                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1646
                             Filed January 27, 2016


JESSE EDWARD BROWN,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark J. Smith,

Judge.




      Jesse Brown appeals from the denial of his application for postconviction

relief, asserting his trial counsel provided ineffective assistance. AFFIRMED.




      Thomas J. O’Flaherty of O’Flaherty Law Firm, Bettendorf, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik and Louis S.

Sloven, Assistant Attorneys General, for appellee State.




      Heard by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
                                            2


DOYLE, Judge.

          Jesse Brown appeals from the denial of his application for postconviction

relief, asserting the court erred in not finding his trial counsel was ineffective. We

affirm.

          I. Background Facts and Proceedings.

          In January 2007, Jesse Brown was charged with first-degree kidnapping

and second-degree sexual abuse after he forced his estranged wife Michelle 1

and others into Michelle’s vehicle and ordered her, at knife point, to drive around.

They eventually ended up at a motel, where Jesse had sexual intercourse with

Michelle. Trial in the matter was held in July 2007, and Jesse was ultimately

found guilty of both charges. Jesse was sentenced to life imprisonment,2 and we

affirmed his convictions on direct appeal. See State v. Brown, No. 07-1479,

2008 WL 5235495, *3 (Iowa Ct. App. Dec. 17, 2008).

          In 2009, Jesse filed an application for postconviction relief (PCR), later

amended in 2012. Among other things, he asserted ineffective-assistance-of-

counsel claims, arguing his trial counsel was ineffective in (1) “not pursuing a

defense based on diminished responsibility” because Jesse was previously

diagnosed with bipolar disorder and was not taking his prescribed medications,

and (2) in admitting Jesse’s guilt to the jury without obtaining Jesse’s consent.




          1
           Michelle and Jesse Brown have since divorced, and Michelle is now known as
Michelle Stewart. For clarity, we will hereinafter refer to the defendant and the victim by
their first names, “Jesse” and “Michelle.”
         2
           The sex-abuse conviction merged with the first-degree-kidnapping conviction at
the time of judgment and sentencing, so no sentence was imposed for the sex-abuse
conviction.
                                           3


Both Jesse and his trial counsel testified at the PCR hearing. Jesse’s application

was denied by the PCR court.

       Jesse now appeals, reasserting his claims that his trial counsel provided

ineffective assistance when counsel (1) “failed to recognize [his] bipolar affective

disorder was a defense supporting diminished responsibility” and (2) “conceded

guilt, arguing to the jury for conviction and punishment of [him] for being ‘a bad

man.’” We address his arguments in turn, setting forth below additional facts as

relevant to the issues raised on appeal.

       II. Standard of Review.

       We conduct a de novo review of applications for postconviction relief

raising constitutional infirmities, including claims of ineffective assistance of

counsel. See State v. Thorndike, 860 N.W.2d 316, 319 (Iowa 2015).

       III. Discussion.

       To prevail on a claim of ineffective assistance of counsel, Jesse must

prove both that (1) his counsel failed to perform an essential duty and (2) he

suffered prejudice as a result of his counsel’s failure.        See Strickland v.

Washington, 466 U.S. 668, 687 (1984); Dempsey v. State, 860 N.W.2d 860, 868

(Iowa 2015).   “We can resolve ineffective-assistance-of-counsel claims under

either prong of the analysis.” State v. Ambrose, 861 N.W.2d 550, 556 (Iowa

2015). We elect to decide this matter on the second prong, under which Jesse

has to establish his “counsel’s errors were so serious as to deprive [him] of a fair

trial.” See id. He must prove “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been
                                             4

different.” Id. A mere showing that the error conceivably could have influenced

the proceeding’s outcome is not sufficient. See id.

       A. Diminished Responsibility.

       Jesse first argues his trial attorney was ineffective for not recognizing

“bipolar affective disorder was a defense supporting diminished responsibility,

available under Iowa law at the time of trial.”          However, Jesse has failed to

demonstrate the result of the proceeding would have been any different but for

counsel’s alleged error.      See Thorndike, 860 N.W.2d at 320; Ambrose, 861

N.W.2d at 556.

