from the Iowa District Court for Hamilton County, James A.
Tjernagel appeals the district court's denial of her
motion to dismiss a criminal prosecution following a reversal
of her conviction and remand for a new trial.
Brandon J. Brown, Robert P. Montgomery, and Gina M. Messamer
of Parrish Kruidenier Dunn Boles Gribble Gentry Brown &
Bergmann, LLP, Des Moines, for appellant.
J. Miller, Attorney General, and Sheryl A. Soich, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., Mullins, J., and Mahan,
convicted Jill Tjernagel of second-degree sexual abuse.
Tjernagel appealed her conviction, raising the following
(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.
State v. Tjernagel, No. 15-1519, 2017 WL 108291, at
*1 (Iowa Ct. App. Jan. 11, 2017). A panel of this court
concluded Tjernagel's trial counsel did not render
"ineffective assistance in failing to object to the
expert witnesses' testimony based on claims the experts
used statistics at trial, profiled Tjernagel as a sex
offender, or testified about topics within the common
knowledge of the jurors." Id. at *10. However,
we found Tjernagel's trial counsel rendered ineffective
assistance in failing to object to statements made by expert
witnesses vouching for the alleged victim's credibility
and truthfulness. Id. "We [did] not reach
Tjernagel's other claims." Id. We reversed
Tjernagel's conviction and remanded the matter for a new
trial. Id. Although Tjernagel raised several grounds
for relief in her first appeal, the only relief sought was a
new trial. We granted a new trial and did not need to reach
any other grounds in order to resolve the appeal.
remand, Tjernagel filed a pretrial motion to dismiss in which
she contended the State committed prosecutorial misconduct by
eliciting the vouching testimony and a second trial should
therefore be barred by the double jeopardy provision of the
Iowa Constitution. The double jeopardy issue was not raised
in her first appeal. In her motion and supporting brief,
Tjernagel requested subpoenas for the purpose of examining
the prosecutors in an evidentiary hearing.
this court did not reach the prosecutorial-misconduct issue
on direct appeal, the district court viewed Tjernagel's
motion as a request "to amend, enlarge, correct, or
otherwise modify" this court's decision. The court
stated the "threshold question" was whether it
"has the authority or jurisdiction to consider an issue
the appeals court did not reach." Ultimately, the
district court declined to consider the merits of the motion,
reasoning that our appellate ruling mandated a new trial and
it was therefore "without authority or jurisdiction to
grant the defense motion." In response to
Tjernagel's subsequent motion to reconsider, the district
If the Court of Appeals had wanted the trial court to hold a
hearing in which the prosecutor is subpoenaed and examined
and in which the defense would be allowed to make an
evidentiary record on prosecutorial misconduct, then the
Court of Appeals would have, could have and should have
remanded with those explicit instructions. For whatever
reasons, the Court of Appeals chose not to remand with those
directions. Instead, the Court of Appeals provided this court
with one simple direction: to retry the defendant.
court therefore denied the motion to dismiss.
supreme court ultimately granted Tjernagel's subsequent
application for discretionary review, stayed the proceedings
in the district court, and transferred the matter to this
court for resolution. Our review is for correction of errors
at law. State v. Dixon, 534 N.W.2d 435, 438 (Iowa