State of Iowa v. Alicia Ritenour ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-0038
Filed June 15, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ALICIA RITENOUR,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Mahaska County, Myron L. Gookin,
Judge.
A defendant appeals her conviction for murder in the first degree in the
death of her eighteen-month-old daughter. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant
Attorney General, for appellee.
Heard by Danilson, C.J., Vaitheswaran, Potterfield, Tabor, and McDonald,
JJ.
2
TABOR, Judge.
Eighteen-month-old Ava suffered severe skull fractures and died of head
injuries in her bedroom. A jury convicted her mother, Alicia Ritenour, of murder
in the first degree. On appeal, Ritenour claims the district court improperly
excluded evidence that another adult living in the apartment was withdrawing
from methamphetamine use at the time of the killing. She also claims her trial
counsel was ineffective in failing to object to testimony opining on her credibility
and to statements by the prosecutor in closing argument suggesting she had lied
to authorities.
Because Ritenour offered no expert testimony concerning the implications
of methamphetamine withdrawal and the witness denied it impacted his
perceptions or memory, we cannot find the court abused its discretion by
excluding the evidence. We affirm Ritenour’s conviction and preserve her claims
of ineffective assistance of counsel for possible postconviction proceedings.
I. Facts and Prior Proceedings
In January 2014, Ritenour was living with her daughter and her boyfriend,
Jacob Rauch,1 in a two bedroom apartment in Oskaloosa. Also living in the
apartment was Rauch’s best friend, Logan Cavan, and Ritenour’s fifteen-year-old
friend, A.P., who would stay with them while her father was out of town on
business. Ritenour and Rauch shared one bedroom, Ava had her own bedroom,
A.P. slept on the living room couch, and Cavan slept on the living room floor.
Neither Rauch nor Cavan paid any rent. Rauch did chores around the
apartment and helped care for Ava. Cavan did not willingly participate in chores
1
Rauch is not the child’s father.
3
or child care. In fact, Cavan discouraged Rauch from assisting with child care,
saying, “Don’t do that, make [Ritenour] do it . . . . It’s her kid.” Testimony
indicated Cavan begrudged the time Rauch spent with Ritenour and Ava. Cavan
spent a significant percentage of his day sleeping in the apartment and was often
angry when awoken. Cavan also expressed frustration when Ava cried. On one
occasion, the neighbors were babysitting Ava when Cavan tried to engage in
conversation over her fussing. He grew angry, clenched his fist, and cocked it
back over his shoulder like he was going to punch the child, saying, “Shut the
fuck up.” He then commented that all Ava ever did was cry and sometimes he
wanted to “knock her out.” Cavan testified he was only joking during this
incident.
Ritenour’s level of satisfaction with her life as a mother was the subject of
debate at trial. Testimony indicated Ritenour was an attentive mother when
Rauch and Cavan moved into the apartment in November 2013. But over the
next few months, she paid more attention to her relationship with Rauch and less
to parenting Ava. Both Rauch and Cavan testified Ava was left alone in her room
with the door closed for long stretches without anyone checking on her. Rauch
said Ava was usually watching a continuous loop of the cartoon Team Umizoomi,
playing with toys, or listening to the radio. Rauch and Cavan also testified
Ritenour would place the child’s bottle inside the door or toss it on the bed, then
shut the door, leaving the child to feed herself. The State offered evidence from
4
Ritenour’s Facebook “wall,” posted on January 20, 2014, a few days before Ava
died, indicating Ritenour believed her life was “like one big ball of shit.”2
In her testimony, Ritenour contradicted the narrative of poor parenting and
denied dissatisfaction with her situation. Ritenour testified she would leave the
door closed so Ava would nap but would check on her if she cried. Ritenour
defended the practice of tossing the bottle on the bed, contending it was a game
Ava liked to play since graduating from her crib to a toddler bed. Ritenour also
insisted she was successfully balancing her romance with motherhood: “My life
was great. I had my daughter and everything was going okay for me, and I just
wanted to try to have a relationship.”
On the night of January 23, 2014, Ritenour and Rauch had friends over to
the apartment. Cavan and A.P. were also home. Ritenour, Rauch, and their
friends smoked marijuana and watched a movie. No one checked on Ava, who
was in her room during the gathering. After the guests left, Ritenour, Rauch,
Cavan, and A.P. continued to watch movies in the bedroom. Eventually, Cavan
moved to the living room couch to sleep. When A.P. went to bed, she woke
Cavan so she could sleep on the couch. Cavan returned to the bedroom to
watch the movie for a short time before falling asleep. Rauch woke Cavan and
bribed him to leave the room by offering him a cigarette, which Cavan threw in
Rauch’s face. Rauch, Ritenour, and A.P. all testified, at this point, Cavan kicked
or hit the wall, but Cavan denied doing so.
2
Ritenour apparently was paraphrasing these rap lyrics: “Every time I go to get up I just
fall in piss, My life’s like one great big ball of shit.” Eminem, Run Rabbit Run, on Music
from and Inspired by the Motion Picture 8 Mile (Shady Records 2002).
5
The noise woke Ava who started crying, according to Rauch’s testimony.
Ritenour attended to her daughter while Rauch continued to watch the movie.
According to Rauch, Ritenour was with Ava for about thirty minutes before Rauch
heard Ritenour “throwing Ava’s toys into her toy box and screaming a bit.”
Rauch testified he went and sat with Ava and gave her a bottle while Ritenour
took a shower. According to his testimony, Ava was falling asleep so he put her
to bed and left the room around 11:00 p.m. Ritenour testified she did not
remember Rauch coming in to help her or remember leaving to take a shower.
On the morning of January 24, Ritenour left the apartment to take A.P. to
school. A.P. testified she saw Ritenour prepare a bottle for Ava and place it
inside the door of the child’s room before they left. A.P. also told police she
thought she heard the child moving around in the room. Cavan testified he woke
up when he heard them shut the apartment door. He explained he poured
himself a bowl of cereal, moved to the couch, and fell back asleep while eating.
Ritenour testified when she returned from taking A.P. to school, she noticed
Cavan was covered with a different blanket than the blanket covering him when
she left. She then went to her own bedroom and had sex with Rauch before
falling back asleep. No one testified to checking on Ava that morning.
At 2:00 p.m., Ritenour’s mother, Tina, arrived at the apartment. Tina
entered Ava’s room and found the child unresponsive, covered with a blanket,3
and lying on her stomach on the floor. Rauch and Cavan woke to the screams of
Ritenour and Tina. Rauch remembered Tina saying, “What did you do, Alicia”?