       While a bipolar diagnosis may support a diminished-capacity defense as

Jesse indicates, the diagnosis by itself is not a defense. Rather, as the Iowa

Supreme Court has recognized, the diminished-responsibility defense “permits

proof of defendant’s mental condition on the issue of defendant’s capacity to form

a specific intent in those instances in which the State must prove defendant’s

specific intent as an element of the crime charged.” Lamasters v. State, 821

N.W.2d 856, 869 (Iowa 2012) (emphasis added).3                  The defense “allows a

defendant to negate the specific intent element of a crime by demonstrating due

to some mental defect [he] did not have the capacity to form that specific intent.”

Anfinson v. State, 758 N.W.2d 496, 502 (Iowa 2008) (emphasis added). That a

       3
         The phrase “specific intent” designates a special mental element the State is
required to prove above and beyond the intentional nature of the criminal act. See State
v. Neuzil, 589 N.W.2d 708, 711 (Iowa 1999). The definition of kidnapping requires proof
the defendant either confined the victim or removed the victim from one place to another,
without consent, and with the intent to do one or more of the following: (1) hold the victim
for ransom, (2) use the victim as a hostage or shield, (3) inflict serious injury or subject
the victim to sexual abuse, (4) secretly confine the victim, or (5) interfere with the
performance of a government function. Iowa Code § 710.1 (2005). The crime is
enhanced to first degree if the victim, as a result of the confinement or removal, suffers
serious injury or is intentionally subjected to torture or sexual abuse. Id. § 710.2.
                                        5


defendant has a mental diagnosis by itself is not enough to warrant assertion of

an insanity or diminished-capacity defense; it must be proven the defendant

lacked the capacity to form the requisite intent based upon the mental diagnosis.

See State v. Jacobs, 607 N.W.2d 679, 685 (Iowa 2000).

      Here, there is no evidence beyond Jesse’s self-serving statements that his

bipolar diagnosis prevented him from forming the requisite intent.      The PCR

cases relied upon by Jesse in support of his claim are distinguishable, in that

there was expert testimony or specific evidence presented at the PCR hearing

concerning the defendant’s mental health and its relation to his defense. See,

e.g., Wiggins v. Smith, 539 U.S. 510, 534 (2003) (“The mitigating evidence

counsel failed to discover and present in this case is powerful.”); Orme v. State,

896 So. 2d 725, 734 (Fla. 2005) (noting one of Orme’s doctors testified at the

PCR hearing “that if he had received this type of information prior to trial, he

would have diagnosed Orme as probable bipolar in a depressed phase” and “if

he had made this diagnosis, he would then have been able to link Orme’s major

mental illness to his drug addiction,” an issue relevant to Orme’s defense);

Anfinson, 758 N.W.2d at 504 (“Expert and lay testimony presented by Anfinson

at the [PCR] trial clearly suggests trial counsel could have developed strong

evidence detailing the nature and extent of Anfinson’s depression and provided

an explanation for her bizarre behavior on the day of Jacob’s death.”); see also

Lamasters, 821 N.W.2d at 868-69 (finding Lamasters failed to establish his

counsel was ineffective in not pursuing an insanity or diminished-capacity

defense noting, among other things, that no expert had opined that Lamasters

was legally insane at the time of the killing, nor had Lamasters offered an expert
                                           6


opinion relating to diminished responsibility). To obtain the relief Jesse requests,

it is necessary for him to allege what the expert testimony would have been. See

Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). Even if Jesse’s attorney had

offered expert testimony in support of a diminished-responsibility defense, there

is no reasonable probability the outcome would have been different because the

evidence of guilt was overwhelming. Thus, we conclude Jesse failed to establish

he was prejudiced by counsel’s alleged breach. We agree with the PCR court

that   Jesse   failed   to   prove   his   ineffective-assistance-of-counsel        claim.

Consequently, we affirm on this issue.

       B. Concession of Guilt.

       Jesse next argues his trial counsel rendered ineffective assistance

because counsel “conceded guilt, arguing to the jury for conviction and

punishment of [him] for being ‘a bad man.’” To put Jesse’s claim in context, we

start with parts of the opening arguments given by both the prosecutor and

Jesse’s trial counsel. First, in his opening statement, the prosecutor explained

the charges against Jesse and the facts the State had to prove for the jury to find

Jesse guilty of the offenses:

