tyson. When D.B.’s mother
picked her up at the end of the weekend, D.B. reported Tyson had touched her
vagina on two occasions—once in the kitchen and once in Tyson’s truck. Ashley
was present on both occasions. Ashley testified during the incident in the kitchen
she saw Tyson put his hand down D.B.’s pants for “[f]ive seconds or so” from her
position of sitting on a couch in the living room. However, Ashley stated she
could not tell if it was in the front or the back of D.B.’s pants. Ashley testified she
did not see Tyson inappropriately touch D.B. in the truck.
3
Tyson was charged with one count of second-degree sexual abuse for the
kitchen incident and one count of lascivious acts with a child for the incident in
Tyson’s truck. Tyson’s first jury trial, commencing in December 2011, resulted in
a hung jury. Tyson was retried in November 2012.
At the second trial, on the State’s direct examination, the forensic
interviewer who conducted an interview of D.B. testified it was her job was to get
“the most accurate information” possible. She testified school-age children are
less likely to be susceptible to report false allegations as they’re “learning about
the importance of telling the truth” and it is “not very common” for children of that
age to succumb to peer pressure to make false claims. The forensic interviewer
also testified it is common for children to delay reporting abuse and for the details
of children’s accounts of events to change over time. On cross-examination,
defense counsel elicited the following testimony from the forensic interviewer:
Q. Uh-huh. So really, when you get down to it, what is your
conclusion— . . . . A. My conclusion is that she was very credible.
She was able to provide a statement. She was able to provide you
details about what happened, not only could she make a surface
level statement that something happened, she could provide
information underneath it to back up what she was saying, that she
was mature. I thought she was appropriate.
Q. Well, do you remember when I took your deposition? A.
Yes.
Q. I asked you the same question? A. Yes.
Q. Do you remember your answer? A. No.
....
Q. Line 27 is the question.
Q. And your answer is? A. I don’t have a conclusion.
Q. Thanks. A. Can I explain that?
Q. Well, you’ve already offered all—I mean, you changed
your answer, haven’t you? A. Well, not really. My conclusion not—
is not if I’m saying the child is telling the truth or not. My conclusion
is what I thought about her. There’s a difference, I guess, for me.
4
Q. Well, here you say you don’t have a conclusion, but you
volunteer that you thought she was a nice girl and that kind of thing.
So I say Question, “So the best you can say is that [D.B.] disclosed
a certain behavior to you that occurred allegedly with Mr. Tyson?”
And your answer would have been? Do you recall it? A. Yes.
Q. What was the answer then? A. Yes.
Q. Yes. And then I asked you, “Well, the allegations that
she’s given are consistent for you to draw the conclusion that she
was abused?” And your answer was? A. I don’t remember my
answer.
Q. Do you want to have you read your answer? A. Show me
where that is. “I could say that her—I could say that she provided
statements about being sexually abused.”
Q. Right. But you didn’t talk about credibility and memory
and all that kind of stuff and age appropriateness in your
deposition? A. I don’t think I was asked about that.
Q. Well, what about interview bias? What do you do to
screen for interview bias? A. I think that goes back to my training. I
think I treat every interview as an interview. I mean, I get the
information from the investigator, I follow the same protocol as
much as I can unless circumstances say that I can’t do that. And
then I do my report, and that’s it. I don’t provide anything else
beyond that. And I try to stick to the same kind of policies with all
my interviews.
Q. . . . [S]o what really what you’re saying—we can glean
from your testimony is that [D.B.] gave statements that were in your
mind consistent with sexual abuse? A. I can tell you that she
provided statements and details about being sexually abused.
Q. But you can’t, obviously, say that you know whether for a
fact or not that she was or was not? A. That’s not my job to
determine that.
On re-direct, the State elicited further testimony from the forensic
interviewer respecting D.B.’s credibility:
Q. You mentioned details are important. If a child was able
to describe the details of what happened, what do you mean by
that? A. What I mean is, you know, a child can make a statement
that they were touched by somebody. But if they’re able to provide
the details to back it up—who, when, where, what, how, body
positions, locations, when it took place. If they can back up all
those things, besides just making the statement, that lends a lot
more to their credibility that they were able to provide not only just
the statement up here. They can go underneath that and provide
all the different details that back up that particular statement.