3
Ritenour testified this was the blanket Cavan was using when she left to take A.P. to
school.
6
Rauch heard Ritenour respond, “I didn’t do anything, Mom. I didn’t do anything.”
Cavan recalled a slightly more incriminating response from Ritenour: “I’m sorry. I
didn’t mean to. I didn’t do it.”
At Tina’s urging, Rauch called 911 as Tina tried to revive the child.
Lieutenant VanRenterghem responded first and assisted in CPR. A few minutes
later the paramedics arrived on the scene and ended the resuscitation efforts
after observing obvious signs of death. Ritenour told the paramedic, Joshua
Crouse, Ava had not been feeling well for several days and was sick the night
before. Ritenour also told him Ava had fallen and hit her head on a “pig-shaped”
toy. Ritenour had missed a doctor’s appointment for the child—citing car
trouble—but told authorities it was the doctor’s office that cancelled the
appointment.
An autopsy conducted the following day revealed fractures to the back of
the child’s head so numerous that her skull resembled a map of the east coast of
the United States. Dr. Michele Catellier, an associate state medical examiner,
opined Ava was subjected to four or five distinct blows. A pig-shaped toy found
in the child’s bedroom was consistent with the pattern of the fractures, but Dr.
Catellier was not certain if the toy was the instrument causing Ava’s injuries. The
doctor placed time of death at between six and twelve hours before the body was
found. Dr. Catellier testified symptoms such as loss of consciousness, seizures
or other abnormal movements, vomiting, eye rolling, and the sudden stoppage of
breathing would have occurred almost immediately.
Law enforcement officers interviewed Ritenour on four occasions:
January 24, 25, 31, and October 27, 2014. Her version of the events was
7
inconsistent over time. She initially told officers Ava woke up on the morning of
January 24, ate breakfast, and took a nap around 11 a.m. In a follow-up
interview the next day, Ritenour told the police she made the bottle in the
morning but did not check on Ava until the body was discovered. Ritenour did
not mention Cavan’s blanket being a different blanket until she was interviewed
on January 31, 2014.
On February 13, 2014, the State charged Ritenour with first-degree
murder in violation of Iowa Code sections 707.1 and 707.2(5) (2013), and child
endangerment resulting in death, in violation of section 726.6(1)(a), and (4).
Thereafter, in her October 27 interview, Ritenour told law enforcement she heard
a loud thump while showering when the child was in Rauch’s care. But she did
not check on the child when she was done showering. This version of the events
had changed by the time of her jury trial, commencing on November 12, 2014.
At trial, she denied Rauch helped put the child to bed at all during the evening in
question.
The jury found Ritenour guilty on both counts. The court merged the two
convictions and sentenced Ritenour to life in prison without parole. Ritenour now
appeals.
II. Scope and Standards of Review
We review evidentiary rulings on relevance for an abuse of discretion.
State v. Elliott, 806 N.W.2d 660, 667 (Iowa 2011). We review claims of
ineffective assistance of counsel de novo. State v. Ondayog, 722 N.W.2d 778,
783 (Iowa 2006).
8
III. Analysis
A. Admissibility of Cavan’s Methamphetamine “Crash”
Before trial, the State filed a motion in limine to exclude any evidence of
witnesses’ drug use outside the time period of Ava’s death. Cavan testified
during his deposition that on January 23 he was sleeping for extended periods of
time because he was “crashing” from a methamphetamine high he had
experienced several days earlier. Ritenour argued Cavan’s withdrawal was
relevant to his behavior, perception, and memory at the time of the child’s death.
The district court ruled:
[Any] drug usage by a witness as it relates to their conduct,
perception and memory of events related to the death of the victim
is relevant to a legitimate issue, namely, the ability of the witness to
accurately and truthfully testify to such events, and the probative
value of such evidence is not substantially outweighed by unfair
prejudice . . . however, that drug use that cannot be connected to
conduct, perception, and memory of events related to the death of
the victim would be considered inadmissible prior-acts evidence.
At trial, the defense made a brief offer of proof outside the presence of the
jury in which Cavan testified he had not used methamphetamine during the
“week and a half” before the night in question. He also diverged from his
deposition testimony, pointing to reasons other than drug withdrawal to account
for why he was sleeping so much. He cited his depression and the fact he had
“nothing to do.” The defense argued Cavan’s varying stories were admissible to
challenge his veracity as a witness. The defense also argued his statements
about “crashing” were admissible because they went to his ability to perceive and
recollect.
9
The State resisted, pointing out the defense did not plan to offer any
expert testimony illuminating the time frame in which methamphetamine use or
withdrawal would affect a person’s perceptions. The State also argued the
defense was trying to “bootstrap this into a methamphetamine case.”
The district court then engaged in the following exchange with Cavan:
THE COURT: Mr. Cavan, in the days leading up to the
incident, the death of the child, you’ve indicated that you were
crashing or coming down. Did that affect your ability to understand
or remember things or perceive things that were going on at the
time?
CAVAN: No, sir.
THE COURT: Did it affect your memory of events that
occurred during that time?
CAVAN: No, sir.
THE COURT: Based on the record made, it does not appear
to me that there is any effect by this crashing or coming down, as
Mr. Cavan has described it, to his conduct, perception, or memory
of events related to the death of the victim, which otherwise would
be relevant if it did affect those things.
On appeal, Ritenour argues the district court abused its discretion
because Logan’s “methamphetamine crash” on the day before the child’s death
was relevant to “legitimate non-character purposes” under Iowa Rules of
Evidence 5.401, 5.402, and 5.404(b). First, she argues the withdrawal evidence
was relevant to show Cavan would have been less likely to observe and
accurately remember events. Second, she contends the evidence was “highly
relevant to his state of mind and motive to inflict devastating injuries on the child.”
Error Preservation. The State argues Ritenour did not preserve her
second appellate claim regarding the relevance of the methamphetamine
withdrawal to Cavan’s motive or intent because trial counsel only argued the
withdrawal affected Cavan’s ability to perceive and recollect. It is true that the
10
defense offer of proof and the court’s questions to Cavan addressed only his
perception and memory. The State did not have an opportunity to respond at
trial to the question of whether Cavan’s withdrawal from methamphetamine could
have contributed to an intent or motive to kill Ava. We therefore find Ritenour
failed to preserve error on the relevance of methamphetamine withdrawal as it
relates to Cavan’s motive or state of mind.
