Timothy Duane Smith v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 22-0813
Filed November 21, 2023

TIMOTHY DUANE SMITH,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Cass County, Greg W. Steensland,

Judge.

Applicant appeals the denial of his postconviction-relief application.

REVERSED AND REMANDED.

Gary Dickey of Dickey, Campbell, & Sahag Law Firm, PLC, Des Moines, for

appellant.

Brenna Bird, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee State.

Considered by Tabor, P.J., Schumacher, J., and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023).
2

BLANE, Senior Judge.

Timothy Smith appeals the denial of his application for postconviction relief

(PCR), which raised claims of ineffective assistance of his criminal trial counsel.

He claims trial counsel failed to (1) request additional strikes when the trial court

refused to grant challenges for cause of prospective jurors, (2) move for a mistrial

due to claimed juror misconduct, and (3) call witnesses that had evidence

favorable to his defense.1 We find counsel was ineffective in failing to request

additional strikes, since that failure did not preserve Smith’s right to appeal and

therefore constituted Strickland prejudice. We reverse and remand for a new trial.

I. Background facts and proceedings.

In 2006, Smith married the mother of H.R., who was then four years old.

The family first lived in Anita (Cass County) and, when H.R. was in the fourth grade,

they moved to Exira (Audubon County). Smith and H.R.’s mother divorced in 2013.

A few years after the divorce, H.R. disclosed to her mother and a school counselor

that Smith had sexually abused her, which resulted in H.R. being interviewed by

police. She stated the sexual abuse started when she was in first or second grade

and continued until she was ten years old.

In 2018, Smith was charged with two counts of sexual abuse in the second

degree, in violation of Iowa Code sections 709.1, 709.3(1)(b), and 903B.1 (2017),

class “B” felonies.2 At trial, Smith’s counsel questioned potential jurors about

1 Smith mentions in passing a claim of cumulative error, but that argument is not

developed until the reply brief. We do not address it. See State v. Carroll, 767
N.W.2d 638, 644 (Iowa 2009).
2 One trial information was filed in Audubon County and the other in Cass County,

and they were then consolidated for trial in Cass County.
3

whether Smith needed to testify. Based upon their responses—that in order to

return a not guilty verdict Smith would need to testify—Smith’s counsel challenged

those four panel members for cause. The trialcourt, after some rehabilitation

questioning, denied the challenges. Smith’s counsel ended up striking two of the

four, and the State struck the other two. Smith’s counsel did not request additional

peremptory strikes to replace those used on the jurors he challenged

unsuccessfully.3 After a three-day trial, at which Smith testified and denied H.R.’s

allegations, the jury returned guilty verdicts on both counts. Following denial of his

motion for judgment notwithstanding the verdict and for new trial, the court

sentenced Smith to twenty-five years on each count, to be served consecutively.

Smith filed a direct appeal in which he raised two issues. First, that the trial

court erred in relying on Iowa Rule of Evidence 5.412 and denying him the ability

to present evidence to support his defense, and second, that his counsel was

ineffective for failing to request additional peremptory strikes. A panel of our court

affirmed as to the first issue and preserved the second issue for PCR. State v.

Smith, No. 18-1500, 2020 WL 1307693, at *3 (Iowa Ct. App. March 18, 2020).

Smith then applied for PCR. The PCR court denied all claims. Smith

appeals.

II. Standard of review.

The court generally reviews PCR rulings for correction of errors at law.

Dewberry v. State, 941 N.W.2d 1, 4 (Iowa 2019). Ineffective assistance of counsel

3 Iowa’s rule on peremptory strikes is Iowa Rule of Criminal Procedure 2.18(9):

“The clerk of court shall prepare a list of jurors called. After challenges for cause
are completed, each side, commencing with the state, shall alternately exercise its
strikes by indicating the strike upon the list opposite the name of the juror.”
4

involves a constitutional claim, and is reviewed de novo. Sothman v. State, 967

N.W.2d 512, 522 (Iowa 2021).

