                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-0307
                                 Filed July 9, 2015


JOHNNY LOUIS ARTHUR ANDERSON,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, David F,

Staudt (criminal trial) and George L. Stigler (postconviction trial), Judges.



       An applicant appeals the district court’s dismissal of his application for

postconviction relief. AFFIRMED.



       Thomas M. Mc Intee, Waterloo, for appellant.

       Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney

General, Thomas J. Ferguson, County Attorney, and Kimberly A. Griffith,

Assistant County Attorney, for appellee State.




       Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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VAITHESWARAN, J.

       A jury found John Anderson guilty of possessing simulated marijuana and

marijuana with the intent to deliver while in the immediate possession of a

firearm.   On direct appeal, this court affirmed Anderson’s judgment and

sentence. See generally State v. Anderson, No. 12-0197, 2012 WL 5356150

(Iowa Ct. App. Oct. 31, 2012).

       Anderson petitioned for postconviction relief, alleging “the [trial] court did

not grant immunity for a witness when he was ready to tell the truth.” At a

hearing, Anderson’s attorney explained that a man named Bradley Woods was

ready to admit he planted the marijuana in Anderson’s residence, “intending to

get Anderson in trouble.”     The attorney contended the “information was not

discoverable” at trial because Woods declined to waive his Fifth Amendment

right against self-incrimination. She introduced a portion of the trial transcript,

which contained a discussion of Woods’s possible testimony, his unwillingness to

testify absent a grant of immunity, defense counsel’s request for such a grant

under the court’s “inherent” powers, and the trial court’s denial of the request.

       The postconviction court allowed Woods to testify. Without a grant of

immunity, Woods stated he “stashed an extra firearm . . . and some marijuana”

where Anderson lived because he believed Anderson had “set [him] up.”

       The postconviction court asked Woods some follow-up questions, which

uncovered inconsistencies between Woods’s recollection of where he stashed

the contraband and police summaries of the location.          The court disallowed

further questioning of Woods and prohibited Anderson from testifying.
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       The court subsequently determined Woods was “not telling the truth by

any stretch of the imagination.” The court concluded, “This is a classic case of

cooperative perjury as mentioned in State v. Simpson,”1 the “trial judge was

correct in not granting immunity to Mr. Woods,” and “trial counsel and appellate

criminal [] counsel [on direct appeal] did not breach any standard of duty to Mr.

Anderson.”

       On appeal, Anderson raises two multi-pronged issues. First, he contends

the trial court should have granted Woods immunity at his original trial, Woods’s

“actual testimony at the PCR trial is sufficient new evidence to require a new

trial,” and appellate counsel on direct appeal and postconviction trial counsel

were ineffective.    Second, he takes issue with the postconviction court’s

questioning of Woods, contending the court “assum[ed] the role of the prosecutor

and advocate for the State.” Under the same subheading, he challenges the

court’s decision to cut the postconviction hearing short, raising this issue under

an ineffective-assistance-of-counsel rubric in the event we find the issue

unpreserved.

    I. Woods’s Testimony

       As noted, the postconviction court considered Woods’s proffered

testimony and approved the trial court’s refusal to grant him immunity.            On

appeal, Anderson asks us to revisit the issue. Because the postconviction court


1
  In State v. Simpson, the court addressed the “effective defense theory,” which “holds
that a court has the inherent power to immunize witnesses whose testimony is essential
to an effective defense.” 587 N.W.2d 770, 772 (Iowa 1998) (citing United States v.
Angiulo, 897 F.2d 1169, 1190 (1st Cir. 1990)). The court concluded “no reasonable
person would believe [the witness’s] proffered testimony. Rather than being ‘clearly
exculpatory,’ such testimony borders on ‘cooperative perjury among law violators,’ a
policy reason frequently cited for rejecting the effective defense theory.” Id. at 774.
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addressed the immunity issue, we find it unnecessary to proceed under an

ineffective-assistance-of-counsel rubric.

       The law on judicial grants of immunity was articulated in State v. Simpson,

587 N.W.2d 770 (Iowa 1998). “[T]he district court has no statutory authority to

grant use immunity.” Simpson, 587 N.W.2d at 772.2 The authority, if it exists,

“must arise from the court’s inherent powers.” Id. Two theories are available for

exercising this inherent power: (1) the effective defense theory, and (2) the

prosecutorial misconduct theory. Id. at 772-73.

       The effective defense theory has been “almost universally reject[ed].” Id.

at 773. Indeed, the opinion cited by the Simpson court as espousing this theory

has since been abrogated. See Gov’t of the Virgin Islands v. Smith, 615 F.2d

964, 964 (3d Cir. 1980) abrogated by United States v. Quinn, 728 F.3d 243 (3d

Cir. 2013). Like other courts, the Iowa Supreme Court has afforded the theory

little credence. See Simpson, 587 N.W.2d at 774 (stating “[e]ven were we to

adopt this theory,” it would fail); State v. Fox, 491 N.W.2d 527, 533-34 (Iowa

1998) (“[U]se immunity—if available at all—should be considered only in

circumstances in which the prosecution has improperly prevented a defense

witness from giving essential exculpatory evidence.”).     Given Fox’s effective

rejection of the theory, we decline to apply it.

       The second theory is viable where a prosecutor intimidates or harasses a

potential defense witness or deliberately withholds use immunity from a

prospective defense witness to keep exculpatory evidence from the jury.


2
 Anderson requested use and transactional immunity, but the opinions he cites only
address use immunity. Accordingly, we will limit our discussion to use immunity.
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Simpson, 587 N.W.2d at 773. During trial, Anderson’s attorney conceded the

prosecutor could not have harassed or intimidated Woods because he did not

“believe the State of Iowa ha[d] actually spoke[n] directly with Mr. Woods.”