5
Q. And did [D.B.] provide you details? A. Yes.
During jury deliberations, the jury submitted two written questions. The
initial discussions about the appropriate supplemental jury instructions to provide
occurred with only counsel and the presiding judge although Tyson was available
to participate. Further, although no objection was levied by defense counsel, the
response to the second question described the complaining witness as “victim”
and referenced the “contact” as if the issue was not disputed.
About twenty minutes after receiving the supplemental jury instructions,
the jury returned a verdict of not guilty on the lascivious-acts charge but found
Tyson guilty of second-degree sexual abuse. Tyson’s conviction was upheld on
appeal, and his ineffective-assistance claims were preserved for PCR. See State
v. Tyson, No. 13-0272, 2014 WL 2346237, at *1 (Iowa Ct. App. May 29, 2014).
Tyson filed the PCR application on March 3, 2015, and filed amended
applications for PCR on June 22, July 27, and December 21, 2015. The PCR
hearing was held on February 16, 2016. The court denied the PCR application.
Tyson now appeals.
II. Standard of Review.
Because Tyson’s PCR application alleging ineffective assistance of
counsel raises a constitutional claim, our review is de novo. Castro v. State, 795
N.W.2d 789, 792 (Iowa 2011).
III. Analysis.
Tyson maintains he is entitled to a new trial due to trial and appellate
counsel’s ineffective assistance by opening the door to, and failing to object to,
6
inadmissible credibility-vouching testimony by the expert; by failing to object to
the court’s answer to jury question number 2 that was prejudicial to Tyson; and
by failing to ensure Tyson was afforded the opportunity to meaningfully
participate in responding to the jury questions. Tyson contends he was
prejudiced by the cumulative effect of these errors.
To prevail on a claim of ineffective assistance, Tyson must show by a
preponderance of the evidence that counsel failed to perform an essential duty
and the failure resulted in prejudice. State v. Straw, 709 N.W.2d 128, 133 (Iowa
2006). To prove counsel breached an essential duty, the defendant “must
demonstrate the attorney performed below the standard of a reasonably
competent attorney.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).
“[W]e measure the attorney’s performance against ‘prevailing professional
norms.’” Id. (citation omitted). To establish prejudice, “[t]he 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.” Strickland v.
Washington, 466 U.S. 668, 694 (1984).
We first address issue four—that Tyson was prejudiced by the cumulative
effect of trial and appellate counsel’s errors—because we believe this issue is
dispositive and incorporates consideration of all the other issues. Although we
find that each of Tyson’s asserted errors individually may not rise to the level of
prejudice warranting a new trial, we conclude the cumulative effect of the
asserted errors requires a new trial.
7
A. Credibility-Vouching Testimony.
Tyson first submits trial counsel rendered ineffective assistance by eliciting
and failing to object to improper credibility-vouching testimony by the forensic
interviewer. It is well-established law in Iowa that “an expert witness cannot give
testimony that directly or indirectly comments on the child’s credibility.” State v.
Dudley, 856 N.W.2d 668, 677 (Iowa 2014). “The ultimate determination of the
credibility or truthfulness of a witness is not ‘a fact in issue,’ but a matter to be
generally determined solely by the jury.” State v. Myers, 382 N.W.2d 91, 97
(Iowa 1986).
Although we are committed to the liberal view on the admission of
psychological evidence, we continue to hold expert testimony is not
admissible merely to bolster credibility. . . . The reason for not
allowing this testimony is that a witness’s credibility “is not a ‘fact in
issue’ subject to expert opinion.” Such opinions not only replace
the jury’s function in determining credibility, but the jury can employ
this type of testimony as a direct comment on defendant’s guilt or
innocence. Moreover, when an expert comments, directly or
indirectly, on a witness’s credibility, the expert is giving his or her
scientific certainty stamp of approval on the testimony even though
an expert cannot accurately opine when a witness is telling the
truth.
Dudley, 856 N.W.2d at 676-77 (internal citations omitted).
Here, the forensic interviewer’s testimony vouched for D.B.’s credibility,
thereby improperly commenting on the defendant’s guilt or innocence. See State
v. Jaquez, 856 N.W.2d 663, 665 (Iowa 2014). The forensic interviewer not only
directly stated her conclusion that D.B. is credible but gave a number of specific
reasons supporting that conclusion.