To establish ineffective assistance of counsel, [an applicant]
must demonstrate [] counsel failed to perform an essential duty that
resulted in prejudice. Counsel breaches an essential duty when
counsel makes such serious errors that counsel is not functioning as
the advocate the Sixth Amendment guarantees. We presume
counsel acted competently but that presumption is overcome if we
find [applicant] has proved counsel’s performance fell below the
normal range of competency. If the claim lacks prejudice, it can be
decided on that ground alone without deciding whether the attorney
performed deficiently.

Id. (internal citations and quotation marks omitted).

To prove breach of an essential duty, an applicant has the burden to show

“his trial attorney performed below the standard demanded of a ‘reasonably

competent attorney.’” Lamasters v. State, 821 N.W.2d 856, 866 (Iowa 2012)

(quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “Failure to raise a

meritless issue does not establish counsel’s performance was deficient.”

Krogmann v. State, 914 N.W.2d 293, 306 (Iowa 2018).

III. Discussion.

A. Failure to request additional peremptory strikes.

Smith contends his counsel was ineffective for failing to request two

additional peremptory strikes for those he had to use to strike the two challenged

panel members the court had denied. State v. Jonas requires Smith to show (1)

the trial court “improperly refuse[d] to disqualify a potential juror;” (2) Smith

“expend[ed] a peremptory challenge” to strike the biased juror; and (3) Smith

“specifically ask[ed] the court for an additional strike of a particular juror after his

peremptory challenges [had] been exhausted.” 904 N.W.2d 566, 583 (Iowa 2017)
5

(emphasis added). “Where the defendant makes such a showing, prejudice will

then be presumed.” Id.

Smith’s trial counsel moved to excuse for cause four potential jurors who

indicated during voir dire that to find Smith not guilty he would have to testify. The

court rejected Smith’s for-cause challenges. Afterward, the State struck two, and

Smith struck two. But Smith’s trial attorney did not ask for additional challenges to

replace the two. Nor did he identify any “particular juror” he would strike if given

more strikes. Smith argued in his PCR application that counsel’s omission was a

failure of an essential duty that prejudiced him.

At the PCR trial, Smith’s criminal defense counsel acknowledged that he

had not reviewed Jonas before trial, and that he “[a]bsolutely” could have used two

additional strikes. He still did not name which jurors he would have used the strikes

on or whether they ended up serving on the jury. But in his PCR filings, Smith

identified several such jurors.

The PCR court found: “All four of the challenged jurors were struck. . . . A

review of the evidence at this PCR trial simply does not support that [trial counsel]

failed on this issue or that Smith was prejudiced in any way.” Smith challenges the

court’s prejudice finding asserting that if he shows the three prongs of his Jonas

claim, Jonas directs that “prejudice will then be presumed.” 904 N.W.2d at 583.

This means, Smith argues, “[n]o additional showing about the impartiality of the

empaneled jurors is necessary.” Thus, under his understanding of Jonas, the

presumed prejudice under the Jonas test constitutes Strickland prejudice because

it shows a “reasonable probability that, but for counsel’s [failure to ask for two

additional strikes of particular jurors], the result of the proceeding would have
6

been” reversal of his convictions and retrial before an impartial jury. State v.

Kuhse, 937 N.W.2d, 622, 628 (Iowa 2020).

But, before we approach the prejudice prong of the Strickland test, we must

determine whether trial counsel breached a duty. Jonas requires that counsel

challenged the potential juror for cause, and that the court denied that challenge

erroneously. See 904 N.W.2d at 583 (using the word “improperly”). Here, to prove

a Jonas claim, Smith had to show the court denied the challenges for cause

erroneously. But if the court’s rulings were not erroneous, Smith has no valid

Jonas claim, and counsel did not act deficiently in failing to request additional

strikes.