As an alternative argument, Ritenour asks us to find her counsel
ineffective for failing to secure a ruling on Cavan’s methamphetamine use as it
related to his motive and intent. Because the record is inadequate to assess the
attorney’s performance on this question, we preserve this ineffective-assistance-
of-counsel claim for possible postconviction proceedings. See State v. Reynolds,
670 N.W.2d 405, 411 (Iowa 2003) (“Generally, ineffective-assistance claims are
preserved for postconviction-relief proceedings to afford the defendant an
evidentiary hearing and thereby permit the development of a more complete
record.”).
Relevance. Ritenour argues Cavan’s prior drug use and the resulting
“crash” was relevant to show he was less likely to accurately observe or recall
what happened in the apartment during the hours leading up to Tina finding Ava
unresponsive. Evidence meets the relatively low bar of relevance if it has “any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” See Iowa R. Evid. 5.401. The district court did not find
Cavan’s withdrawal from methamphetamine made it more probable that his
11
perceptions or memory would have been impaired. On the record made at trial,
we cannot find the district court’s decision constituted an abuse of discretion.
The defense presented only Cavan’s testimony during its offer of proof.
Cavan denied that coming down from a methamphetamine high impacted his
perception or memory at the time of the murder. The defense did not explore
with Cavan how much or how often he used methamphetamine, or how
withdrawal normally had affected him. The record did not show whether Cavan
was a chronic abuser or a one-time user. As the State points out, the defense
did not offer expert testimony on the physiological effects of taking or withdrawing
from methamphetamine.
Ritenour argues lay people have some understanding of the impact of
drug use, citing People v. Williams, 751 P.2d 395, 415-16 (Cal. 1988) (noting
“drug intoxication or withdrawal” are “subjects with which the average man has
some knowledge” and “unfortunately may be sufficiently common today that lay
persons are capable of recognizing them”). The State counters that most jurors
lack knowledge or experience with the effects of methamphetamine or appreciate
how long such drugs would influence a person’s physiology.
We agree that absent expert testimony, or even additional lay testimony
concerning the extent of Cavan’s methamphetamine use, the defense did not
show the relevance of his withdrawal from the drug. This case is not like State v.
Petithory, 702 N.W.2d 854, 859 (Iowa 2005), where the court heard expert
testimony concerning the “staggering” after-effects of methamphetamine use on
addicts placed in positions of caring for children. Here, the jurors would have
12
had to fend for themselves in deciding how methamphetamine withdrawal would
impact the witness’s ability to perceive or remember events.
Given the minimal information provided in the offer of proof, we conclude
the district court did not abuse its discretion in determining Cavan’s prior drug
use and subsequent withdrawal were not relevant areas of inquiry. See State v.
Baccam, 476 N.W.2d 884, 888 (Iowa Ct. App. 1991) (finding no abuse of
discretion in court’s ruling limiting evidence of witness’s drug use to the time of
the incident).
B. Ineffective Assistance of Counsel
Ritenour claims her trial counsel was ineffective for failing to challenge
testimony by police officers and the medical examiner that could be construed as
opinions on her credibility and the credibility of other witnesses. She also
contends her attorney should have objected during closing arguments when the
prosecutor made statements suggesting she told lies to avoid responsibility in her
child’s death.
To succeed on her claims of ineffective assistance of counsel, Ritenour
must prove trial counsel’s performance fell below what is expected of a
reasonably competent defense attorney and those performance deficiencies
resulted in prejudice to her case. See Strickland v. Washington, 466 U.S. 668,
687 (1984). The attorney’s performance is measured against “prevailing
professional norms,” and it is presumed the attorney performed competently.
Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).
Expert Testimony on Credibility. Ritenour complains that prosecution
witnesses were allowed to testify, without objection, that her demeanor and her
13
varied versions of events raised “red flags” about her credibility, while the
behavior of Rauch and Cavan did not arouse any suspicions. She highlights
case law prohibiting expert witnesses from rendering an opinion “either directly or
indirectly” on the truthfulness of a witness. See State v. Dudley, 856 N.W.2d
668, 675-76 (Iowa 2014); State v. Brotherton, 384 N.W.2d 375, 378 (Iowa 1986).
Ritenour contends that prohibition was breached by objectionable
statements from three law-enforcement witnesses and the medical examiner.
Ritenour first points to testimony from Lieutenant VanRenterghem that
when he saw her still crouched over the child in the bedroom, “as a police officer,
as a father, I just thought her demeanor was very strange.” He recalled: “At
times she was not upset at all and would turn around and become a little
emotionally upset and turned right around again and checking a text or sending a
text. I thought that very odd for somebody that just learned their child had
passed away.” In contrast, Lieutenant VanRenterghem did not find the reactions
of Rauch and Cavan to be out of the ordinary. The officer recalled Rauch was
“frantic” and Cavan was sitting “kind of like a lump, just had no demeanor to him.”
Ritenour next focuses on Lieutenant Troy Boston, who testified the
behavior of Rauch and Cavan did not raise any “red flags” for him, but Ritenour’s
behavior did. Boston stated, “[I]n my experience dealing with people who have
had a death in their family, especially a small child, they do everything they can
to help you. They don’t come in and tell different stories.”
In addition, Ritenour expresses concern about testimony from Iowa
Division of Criminal Investigation special agent Don Schnitker. In discussing why
he became more verbally aggressive with Ritenour during an interview, the agent
14
testified: “If I don’t believe your story, I start asking you why the story changes,
and that sometimes gets confrontational.” Ritenour also faults her attorney for
not objecting when Boston and Schnitker provided commentary on the “degree”
of the inconsistency between her various statements to law enforcement.
Ritenour also raises an issue regarding a comment by Dr. Catellier, who
testified, in general, she considers inconsistent stories to be a “red flag” in
determining if an injury to a child is nonaccidental.
Ritenour argues all four witnesses, either directly or indirectly, opined on
her credibility and the ultimate issue of her guilt. She contends while each of the
highlighted statements standing alone may not be problematic, taken as a whole,
the unobjected-to opinions posed “a substantial risk the jurors would have relied
upon and deferred to the above witnesses’ express or implied assessments of
credibility and determinations of guilt/innocence.”
The State responds that counsel had no cause to object because the
witnesses were not commenting on Ritenour’s credibility but rather describing
their observations of her behavior. The State further contends Ritenour cannot
show prejudice because the challenged testimony was cumulative to the
evidence Ritenour changed her story over the course of the investigation.
Because Ritenour raises these claims on direct appeal, we must decide if
the record is adequate to resolve them now or if it would be more prudent to
preserve her claims for a postconviction-relief action. Our preference is to
reserve such questions for further proceedings so trial counsel can defend
against the allegations. State v. McNeal, 867 N.W.2d 91, 105-06 (Iowa 2015).