The State did not initially draw such testimony from their expert. Rather,
the vouching testimony was in response to trial counsel’s cross-examination.
8
Trial counsel permitted the inadmissible evidence to be presented to the jury by
asking the forensic interviewer for her conclusion in a non-leading question.
At the PCR trial, trial counsel testified that when he asked the forensic
interviewer about her conclusion he expected “she would say that the testimony
or—or the interview that actually w[as] given w[as] consistent with child sexual
abuse.” Trial counsel further explained:
I asked her what her conclusion was. And—and whether that may
have come close, she gave an answer that I didn’t expect, and I
could have made a motion to strike.
Motions to strike, in my opinion, are pretty worthless. I
mean, once the jury hears it, to go back and say, I move to strike
that, then it just draws that [much] more attention to the sentence
and the topic, and so that’s why I did that.
We acknowledge trial counsel had previously taken a deposition of the
expert and received a different answer from the expert. But it is not entirely
uncommon for experts to change their conclusions after being deposed. After
the expert’s conclusory answer was admitted, defense counsel did not make any
objection or motion to strike but did make efforts to draw out the prior
inconsistent statement to discredit the expert.
An objection by trial counsel that the answer was not responsive to the
question may have been overruled because the question was broad: “What is
your conclusion?” However, the reference to the credibility of the complaining
witness was clearly inadmissible evidence, and trial counsel ought to be able to
rely upon the State to inform its witnesses of the boundary between admissible
and inadmissible testimony. An objection and a motion to strike inadmissible
testimony would have preserved error even if overruled.
9
The difficult question is whether trial counsel’s cross-examination question
and strategy to discredit the expert—rather than to object and move to strike—
was simply ill-advised or constituted ineffective assistance of counsel. See
Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010) (“In determining whether an
attorney failed in performance of an essential duty, we avoid second-guessing
reasonable trial strategy.” (citation omitted)). Tyson’s trial counsel contended his
trial strategy was to discredit the expert by admitting her prior inconsistent
statement.
However, in his efforts to discredit the expert, trial counsel elicited more
damaging evidence by allowing the expert to explain that she had not changed
her mind about the child’s credibility. Counsel then preceded his next question
by essentially repeating the expert’s testimony, “Well here you say you don’t
have a conclusion, but you volunteer that you thought she was a nice girl and
that kind of thing.”
The prejudice resulting from the admission of the vouching testimony by
the State’s expert witness through Tyson’s trial counsel’s cross-examination was
then further compounded by the State’s re-direct examination and closing
arguments. On redirect, the State elicited from the expert that the more details
the complaining witness can provide “lends more to their credibility.” This
testimony was then recounted by the State during closing arguments.
“Miscalculated trial strategies and mere mistakes in judgment normally do
not rise to the level of ineffective assistance of counsel.” Ledezma, 626 N.W.2d
at 143. However, “there can be a point when the tactical or strategic decisions
10
made by counsel from a host of competing options fall outside the broad scope of
a reasonably competent attorney.” Id. Here, if trial counsel had objected and
moved to strike the inadmissible vouching testimony and was successful, it
seems likely the admission of other vouching testimony would have been
avoided. Moreover, if an objection or motion to strike was unsuccessful, trial
counsel would still have been able to attempt to discredit the expert with her prior
inconsistent statement. Thus, the only fallout of being unsuccessful in attempting
to object and move to strike was drawing more attention by the jury to the
expert’s answer, but the fallout for having not objected and moved to strike was
to have additional and repeated statements from the expert witness that the
complaining witness was credible. Although a close question, we believe
counsel’s failure to object or move to strike due to his concern about drawing
attention to the expert’s answer was an ineffective tactic.
B. Jury Question.
Tyson also contends trial counsel rendered ineffective assistance in failing
to object to the court’s supplemental jury instruction in response to jury question
number 2. In question 2, the jury asked, “Does Instruction 18 [respecting
lascivious acts] #1 “fondle or touch pubes” mean skin to skin contact exclusively?
Or any type of genital contact? Does Instruction 19 [respecting sexual abuse]
#2-4 “genitals” mean skin to skin contact?” The court provided the following
supplemental jury instruction:
Skin to skin contact is not required to establish element No.
