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State v. Tjernagel

Court of Appeals of Iowa

January 11, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
JILL TJERNAGEL, Defendant-Appellant.

         Appeal from the Iowa District Court for Hamilton County, James A. McGlynn, Judge.

         Jill Tjernagel appeals her conviction and sentence for sexual abuse in the second degree following a jury trial. REVERSED AND REMANDED.

          Brandon J. Brown, Robert P. Montgomery, and Adam C. Witosky of Parrish Kruidenier Dunn Boles Gribble Gentry Brown & Bergmann L.L.P., Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., Mullins, J., and Scott, S.J. [*]

          MULLINS, Judge.

         Jill Tjernagel appeals her conviction and sentence for sexual abuse in the second degree following a jury trial. She argues (1) trial counsel rendered ineffective assistance resulting in prejudice by failing to object to (a) impermissible expert testimony consisting of vouching for the credibility of the victim, using statistics to imply guilt, profiling the defendant, and giving information that was within the common knowledge of the jurors, and (b) misconduct by the prosecutor in soliciting expert vouching testimony; (2) the district court erred in denying her motion for new trial based on her claims of impermissible vouching testimony by expert witnesses; (3) the jury wrongfully considered extraneous and inaccurate information regarding punishment; (4) her rights to compulsory process and due process were violated when the district court quashed subpoenas for prosecutor testimony in relation to her claims of prosecutorial misconduct; and (5) cumulative evidentiary and constitutional errors violated her rights to a fair trial and due process. Upon our review, we reverse Tjernagel's conviction and remand for new trial based on her claim trial counsel was ineffective in failing to object to expert witness testimony vouching for the credibility of the child victim. Because we expect testimony regarding statistics, profiling, and common knowledge to be issues that will be presented again on retrial, we will address them. We do not reach Tjernagel's other claims.

         I. Background Facts and Proceedings

         In June 2014, the State charged Tjernagel with the crime of sexual abuse in the second degree, in violation of Iowa Code sections 709.1(3) and .3(2) (2013), stemming from allegations Tjernagel sexually abused her step-grandson, L.K., when she babysat him at her home sometime before February 20, 2013. The testimony at trial alleged the conduct occurred when L.K. was between four and six years old.

         In April 2015, a jury found Tjernagel guilty of second-degree sexual abuse. Tjernagel filed numerous posttrial motions raising several grounds for new trial and requesting reconsideration of her claims. After a hearing on the motions, the district court denied Tjernagel's motions and preserved her claims of ineffective assistance of counsel for postconviction relief.

         The district court entered judgment of conviction and sentenced Tjernagel to a term of imprisonment for no more than twenty-five years, carrying a mandatory minimum of seventy percent, and a lifetime special sentence pursuant to Iowa Code section 903B.1. Tjernagel appeals.

         II. Scope and Standard of Review

         We review claims of ineffective assistance of counsel de novo because the claims implicate the defendant's Sixth Amendment right to counsel. State v. Thorndike, 860 N.W.2d 316, 319 (Iowa 2015). "Ineffective-assistance-of-counsel claims are an exception to the traditional error-preservation rules." State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010). An ineffective-assistance-of- counsel claim may be raised and decided on direct appeal when the record is adequate to address the claim. Iowa Code § 814.7(2), (3); see also Fountain, 786 N.W.2d at 263.

         III. Analysis

         Tjernagel maintains her trial counsel rendered ineffective assistance by failing to object to testimony by expert witnesses (1) indirectly vouching for the credibility of the complaining child witness, (2) providing statistics regarding child sexual abuse, (3) profiling Tjernagel as a sexual offender, and (4) explaining topics of child sexual abuse that are within the common knowledge of the jury. The State urges us to preserve Tjernagel's claims for postconviction proceedings. Because we find the record adequate in this case, we consider the merits of Tjernagel's claims. See Fountain, 786 N.W.2d at 263.