We find reservation of the questions “especially appropriate” when the
15
challenged performance involves a trial strategy that counsel could explain if the
record were fully developed. See State v. Clay, 824 N.W.2d 488, 494 (Iowa
2012). “It is a rare case in which the trial record alone is sufficient to resolve a
claim on direct appeal.” McNeal, 867 N.W.2d at 106.
In deciding whether preservation is proper in this case, we consider the
impact of several decisions issued by our supreme court after Ritenour’s trial.
The jury returned its guilty verdict on November 19, 2014. On December 5,
2014, the supreme court decided three cases addressing expert testimony in
cases dealing with allegations of child sexual abuse. See State v. Brown, 856
N.W.2d 685, 689 (Iowa 2014) (applying credibility principles); Dudley, 856
N.W.2d at 672 (applying credibility principles); State v. Jaquez, 856 N.W.2d 663,
665 (Iowa 2014) (applying credibility principles). The court reiterated Iowa’s
prohibition against experts commenting on witness credibility. Brown, 856
N.W.2d at 689 (stating Dudley reaffirmed the court’s commitment); see also
Brotherton, 384 N.W.2d at 378 (stating experts are not allowed to opine on the
credibility or truthfulness of a witness). The Dudley court explained:
[W]e 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.
856 N.W.2d at 676-77 (citations omitted).
A few months later, the court decided State v. Tyler, 867 N.W.2d 136,
166-67 (Iowa 2015), and concluded a medical examiner improperly testified that
16
in determining cause of death, he found some of the defendant’s statements
more credible than others.4
These four cases do not purport to establish new prohibitions on expert
testimony. Instead, they reaffirm the court’s commitment to the principle that an
expert witness cannot give testimony that directly or indirectly comments on the
credibility of a witness or victim. See Tyler, 867 N.W.2d at 154; Dudley, 856
N.W.2d at 676-77. But the new cases do establish some contours of when
expert opinions legitimately assist the jury and when they cross the line. Given
the more thoroughly developed case law in this area, we are inclined to preserve
Ritenour’s allegations of ineffective assistance of counsel so that her challenges
may have a full airing in a postconviction proceeding.
In situations where the merit of a particular issue is not clear from Iowa
law, we ask whether a competent attorney would have concluded the question
was “worth raising.” See State v. Graves, 668 N.W.2d 860, 881 (Iowa 2003).
Our supreme court’s decisions in Dudley, Brown, Jaquez, and Tyler lend support
to Ritenour’s position that objections to the expert testimony highlighted on
appeal would have been “worth raising” by her trial attorney. As Ritenour notes
on appeal, the prosecution did not have physical evidence linking her to the
murder and did not offer the jury a clear theory pinpointing the time of death.
Instead, the State focused on Ritenour’s lack of credibility. Given that focus by
4
Unlike Tyler, the instant case does not present uncertainty as to the child’s cause of
death. But Dr. Catellier did testify that when a witness provides a changing history of
what happened before a child’s death, she would view that as a “red flag” in determining
that the death was nonaccidental.
17
the State, it was imperative for defense counsel to take the necessary steps to
prevent the jury from hearing impermissible opinions regarding her credibility.
But we also entertain the possibility that counsel’s failure to object could
have been strategic. See Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989).
Counsel might have believed the statements about credibility were better
addressed through cross-examination and through Ritenour’s own testimony.
See State v. Williams, 334 N.W.2d 742, 745 (Iowa 1983) (finding failure to object
may have been motivated by desire not to emphasize testimony).
For these reasons, we opt to preserve this ineffective-assistance-of-
counsel claim so an adequate record may be developed in postconviction
proceedings, and we decline to reach the merits of her claim the highlighted
testimony was impermissible. See State v. Coil, 264 N.W.2d 293, 296 (Iowa
1978) (“Even a lawyer is entitled to his day in court, especially when his
professional reputation is impugned.”).
Prosecutor’s Closing Argument. Ritenour next contends her attorney
should have objected to comments about her credibility in the State’s closing
arguments. She points to this passage:
Ladies and gentlemen, what is the easiest lie to tell? I didn’t do it
. . . . I didn’t do anything. That is the easiest lie to tell, and the first
thing that this person has gone back to over and over. Not me. I
didn’t do it. I can’t tell you what happened. I don’t know.
The prosecutor followed up by telling the jury:
When you go back to judge that defendant’s statements, you judge
it the same way you do anybody else’s. Who has the motive to lie?
Who has been proven to have been caught in lies? Why does
someone do that? Dr. Catellier told you, you know what, what is
the red flag in a nonaccidental “I hurt my own child”? You tell a
different story over and over and over.
18
Also in closing argument, the prosecutor discussed her cross-examination of
Ritenour as follows:
I wasn’t throwing out questions that anyone couldn’t understand. I
was asking her about her interaction with her child the night before
and the day her child was found dead. And then I heard, well, but,
you know, she’s just not very sophisticated. Ladies and gentlemen,
you do not have to be sophisticated and you don’t have to be good
at telling lies to tell them.
Ritenour claims the prosecutor’s references to lying constituted error5
under the standard set out Graves, where the court held it was improper for the
prosecutor to call the defendant a liar, say the defendant was lying, or make
“similar disparaging comments.” 668 N.W.2d at 876. But Graves does not
foreclose a prosecutor from crafting an argument that includes reasonable
inferences based on the evidence “when a case turns on which of two conflicting
stories is true” and from arguing that “certain testimony is not believable.” Id.(quoting State v. Davis, 61 P.3d 701, 710-11 (Kan. 2003)).
In deciding whether a Graves violation results in prejudice, courts must
consider “(1) the severity and pervasiveness of the misconduct; (2) the
significance of the misconduct to the central issues in the case; (3) the strength
of the State’s evidence; (4) the use of cautionary instructions or other curative
measures; and (5) the extent to which the defense invited the misconduct.” Id. at
877.
Ritenour argues the prosecutor’s characterization of her statements as
“lies” was “not isolated but repeated several times throughout the course of the
5
Our supreme court recently explained its choice to use the term “error” rather than
“misconduct” so as “to avoid automatically implying that the prosecutor violated our
ethical rules.” State v. Martin, ___ N.W.2d ___, ___ n.2, 2016 WL 1533515, at *5 (Iowa
2016).
