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Tyson v. State

Court of Appeals of Iowa

September 27, 2017

JAMES RANDALL TYSON, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Mills County, Mark J. Eveloff (trial) and Susan Larson Christensen (postconviction), Judges.

         James Tyson appeals from the denial of his application for postconviction relief. REVERSED AND REMANDED.

          Patrick A. Sondag of Sondag Law Office, Council Bluffs, for appellant.

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

          Considered by Danilson, C.J., Tabor, J., and Blane, S.J. [*]

          DANILSON, CHIEF JUDGE.

         James Tyson appeals from the denial of his application for postconviction relief (PCR). Tyson contends he is entitled to a new trial because trial and appellate counsel rendered ineffective assistance. He asserts trial counsel was ineffective in eliciting and failing to object to improper credibility-vouching testimony by an expert witness, in failing to object to an improper supplemental jury instruction, and in failing to ensure Tyson's participation in answering jury questions. Tyson submits appellate counsel rendered ineffective assistance in failing to raise these issues on appeal and he was prejudiced by the cumulative effect of trial and appellate counsel's errors. Because we agree he was prejudiced by the cumulative effect of the alleged errors, we conclude Tyson is entitled to a new trial. We reverse the order denying Tyson's PCR application, reverse the judgment of conviction and sentence, and remand for a new trial.

         I. Background Facts & Proceedings.

         In 2010, then nine-year-old D.B. stayed at Tyson's home for a weekend with her best friend, Ashley, whose family lived with Tyson. When D.B.'s mother picked her up at the end of the weekend, D.B. reported Tyson had touched her vagina on two occasions-once in the kitchen and once in Tyson's truck. Ashley was present on both occasions. Ashley testified during the incident in the kitchen she saw Tyson put his hand down D.B.'s pants for "[f]ive seconds or so" from her position of sitting on a couch in the living room. However, Ashley stated she could not tell if it was in the front or the back of D.B.'s pants. Ashley testified she did not see Tyson inappropriately touch D.B. in the truck.

         Tyson was charged with one count of second-degree sexual abuse for the kitchen incident and one count of lascivious acts with a child for the incident in Tyson's truck. Tyson's first jury trial, commencing in December 2011, resulted in a hung jury. Tyson was retried in November 2012.

         At the second trial, on the State's direct examination, the forensic interviewer who conducted an interview of D.B. testified it was her job was to get "the most accurate information" possible. She testified school-age children are less likely to be susceptible to report false allegations as they're "learning about the importance of telling the truth" and it is "not very common" for children of that age to succumb to peer pressure to make false claims. The forensic interviewer also testified it is common for children to delay reporting abuse and for the details of children's accounts of events to change over time. On cross-examination, defense counsel elicited the following testimony from the forensic interviewer:

Q. Uh-huh. So really, when you get down to it, what is your conclusion- . . . .
A. My conclusion is that she was very credible. She was able to provide a statement. She was able to provide you details about what happened, not only could she make a surface level statement that something happened, she could provide information underneath it to back up what she was saying, that she was mature. I thought she was appropriate.
Q. Well, do you remember when I took your deposition?
A. Yes.
Q. I asked you the same question?
A. Yes.
Q. Do you remember your answer?
A. No.
Q. Line 27 is the question.
Q. And your answer is?
A. I don't have a conclusion.
Q. Thanks.
A. Can I explain that?
Q. Well, you've already offered all-I mean, you changed your answer, haven't you?
A. Well, not really. My conclusion not- is not if I'm saying the child is telling the truth or not. My conclusion is what I thought about her. There's a difference, I guess, for me.
Q. Well, here you say you don't have a conclusion, but you volunteer that you thought she was a nice girl and that kind of thing. So I say Question, "So the best you can say is that [D.B.] disclosed a certain behavior to you that occurred allegedly with Mr. Tyson?" And your answer would have been? Do you recall it?
A. Yes.
Q. What was the answer then?
A. Yes.
Q. Yes. And then I asked you, "Well, the allegations that she's given are consistent for you to draw the conclusion that she was ...

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