1 in Instruction No. 18 nor is it required to establish a “sex act” as
defined in Instruction No. 19. The “sex act” or other touching may
occur even though the specified body parts or substitutes are
11
covered so long as any intervening material would not prevent the
participants from perceiving that they have touched. The State
must prove the contact is between the specified body parts and
must be sexual in nature. In determining whether the contact is
sexual in nature you may consider the circumstances surrounding
the incident including but not limited to the relationship between the
defendant and the victim; whether anyone else was present; the
length of the contact; the purposefulness of the contact; whether
there was a legitimate, nonsexual purpose for the contact; where
and when the contact took place; and the conduct of the defendant
and the victim before and after the contact.
Tyson asserts the supplemental jury instruction was improper because the
first sentence was sufficient, but the court added additional language that
“conjoined elements of sexual abuse and lascivious acts, re-defined and
impermissibly expanded their reach, and conveyed to the jury how to break their
impasse and what their respective verdicts should be.” Tyson additionally
contends the supplemental instruction told the jury he, in fact, had “contact with”
D.B. and improperly referred to D.B. as the “victim.”
We do not agree the supplemental instruction to jury question number 2
confounds the elements of the two crimes. The jury was seemingly following the
instructions by deliberating whether the State had proved the elements of each
offense in the marshalling instructions. The supplemental instruction answered
the specific question asked and did not redefine the definition of a “sex act” to
encompass “touching.”
Yet, we do not condone the use of the supplemental jury instruction
because it included the term “victim” and because the instruction implied that
contact, in fact occurred, when Tyson clearly denied any such contact. The
better approach would have been to refer to the child as the “complaining
12
witness” or “alleged victim,” rather than the “victim,” and to say “if you find there
was contact then . . . .”
In a case involving the issue of prosecutorial misconduct, one justice
noted:
My concern arises when we turn this type of matter into a
serious appellate issue. The court correctly says that context
matters when it comes to use of the term “victim.” But it then
proceeds to blur context in its analysis. There is a difference, of
course, between a court’s use of the term in jury instructions and a
prosecutor’s use of the term in closing argument.
State v. Plain, 898 N.W.2d 801, 842 (Iowa 2017) (Mansfield, J., specially
concurring) (citing Talkington v. State, 682 S.W.2d 674, 675 (Tex. App. 1984)
(reversing the case due to the use of “victim” in the jury instructions).
Here, only one instruction—one of the two supplemental instructions—
used the term “victim,” and the term was only used twice in the instruction. But
we conclude counsel had a duty to object to any reference to the complaining
witness as “victim” in the instruction. We also find it troubling that the jury had
deliberated for nearly six hours, and within twenty minutes after receiving the
supplemental instructions they reached a verdict. Nonetheless, we decline to
find this fact as compelling as urged by Tyson because the jury also determined
he was not guilty of one of the two counts. We would not, in the absence of the
other errors, find the effect of this error prejudicial.
C. Tyson’s Participation in Responding to Jury Questions.
Tyson’s third issue contends he was excluded and was unable to
meaningfully participate in responding to the jury’s questions during
deliberations. The issue was not preserved for our review as no objection was
13
ever raised, but we address its merits because Tyson contends the failure to
preserve the issue was the result of ineffective assistance of counsel.
Upon receipt of the jury’s questions, the trial judge and counsel, including
Tyson’s counsel, met and discussed the questions, but Tyson was not present.
Subsequently, the district court made a record with both counsel and Tyson
present before the supplemental instructions were provided to the jury. Tyson
contends during these proceedings he did not have sufficient time to review or
object to the supplemental instructions. But there is no indication that he
requested additional time to review the questions or proposed answers.
A defendant’s right to be present for every stage of the trial, including
during discussions of supplemental jury instructions, was summarized in Everett,
789 N.W.2d at 155-59, and we need not repeat all of the principles here. The
court did state, “We have not found a case where we have expressly held
counsel’s failure to ensure his client’s presence or obtain his waiver to participate
in the response to a jury question constitutes a failure to perform an essential
duty.” Everett, 789 N.W.2d at 159. Nonetheless, under the facts of Everett, the
court concluded, “counsel had a duty in this instance to ensure his client’s
statutory and constitutional rights were protected. Moreover, we find in counsel’s
testimony, no justification for his failure to do so in this case.” Id.