              [Jesse] has been charged with kidnapping in the first degree
       and sexual abuse in the second degree.                      Kidnapping, in
       Iowa . . . essentially involves the holding of another against their will
       with the intent to commit sex abuse or the intent to commit serious
       injury. And I believe the evidence will show that both elements of
       intent are present in this case. . . .
              ....
              On . . . November 27th, [2006], Michelle . . . was living apart
       from [Jesse]. Michelle has six children, some of which are
       [Jesse’s]. And she’s going to testify regarding their relationship and
       the threats that had been persistent in their relationship, the fear
       that she had, and the fear and the threats to the extent where finally
       Michelle . . . is living with her grandmother . . . in . . . Illinois.
                                          7


               ....
               And Michelle will testify . . . Jesse . . . came out of the
       darkness, grabbed Michelle, forced her back into [her
       grandmother’s] house, forced [Michelle’s grandmother] back into
       the house, and at knife point threatened . . . both of them, with their
       lives, and took them at that point on a car ride. Forced them into
       the car, forced the six children, forced the grandmother, . . . and
       forced Michelle . . . into their vehicle, and told them where to drive.
               . . . Now, at some point during this driving around, [Jesse]
       agreed to drop off [Michelle’s grandmother] at home.
               ....
               In the meantime, Jesse . . . forced Michelle to drive the
       vehicle over the bridge into [Iowa]. . . .
               . . . [Jesse] eventually instructed them to go to [a motel].
       They rented a room . . . and checked in . . . . During the night—or
       actually by that time it’s morning, at one point Jesse . . . forces
       Michelle . . . to have intercourse in this room. Shortly after that,
       they turn on the television and see on the news that it had been
       reported that they are missing, that the police are looking for them,
       and Jesse . . . decides to get them all out of there.
               . . . [T]he clerk at the [motel] . . . saw on the television that
       Michelle and the family had been taken . . . , and he notified the
       Bettendorf police department.
               . . . [P]olice officers arrived at the [motel], . . . and as
       Jesse . . . came out with Michelle and the children, Michelle saw
       the police and yelled help me, and the police were able to
       apprehend [Jesse].
               You’re going to hear testimony that they recovered what they
       refer to as a butterfly knife, a knife the handle flips open, and
       [Jesse] was then apprehended.
               . . . [Y]ou’re going to hear [Jesse’s interview with law
       enforcement wherein Jesse] admits to forcibly taking the family
       from the home in Silvis, he admits to having a knife, he admits to
       using a knife, but he denies that the sexual act was without
       consent.

       Thereafter, Jesse’s trial counsel gave the following opening statement:

                [M]embers of the jury, this is the point during the trial where
       if this were the movie My Cousin Vinny,[4] which some of you may
       have seen, is the defendant’s attorney’s time to stand up and say
       everything [the prosecutor] just said is nonsense. During a typical
       trial in this courtroom, it would be the time for the defense attorney

       4
          For information on My Cousin Vinny, see My Cousin Vinny, IMDb,
http://www.imdb.com/title/tt0104952/ (last visited Jan. 15, 2016), or My Cousin Vinny,
http://en.wikipedia.org/wiki/My_Cousin_Vinny (last visited Jan. 15, 2016).
                                      8


to stand up and say my client is pure as the driven snow and
innocent and not guilty of anything. You don’t have any evidence,
you’ve got the wrong guy, he was [in] another state, in another city
at the time the crime was alleged to have been committed.
         Ladies and gentlemen, I can’t say that because it’s not true.
Jesse . . . is guilty. The question is, the fighting issue in this case,
is what is Jesse . . . guilty of?
         [The prosecutor] and I both discussed jury instructions. This
is the situation in which you don’t actually get to see the instructions
until the judge issues them at the close of all the evidence in the
case. But one of the concepts he’s going to talk to you about, the
judge, is elements of an offense. And he’ll tell you that the State of
Iowa has to prove each and every element of each and every
offense charged in the Trial Information in order for you to find an
accused person guilty. They give you a summary of the elements,
of kidnapping in the first degree as charged in the Trial Information.
Again, [the prosecutor] is accurate. Essentially, you’re taking
someone against their will from one place to another or confining
that person against their will, coupled with a couple of things that
the evidence is not going to show you in this case.
         First of all, with the specific intent, that is the specific positive
mindset either to commit an act of sexual abuse or to inflict serious
injury, coupled with either a resulting serious injury or an act of
sexual abuse. In this case, [Jesse] and I urge that the evidence will
fall far short of this jury being able to find those two things. Number
one, the specific intent to commit sexual abuse or inflict serious
injury, or (b) a result of either serious injury or sexual abuse.
         Jesse . . . snapped that night. He did a bad thing. He made
a series of poor choices for which he must be held accountable.
And we don’t deny that. But he should not be held accountable for
more than he actually did. And that’s where we want you and why
we want you to focus your attention carefully not only on all the
testimony that you hear, but all of the nontestimonial physical
evidence.
         There was a sex act between Jesse and Michelle that night
or early morning. It was not an act of sexual abuse. The evidence
will not show that there was any physical evidence during an
examination of Michelle . . . that would suggest any abusive sex
took place. I don’t think the evidence is going to show you that at
any time Michelle . . . suffered serious injury. And since there was
no evidence of sexual abuse, and there was no evidence of serious
injury resulting to Michelle . . . or anyone else during the course of
the late evening, early morning hours, [Jesse] should not be held
accountable either for . . . first-degree kidnapping under count
1 . . . or at all under count 2, sexual abuse in the second degree,
because the proof simply isn’t there. That’s why we want your
attention to the witnesses, to the physical evidence.
                                           9