Iowa Rule of Criminal Procedure 2.18(5)(k) allows a party to lodge a

challenge for cause if the panelist “formed or expressed such an opinion as to the

guilt or innocence of the defendant as would prevent the juror from rendering a

true verdict upon the evidence submitted on the trial.” “In determining whether a

challenge for cause should be granted, the test is ‘whether the juror holds such a

fixed opinion of the merits of the case that he or she cannot judge impartially the

guilt or innocence of the defendant.’” State v. Linderman, 958 N.W.2d 211, 218

(Iowa Ct. App. 2021) (citation omitted).

During voir dire, the defense attorney asked this question: “Let’s say you

hear from two or three witnesses that get up and give some evidence that

demonstrates their reason and belief that the defendant committed this crime.”

Jurors Hu. and Ha. expressed that they would want Smith to testify in defense of

himself. Later, a challenged juror, Juror K., held the following exchange with the

defense attorney:
7

Q.: You heard the comments today. You heard these—
[jurors’] comments, heard [juror’s] comments. Would you agree with
that statement that you feel it is necessary for the defendant to testify
to come to a finding of not guilty? A.: I think it’s important to get on
that stand and defend yourself if you truly believe that you are
innocent. And I’ll be completely honest. If that person did not get on
the stand and there was enough, even if it was one person, I would
most likely believe them because the more I think about what we’ve
been talking about and the very first question you asked, I don’t know
if I firmly believe that innocence until proven guilty. I honestly believe
if someone is arrested or charged for something, they probably damn
well prove to me that they did not do it.
Q. So you would, if I’m understanding you correctly, the scale
of one to ten, innocent until proven guilty, you would strongly
disagree? A.: Strongly be more towards the disagreeing. Yes. It’s
not what our rules are based on.
DEFENSE COUNSEL: I understand. I appreciate your
candidness. Your Honor, I would move to strike [Juror K.] for cause.
THE COURT: State?
PROSECUTOR: Can I ask some questions before?
THE COURT: Yes.
PROSECUTOR: I want to ask a few questions about that.
Obviously, we see everything that goes on on TV. We all have this
idea, “If I didn’t do it, I’d get up there and say I didn’t do it.” Do you
believe that our system of justice works? A.: Most of the time.
PROSECUTOR: And one of the basic tendencies is someone
does not have to testify or give evidence against themselves. Would
you agree with that? A.: I would agree that’s how it’s supposed to
work.
PROSECUTOR: So a lot of times when we’re trying to
determine if we believe something or we don’t, we’re weighing sides;
right? We hear from X person and then we hear from Y person.
When you’re in a courtroom you will be told that we have to prove
our case, whether they ever do anything or not. Can you set aside
kind of that thought process of, “gosh, if I had done something I would
want to yell from the rooftops I didn’t” and understand there could be
a million reasons why the defendant wouldn’t take the stand? A.: Be
hard—It’s hard for me to understand that, understand that reason.
PROSECUTOR: Absolutely. When you say, “hard for you,”
and that’s where we talked about too—I’m not picking on you—but,
you know, would you be able to sit on a criminal jury because that’s
going to be the same in every single one. Anytime someone is
charged with a crime, they do not ever have to say anything. And for
our system to work we have to have people on the jury that
understand that and can follow that. Is that something that you’re
saying you could not follow? A.: No. Yeah. No. I don’t know. Maybe
what I would need to have is some sort of defense against whatever.
8