In Everett, contrary to Tyson’s circumstances, the defendant was not even
notified of the jury question and was not present for any of the proceedings
relative to the question or proposed answer. Here, we have not been provided
any basis to justify Tyson’s absence from the initial discussions relative to the
14
jury questions and proposed answers, but clearly Tyson had the opportunity to
ask for additional time to review the jury questions and answers before the
supplemental instructions were provided to the jury and did not. Under these
facts, we are not convinced more meaningful participation alone would have
changed the outcome of this case.
D. Cumulative Effect.
Tyson asserts he was prejudiced by the cumulative effect of each of these
alleged errors. “Under Iowa law, we should look to the cumulative effect of
counsel’s errors to determine whether the defendant satisfied the prejudice prong
of the [ineffective-assistance-of-counsel] test.” State v. Clay, 824 N.W.2d 488,
500 (Iowa 2012). “The accused is not entitled to a perfect trial, but only a fair
trial.” State v. Webster, 865 N.W.2d 223, 233 (Iowa 2015).
We find the cumulative effect of the alleged mishaps gives cause to
question the integrity of the jury’s verdict. Tyson’s first trial ended with a hung
jury. Besides the complaining witness, the State only had one other witness—
Ashley—who claimed to be an eyewitness to the alleged incident that happened
in the kitchen. However, Ashley was in a separate room. Moreover, Ashley
apparently did not observe the second alleged incident although seated right next
to the D.B. in the pickup truck. Here, the State’s case was bolstered by
inadmissible vouching testimony, and one of the supplemental jury instructions
was adverse to Tyson’s interests. Considering the cumulative effect of counsel’s
errors, we conclude Tyson has satisfied the prejudice prong and is entitled to a
new trial.
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IV. Conclusion.
We find Tyson was prejudiced by the cumulative effect of the alleged
errors, and we conclude Tyson is entitled to a new trial. We reverse the PCR
court’s order denying Tyson’s PCR application, reverse the judgment of
conviction and sentence, and remand for a new trial.
REVERSED AND REMANDED.
Tabor, J., concurs; Blane, S.J., concurs specially.
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BLANE, Senior Judge (concurring specially)
I write separately because, although I agree with the majority’s result, I do
so for different reasons. As to the defense counsel’s cross-examination of the
forensic interviewer, the majority finds Tyson’s trial counsel was ineffective for
choosing to attempt to discredit the interviewer by impeachment rather than
objecting to or moving to strike the interviewer’s answer vouching for the
credibility of the child witness. I do not find counsel ineffective for having to make
a split second “Sophie’s choice” decision during trial. As Tyson’s trial counsel
explained, he had taken the deposition of the forensic interviewer and believed
he knew what her response would be.1 Once the interviewer stated the opinion
that she found D.B. to be “credible,” as trial counsel explained, he could either
object and draw more attention to this statement or he could proceed to impeach
with his cross-examination, using her deposition to show this was not what the
interviewer had previously stated and not within her expertise. This goes to trial
strategy, which we should be careful not to second-guess. See Everett v. State,
789 N.W.2d 151, 158 (Iowa 2010) (“In determining whether an attorney failed in
performance of an essential duty, we avoid second-guessing reasonable trial
strategy.” (citation omitted)).
My criticism is with trial counsel’s open-ended question to the interviewer,
asking, “So really, when you get down to it, what is your conclusion— . . . .” This
1
The majority states: “But it is not entirely uncommon for experts to change their
conclusions after being deposed.” I do not know the basis for such an assertion, have
not seen any empirical support for it, and cannot agree with it. Although the forensic
interviewer here would not be a retained expert and, thus, was not required to submit an
amended expert opinion, she was certainly subject to impeachment with her deposition
answer if it was different than her trial testimony, had counsel posed a question similar to
that in the deposition.