              It may surprise you to hear a defense lawyer stand up and
       say my client is guilty, but he is. And it’s your job to determine what
       the State has proven beyond a reasonable doubt Jesse . . . is guilty
       of. Thank you, ladies and gentlemen.

(Emphasis added.)

       Jesse’s video-recorded interview with a law enforcement officer was

played for the jury during trial.5 In the interview, the officer asked Jesse what

happened that night, and Jesse responded, “I just snapped.” He explained:

       Michelle’s been telling me this, “We’re gonna be together, we’re
       gonna be together,” and I mean, I text her several times about
       divorce, and she says, “No, I love you,” this, that, and the other.
       And she said, “She’s gonna get a place, she’s gonna get a place,”
       and I just snapped.
               ....
               Man, I have bipolar disease and uh, I do uncon—impulsive,
       stupid things, man. I mean.
               ....
               I just—She’s always . . . saying, well we’re gonna get, you
       know, she’s gonna get a place, we’re gonna get a place, we’re
       gonna get a place. And then, it’s like, you know, I keep asking
       when. She plays these little games by not letting me see my kids,
       and she let me see my kids when it’s convenient to her. And then
       she has three days off, and I asked her [to see] the kids once a
       week, you know—and that’s not much to ask. And then she throws
       this big ‘ol fit, and this, that, and the other, and she won’t let me see
       my kids or anything else. I just snapped, man.

Jesse admitted he pushed Michelle that night into a kitchen counter. He also

admitted he had a knife and threatened Michelle with it, including threatening to

kill Michelle, but he told the officer he had no intentions to hurt her—just to scare

her. The officer asked what happened when they got to the hotel room, and the

following exchange occurred:


       5
          Because Jesse’s interview was not transcribed, we rely on our own opportunity
to listen to the recordings in our quoting of the statements in the recordings. We have
omitted the short, non-substantive responses given by the officer in response to Jesse’s
statements in parts of the recording.
                                         10


               [JESSE]: We set down, talked for a few minutes, then we
       went to bed.
               [OFFICER]: Okay. Did you guys get it all aired out?
               [JESSE]: No. She didn’t want to talk. Said, “I don’t want to
       talk. I’m tired. I don’t want to talk right now.”
               [OFFICER]: Okay.
               [JESSE]: [Unintelligible], I mean, we didn’t have forceful sex,
       man. You can ask her, it was mutual. We had sex this morning, I
       mean, that was it. I didn’t rape her or nothing like that, man.
               [OFFICER]: You guys had mutual sex?
               [JESSE]: Mutual sex. She—I didn’t get on top of her. I
       didn’t tell her this, that, and the other; I didn’t rape her or nothing
       like that, I mean. Then she said she loved me this morning after we
       had made intercourse. I mean, it wasn’t like I sexually raped her or
       nothing like that, but I’m just saying.
               [OFFICER]: Okay. She’s saying a little different.
               [JESSE]: Alright, what’s she saying?
               [OFFICER]: Well, she’s saying, that yeah, there was sex, but
       she didn’t necessarily want to have it.
               [JESSE]: Oh, that’s bullshit.
               [OFFICER]: Did you threaten her at any time during that
       period?
               [JESSE]: No.
               ....
               [OFFICER]: Did you guys have any violence at the hotel?
               [JESSE]: No.
               [OFFICER]: Were you still threatening her with the knife?
               [JESSE]: No.
               [OFFICER]: Did you still have the knife?
               [JESSE]: Yeah. It was in my pocket, but I mean—
               [OFFICER]: Was it out?
               [JESSE]: No.
               [OFFICER]: No? Okay. Um, no slapping, pushing, hitting—
       nothing like that at the hotel?
               [JESSE]: Screaming.
               [OFFICER]: Screaming? Okay. How long were you guys
       there at the hotel? Before you guys went to bed?
               [JESSE]: Probably about an hour.