I mean, whether it’s not the defendant himself, there would need to
be somebody that takes defense on whatever is proven or what
you’re trying to prove, otherwise I will be like you’re guilty.
PROSECUTOR: You understand—. A.: You got nothing to
give me.
PROSECUTOR: By sitting here in court he has said, “not
guilty,” so he has said, “I did not do that” just by simply saying, “not
guilty.” Is that enough? A.: No.
PROSECUTOR: I submit it to the Court.
THE COURT: [Defense counsel], based on her questions,
anything else for the potential juror? DEFENSE COUNSEL: No. I
stand by my objection.
THE COURT: So, ma’am—I appreciate everybody has
different experiences in life. I know someone mentioned they’re a
welder. If I’d say, “Let me try that. I want to try and weld.” And then
someone tells me, “You have no idea what you’re doing. Let me
explain to you,” and they instructed me how welding occurs. And
then I’d change my mind, “Oh, okay. I will wear the shield” or
whatever it may be. Similarly, I do not expect everybody in this room
to understand how a jury trial works. You guys have not gone to law
school, from what I understand. So if the Court instructs you on how
a jury trial must be conducted to include the fact—and I’ll give a more
detailed instruction later—that there is no obligation or responsibility
for the defendant to testify or to put on any evidence. It is a hundred
percent the State’s burden. Every case. Not just today’s case.
Every state it’s the State’s burden to prove that the person is not—
the defendant is innocent until proven guilty. Is that something that
even being instructed by the Court on the law—to which I’m not
holding you to know that beforehand but now that I’m telling you that
is the law—can you listen to the evidence presented by the State and
come to a decision following my instructions, even if that may be a
situation where the defendant chooses not to testify? Can you do
that? A.: I can follow instructions.
THE COURT: Okay. Do you think that you can be a fair or
impartial juror or would that be stretching it for you in this situation?
A.: I can give it my best shot.
THE COURT: Kind of like what the State was saying earlier,
best shot is kind of maybe I’ll try. I think I need something a little
more firm. Can you be fair and impartial in this case? A.: Yes.
THE COURT: Request is denied. You may continue.

Later still the parties spoke with Juror A., a retired prison guard, who stated:

I think it’s important—If I put myself in his position, I would
want to defend myself. Okay. And I can’t be here and not—You
cannot, I don’t think, look at something and not put yourself in that
position to kind of think your way through it. From when I have talked
9

to other inmates, they always wished they had gotten up and
testified.

But defense counsel asked, “[W]ould you be able to follow the instructions of the

Court regarding what the law is and what the State’s obligation and burden is in

this case and that the defendant sitting here has, indeed, said he’s not guilty?”

Juror A. responded, “I would follow the directions.” Then:

Q.: Do you feel that that belief that you have that the
defendant for lack of better word should get up and defend himself,
that that’s a necessity here? A.: Yes, I do.
Q. That it’s a necessity? Is that a yes? A.: Yes.
Q. Do you believe because of that strongly held belief that I
could instruct you and the Court could instruct you to an instruction
that a hundred percent goes against that, that the defendant does
not need to present any evidence, that you would be able to follow
that even given that strong a belief? A: I can do that. I will. Can.
Will. Whatever you would like.

Following Smith’s motion to strike, the court found,

I’ve listened to the grounds [for disqualifying and in resistance]
as well. And would it be hard? Absolutely. It should be hard. It
should not be an easy task. We’re asking a lot of everyone to sit
here. Based on the response provided by . . . the challenged
juror[s], I find the request for them to be excused is denied.

The State argues that the court properly refused to strike these jurors because

both stated they could follow the law and the court’s instructions.

Jonas cautioned against the court “rehabilitat[ing] the potential juror through

persistent questioning regarding whether the juror would follow instructions.” 904

N.W.2d at 575. Juror K. persistently refused to accept the tenet that a criminal

defendant is innocent until proven guilty and that his testimony is not necessary to

reach a not-guilty verdict. Even after a lengthy explanation from the trial court,

