State of Iowa v. Chad Michael Gillson

IN THE COURT OF APPEALS OF IOWA
No. 15-2045
Filed May 17, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
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. REVERSED AND REMANDED.
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.
2
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
1
Because we find Gillson did not properly object to the testimony he now complains of,
we consider his claims under his alternate theory of ineffective assistance. Additionally,
Gillson raises a number of other claims that we do not consider because we find his first
issue is dispositive.
3
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 witnesses3 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:
2
We resolve claims of ineffective assistance on direct appeal only when the record is
adequate to do so. See State v. Clay, 824 N.W.2d 488, 500 (Iowa 2012). Here, the
record is adequate for our review, so we proceed to the merits.
3
Gillson characterizes each of the three witnesses—the officer, forensic interviewer, and
the complaining witness’s psychologist—as experts. The State does not dispute the
characterization, and both have relied on Iowa Supreme Court cases involving the
vouching testimony of experts in sexual abuse cases.
4
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 investigate that? A. Yes.
Q. And in your investigation did you make the determination
that Chad Michael Gillson committed a sex act upon [Z.G.]? A.
Yes.
Q. And what was that sex act? A. Vaginal intercourse.
Q. And that would have occurred where? A. At his
residence in his bedroom in his bed.
Q. And that would have occurred when? A. I believe the
weekend of April 5th of 2014.
Q. So it would be April 5th and April 6th of 2014? A. Yes.
The officer did not offer any support for his conclusions other than watching the
video of the witness’s statements to the forensic interviewer. He did not obtain
any physical evidence and a medical exam was never completed. Moreover,
when the officer had Gillson to come to the station for an interview, Gillson
denied having “indecent contact” with Z.G.; the officer arrested him for the acts
during the same discussion. Thus, the officer’s testimony amounted to nothing
more than a statement of his own belief that the complaining witness was
credible.
Similarly, the prosecutor also asked the forensic interviewer to comment
on whether she believed the allegations made by the complaining witness; the
following exchange took place between Bibbins and the prosecutor during direct
examination of Bibbins:
Q. In listening to [Z.G.’s] explanation or details of what
happened concerning [Gillson] and herself, if you would, please
describe what you believe to be the sex act that you heard her
describe to you? A. She said that [his] penis touched her vagina.
....
5
Q. As you listened to [Z.G.] describe the sex act, did you
form an opinion with respect to what she was speaking of or how
she was speaking of it in her descriptions to you? A. Can you be
more specific about opinions?
Q. Did you believe that she was speaking—when she was
describing the sex act with Chad Gillson that you have described—
that she was describing it from her own experience? A. The details
that she provided seemed as if she were speaking from her own
experience.
Finally, the complaining witness’s psychologist expressed her belief the
witness was suffering from post-traumatic stress disorder because she was
sexually abused. During her testimony, the prosecutor asked if the psychologist
found “a traumatic sex act or other act that was causing the post-traumatic stress
disorder.” The psychologist responded, “Yeah,” before defense counsel
interjected with an objection as to hearsay.4 The court overruled the objection,
and the psychologist continued, stating Z.G.’s mother shared “some of the details
of what happened to” Z.G. with the psychologist, “and later on in my treatment [I]
did affirm that [Z.G.] was sexually assaulted by” Gillson.
Furthermore, the prosecutor referenced both the credibility of the
complaining witness and the vouching statements in his closing, stating, “The
testimony of [Z.G.] was very credible. She presented herself as a witness very
well. Her descriptions of what happened have been supported by the other
witnesses.”
Much of our case law has dealt with indirect vouching or bolstering, with
experts being asked to provide statistics on how rarely children misreport sexual
abuse, see Myers, 382 N.W.2d at 97, or by explaining if a complaining child’s
4
Although defense counsel interposed an objection before this response, it was not an
objection as to vouching (or impermissible expert testimony). See Iowa R. Evid. 5.702.
Thus, this testimony is also considered in the ineffective-assistance framework.
6
behavior is consistent with that of a victim’s behavior, see Dudley, 856 N.W.2d at
677. But here, three witnesses were asked to—and did—offer direct testimony
about their belief in the credibility of the witness’s allegations. “[T]here is a very
thin line between testimony that assists the [factfinder] in reaching its verdict and
testimony that conveys . . . that the child’s out-of-court statements and testimony
are credible.” Dudley, 856 N.W.2d at 677. Here, the testimony crossed the line,
and Gillson’s trial counsel breached a duty in failing to object. See State v.