       Before the case was submitted to the jury, Jesse’s trial counsel gave the

following closing statement, set forth in relevant parts, including the State’s

objection during his closing:

             [JESSE’S TRIAL COUNSEL]: I told you at the outset that I
       cannot stand here as [Jesse’s] attorney and tell you he is an
                                     11


innocent man and the State can’t prove that he did anything wrong.
I’m not going to change my position now that all of the evidence is
before you. I’m not going to spend almost a full day selecting an
intelligent, common sense jury and then try to pull the wool over
your eyes and treat you as stupid human beings.
         ....
         With respect to count 1, the first-degree kidnapping, element
one, . . . is pretty much not in dispute. There’s no doubt in
anybody’s minds on November 28th [Jesse] confined
Michelle . . . and moved her to . . . Iowa. The evidence shows that
happened. [Jesse] admits to it.
         Element number two requires the State to prove in the
alternative that there was a specific intent to commit serious—or to
inflict serious injury, subject Michelle to sexual abuse, or to secretly
confine Michelle. . . . [S]pecific intent is a little bit difficult to prove.
You have to look at all the facts and circumstances in order to
determine what’s going on in someone’s mind. You generally do
that by looking at the actions of a particular individual.
         ....
         Let’s look at specific intent again. Again, over a period of
four years there were threats to kill. They were never carried out.
Focusing on several hours of November 28th of 2006, there were
again numerous threats to kill. . . . But was there specific intent to
commit a serious injury at any time? No serious injury was
committed. So there, again, how do you determine what an
individual’s specific intent is?
         I talked about that at the end of my cross-examination to
Michelle . . . . I’m standing here, I obviously have the physical
ability to use this knife, this knife is a dangerous weapon, it’s got a
nice long sharp blade, and if I want to kill you with it, I can do that.
But Michelle . . . suffered no serious injury, and Michelle . . . is, of
course, alive. Why is that true? Why was she not seriously injured
when an individual who possessed an instrument which could
certainly have caused serious injury, certainly killed? And the
answer to that is because he didn’t have the specific intent to do
that. Had he wanted to do that, had he wanted to hurt her
seriously, had he wanted to kill her, she would have either been
hurt seriously or killed. There was no specific intent to inflict a
serious injury.
         With regard to the second alternative, subject Michelle . . . to
sexual abuse, I would suggest to you that the sex act that occurred
in the [Iowa motel] was separate and apart from the removal of
Michelle . . . from Illinois, this drive throughout rural Illinois and
ending up in the motel room. . . . [T]here’s no evidence at any time
up until the sex act occurred that there was any intent on [Jesse’s]
part to perform a sex act. He wanted money, he wanted to scare
her, he wanted to manage the relationship with his wife the way he
                                  12


