                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1026
                           Filed September 12, 2018


DAVID EUGENE MADDOX,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


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

Eveloff, Judge.



      David Maddox appeals from the denial of his application for postconviction

relief. AFFIRMED.




      Drew H. Kouris, Council Bluffs, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.




      Considered by Danilson, C.J., and Mullins and McDonald, JJ.
                                           2


DANILSON, Chief Judge.

       David Maddox appeals from the denial of his application for postconviction

relief (PCR) challenging his convictions for kidnapping in the third degree, a class

“C” felony, in violation of Iowa Code sections 710.1 and .4 (2009); attempted

murder, a class “B” felony, in violation of section 707.11; and first-degree robbery,

a class “B” felony, in violation of Iowa Cod sections 711.2 and .2. Maddox asserts

his trial counsel rendered ineffective assistance and his appellate counsel was

ineffective in failing to raise trial counsel’s ineffectiveness on Maddox’s first appeal.

Because we conclude Maddox has not established trial or appellate counsel

rendered ineffective assistance, we affirm.

I. Background Facts & Proceedings.

       We previously stated the facts of this case on Maddox’s first appeal:

                [Maddox], co-defendant Jeremy Gibler, and the victim were
       riding around together on December 17, 2009, after having spent
       time together drinking at the home of Gibler’s aunt and then going to
       the home of a person [Maddox] knew. [Maddox] was driving, Gibler
       was in the back seat, and the victim was in the passenger’s seat. At
       some point, [Maddox] parked the car close to the Missouri River. As
       [Maddox] got out and walked around the car, Gibler struck the victim
       in the head from behind. [Maddox] pulled the victim out of the car,
       then [Maddox] and Gibler pulled the victim through trees and brush,
       down a slope to the rocks along the river. This area was not visible
       from the road. Once there, [Maddox] and Gibler beat and kicked the
       victim. Gibler took what the victim had in his pockets. Then [Maddox]
       lifted the victim by the neck of his shirt, said he knew the victim was
       a “snitch” or a “cop” and he was going to put him “in the river where
       people like [him] go, people that talk to cops,” and then threw the
       victim into the river. When the victim stood up in the waist-deep
       water, [Maddox] threw a bowling-ball-size rock at him. In deflecting
       the rock with his hands, the victim ended up about shoulder-deep in
       the river. He moved with the current to a point where he could get
       out of the river. The victim walked nearly one and two-thirds miles in
       sub-freezing temperatures over a period of about forty-five minutes
       to a gas station, where the attendant called 911. The victim was
       treated at the hospital and released.
                                          3


               [Maddox] and Gibler were charged in January 2010 with
       kidnapping in the first degree, attempt to commit murder, and robbery
       in the first degree. Following a jury trial in April, both were found
       guilty of all charges. [Maddox]’s motion in arrest of judgment and
       motion for new trial were denied. In May, the court sentenced
       [Maddox] to life for the kidnapping conviction and terms of up to
       twenty-five years each on the robbery and attempted murder
       convictions.

State v. Maddox, No. 10-0831, 2011 WL 2075421, at *1 (Iowa Ct. App. May 25,

2011) (footnote omitted).

       On his first appeal, Maddox challenged the sufficiency of the evidence to

support his kidnapping conviction and argued trial counsel was ineffective in not

moving in arrest of judgment to assert there was no proof of serious injury to

establish Maddox committed first-degree kidnapping. Id. This court concluded

there was sufficient evidence supporting the kidnapping conviction, but the

evidence did not support the finding that the injuries inflicted by Maddox created a

substantial risk of death. Id. at *7. Thus, this court reversed the first-degree

kidnapping conviction and remanded for entry of judgment and sentence for

kidnapping in the third degree. Id. at *8.

       Maddox filed a PCR application on November 27, 2012, an amended

application on March 16, 2015, and an addendum to the amended application on

March 3, 2016. In addition to a number of other claims, Maddox asserted trial

counsel rendered ineffective assistance of counsel in failing to adequately advise

Maddox of his right to testify at trial, failing to object to and move for mistrial in

response to alleged prosecutorial misconduct, and failing to object to bad-acts

evidence. He also asserted counsel was ineffective in making an inadequate

motion for judgment of acquittal to challenge the first-degree robbery and
                                         4


attempted-murder charges. Maddox argued the cumulative effect of the errors

alleged denied Maddox a fair trial and warranted granting his PCR application.

Maddox also contended appellate counsel was ineffective in failing to raise these

issues during Maddox’s first appeal.

       Following a trial held March 7, 2016, the PCR court determined Maddox had

failed to establish trial or appellate counsel provided Maddox ineffective

assistance. Thus, the court denied Maddox’s PCR application. Maddox now

appeals.

