Shawn Timothy Lee v. State of Iowa

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.
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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
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[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.