Juror K. only parroted the phrase “I can follow instructions.” Then, when asked

directly if she could be an impartial juror, she answered tepidly she would give it
10

her “best shot.” She only gave an unequivocal “yes” when admonished that her

response was not good enough. Juror K.’s opinion that Smith would have to prove

his innocence and that she would “need to have . . . some sort of defense . . . ,

otherwise . . . you’re guilty,” showed she had formed a fixed opinion on the merits

of the case. Her lukewarm response that she would give her “best shot” to follow

the rules gives little reassurance, despite the court’s attempts to rehabilitate her

earlier statements. So we conclude the district court abused its discretion when it

refused to grant Smith’s challenges for cause. Smith then had to use two

peremptory strikes. Had counsel requested the additional strikes of particular

jurors, a duty imposed by Jonas, Smith would have not only had two additional

strikes to shape the jury, but would have been able on direct appeal to demonstrate

prejudice and potentially have his conviction reversed and remanded for retrial by

a new jury. We find that trial counsel was ineffective by failing to request the

additional strikes of particular jurors.

We now turn to whether this failure satisfies the prejudice requirement in a

PCR setting. Generally, in a PCR context, “[t]he crux of the prejudice component

rests on whether the defendant has shown ‘that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.’” State v. Kuhse, 937 N.W.2d 622, 628

(Iowa 2020) (quoting Strickland, 466 U.S. at 694). We are aware of one case

where a panel of our court has addressed a somewhat similar situation. See Dixon

v. State, No. 16-2195, 2018 WL 3471833, at *7 (July 18, 2018). In Dixon, trial

counsel failed to challenge for cause a prospective juror who, based on his
11

answers during jury selection, would have been released if challenged. The

prospective juror ended up serving on the jury. Id. Our court noted:

[T]his proceeding is not a direct appeal on a claim of error. This
proceeding is a collateral attack on the defendant’s conviction via
a claim of ineffective assistance of counsel. To establish an
entitlement to relief on this specific claim, the defendant must
establish Strickland prejudice. This generally requires the
defendant to prove “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Typically, this formulation requires proof that the
outcome of the proceeding—that is the determination of legal guilt
or innocence—would have been different. The State contends
there is overwhelming evidence of Dixon’s guilt, and Dixon thus
cannot establish a reasonable probability that the result would
have been different if juror M.H. had been removed for cause.
While the State’s argument has some appeal, we cannot
agree the defendant failed to establish constitutional prejudice. As
a general rule, it is true the defendant must establish a reasonable
probability of a different outcome to warrant relief on an
ineffective-assistance claim. However, this is not true in all
circumstances. In certain circumstances, the deprivation of the
right itself is sufficient to establish an entitlement to relief. We
conclude the error at issue in this proceeding is sufficient to
establish Strickland prejudice and an entitlement to relief.
Id. (citations omitted). Our court held that, because trial counsel failed to challenge

the juror for cause, “Juror M.H.’s service on the jury resulted in actual prejudice to

the defendant’s fundamental right to be tried by a fair and impartial jury.” Id. At *8.

The court concluded that “actual prejudice” (a juror serving who should not)

established Strickland prejudice even though it was not established to “a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Id. at *7–8 (emphasis added). In

describing a “deprivation . . . sufficient to establish an entitlement to relief,” our

court cited Krogmann. Id. at *8; see Krogmann, 914 N.W.2d at 313 (describing

structural error).
12

In this case, differing from Dixon, none of the four biased prospective jurors

sat on the jury. Rather, counsel failed to request additional peremptory strikes as

required by Jonas, to both secure additional strikes to shape the jury and to

preserve error for appeal. Did this error result in a Strickland prejudice, structural

error and prejudice, or constitutional prejudice as found in Dixon?

The likelihood of a different result must be substantial, not just
conceivable. A defendant must show the probability of a different
result is sufficient to undermine confidence in the outcome. This
standard requires us to consider the totality of the evidence, identify
what factual findings would have been affected, and determine if the
error was pervasive or isolated and trivial.

Kuhse, 937 N.W.2d at 628.