II. Standard of Review.

       Generally, we review the court’s denial of a PCR application for correction

of errors at law. Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012). “However,

when the applicant asserts claims of a constitutional nature, our review is de novo.

Thus, we review claims of ineffective assistance of counsel de novo.” Id. (citation

omitted).

III. Analysis.

       Maddox contends trial counsel rendered ineffective assistance of counsel

in a number of respects and appellate counsel was ineffective in failing to raise

those issues on Maddox’s first appeal.       “To prevail on a claim of ineffective

assistance of counsel, a claimant must satisfy the Strickland [v. Washington, 466

U.S. 668, 687 (1984),] test by showing ‘(1) counsel failed to perform an essential

duty; and (2) prejudice resulted.’” State v. Clay, 824 N.W.2d 488, 495 (Iowa 2012)

(citation omitted).   The claimant must make a showing of both elements to

establish ineffective assistance of counsel. Id.
                                           5


       (1) Right to Testify. Maddox first asserts trial counsel provided ineffective

assistance in failing to adequately advise Maddox of his right to testify at trial. “A

defendant has a constitutional right to testify at a criminal trial[,]” and “[c]ounsel

has a duty to advise the defendant about the consequences of testifying so that an

informed decision can be made.” Ledezma v. State, 626 N.W.2d 134, 146-47

(Iowa 2001).

       Maddox maintains he informed trial counsel he wished to testify at trial and

asserts he was prejudiced because his testimony would have impacted the

outcome of the trial.     Trial counsel recollected his interactions with Maddox

regarding Maddox’s lack of testimony at trial:

               Q. Okay. And did Dave Maddox indicate to you that he
       wanted to testify? A. If he would have, then he would have testified.
       I don’t remember him saying he wanted to testify. I—as I recall, I
       advised him that I thought it was in his best interest not to testify
       because I didn’t think he was a credible witness.
               . . . But had he told me he wanted to testify, I would have put
       him on the stand.
               ....
               Q. Would you have agreed—you just said that you would have
       explained to him at that point the benefits of testifying versus the risk
       that would be involved? A. That’s my general practice, and I would—
       I believe I did in this case as well. And it’s also my practice if my
       client accepts my advice and doesn’t testify to say, Fine.
               If they don’t choose to accept it and they want to testify after I
       advise them not to, I’ll put them on the stand . . . .

       We do not conclude trial counsel failed to perform an essential duty in this

respect.   See State v. Thorndike, 860 N.W.2d 316, 320 (Iowa 2015) (“It is

presumed the attorney performed his or her duties competently, and the claimant

must successfully rebut this presumption by establishing by a preponderance of

the evidence that counsel failed to perform an essential duty.”).
                                           6


       Even if trial counsel had failed to perform an essential duty, Maddox has not

shown he suffered prejudice stemming from his lack of testimony at trial. “A

showing that the error ‘conceivably could have influenced the outcome’ of the

proceeding is insufficient. Rather, the effect must be affirmatively demonstrated

by showing ‘there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”            Id. (citation

omitted). In his deposition, which was admitted into evidence at the PCR trial,

Maddox acknowledged he was present at the scene of the crime and that he

“punched [Koehrsen] a couple of times in the head.” There is nothing in the record

beyond Maddox’s speculation to show that his testimony would have helped, not

hurt, his overall case. We conclude Maddox has not established his ineffective-

assistance-of-counsel claim respecting his lack of testimony at trial.

       As for Maddox’s assertion that a colloquy should have been required

between the trial court and Maddox regarding his decision not to testify, 1 error has

not been preserved because this issue was not raised before the PCR court. See

Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine

of appellate review that issues must ordinarily be both raised and decided by the

district court before we will decide them on appeal.”). Even if preserved, our

supreme court has

       refused to impose a requirement that the court personally address a
       defendant to ensure a valid waiver of the right to testify because we
       considered the decision whether to testify to be one of trial strategy,
       a matter in which the trial court should not be involved, and one
       “better left to the criminal defendant and his or her counsel.”

1
  Although there is no requirement a record be made of waiver of the right to testify, we
recognize counsel and trial judges often do make such a record. We recognize there may
be benefits to such a practice.
                                        7



State v. Reynolds, 670 N.W.2d 405, 412 (Iowa 2003) (citation omitted). We leave

the task of overruling precedent to our supreme court. See State v. Hastings, 466

N.W.2d 697, 700 (Iowa Ct. App. 1990) (“We are not at liberty to overturn Iowa

Supreme Court precedent.”).