19
closing argument.” She also points out the State made her changing stories the
central issue in the case. The State responds the evidence of Ritenour’s “many
diverging statements supported an inference that she lied.” The State asserts
the trial prosecutor did not convey a personal opinion about Ritenour’s credibility
and did not use inflammatory or disparaging language. See State v. Carey, 709
N.W.2d 547, 558 (Iowa 2006) (“It is not so much the fact that the prosecutor
suggests the defendant is untruthful that creates misconduct . . . . [I]t is the use
of the word ‘liar’ itself.”). The State argues trial counsel had no duty to object
because the prosecutor’s closing argument was a permissible assessment of the
evidence. And even assuming the prosecutor crossed the line, the State argues
Ritenour cannot show a reasonable probability of a different outcome had trial
counsel objected.
For many of the same reasons noted in our analysis of Ritenour’s expert-
testimony-on-credibility issue, we opt to preserve this claim of ineffective
assistance for postconviction proceedings. The prosecution of Ritenour turned
on her lack of credibility, and as such, we cannot discount the impact of trial
counsel’s failure to object to the State’s repeated references to Ritenour telling
“lies.” But we do not rule out the possibility that counsel had legitimate reasons
for not objecting during closing argument. See Ondayog, 722 N.W.2d at 787.
Accordingly, development of the record is essential to resolving Ritenour’s
ineffective-assistance-of-counsel claims.
Cumulative Effect of Trial Counsel’s Errors. Finally, Ritenour contends
the cumulative effect of trial counsel’s errors warrant a new trial. See Clay, 824
N.W.2d at 500. The State disagrees, arguing the evidence of her guilt “was more
20
convincing than her attempt to blame the murder on another suspect.” When a
defendant alleges multiple claims of ineffective assistance of counsel, the
cumulative prejudice from the individual claims should be assessed under the
prejudice prong of Strickland. See id. at 501. Thus, the postconviction court is
required to look at the prejudice resulting from the entirety of any failures in duty
by counsel. Id. In this case we have preserved Ritenour’s three claims counsel
was ineffective for a more fully developed record. Any cumulative-prejudice
analysis must likewise await postconviction proceedings.
AFFIRMED.
Vaitheswaran and Potterfield, JJ., concur; McDonald, J., concurs
specially; Danilson, C.J., dissents.
21
MCDONALD, Judge. (concurring specially)
I concur in the judgment; Ritenour’s conviction should be affirmed. I write
separately because the record is adequate to resolve Ritenour’s ineffective
assistance of counsel claim regarding the officers’ testimony and the medical
examiner’s testimony.
I.
The Sixth Amendment to the United States Constitution provides “In all
criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defense.” U.S. Const. amend. VI. The Supreme
Court has made the Sixth Amendment applicable to the states via incorporation
through the Fourteenth Amendment. To prevail on her claim, Ritenour must
show (1) that her “trial counsel failed to perform an essential duty, and (2) this
failure resulted in prejudice.” State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).
Failure to prove either element is fatal to the claim. See State v. Graves, 668
N.W.2d 860, 869 (Iowa 2003).
II.
I first address the question of duty. To determine whether counsel failed
to perform an essential duty, we first decide if the representation dropped below
an objective standard of reasonableness under prevailing professional norms.
See Hinton v. Alabama, 134 S. Ct. 1081, 1088 (2014). The defendant must
overcome a strong presumption of counsel’s competence. See Strickland v.
Washington, 466 U.S. 668, 689 (1984). “In evaluating the objective
reasonableness of trial counsel’s conduct, we examine ‘whether, in light of all the
circumstances, the identified acts or omissions were outside the wide range of
22
professionally competent assistance.’” State v. Madsen, 813 N.W.2d 714, 724
(Iowa 2012). “Miscalculated trial strategies and mere mistakes in judgment
normally do not rise to the level of ineffective assistance of counsel.” See Lado
v. State, 804 N.W.2d 248, 251 (Iowa 2011).
A.
Ritenour contends her counsel had a duty to object to certain testimony
from law enforcement officers. She contends the officers improperly testified
regarding her demeanor. For example, Lieutenant VanRenterghem testified he
“just thought [Alicia's] demeanor [at the scene] was very strange” and “very odd
for some body that just learned their child had passed away.” Lieutenant Boston
testified Rauch’s and Cavan’s demeanor did not “raise any red flags.” Ritenour
also contends her counsel had a duty to object to testimony regarding the
inconsistent statements she gave to the police during the course of their
investigation. Officer Schnitker testified that during his January 31 interview with
Ritenour he became confrontational with her, which he explained is something he
does “[i]f I don’t believe your story.” Officer Boston testified in “my experience
dealing with people who have had a death in their family, especially a small child,
they do everything they can to help you. They don’t come in and tell different
stories.” The officers also provided some testimony assessing the consistency of
Ritenour’s different statements. Officer Boston testified that Ritenour’s January
24 and January 25 statements were not “even close” to the same story. Officer
Schnitker testified the January 24 and January 25 statements contained
“[d]ramatic changes.” Officer Boston testified that Ritenour “change[d] her story
again” on January 31, though those changes were more minor “like she was
23
tweaking things a little bit.” Finally, Officer Schnitker testified there were “some
pretty good changes” in Ritenour's subsequent October story.
Ritenour relies on State v. Myers, 382 N.W.2d 91 (Iowa 1986), and its
progeny in support of her argument that the above-mentioned testimony was
inadmissible. In Myers, the defendant was charged with having indecent contact
with an eight-year-old female victim. See 382 N.W.2d at 92. The prosecution
called two expert witnesses to testify that child sex abuse victims generally tell
the truth. See id. The question presented was whether the testimony was
admissible pursuant to Rule 702, now Rule 5.702. See id. at 93; see also Iowa
R. Evid. 5.702. The court concluded “that expert opinions as to the truthfulness
of a witness are not admissible pursuant to rule 702.” Myers, 382 N.W.2d at 97.
The court reasoned the “expert testimony” crossed the line between an “opinion
which would be truly helpful to the jury and that which merely conveys a
conclusion concerning defendant’s legal guilt.” Id. at 97-98.
Ritenour’s reliance on Myers is misplaced. Myers is limited to the very
narrow issue regarding the use of expert witnesses pursuant to Rule 5.702 to
bolster the testimony of witnesses. See State v. Barrett, 445 N.W.2d 749, 752
(Iowa 1989) (allowing lay opinion testimony and distinguishing Myers on the
ground it “involved expert opinion testimony on the credibility of a complaining
witness who was a child and allegedly the victim of sexual abuse”). Subsequent
decisions confirm Myers relates solely to expert opinion evidence offered
pursuant to Rule 5.702 used to bolster credibility. See State v. Dudley, 856
N.W.2d 668, 676 (Iowa 2014) (“[W]e continue to hold expert testimony is not
admissible merely to bolster credibility.”); State v. Brown, 856 N.W.2d 685, 689
24
(Iowa 2014) (“We again reaffirm that we are committed to the legal principle that
an expert witness cannot give testimony that directly or indirectly comments on
the child’s credibility.”); State v. Jaquez, 856 N.W.2d 663, 666 (Iowa 2014)
(“However, when an expert witness testifies a child’s demeanor or symptoms are
consistent with child abuse, the expert crosses that very thin line and indirectly
vouches for the victim’s credibility, thereby commenting on the defendant’s guilt
or innocence.”). The prohibition set forth in Myers regarding expert witness
testimony to bolster credibility arises out of the inherent limitation of using
general theory or data to opine on a witness’s credibility in the individual case.
