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John Nell Mitchell v. State of Iowa

February 27, 2013

JOHN NELL MITCHELL, APPLICANT-APPELLANT,
v.
STATE OF IOWA, RESPONDENT-APPELLEE.



Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.

The opinion of the court was delivered by: Eisenhauer, C.J.

John Nell Mitchell appeals the ruling denying his application for post-conviction relief. AFFIRMED.

Considered by Eisenhauer, C.J., and Vogel and Vaitheswaran, JJ. Potterfield and Tabor, JJ., take no part.

After his March 1999 convictions for second-degree sexual abuse of Amy, John Nell Mitchell appealed.*fn1 The Iowa Supreme Court reversed his convictions and remanded. State v. Mitchell, 633 N.W.2d 295, 297 (Iowa 2001) (Mitchell I). Upon retrial, a jury again found him guilty, and the convictions were affirmed on appeal. State v. Mitchell, 670 N.W.2d 416, 417 (Iowa 2003) (Mitchell II). In 2004, Mitchell filed a pro se application for post-conviction relief. In 2009, the post-conviction court denied relief. In this appeal, his appellate counsel claims the post-conviction court erred in (1) permitting him to represent himself on his application or, at least, failing to appoint standby counsel to help him subpoena witnesses and (2) denying Mitchell's oral motion to continue the post-conviction hearing. Mitchell raises several other claims in pro se briefs. We affirm.

I. Background Facts and Proceedings.

In the August 1998 trial information, Mitchell was charged with six counts involving four children. In March 1999, the trial court granted his motion to sever and separated the counts for three trials: Amy-three counts of second-degree sexual abuse (January 1997 to September 1997), sisters Karen and Susanna- two counts of indecent contact with a child,*fn2 and K.F.-one count indecent contact with a child.*fn3 Mitchell I, 633 N.W.2d at 297.

During his first trial regarding abuse of Amy, Mitchell was represented by attorney Kent Simmons. "Amy was ten at the time Mitchell began living with her mother, Julie, in 1997." Mitchell II, 670 N.W.2d at 418. David is Julie's husband and Amy's father. David and Julie were involved in a dissolution of marriage proceeding. In May 1998, Amy described several instances of abuse by Mitchell in a videotaped interview with a police detective. Id.

Prior to trial, Mitchell filed a motion in limine seeking to exclude testimony from Karen and Susanna regarding alleged abuse in the fall of 1997, and they did not testify in the State's case-in-chief. After Amy testified to Mitchell's sexual abuse, defense counsel's cross-examination "accused her of fabricating the allegations to break up [Mitchell's] relationship with her mother." Mitchell I, 633 N.W.2d at 297. In response, the prosecutor sought and was permitted to introduce testimony of Susanna and Karen. Id. Mitchell was convicted on three counts of second-degree sexual abuse. Id. at 297-98. On appeal, the Iowa Supreme Court reversed and remanded, ruling, "the testimony of Susanna and Karen was not relevant to prove any legitimate fact other than Mitchell's propensity to abuse young girls." Id. at 300.

On December 5, 2001, prior to retrial, a hearing was held on Mitchell's motion to represent himself and his pro se evidentiary motions. The court conducted a colloquy, and Mitchell stated he had experience at five trials: "I don't plead to felonies. All felonies go to trial." The court discussed standby counsel with Mitchell, who repeatedly stated his opposition. The court explained standby counsel could help Mitchell subpoena defense witnesses and Mitchell replied: "I have no trust in attorneys here. None at all." The court again explained: "[I]f you request the clerk's office to issue a subpoena, they will issue the subpoena. But the clerk's office isn't in the business of serving subpoenas . . . . And that's one of the things that standby counsel can help you with." Mitchell was unconvinced and stated: "I don't really want one of them." However, at the court's continued urging, Mitchell eventually agreed to accept standby counsel while representing himself during the retrial. Next, Mitchell identified several attorneys he did not want appointed as standby counsel.*fn4

Mitchell filed numerous motions requesting depositions/documents from: Dawn Sturms (DHS contract worker-took Amy to Dr. Ozaki); Randy Archer (DHS-Julie's complaints against David); Jo McLaughlin (DHS); Julie (copies of no-contact orders); David (copies of doctor reports and Julie's complaints); Sharon SIdders (DHS-statements made during 1997 juvenile process); Lynn Fitzgerald (juvenile court services); and all witnesses (founded or unfounded DHS reports). The trial court denied his requests, ruling: "Some [information is] in the records of the [DHS] as a consequence of previous child abuse allegations. Such information only can be obtained under the criteria of specific statutes governing the confidentiality of that information." Additionally, much of the information requested has not been shown to be relevant to the facts of the charges, and even if relevant, any probative value is outweighed by the prejudice. Finally, "[t]he court previously granted the State's motion in limine with respect to much of this evidence, and the court's ruling in that regard remains the law of this case."*fn5

At the retrial, Amy testified to specific instances of abuse by Mitchell. An edited videotape of Amy's interview with Detective Venema was played for the jury.*fn6

Mitchell called Amy's mother [Julie] as a witness in his case in chief, apparently in an effort to establish that she met with the police detective before his interview with Amy in an effort to slant the evidence against Mitchell or otherwise conspire against him. Mitchell's general defense at trial was that DHS social workers, Scott County law enforcement, and members of Amy's family conspired to bring about his conviction.

Mitchell II, 670 N.W.2d at 418-19. After the jury returned guilty verdicts, Mitchell was sentenced to three consecutive sentences. Id. at 418.

Mitchell filed a pro se appeal, and counsel was appointed. Mitchell argued the trial court erred in allowing Julie's testimony that Detective Venema interviewed her due to Karen and Susanna's mom filing a complaint alleging Mitchell had sexually abused them. Id. at 418-19. Julie testified she told Detective Venema she also had a daughter, Amy, who had been around Mitchell, and maybe he should talk to Amy because all three girls were "acting out the same, throwing fits, tearing things up." Id. at 419-20. Mitchell argued Julie's testimony produced indirectly the same evidence of prior bad acts declared inadmissible in Mitchell I. Id. at 420. The Iowa Supreme Court noted "the record in [Mitchell I] did not disclose the existence of a conspiracy theory involving Amy's mother." The court ruled the conspiracy inferences Mitchell sought to establish in his direct examination of ...


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