We find Strickland prejudice. Since none of the four challenged jurors sat

on the jury, counsel’s failure to request additional strikes does not establish a

reasonable probability that there would have been a different verdict if additional

strikes had been awarded. But this is not true as to the second purpose of

requesting additional strikes—to preserve error for appeal. Under our analysis,

trial counsel’s challenges for cause should have been granted by the trial court. If

counsel had requested additional strikes, the issue would have been preserved for

appeal. If counsel had preserved error, it is reasonably probable that the guilty

verdict would be reversed on appeal applying Jonas. Thus, counsel’s failure

amounts to Strickland prejudice.

As such, the conviction is reversed and the case remanded to the district

court for further proceedings.
13

Because this issue is dispositive of the appeal, we need not address any

error related to Juror A, nor any of Smith’s other claims.

REVERSED AND REMANDED.

Tabor, P.J., concurs; Schumacher, J., dissents.
14

SCHUMACHER, Judge (dissenting).

I respectfully dissent from the majority opinion which vacates Smith’s

convictions on two counts of sexual abuse in the second degree based on a

determination that Smith received ineffective assistance of counsel in jury

selection. The district court’s denial of Smith’s application for postconviction relief

(PCR) should be affirmed.

I. Ineffective Assistance Standards

To prevail on a claim of ineffective assistance of counsel, the applicant must

demonstrate both breach of an essential duty and prejudice. Strickland v.

Washington, 466 U.S. 668, 687 (1984). Both elements must be proven by a

preponderance of the evidence. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa

2001). But both elements do not always need to be addressed. Id. If the claim

lacks prejudice, it can be decided on that ground alone without deciding whether

the attorney performed deficiently. Id. (citing Strickland, 466 U.S. at 697).

Strickland also defines the legal standard that governs the prejudice

component of a claim for ineffective assistance of counsel. Id. at 143. Strickland

establishes that prejudice exists when “there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” 466 U.S. at 694. The Strickland standard does not modify our

requirement that the defendant must establish the elements of a claim for

ineffective assistance of counsel by a preponderance of the evidence. See State

v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000); State v. Carrillo, 597

N.W.2d 497, 499 (Iowa 1999); State v. Wissing, 528 N.W.2d 561, 563 (Iowa 1995).

“Instead, in making the decision whether there is a reasonable probability that the
15

result of the trial would have been different, the burden of proof is on the defendant

to establish this standard by a preponderance of the evidence.” Ledezma, 626

N.W.2d at 145.

Smith raises three issues on appeal of his PCR proceeding. First, Smith

asserts his counsel breached an essential duty by not requesting other peremptory

strikes after the district court denied his challenges to excuse certain jurors for

cause. Second, Smith asserts his counsel breached an essential duty by not

moving for a mistrial because of jury misconduct. And third, Smith argues his

counsel breached an essential duty by not calling four witnesses to testify at

Smith’s criminal trial. The application of the Strickland concepts to the specific

claims raised in this case require affirmance of the district court’s denial of Smith’s

application for relief.

II. Analysis of Smith’s Specific Ineffective Assistance of Counsel

Claims

A. Failure to Request Additional Peremptory Strikes

The majority opinion begins and concludes with Smith’s first claim related

to jury selection. As raised in his briefing, Smith contends his counsel was

ineffective for failing to request additional peremptory strikes after he used two

peremptory strikes when the district court denied his challenges for cause. Smith

argues that because his counsel did not request other peremptory strikes after the

district court improperly refused to disqualify biased jurors, his counsel was

ineffective. Smith relies on State v. Jonas, 904 N.W.2d 566, 583 (Iowa 2017),

which held that when (1) the trial court “improperly refuse[d] to disqualify a potential

juror”; (2) a defendant “expend[ed] a peremptory challenge” to strike the biased
16

juror; and (3) and a defendant “specifically ask[ed] the court for an additional strike

of a particular juror after his peremptory challenges [had] been exhausted,”

“prejudice will then be presumed.”