17
question does not mirror the question in the deposition so that trial counsel could
expect the same answer as in the deposition. Defense counsel had the
deposition available and certainly could have thought of and formulated an
appropriate question ahead of time.2 It is also an open-ended question that does
not attempt to limit or put parameters on the witness’s answer during cross-
examination. Tyson’s counsel could not object to the question itself since he had
asked it.3 It is also questionable whether the witness’s answer was
objectionable, since it was responsive to such an open-ended question. See
Germinder v. Mach. Mut. Ins. Co., 94 N.W. 1108, 1109 (Iowa 1904). Therefore,
a motion to strike the answer as non-responsive was probably not sustainable.
At best, counsel would have had to object that the answer was a mixed
statement of law and fact and invades the province of the jury. See State v.
Dudley, 856 N.W.2d 668, 677 (Iowa 2014) (holding “an expert witness cannot
give testimony that directly or indirectly comments on the child’s credibility”
because credibility of witnesses is an issue for the jury). Still, the question called
for such an answer, and an objection may not have been sustained.4 The
question asked was not within the realm of competent cross-examination by
criminal defense counsel and constituted ineffective assistance since it opened
2
Questions posed on cross-examination may be leading for a reason—to control the
witness. See Iowa R. Evid. 5.611(c).
3
The majority opinion suggests that defense trial counsel “ought to be able to rely upon
the State to inform its witnesses of the boundary between admissible and inadmissible
testimony.” Again, I cannot agree with this assertion. It would be virtually impossible for
a prosecutor to anticipate and inform a witness of all areas of evidence that the witness
cannot testify about. It would be more appropriate if defense counsel thought a witness
may venture into an impermissible area to file a motion in limine.
4
I do agree with the majority that a motion to strike, even if overruled, would have
preserved the issue for appeal.
18
the door to a critical area—an expert witness vouching for the credibility of a child
complaining-witness. The opened door led to additional questioning of the
interviewer by both defense counsel and the prosecution in this forbidden
territory, leading to a compounding of the problem.
As to the court’s supplemental jury instruction in response to the jury’s
question number two, I agree that the use of the word “victim” has recently been
commented upon by our supreme court. “There is a difference, of course,
between a court’s use of the term [victim] in jury instructions and a prosecutor’s
use of the term in closing argument.” See State v. Plain, 898 N.W.2d 801, 842
(Iowa 2017) (Mansfield, J., concurring specially) (citing Talkington v. State, 682
S.W.2d 674, 675 (Tex. App. 1984), in which a Texas appellate court found the
use of “victim” in the jury instructions was reversible error). It appears the trial
judge fashioned the supplemental jury instruction by copying language from the
prior supreme court opinion of State v. Pearson, 514 N.W.2d 452, 456 (Iowa
1994), where the court stated:
Other relevant circumstances include but are not limited to the
relationship between the defendant and the victim; whether anyone
else was present; the length of the contact; the purposefulness of
the contact; whether there was a legitimate, nonsexual purpose for
the contact; where and when the contact took place; and the
conduct of the defendant and victim before and after the contact.
(Emphasis added.) In Pearson, the supreme court used the word “victim.”
Although trial courts are usually safe in lifting language directly from supreme
court opinions and using it as a correct statement of the law in jury instructions, I
think it appropriate here to point out this example where trial judges must still
analyze the words used for potential problems. Here, this could have been
19
avoided by substituting “alleged victim” or “complaining witness.” Tyson’s trial
counsel was ineffective for failing to object to the word “victim” in the
supplemental instruction.
The third issue addressed by the majority is whether defense counsel
provided ineffective assistance by allowing discussion to take place between the
court, defense counsel, and the State’s attorney regarding a jury question before
Tyson was present. Tyson also complained that even after he was present, he
was not given adequate time to consult with counsel and to review the court’s
proposed supplemental instruction before it was provided to the jury. I agree with
the majority that the record shows sufficient compliance with Iowa Rule of
Criminal Procedure 2.27(1) that his trial counsel was not ineffective.
Finally, I do not believe we need to decide this case on cumulative error.
Trial counsel failed to perform an essential duty either as to his questioning of the
forensic interviewer, which injected the vouching/credibility issue into the trial, or
in failing to object to the court’s use of the word “victim” in the supplemental jury
instruction; each breach of duty supports an ineffective-assistance-of-counsel
claim. Tyson was prejudiced by each breach. Either one of these breaches of
duty would support granting postconviction relief. The jury’s verdict and the
judgment must necessarily be reversed on either premise.