See Dudley, 856 N.W.2d at 676-77 (“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.”); State v.
Pitsenbarger, No. 14-0060, 2015 WL 1815989, at *8 (Iowa Ct. App. Apr. 22,
2015) (“We recognize the State’s desire to present expert testimony to support
their prosecution. However, our system of justice does not rely upon the
statistical probabilities of certain conduct absent scientifically proven principles
but rather relies upon the jury to determine the credibility of witnesses to reach its
verdict.”); State v. Pansegrau, 524 N.W.2d 207, 211 (Iowa Ct. App. 1994) (“There
is a temptation to seek the help of persons who hold themselves out as experts
in sexual abuse diagnosis and use their opinions in whole or in part to allegedly
assist the fact finder in arriving at the truth. However, before any expert’s
evidence is used to assist a fact finder in arriving at the truth, it should be shown
the expert’s opinion provides reliable data. There was no evidence Leytham’s
25
opinion had been generally accepted in the relevant scientific community as a
means of detecting sexual abuse. The fact the alleged victim acted normally is
not evidence she was sexually abused.”).
The challenged testimony here is of a wholly different character. Here, the
officers testified as fact witnesses based on their personal observations made
during the course of their investigation and as fact witnesses offering lay opinion
based upon personal knowledge. See Iowa R. Evid. 5.602 (“A witness may not
testify to a matter unless evidence is introduced sufficient to support a finding
that the witness has personal knowledge of the matter.”); Iowa R. Evid. 5.701 (“If
the witness is not testifying as an expert, the witness’s testimony in the form of
opinions or inferences is limited to those opinions or inferences which are (a)
rationally based on the perception of the witness and (b) helpful to a clear
understanding of the witness’s testimony or the determination of a fact in issue.”).
Myers and the line of cases on which the defendant relies are thus inapplicable
here.
An officer’s testimony regarding observed demeanor as a historical fact
and lay opinion regarding the observed demeanor is relevant and admissible in
Iowa. See State v. Garcia-Miranda, No. 05-1870, 2007 WL 1345848, at *7 (Iowa
Ct. App. May 9, 2007) (“Unlike the expert witnesses in Myers, who testified that
the children do not lie about incidents of sexual abuse, Officer Schwarz was not
giving an expert opinion whether he believed Garcia–Miranda was telling the
truth or lying. He simply described what he observed.”); State v. Hythecker, No.
01-1048, 2002 WL 987966, at *3 (Iowa Ct. App. May 15, 2002) (“A defendant’s
demeanor and activities immediately following an alleged offense provide a
26
legitimate basis for inferring consciousness of guilt.”); State v. Glaus, 455 N.W.2d
274, 276-77 (Iowa Ct. App. 1990) (allowing lay opinion regarding observed
demeanor). Other courts reach the same conclusion. See United States v.
Fourstar, No. 03-30121, 2004 WL 193245, at *2 (9th Cir. Jan. 30, 2004) (allowing
testimony that complainant was acting immature for her age under Federal Rule
of Evidence 701); Greene v. State, 673 S.E.2d 292, 299 (Ga. Ct. App. 2009) (“It
is not improper bolstering, however, for a witness to testify as to their objective
observations of the victim’s behavior.”); Satterfield v. State, 33 N.E.3d 344, 352-
54 (Ind. 2015) (stating officer could give lay opinion regarding demeanor and
credibility, which was helpful to the jury because the testimony gave “substance
to facts, which were difficult to articulate”); People v. Hanna, No. 320268, 2015
WL 7366198, at *5 (Mich. Ct. App. Nov. 19, 2015) (“However, an individual’s
comments regarding a witness’s ‘responses and demeanor’ do not constitute ‘an
expression of personal belief in the witness’s credibility.’”); State v. Daley, No.
13-13-26, 2014 WL 2156621, at *13 (Ohio Ct. App. May 19, 2014) (holding it was
not improper for detective to testify witness “did not display or demonstrate
behaviors indicating that she was being deceptive” because it was within the
scope of permissible lay opinion based on personal observation); State v. Davis,
545 N.W.2d 244, 247 (Wis. Ct. App. 1996) (“We conclude that the officer’s
statement that Thomas and Craft gave very good statements and were ‘excellent
witnesses’ was not a comment on their credibility, but rather related to their
demeanors. The officer’s comments merely summarized his opinion of the
witnesses and did not unfairly taint the fact-finding process. The credibility of a
witness is something a lay juror can knowledgeably determine.”).
27
Similarly, an officer can testify a person gave a statement or statements
as a matter of historical fact and provide lay opinion on whether the statements
were consistent or inconsistent or credible or not credible. See State v. Blair,
347 N.W.2d 416, 422 (Iowa 1984) (finding a defendant’s inconsistent statements
are probative circumstantial evidence from which a jury may infer guilt); State v.
Castile, No. 14-0069, 2015 WL 360142, at *4 (Iowa Ct. App. Jan. 28, 2015)
(distinguishing Myers where an officer explained he arrested the defendant after
conducting interviews and concluding the “testimonies” of certain witnesses
implicating defendant were consistent with the physical evidence and explaining
the officer “was not testifying as an expert”); State v. Smith, No. 07-1406, 2008
WL 3916768, at *3 (Iowa Ct. App. Aug. 27, 2008) (“A defendant’s inconsistent
statements are probative circumstantial evidence from which the jury may infer
guilt.); Hythecker, 2002 WL 987966, at *3 (stating “conflicting statements were
additional evidence from which the jurors could infer guilt”). Such testimony does
not invade the province of the jury because it is not an opinion regarding a
witness’s trial testimony or credibility, generally. Instead, it is a statement of
historical fact regarding the officer’s conclusions drawn during the course of the
investigation and helpful to the jury in understanding the police’s investigation.