      (2) Prosecutorial Misconduct. Maddox also argues trial counsel provided

ineffective assistance in failing to object to and move for mistrial based on

prosecutorial misconduct occurring during closing argument. Maddox contends

two statements by the prosecutor during closing argument constituted

prosecutorial misconduct: (1) that “[t]here was no testimony that they came to try

to save him”; and (2) that Maddox had lost his presumption of innocence.

      Maddox contends trial counsel should have objected to the first statement

because it constituted an improper comment on Maddox’s right to remain silent.

On this issue, the PCR court held:

      [T]he State sets forth that the court will not find that the prosecutor
      manifestly intended to comment on a defendant’s right to remain
      silent when an equally plausible explanation exists for his or her
      statement. “A prosecutor’s statements are not viewed in isolation,
      but in the context they were made.” Van Hoff v. State, 447 N.W.2d
      665, 675 (Iowa Ct. App. 1989). The State then sets forth that the
      context of the prosecutor’s statement did not refer to Maddox’s
      silence but rather to Koehrsen’s testimony that the defendants left
      him for dead. The statement was not of such a nature that a jury
      would naturally and necessarily interpret the statement to be a
      reference to the defendant’s silence. The court agrees with the State
      that this statement was not improper and that Maddox has failed to
      show that his counsel was ineffective for not seeking a mistrial in
      response to said statement . . . .

      We agree with the reasoning of the PCR court.              The prosecutor’s

statements were a proper comment on Maddox’s actions on the night in question

as testified by Koehrsen. Any connection to Maddox’s failure to testify is remote.
                                           8


We do not find the statement by the prosecutor “prejudiced, inflamed or misled the

jurors so as to prompt them to convict the defendant for reasons other than the

evidence introduced at trial and the law as contained in the court’s instructions.” 2

State v. Graves, 668 N.W.2d 860, 877 (Iowa 2003).

       As to the statement that Maddox had lost his presumption of innocence, the

record reflects trial counsel requested a sidebar with the court before the

prosecutor completed the sentence and the prosecutor did not complete the

statement after the sidebar was completed. We also note Jury Instruction 3

informed the jury:

               The defendants are presumed innocent and not guilty. This
       presumption of innocence requires you to put aside all suspicion
       which might arise from the arrest, charge, or the present situation of
       the defendants. The presumption of innocence remains with the
       defendants throughout the trial unless the evidence establishes
       guilty beyond a reasonable doubt.

Upon consideration of the sidebar request stopping the prosecutor from completing

the statement and the remedial effect of Instruction 3, we cannot conclude the

statement prejudiced, inflamed, or misled the jury resulting in an unfair trial. 3

       Because we conclude neither statement by the prosecutor constituted

prosecutorial misconduct impacting Maddox’s right to a fair trial, we find trial

counsel and appellate counsel did not render ineffective assistance in failing to

raise these issues at trial and on appeal.


2
  As an aside, Maddox testified in the PCR deposition that he did not provide aid to
Koehrsen. So, the jury was not misled of facts Maddox believed to exist.
3
   We are unable to speculate what the prosecutor might have said before being
interrupted. For example, no one would dispute that it would have been improper for the
prosecutor to say, Maddox lost his presumption of innocence because he did not testify.
On the other hand, the prosecutor could have properly argued Maddox lost his
presumption of innocence or the presumption has been overcome because the evidence
establishes his guilt beyond a reasonable doubt.
                                         9


       (3) Bad Acts Evidence. Maddox also asserts trial counsel should have

objected to evidence suggesting Maddox had committed other bad acts. This

assertion includes trial counsel’s failure to object to two statements made during

the trial. First, Maddox asserts trial counsel should have objected to a comment

by Koehrsen that Maddox would be “in town, in jail, or out of jail.” Maddox also

asserts trial counsel should have objected to statements connecting Maddox to an

individual named Tye Root.

       As to the statement regarding Maddox being in and out of jail, trial counsel

testified in his deposition submitted as evidence in the PCR trial that it was his

strategic decision not to object to this statement because he did not want to

emphasize the evidence with the jury. On this issue the PCR court held, “Although

this court is concerned that the jury did hear testimony of Maddox being in jail, at

this time the court cannot find that Maddox has shown that the result of the trial

would have been different without this short statement.” We agree. This strategic

decision does not constitute a failure to perform an essential duty. This may have

been good trial strategy, but even if not, “[m]iscalculated trial strategies and mere

mistakes in judgment normally do not rise to the level of ineffective assistance of

counsel.” Ledezma, 626 N.W.2d at 143. The strategy was not so unreasonable

that counsel was ineffective. Furthermore, this single statement—considered in

light of the entire trial and the evidence submitted—has not been shown to have

prejudiced Maddox as required to establish ineffective assistance of counsel.