Pitsenbarger, No. 14-0060, 2015 WL 1815989, at *9 (Iowa Ct. App. Apr. 22,
2015) (finding that even if it was a strategic decision not to object to vouching
testimony by an expert, “it was a strategy that had no reasonable chance of
success, particularly in light of how pervasive the expert’s vouching testimony
was in this trial”).
Next, we must determine whether Gillson was prejudiced by the admission
of the vouching testimony. As we said above, we consider the cumulative effect
of the improper evidence. See Clay, 824 N.W.2d at 500. The State maintains
Gillson’s claims should fail, arguing Gillson cannot establish he was prejudiced
by the improper testimony because the case was tried to the bench.
We are less likely to reverse when inadmissible evidence is introduced in
a bench trial than in a jury trial. See State v. Matheson, 684 N.W.2d 243, 244
(Iowa 2004). “This is because legal training helps equip those in the profession
to remain unaffected by matters that should not influence the determination.” Id.
And as the State points out, “Judges routinely are called upon to consider the
admissibility of evidence that may be later excluded at trial. Judicial knowledge
of evidence which is subsequently not admissible does not ordinarily undermine
7
later judicial determinations in the case.” State v. Decker, 744 N.W.2d 346, 356
(Iowa 2008).
But here, we have no reason to believe the court rejected or set aside the
improper evidence. Cf. Jasper v. State, 477 N.W.2d 852, 857 (Iowa 1991)
(noting the trial court specifically stated it would not consider the inadmissible
evidence and affirming denial of postconviction relief). In Matheson, the State
maintained the admission of improper evidence was harmless for all of the
reasons the State claims it is not prejudicial here. 684 N.W.2d at 244. Our
supreme court responded, “But we cannot ignore the error here by assuming the
. . . court did not consider it. In the first place, the court did not state the
inadmissible evidence would not be a factor in determination. The evidence
challenged here was offered specifically to influence the [court’s decision].” Id.
Because the trial court did not disclaim the improper evidence, we must assume
the court considered the improper testimony in making its determination of guilt.
See id. at 245 (“It might not always be fatal when evidence of this kind invades
the record. But error is not cured when the . . . court merely omits that tainted
evidence in its list of . . . considerations. As a minimum the court should make
clear the offending evidence was not a consideration. Such a disclaimer is
lacking here.”).
The State claims this case is similar to State v. Aguilar, No. 14-1225, 2015
WL 5965076, at *6 (Iowa Ct. App. Oct. 14, 2015), because both are vouching
cases that were tried to the bench rather than a jury. In Aguilar, a panel of our
court considered whether the impermissible vouching testimony had prejudiced
the defendant and concluded it did not. 2015 WL 5965076, at *6. However, we
8
believe the present case is easily distinguished. In Aguilar, the defendant
“challenge[d] only a single sentence made during the course of a two-day bench
trial” and “the evidence of the guilt was overwhelming” because the witness’s
testimony was “corroborated by medical history otherwise inexplicable in a six-
year-old child, including trauma to her anus and vagina and testing positive for
HSV2.” Id.
Here, the State’s case rested entirely on the credibility of the witnesses.
In fact, the only finding made by the district court was, “The court finds the
State’s witnesses more credible than the Defendant.” There was no physical
evidence to corroborate the testimony of the complaining witness. See State v.
Brown, 856 N.W.2d 685, 689 (Iowa 2014) (finding one line of vouching testimony
prejudiced the defendant when there was “no physical evidence supporting the
State’s case”). Additionally, the vouching testimony was pervasive. See
Pitsenbarger, 2015 WL 1815989, at *10 (finding prejudice, in part, because of the
pervasiveness of the expert’s vouching testimony). The State called only five
witnesses: the complaining witness; the mother of the complaining witness 5; and
the deputy, forensic interviewer, and psychologist, each of whom vouched for the
credibility of the complaining witness.
5
We note that the following exchange occurred between the mother of the child and the
prosecutor at trial:
Q: At any time initially did you have any reason that you might
disbelieve what [Z.G.] was saying? A. No.
Q: Have you ever thought anything other than what she said was
true? A. No.
Gillson has not challenged those statements or claimed his trial attorney should have
objected. As instructed by our supreme court in Dudley, “we . . . break down each
statement [the defendant] claims as objectionable to determine whether the State
crossed the line.”
9
Because there was not corroborating evidence and the improper vouching
testimony was pervasive, the probability of a different result if counsel had
objected is sufficient to undermine our confidence in the outcome of the
proceedings. We reverse Gillson’s conviction and remand for a new trial.
REVERSED AND REMANDED.