Smith fails to demonstrate that the trial court erred in denying the challenge

for cause related to the two jurors that Smith used peremptory strikes to remove

from the box. Both jurors in questioning from counsel first indicated they would

like to hear from the defendant in formulating an opinion. In follow-up questioning

by the court during voir dire, both jurors indicated they could follow the instructions

of the court. Neither juror expressed actual, unequivocal bias against Smith. See

State v. Lindemann, No. 19-1632, 2021 WL 210986, at *8 (Iowa Ct. App.

Jan. 21, 2021). The district court has wide discretion in ruling on challenges for

cause under time constraints and with a firsthand view of the panelist’s demeanor.

Jonas, 904 N.W.2d at 574. Appellate courts should be resistive to second

guessing the trial court’s decisions on juror impartiality, which is influenced by

many factors impossible to capture in a cold record. Skilling v. United States, 561

U.S. 358, 386–87 (2010).

At his criminal trial, Smith challenged four jurors for cause, which the district

court denied. Smith expended two peremptory strikes, one for Juror A., juror

number 6, and one for Juror Kn., juror number 24, while the State struck the other

two challenged jurors. And while defense counsel did not ask for additional

peremptory strikes, Smith identified no other juror he would have moved to strike
17

from the jury in his PCR petition.4 His criminal defense counsel testified at the

PCR proceeding that he could have “absolutely” used two more strikes. But his

testimony ends there. Defense counsel did not identify any juror that served in

Smith’s criminal trial that was not impartial. In his written closing argument, Smith

identified seven jurors that he could have used two more strikes on to form the

jury. But only three of those seven jurors are discussed in Smith’s appellate

briefing, Juror C., Juror K., and Juror P. So the discussion that follows is limited

to those specific jurors.

Smith’s testimony at his PCR trial was limited to Juror C.5 Smith initially

testified he talked to his defense counsel about this juror, but then changed his

testimony, indicating he never informed his counsel that he wanted this particular

juror to be challenged. And while he testified at his PCR trial that he had

exchanged words at a grain elevator with this juror about a year and a half before

the criminal trial, the record of voir dire does not support this juror could not be

impartial. In his deposition, Smith testified that, although he had a few words with

this juror at the grain elevator, “It wasn’t nothing heated or nothing that would—I

expected would have went any further than that.” None of the jurors on the panel

conveyed they knew Smith. And Smith’s testimony on this issue was blurry, even

calling the juror by an incorrect surname. And as highlighted by the State, Smith

appears to be too selective when highlighting some of Juror C.’s comments during

4 Smith filed his original application for PCR on June 8, 2020.
Such was amended
two times before trial, once on September 14, 2021, and again on
February 3, 2022.
5 There were two jurors with the same surname, a male and a female. Smith’s

challenge is to the male juror with that surname.
18

voir dire, that “criminals have too many rights.” Juror C. clarified that his comment

was only for individuals already convicted of a crime, rather than those that have

not been convicted.

As to Juror K., Smith alleges in his briefing that Juror K. could have been

struck because this juror stated a “five out of ten” when asked whether the juror

disagreed with the concept of innocence until proven guilty. But when read in the

context of this juror’s other responses, this juror appears to have misunderstood

the original question, as the juror responded, “So, until you hear all the evidence,

that’s the way it is.” And added, “Either you’re innocent or you’re guilty . . . . So

that’s why I said five.”

As to Juror P., Smith indicates he would have used an additional strike, as

this juror worked as a 911 operator. But a review of the voir dire transcript reflects

that Juror P. clarified he took secondary 911 calls, mostly traffic complaints. No

other suggestion was made during voir dire that he could not be a fair and impartial

juror. Smith has failed to demonstrate that he was prejudiced by the failure of

counsel to request more peremptory strikes.