See United States v. Churchwell, 807 F.3d 107, 119 (5th Cir. 2015) (allowing
testimony regarding interviewee); Weeks v. Angelone, 4 F. Supp. 2d 497, 533
(E.D. Va. 1998) (allowing testimony because it was “clear from the transcript, and
would have been clear to the jury, that Rowland was merely stating what was in
his mind at the time”); State v. Gonzalez, No. 1CA-CR11-0494, 2012 WL
3129136, at *1 (Ariz. Ct. App. Aug. 2, 2012) (“However, a police officer may,
28
under certain circumstances, testify as to why he does not believe a defendant’s
story.”); Robinson v. United States, 797 A.2d 698, 707 (D.C. 2002) (allowing
officer testimony that witness’s statements were not consistent as statement of
historical fact and not opinion on credibility because the statements explained the
officer’s investigation); Gonzales v. State, 95 So. 3d 1002, 1004 (Fla. Dist. Ct.
App. 2012) (“Here, however, the police witness did not offer his opinion on the
credibility of a witness. Officer Arocha merely testified that the two statements
Montano and Riera gave were consistent. Specifically, Officer Arocha was asked
to evaluate whether the witnesses’ statements that he had personally perceived
were similar. He did not opine on whether the witnesses or their statements
were reliable. This kind of testimony by a police officer fails to constitute
improper bolstering.”); Gordon v. State, 541 S.E.2d 376, 382 (Ga. 2001) (“Agent
Hughes did not comment on the credibility of either suspect; he merely explained
that there were some variations in their statements. . . . Thus, the State did not
elicit inadmissible opinion evidence.”); State v. Burtis, No. 2008 KA 0373, 2008
WL 4332529, at *3 (La. Ct. App. Sept. 23, 2008) (“We find that Detective
Eppinette’s lay opinion testimony was based on her experience, observations,
and interviews conducted and that it was helpful to the determination of a fact in
issue. . . . Detective Eppinette was entitled to give her opinion as a lay witness
as to her perception of the veracity of the victims’ statements.”); People v.
Wilson, Nos. 300274, 300728, 2013 WL 2360239, at *5 (Mich. Ct. App. May 30,
2013) (“MRE 701 permits police officers to testify about their opinions and
inferences based on their observations and rational perceptions as police officers
where the opinions are not dependent upon scientific, technical, or specialized
29
knowledge.”); Hall v. State, 16 S.W.3d 582, 586 (Mo. 2000) (allowing officer
testimony that he did not believe interviewee’s statements on the ground that it
was not an opinion regarding a witness’s credibility because it was an opinion
regarding an out-of-court statement); State v. Harper, No. COA15-784, 2016 WL
609052, at *4 (N.C. Ct. App. Feb. 16, 2016) (“Our Supreme Court has
determined that when one witness vouches for the veracity of another witness,
such testimony is an opinion which is not helpful to the jury’s determination of a
fact in issue and is therefore excluded by Rule 701. However, our courts have
also allowed a law enforcement officer to testify about her impressions of an
interview subject for the purpose of explaining the subsequent course of the
officer’s investigation.”); State v. Biggs, No. COA14-1349, 2015 WL 7729217, at
*7 (N.C. Ct. App. Dec. 1, 2015) (holding officer can provide lay opinion regarding
credibility assessments made during course of investigation); State v. Houser,
768 S.E.2d 626, 632 (N.C. Ct. App. 2015) (allowing officer’s testimony that
defendant’s version of events was “inconsistent with” physical evidence because
“these statements were rationally based on Lt. Helms’s experience as a detective
and were helpful to the jury in understanding the investigative process in this
case”); Robertson v. State, No. 03-13-00381-CR, 2015 WL 4512481, at *4 (Tex.
Ct. App. July 23, 2015) (“Officer Castillo’s testimony, as phrased, is more
properly characterized as an opinion about criminal investigations based on his
experience and knowledge as an investigator rather than a direct opinion about
the credibility of criminal defendants as a class; such lay opinions are generally
admissible.”); Vanvorst v. State, 1 P.3d 1223, 1234-35 (Wyo. 2000) (holding it
30
was not error where the officer did not express an opinion as to guilt but
explained he did not believed the defendant’s statement).
The Colorado Supreme Court provided a compelling explanation for the
rule allowing such testimony:
We hold that a detective may testify about his or her assessments
of interviewee credibility when that testimony is offered to provide
context for the detective’s interrogation tactics and investigative
decisions. The admissibility of any testimony hinges on the
particular circumstances under which it is elicited and offered.
....
In this case, the prosecutor elicited the challenged testimony
with open-ended questions concerning the detectives’ investigative
interviews. The prosecutor did not use inflammatory or prejudicial
words, such as “lie.” His open-ended questions did not aim to elicit
comments on the veracity of other witnesses’ testimony but instead
aimed to draw out the circumstances that surrounded the
detectives’ investigative tactics and decisions. The detectives’
answers referred not to the credibility of the witnesses’ in-court
testimony, which determination undoubtedly falls within the jury’s
purview, but rather to the detectives’ assessments of the
interviewees’ credibility during the interviews conducted prior to
trial.
Additionally, the detectives’ testimony served an alternative
purpose and yielded probative information. The detectives offered
this testimony to explain their investigative decisions. It provided
context for the jury to better understand the detectives’ witness
interviews and the scope of their investigation.
Davis v. People, 310 P.3d 58, 63 (Colo. 2013).
The United States Court of Appeals for the Third Circuit has also provided
a compelling explanation for the rule:
To be admissible under Rule 701, lay opinions must be (a)
rationally based on the witness’s perception; (b) helpful to clearly
understanding the witness’s testimony or to determining a fact in
issue; and (c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702. We afford broad
discretion to the admission of lay testimony provided that it is well
founded on personal knowledge and susceptible to specific cross-
examination.
31
The District Court did not err in admitting this testimony. The
WPD officers’ testimony was rationally based on their personal
perception of Dempsey’s demeanor and the answers he gave
during the interrogation, and involved no scientific, technical, or
specialized knowledge. They explained the bases for their
impressions about Dempsey’s truthfulness, which was particularly
helpful in this case because the jury did not view the videotape of
the interrogation and thus could not see his body language or facial
expressions or hear his tone of voice when he spoke to the WPD.
Furthermore, the WPD witnesses did not testify about
Dempsey’s overall veracity or propensity for truthfulness. Rather,
their testimony was based only on his post-arrest interview during
which he made inconsistent statements and spoke in circles.
Moreover, Dempsey’s counsel had the opportunity to fully cross-
examine each of the WPD witnesses who interrogated him. . . .
Under these circumstances, the District Court did not abuse its
discretion in admitting the officers’ testimony.