had managed it over the course of two marriages over the course
of two years. He did so in a manner society simply can’t tolerate,
and he’s got to be punished for that conduct. He’s got to be
punished only for the conduct that he actually committed. So at
least with respect to the removal, there’s no evidence—there’s
evidence of a sex act, but there’s no evidence that he ever intended
to sexually abuse Michelle . . . at any time prior to the actual sex
act.
         ....
         Third element, I agree with [the prosecutor] that [Jesse] did
not and knew he did not have the consent or authority of
Michelle . . . to remove her from her home and transport her
anywhere. Her presence in that car that night was clearly
involuntary.
         And then finally the [State] must prove as a result of the
confinement or removal Michelle . . . was sexually abused. . . .
         I want you to take a look at Instruction No. 9. The [court] has
instructed you on all of the law that applies to this case, and I
suggest the crime of false imprisonment is the crime that [Jesse]
actually committed. He intentionally confined Michelle . . . , we
know that. Michelle . . . was confined against her will, we know
that. And he didn’t have a reasonable belief that he had a right or
authority to confine her. That, members of the jury, is exactly what
Jesse . . . did. It’s a crime. For that crime, he must be punished.
And when you return a verdict based on evidence that has been
proven beyond a reasonable doubt, that [Jesse] is guilty of false
imprisonment, an included offense under count one, I can assure
that you that the [court] stands ready and willing and able to punish
him for that conduct.
         [THE STATE]: Your Honor, I object to the reference as to
punishment.
         THE COURT: The objection is sustained. The jury will
disregard any references to punishment.
         [JESSE’S TRIAL COUNSEL]: With respect to count 2, the
State essentially has to prove not just a sex act, but sexual abuse.
Now, let’s look at the circumstances of the sex act itself as testified
to by Michelle . . . . Again, no evidence that you know—I’m going
to kill you if you don’t have sex with me or any such thing, that was
all related to the removal and the money. If I recall her testimony
accurately, she was allowed to go to sleep. Another time, by the
way, had Jesse . . . wanted to kill her or seriously injure her, he
could very easily have done so because she was sleeping at the
time.
         She awoke to find [Jesse’s] fingers in her vaginal area. She
said nothing to him to indicate that his advances were not welcome.
Further sex occurred. Incidentally, either of those, use of the finger
or use of the penis constitute a sex act in the state of Iowa. He
                                  13


again met with no resistance. If it’s true that in Michelle’s mind she
was only having sex with Jesse . . . because she feared for her life,
because of physical violence and because of threats to maim or kill,
that during the sex act was never communicated to Jesse . . . .
There’s no suggestion that Jesse said anything. The knife was in
his pocket at the time, in an article of clothing that we can
reasonably assume he wasn’t wearing at the time of the act. So
although she may have believed that her consent was totally
involuntary, Jesse . . . would have had no way of knowing that. He
believed, whether rightly or wrongly, that his advances were
welcome. Michelle . . . believed otherwise, but again, that was not
communicated.
        ....
        Jesse . . . made a statement to the police. . . . Right at the
beginning . . . , he was advised that he did not have to make a
statement. You have the right to remain silent. . . .
        . . . But he wanted to. He wanted to give the police
department his side of the story. And he admitted the commission
of a crime. He had a knife, he displayed a knife, and he forced
Michelle . . . and a whole bunch of other people to get into the car.
He didn’t have [Michelle or Michelle’s grandmother’s] permission to
do that. He didn’t have anyone’s permission to keep them. He told
you from his perspective what occurred, and what he did was
basically admit to a couple of crimes—or admit to at least one
crime, and that’s the crime of false imprisonment. And he’s guilty of
that and he should be held by you accountable for that by your
verdict of guilty.
        Under count 2, [the prosecutor] flies by all of the included
offenses and says well, we got a clear-cut case beyond a
reasonable doubt of sexual abuse in the second degree. There is
insufficient proof to convince reasonable people beyond a
reasonable doubt that it was other than a sex act, at least as
intended by Jesse . . . . But he did some other things during the
course of that situation, actually over the course of the evening. He
committed acts of assault. Physical contact which was intended to
be insulting and injurious to another person. He did that. He’s
guilty of it, and I can’t stand here, and I won’t stand here, trying to
persuade you otherwise.
        ....
        [The prosecutor] dramatically plays a clip from [Jesse’s]
statement. And he tells you what Jesse . . . says when the police
officer isn’t there, the tape is still running. He says—if I recall what
he says Jesse . . . said, something to the effect of I should have
killed that bitch. What I heard was I’m going to kill that bitch. I
swear to God I’m going to kill her. Same thing he’s been saying
since 2002 and not meaning.
        ....
                                            14


               Ladies and gentlemen, Jesse . . . is a bad man.
       Jesse . . . committed a couple of crimes.           You should hold
       Jesse . . . accountable by your verdict of guilty, but not to
       kidnapping in the first degree, because the elements have not all
       been proven beyond a reasonable doubt; and not to second degree
       sexual abuse because not all of the elements of that crime have
       been proven beyond a reasonable doubt. But in the instructions
       the court gives you some alternatives. You don’t just have to say
       well, we’re pretty frustrated because we don’t want to let
       Jesse . . . go, but we can’t find him guilty under the main charges in
       this case because the evidence just isn’t there. Look at the
       included offenses, that’s why they’re there. You can go right down
       the list until you find what the State has proven Jesse . . . did and
       has proven beyond a reasonable doubt, and that is your just and
       fair verdict.
               Thank you, ladies and gentlemen.