Instead, defense counsel focused on the prosecutor’s refusal to grant Woods

immunity.      But, as the prosecutor stated and the trial court confirmed, the

decision to withhold a grant of immunity was based on the prosecutor’s view that

Woods’s proposed testimony failed to exculpate Anderson.           The trial court

specifically stated the prosecutor was not withholding immunity “to penalize the

defendant,” but “because he doesn’t believe the witness is going to testify

truthfully.”

        After hearing Woods’s testimony, the postconviction court concurred. On

our de novo review of this constitutionally-grounded issue, we agree with the

postconviction court.

        “The common meaning of exculpate is to free one from a charge of guilt or

fault.” Id. at 774 (citation omitted). Wood’s proffered testimony was meant to

exculpate Anderson. It did nothing of the sort. Police discovered marijuana,

simulated marijuana, and a .45 caliber handgun in Anderson’s portion of a home.

Woods testified he stashed “weed” in the home but had no recollection of

whether some of the weed was “simulated.” He also identified a different caliber

gun than the gun discovered by police. In sum, his testimony did little if anything

to undermine the State’s evidence against Anderson.

        Nor was Woods’s testimony “newly discovered evidence,” as Anderson

also argues. Anderson was aware of his testimony at trial and proffered the

substance of it through trial counsel. See Fox, 491 N.W.2d at 534 (concluding
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defense was aware of anticipated testimony at time of trial and evidence was not

newly discovered simply because witness invoked her Fifth Amendment right

against self-incrimination).

       We conclude the postconviction court appropriately denied Anderson’s

claim that he was entitled to a new trial based on Woods’s testimony.

    II. Court’s Conduct of Postconviction Hearing

       Anderson argues the postconviction court’s “actions were a blatant

violation of the Petitioner’s constitutional right to a Fair Trial under the 6th and

14th Amendments to the U.S. Constitution, as well as Article I Sections 9 and 10

of the Iowa Constitution.”        The State counters that these constitutional

protections are inapplicable in a postconviction relief action.3

       The State is correct in noting Anderson imports constitutional principles

applicable in the criminal context to civil postconviction-relief proceedings. That

said, we believe the Iowa Supreme Court’s “caution[] against” judicial

interrogation of witnesses applies equally in the civil context.       See State v.

Cuevas, 288 N.W.2d 525, 532-33 (Iowa 1980).

       The postconviction court cut to the chase, efficiently and effectively

highlighting problems with Woods’s assertions. While questioning was perhaps

better left to the prosecutor, the general concern about judicial sway over

impressionable jurors was absent, and holes in Woods’s testimony were readily

apparent even without the court’s questions.


3
  Although Anderson did not object to the court’s questioning, it is apparent he was
dissatisfied with the progress of the hearing. Accordingly, we will review his general
challenge to the conduct of the postconviction hearing directly rather than under an
ineffective-assistance-of-counsel rubric.
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       As for Anderson’s assertion that the court prematurely ended the hearing,

the only issue raised at the hearing was the trial court’s failure to grant Woods

immunity. Under these circumstances, the postconviction court could reasonably

have concluded no testimony from anyone other than Woods was necessary to

resolve the issue.    While, ideally, Anderson should have been allowed to

comment on Wood’s statements, we discern no abuse of discretion in the district

court’s decision to close the record once it became clear Woods’s testimony

lacked credibility. See id. at 531 (stating judge may intervene “to stay the pursuit

of a patently irrelevant line of inquiry” to “avert unnecessary repetition,” or “to

require that the proceedings move forward without undue delay”). We conclude

the court’s conduct of the postconviction-relief hearing did not amount to

reversible error.

       We affirm the district court’s denial of Anderson’s postconviction relief

petition.

       AFFIRMED.

       Doyle, J., concurs; Danilson, C.J., dissents.
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DANILSON, C.J. (dissenting)

      I respectfully dissent. Although this was a civil bench trial where there is

no concern about influencing jurors, whenever the court enters the fray and

examines witnesses, “the court becomes vulnerable to a multiplicity of criticisms.”

State v Cuevas, 288 N.W.2d 525, 533 (Iowa 1980). Here, the district court’s

interrogation began as a harmless attempt to clarify the testimony of the witness.

But once the testimony was clarified, the district court’s interrogation was aimed

at discrediting and impeaching the witness. In a jury trial, such action may be an

implied comment on the weight of the evidence. Mills v. State, 383 N.W.2d 574,

578 (Iowa 1986). Even in a bench trial, the impact of the judge interrogating the

witness may serve to intimidate a witness and drive a witness into an admission.

U.S. v. Worcester, 190 F. Supp. 548, 561 (D. Mass. 1960). Examination aimed

at discrediting or impeaching a witness is the responsibility of counsel. There is

no reasonable trial strategy to support PCR counsel’s failure to object to how

these proceedings were handled, and counsel’s ineffectiveness is an exception

to our error-preservation rules. See State v. Allen, 708 N.W.2d 361, 365 (Iowa

2006). I would further find that “assistance of counsel was denied entirely” and

permit a new trial without the need to show a probable effect on the outcome of

the case. See Mickens v. Taylor, 535 U.S. 162, 166 (2002) (concluding prejudice

need not be shown “where assistance of counsel has been denied entirely or

during a critical stage of the proceeding”). Our supreme court has described

such a circumstance as a “structural error” that does not require proof of

prejudice “as the adversary process itself is presumptively reliable.”    Lado v.

State, 804 N.W.2d 248, 252 (Iowa 2011) (internal quotation marks omitted). I
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would reverse and require a new trial upon appellant’s application for

postconviction relief before a different judge.