United States v. Dempsey, 629 F. App’x 223, 227-28 (3d Cir. 2015) (citations and
internal marks omitted).
Because the officers’ testimony was relevant and admissible, counsel had
no duty to object. Ritenour’s claim thus fails. See State v. Lopez, 872 N.W.2d
159, 169 (Iowa 2015).
B.
Ritenour also contends her counsel was ineffective in failing to object to
the medical examiner’s testimony regarding cause of death. Specifically, the
medical examiner testified that, in determining cause of death for a child, one of
the facts that may distinguish an accident from an inflicted injury is whether the
story of those providing information changes over time.
There is nothing objectionable to the testimony, generally. See Smith,
2008 WL 3916768, at *4 (“In addition to all of the discrepancies in Smith’s
explanations of how the injuries occurred, many of the medical experts who
treated Gabriel testified they believed Smith’s explanations to be inconsistent
32
with the nature and extent of the injuries, which included four fractures and a
dislocation to three separate bones in one arm. Dr. Suriar testified at trial that it
‘was not easy to really connect the story with the injury. The degree and the
severity of the injury, it raised our suspicion.’”). The doctor’s testimony in this
case did not cross the line between the permissible and impermissible and
specifically identify Ritenour as the person inflicting an intentional injury on the
child or otherwise provide an opinion on Ritenour’s guilt or innocence. The
supreme court’s most recent decision in this area does not disallow the
testimony. See State v. Tyler, 867 N.W.2d 136, 162 (Iowa 2015) (“Having
surveyed the authority on the issue, we conclude there are circumstances when
a medical examiner's opinions on cause or manner of death may assist the jury,
even when such opinions are based in part on witness statements or information
obtained through police investigation.”).
Because the medical examiner’s testimony was relevant and admissible,
counsel had no duty to object. Ritenour’s claim thus fails. See Lopez, 872
N.W.2d at 169.
III.
I next address the question of prejudice. The ultimate inquiry is whether
trial counsel’s allegedly deficient performance caused a complete “breakdown in
the adversary process” such that the conviction is unreliable. See Strickland,
466 U.S. at 687. This requires the defendant to establish “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Lamasters v. State, 821 N.W.2d 856,
866 (Iowa 2012) (quoting Strickland, 466 U.S. at 694).
33
Even if counsel had a duty to object, I would hold that Ritenour has failed
to establish Strickland prejudice. First, within the context of the entire trial, the
challenged statements were “relatively isolated.” See Kindschuh v. State, No.
04-0990, 2005 WL 724465, at *4 (Iowa Ct. App. Mar. 31, 2005). Second, the
statements regarding the inconsistency in Ritenour’s statements were cumulative
to other admissible evidence—Ritenour’s three statements regarding the incident
were, in fact, very different from each other. See State v. Rice, 543 N.W.2d 884,
887 (Iowa 1996); State v. Brotherton, 384 N.W.2d 375, 379 (Iowa 1986); State v.
Gilmore, 259 N.W.2d 846, 858 (Iowa 1977); State v. Thomas, No. 98-2268, 2000
WL 373788, at *3 (Iowa Ct. App. Apr. 12, 2000) (“Prejudice is not established by
the admission of objectionable evidence where substantially similar evidence has
been admitted without objection.”). Third, and related, the officer’s testimony
regarding the consistency of the statements and demeanor did not provide “any
information other than common sense or information known to jurors from their
common experiences.” See Willock v. State, No. 13-0997, 2014 WL 7343215, at
*12 (Iowa Ct. App. Dec. 24, 2015) (holding there was no prejudice where officer
may have vouched for credibility of the complainant). The jury was well-
positioned to make an independent determination of whether the statements
were consistent and whether Ritenour, Rauch, or Cavan demonstrated odd or
concerning demeanor. Unlike Myers, there was not an imprimatur of scientific
authority bolstering the testimony and placing it outside the understanding of the
lay jury. Fourth, the testimony was not prejudicial because defense counsel had
the opportunity to effectively cross-examine the witnesses regarding these
statements. See State v. Brown, No. 2014-L-037, 2016 WL 1290940, at *9 (Ohio
34
Ct. App. Mar. 31, 2016) (holding no plain error where officer who provided
opinion testimony on defendant’s truthfulness was cross examined and
neutralized). Finally, Ritenour testified at trial, and the jury was able to assess
her credibility first-hand. See, e.g., Kindschuh, WL 724465, at *3 (holding there
was no prejudice where expert did impermissibly render an opinion on the
credibility of the child victims in the case because it was “significant that both
children testified at trial,” which “allowed jurors the opportunity to assess, based
on their first-hand observations, the credibility of the children”); See also Harper,
2016 WL 609052, at *5 (holding it was not plain error where officer provided lay
opinion regarding credibility where the jury was able to view the witness live).
Seeing the witness first-hand “had the effect of blunting or minimizing the
significance” of the allegedly improper testimony. See Kindschuh, 2005 WL
724465, at *3.
IV.
I see no reason to preserve the defendant’s claims regarding the
challenged testimony for postconviction-relief proceedings. Iowa law holds that
the officer’s challenged testimony was admissible. Iowa law holds the doctor’s
testimony was admissible. Counsel had no duty to make a meritless objection.
See Lopez, 872 N.W.2d at 169. In addition, there was no constitutional prejudice
suffered in this case. I would resolve the defendant’s claims on direct appeal and
affirm the defendant’s conviction.
35
DANILSON, Chief Judge. (dissenting)
I respectfully dissent. I believe the district court erred in excluding
evidence of Logan Cavan’s methamphetamine use a few days before the child’s
death and subsequent “crash” and withdrawal symptoms from the time of his use
to the child’s death. There was no need for expert testimony as Cavan admitted
to sufficient facts to aid the jury in his deposition testimony. Such evidence was
critical to Ritenour’s defense. The purpose of such evidence was not to show
Cavan’s propensity for wrongful acts but to prove motive and explain the cause
for Cavan’s abnormal hostility towards the child. The evidence would permit
Ritenour to show Cavan’s continuous conduct leading to the child’s death as she
claims. If the circumstances were different and Cavan faced prosecution for the
child’s death, the State would certainly be seeking admission of the same
evidence and would likely claim it was inextricably intertwined with the act
causing the child’s death. Yet here, the State complains when the defense
wishes to convey the whole story. Such evidence is not prohibited by Iowa Rule
of Evidence 5.404(b) and is more probative than prejudicial and thus admissible
under rule 5.403. I would reverse for a new trial and find it unnecessary to
address the issue of ineffective assistance of counsel.