(Emphasis added.)

       On appeal, Jesse contends his counsel’s statements and strategy arose

from “not having prepared a substantive defense before trial.” 6 He asserts his

counsel’s admission to guilt on lesser-included offenses, misdemeanor offenses

as opposed to the charged felony offenses, “stripped away the presumption of

innocence and removed the consideration of general acquittal from the jurors’

minds.” We disagree.

       Again, starting from the competent-performance-by-counsel presumption,

we “proceed to an individualized fact-based analysis.” Lamasters, 821 N.W.2d at

866.   We note that ineffective assistance is less likely to be found where

counsel’s alleged actions or failures to act are attributed to the exercise of

       6
         At the PCR hearing, Jesse asserted he did not know what his counsel’s theory
of defense was or what he was going to say to the jury. Jesse claimed his trial counsel
did not visit with him about these issues. Asked if he discussed his tactical decisions
with Jesse, trial counsel testified, “It’s my long-time practice and habit to make a client
aware of the approach I’m going to take in front of a jury. And to more specifically
answer your question, I don’t have any specific recollection.” With regard to this issue,
the PCR court found “the testimony of defense counsel credible when he indicated
during the hearing on this matter that his usual practice is to tell the defendant he
intends to admit to lesser-included offenses as a trial tactic.”
                                             15


counsel’s judgment, as is the case here, and a defendant making such claims

bears a heavy burden. See id. If we find trial counsel made “a reasonable

tactical decision,” including counsel’s selection of the theory of the defense, we

will not second-guess the decision. See id. Failed trial strategies, tactics, and

even mistakes in judgment do not automatically amount to ineffective counsel.

See id. Moreover, even if Jesse establishes his counsel made a “professionally

unreasonable error,” he must still affirmatively prove, as noted above, but for

counsel’s errors, there is a reasonable probability the result of the proceeding

would have been different. See id. Jesse has not met this burden.

       Here, Jesse was read his Miranda rights7 and agreed to talk to the officer,

wherein Jesse voluntarily admitted his own guilt on several fronts. Jesse’s trial

counsel testified at the PCR hearing:

                . . . [T]his would have been the type of case where I would
       have felt foolish arguing that he had done absolutely nothing wrong.
       The evidence against him was—including his own admissions, the
       testimony of the victim in this case, it would have been a very poor
       trial strategy to attempt to persuade the jury that he simply was not
       involved in any criminal undertaking.

Clearly, trial counsel’s determination in conceding Jesse was guilty of the lesser-

included-misdemeanor offenses was trial strategy. Though the strategy was not

successful, it was justifiable and within the range of normal competency. See

Anfinson, 758 N.W.2d at 501; Pettes v. State, 418 N.W.2d 53, 57 (Iowa 1988).

As one court aptly stated: “[L]awyers are not miracle workers. Most convictions


       7
          In Miranda v. Arizona, 384 U.S. 436, 479 (1966), the United States Supreme
Court held that a suspect subjected to custodial interrogation must be warned of “the
right to remain silent,” anything said “can be used against [the suspect] in a court of law,”
“the right to the presence of an attorney,” and if the suspect “cannot afford an attorney
one will be appointed . . . prior to any questioning” if so desired.
                                        16

follow ineluctably from the defendants’ illegal deeds.” United States v. Farr, 297

F.3d 651, 657-58 (7th Cir. 2002).     We will not “assume the role of Monday

morning quarterback in condemning counsel’s judgment in choosing between

what are frequently equally hazardous options available to him.” Anfinson, 758

N.W.2d at 501; see also Greta Van Susteren, Responsibility of A Criminal

Defense Attorney, 30 Loy. L.A. L. Rev. 125, 126 (1996) (“The convicted

prisoners’ standard for effective assistance of counsel is usually equal to a

miracle worker—in other words, a standard that cannot be met by mere

mortals . . . . Clients have been known to demand that their lawyers make a silk

purse out of a sow’s ear.”). Jesse has failed to show his trial counsel breached

his duty in adopting this trial strategy, and he has not proven the outcome of his

case would have been any different if trial counsel had not adopted this strategy.

We agree with the PCR court that Jesse failed to establish his trial counsel

rendered ineffective assistance, and we affirm on this issue.

      IV. Conclusion.

      For the foregoing reasons, we affirm the PCR court’s denial of Jesse’s

PCR application.

      AFFIRMED.
