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State v. Gillson

Court of Appeals of Iowa

May 17, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
CHAD MICHAEL GILLSON, Defendant-Appellant.

         Appeal from the Iowa District Court for Lucas County, Gary G. Kimes, Judge.

         The defendant appeals from his convictions for sexual abuse in the third degree and incest.

          Mark C. Smith, State Appellate Defender, and Bradley M. Bender, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., and Doyle and Tabor, JJ.

          POTTERFIELD, Presiding Judge.

         Chad Gillson appeals from his convictions, following a bench trial, for sexual abuse in the third degree and incest. Gillson maintains he received ineffective assistance from trial counsel. Specifically, he claims counsel was ineffective for failing to object to the vouching testimony of three separate witnesses-the investigating officer, the forensic interviewer, and the complaining child's psychologist.[1]

         We review claims of ineffective assistance de novo. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). "To establish his claim of ineffective assistance of counsel, [Gillson] must demonstrate (1) his trial counsel failed to perform an essential duty, and (2) this failure resulted in prejudice." Id. (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). To prove counsel failed to perform an essential duty, he must show "counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms." Strickland, 466 U.S. at 688. To establish prejudice, Gillson must demonstrate "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "The probability of a different result must be 'sufficient to undermine confidence in the outcome.'" Afinson v. State, 758 N.W.2d 496, 499 (Iowa 2008) (citation omitted). Where, as here, the defendant makes multiple claims, we "look to the cumulative effect of counsel's errors to determine whether the defendant satisfied the prejudice prong of the Strickland test."[2] Clay, 824 N.W.2d at 500.

         Iowa courts "are generally committed to a liberal rule which allows opinion testimony if it will aid the jury in screening the properly admitted evidence to ascertain the truth." State v. Myers, 382 N.W.2d 91, 93 (Iowa 1986). However, this liberal rule does not extend to opinion testimony that vouches for or bolsters the credibility of another witness. See, e.g., State v. Dudley, 856 N.W.2d 668, 676 (Iowa 2014) ("We see no reason to overturn this well-settled Iowa law prohibiting an expert witness from commenting on the credibility of a victim in a criminal sex abuse proceeding."); see also Iowa R. Evid. 5.701 (limiting the opinion testimony of a lay witness). "Our system of justice vests the [factfinder] with the function of evaluating a witness's credibility." Dudley, 856 N.W.2d at 677 (citing State v. Hulbert, 481 N.W.2d 329, 332 (Iowa 1992)). "[V]eracity is not a 'fact in issue' subject to expert opinion." Hulbert, 481 N.W.2d at 332.

         Here, Gillson focuses on the testimony of three witnesses[3] whom he claims were allowed to vouch for the credibility of the complaining witness:

         Deputy Sheriff Brian Kennedy testified about his investigation of the charges. He stated that he watched a video of the complaining witness being interviewed by forensic interviewer, Tammera Bibbins. At trial, the following exchange occurred between the prosecutor and Deputy Kennedy:

Q. In reviewing the tape as a whole and the statements of [Z.G.] in response to questions by Tammera Bibbins did you form an opinion with respect to whether or not [Z.G.] was the victim of criminal acts?
A. Yes, I did.
Q. Pardon me?
A. I said yes, I did, and I believe she was the victim of a sexual assault involving [Gillson] as the perpetrator.
Q: And the crime of incest as well?
A. Yes.
Q. And did you continue then to ...

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