         To succeed on a claim of ineffective assistance of counsel, Tjernagel must show by a preponderance of the evidence: "(1) [her] trial counsel failed to perform an essential duty, and (2) this failure resulted in prejudice." Thorndike, 860 N.W.2d at 320 (quoting State v. Adams, 810 N.W.2d 365, 372 (Iowa 2012)); accord Strickland v. Washington, 466 U.S. 668, 687 (1984). "Under the first prong, 'we measure counsel's performance against the standard of a reasonably competent practitioner.'" Thorndike, 860 N.W.2d at 320 (quoting State v. Clay, 824 N.W.2d 488, 495 (Iowa 2012)). "Under the second prong, the [defendant] must establish that prejudice resulted from counsel's failure to perform an essential duty." Id. Failure to prove either prong is fatal to the claim. See State v. Shanahan, 712 N.W.2d 121, 142 (Iowa 2006). In examining Tjernagel's claims, we presume trial counsel performed his duties competently. See Thorndike, 860 N.W.2d at 320.

          A. Vouching

         Our supreme court has recently elaborated on what constitutes vouching for the credibility of a witness, both directly and indirectly. See State v. Dudley, 856 N.W.2d 668, 676-77 (Iowa 2014); State v. Brown, 856 N.W.2d 685, 689 (Iowa 2014); State v. Jaquez, 856 N.W.2d 663, 665-66 (Iowa 2014). The court has explained:

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. Our system of justice vests the jury with the function of evaluating a witness's 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. In our system of justice, it is the jury's function to determine the credibility of a witness.

Dudley, 856 N.W.2d at 676-77; Brown, 856 N.W.2d at 689; Jaquez, 856 N.W.2d at 665.

         Tjernagel challenges several statements made by the State's expert witness, Dr. Anna Salter, a child sexual abuse expert, and statements made by her own witness, Tammera Bibbins, who conducted two forensic interviews of L.K. On our review, we address each statement Tjernagel "claims as objectionable to determine whether the State crossed the line." Dudley, 856 N.W.2d at 678.

         At the time of trial, L.K. was eight years old. He testified that on one occasion Tjernagel took off her clothes and took off his clothes, made him lie down on her bed, and put her mouth on his penis. He testified that while this was going on, he could smell popcorn and SpongeBob was on the television in Tjernagel's bedroom. L.K. also testified that on another occasion Tjernagel took off their clothes and began "playing with" his penis. He testified during this second incident, Tjernagel also put a green "bullet" in his butt that hurt when he later defecated at home and the object came out.

         The State called Dr. Salter as the final witness for its case-in-chief. Prior to trial, the parties had agreed to avoid inadmissible testimony regarding the credibility of witnesses. During her testimony, Dr. Salter made it clear she was not allowed to comment on the credibility of any other witness or opine whether L.K. was sexually abused. Instead, she explained the purpose of her testimony was to explain to the jury the general dynamics of child abuse, including child development, delayed and partial disclosure, suggestibility and coaching, and grooming techniques employed by sex offenders.

On direct examination by the State, Dr. Salter was asked:
Q. What about the details that come from a child. What they smelled or what was playing on the TV, things like that. If these are false memories, where are those details coming from? A. Well, that's a good question. Nobody coaches SpongeBob, nobody coaches here's where you were, here's what-what you smelled or here's what you saw. I mean, I've never had a coaching case where the parent coached sensory details like that to the child.

         Tjernagel contends Dr. Salter's statements, "Nobody coaches SpongeBob, nobody coaches here's where you were, here's what-what you smelled or here's what you saw" and "I've never had a coaching case where the parent coached sensory details like that to the child, " implied any time a child provides sensory details-what the child sees, hears, or smells-the child must be telling the truth because that level of detail cannot be coached. Thus, Tjernagel asserts, Dr. Salter's testimony improperly vouched for L.K.'s credibility regarding the alleged abuse.

          Dr. Salter was also asked on direct examination:

Q. We're going to talk about suggestibility, okay?
A. Yes.
Q. What does that mean in this area?
A. The notion is that a child may claim something happened that didn't happen because it was suggested to them by someone else and they implanted the idea in the child's mind.
Q. All right. And so under this idea of suggestibility it means then that there is a false memory because the child now believes it?
A. The child now believes it, yes.
Q. Okay. And that is separate from a child coming in and just making up a story?
A. Well, most people don't claim that anymore as a defense because there's not much-why would a child just come in and make up a story? So that isn't something that's gotten a lot of ground. So it's typically either that the story is accurate or that some of the story is inaccurate, but that the child believes it. Now sometimes they accuse kids of lying, but that's fairly rare these days.
Q. And has there been a lot of research done in that area?
A. There is. I've got about four volumes with me of research in that area. It's ...

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