B. Juror Misconduct

Smith’s second argument is that his trial counsel was ineffective in failing to

address jury misconduct. Smith alleges that on the final day of trial his ex-wife saw

the mother of the accused smoking a cigarette near jurors and also heard one of

the jurors comment on Smith’s guilt.6 Smith’s mother was also with Smith’s ex-

wife then, but his mother testified that she could not hear anything that the jurors

6 Her testimony was different at the PCR proceedings than during her deposition,

wherein she testified she heard multiple jurors discussing the defendant’s guilt.
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were saying. And at the PCR trial, defense counsel testified he had no recollection

that this was ever brought to his attention. He also testified that if this had been

brought to his attention, he would have made a record of it with the court. The

district court made credibility findings in its ruling on Smith’s application for PCR,

finding Smith’s ex-wife’s testimony was “not credible or compelling.” Deferring to

that credibility finding, Smith has not shown that counsel breached an essential

duty concerning juror misconduct.

C. Failure to Present Evidence Favorable to the Defense

Lastly, Smith alleges he received ineffective assistance of counsel when his

counsel failed to present evidence favorable to his defense. Smith specifically

argues his mother, his ex-wife, his daughter, and a Cass County Deputy should

have been called to testify for the defense.

I begin with the noticeable absence of any argument about the prejudice

that Smith suffered from the lack of testimony from these four witnesses. And

defense counsel testified that he discussed the potential testimony of Smith’s

mother, daughter, and ex-wife with Smith, electing not to call these three witnesses

as he believed the direct testimony and cross-examination would be damaging to

Smith’s case. To meet his burden to show counsel breached an essential duty,

Smith “must demonstrate his trial attorney performed below the standard

demanded of a ‘reasonably competent attorney.’” Lamasters v. State, 821 N.W.2d

856, 866 (Iowa 2012) (quoting Strickland, 466 U.S. at 687). “We start with the

presumption that the attorney performed competently and proceed to an

individualized fact-based analysis.” Id. The supreme court has made clear:
20

[I]neffective 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. Improvident trial
strategy, miscalculated tactics or mistakes in judgment do not
necessarily amount to ineffective counsel. When counsel makes a
reasonable tactical decision, this court will not engage in second-
guessing. Selection of the primary theory or theories of defense is a
tactical matter.

Id. (alteration in original) (internal quotations and citations omitted). “[S]trategic

choices made after thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable; and strategic choices made after less than

complete investigation are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation.” Strickland, 466

U.S. at 690–91. I conclude Smith has not demonstrated a breach of an essential

duty regarding these three witnesses.

As to the final witness, the Cass County Deputy, Smith argues he should

have been called to testify that after his initial investigation he did not believe there

was sufficient evidence to charge Smith with a crime. But this evidence would be

inadmissible, as the decision to file a trial information rests on the shoulders of a

prosecutor, not law enforcement. See State v. Iowa Dist. Ct., 568 N.W.2d 505,

508 (Iowa 1997). And it is settled law that witnesses are not allowed to testify

about the credibility of the evidence. See State v. Tyler, 867 N.W.2d 136, 154

(Iowa 2015). Our system of justice vests the jury with the function of evaluating a

witness’s credibility. Id. The reason for not allowing this testimony is that a

witness’s credibility “is not a ‘fact in issue’ subject to expert opinion.” State v.

Dudley, 856 N.W.2d 668, 676 (Iowa 2014). That is a jury function. State v. Morgan,

877 N.W.2d 133, 138–39 (Iowa Ct. App. 2016). Defense counsel did not breach
21

an essential duty by electing to not call the deputy to testify about sufficiency of the

evidence.

Although Smith raises an issue of cumulative error, he did not do so until

his reply brief. As such, cumulative error is not addressed in this dissent.

III. Conclusion

As Smith failed to demonstrate prejudice in regard to the peremptory strikes

and failed to prove a breach of duty by his trial counsel regarding jury misconduct

and defense witnesses, the district court’s denial of Smith’s PCR application

should be affirmed.