       We also do not find trial or appellate counsel rendered ineffective assistance

in failing to challenge the evidence involving Root. In its ruling, the PCR court

determined:
                                          10


       The evidence concerning Root was offered to show a possible
       motive for the attack. Earlier [on the night of the assault], Maddox
       had asked Koehrsen about working as an informant and made
       comments about informants deserving to get thrown in the river.
       [Trial counsel] testified that he did not see the Root case as
       particularly strong evidence of motive in this matter. Also, both
       Madddox and Gibler’s attorneys used Koehrsen’s work as an
       informant to challenge his credibility. The court does not find that
       Maddox was denied a fair trial or suffered prejudice based on his
       attorney failing to file a motion in limine in regards to Tye Root.

       Bad acts evidence may be admissible for the purpose of proving motive.

Iowa R. Evid. 5.404(b)(2). Here, the evidence pertaining to Root was admitted to

show the possible motive for Maddox and Gibler’s attack on Koehrsen, that is,

Koehrsen’s work as a confidential informant and testimony in an upcoming case

against Root. At trial, Koehrsen testified,

              [Maddox] picked me up and tells me—says he knows I been—
       I’m a snitch, I’m a cop, and he is going to put me where I belong,
       which is in the river where people like me go, people that talk to cops.
       And he flung me down into the river.

Koehrsen was working as a confidential informant and intended to provide

testimony in an upcoming case against Root. Thus, evidence involving Root was

related to the motive in this case and did not unfairly prejudice Maddox.

Consequently, Maddox has not established trial or appellate counsel rendered

ineffective assistance in failing to challenge this evidence at trial or on appeal.

       (4) Motion for Judgment of Acquittal. Maddox also contends trial counsel

provided ineffective assistance in failing to make an adequate motion for judgment

of acquittal as to the charges for robbery in the first degree and attempted murder.

       Maddox points to his first appeal of this matter, arguing this court’s reversal

of his conviction for kidnapping in the first degree based on trial counsel’s failure

to challenge insufficient evidence to establish Koehrsen sustained a serious injury
                                         11


as required to support a conviction for first-degree kidnapping.        Based upon

consideration of Koehrsen’s testimony and evidence of his injuries, this court

determined the State did not show Koehrsen sustained a serious injury. Maddox,

2011 WL 2075421, at *7 (citing Iowa Code § 702.18). Accordingly, we reversed

the first-degree kidnapping conviction and instead entered a conviction for

kidnapping in the third degree.

       Maddox argues this court’s determination that Maddox be convicted of third-

degree kidnapping instead of second-degree kidnapping showed this court “had

reviewed the record and . . . could not find proof of a specific intent to inflict a

serious injury upon Koehrsen or to find that either of the defendants was armed

with a dangerous weapon.” Thus, Maddox asserts trial and appellate counsel

rendered ineffective assistance in failing to challenge the evidence supporting

these elements of the first-degree robbery and attempted murder charges.

       “A person commits robbery in the first degree when, while perpetrating a

robbery, the person purposefully inflicts or attempts to inflict serious injury, or is

armed with a dangerous weapon.” Iowa Code § 711.2.

              A person commits the offense of attempt to commit murder
       when, with the intent to cause the death of another person . . . the
       person does any act by which the person expects to set in motion a
       force or chain of events which will cause or result in the death of
       another person.

Id. § 707.11(1).

       Despite this court’s previous finding Koehrsen did not sustain a serious

injury, there is sufficient evidence in the record to show Maddox acted with intent

to cause serious injury or death. Koehrsen testified at trial that Maddox threw him

in freezing cold water and threw bowling-ball sized rocks toward his head.
                                         12


Koehrsen stated he swam away from Maddox and Gibler because he feared he

would drown if hit by a rock and knocked unconscious. Further, Dr. Bradley Hess

testified that a thrown rock could cause death if it struck the head in the proper

location. Based on this evidence, we cannot find a different outcome was likely if

trial or appellate counsel had challenged the sufficiency of the evidence respecting

these elements of the first-degree-robbery and attempted-murder convictions. We

therefore find trial and appellate counsel did not provide ineffective assistance in

that respect.

       (5) Structural Error.      Last, Maddox maintains trial counsel’s errors

constituted structural error. However, before the PCR court Maddox argued only

that trial counsel’s errors were cumulatively prejudicial and did not raise the issue

of structural error. These concepts are clearly defined in our case law.

       Structural errors are not merely errors in a legal proceeding, but
       errors “affecting the framework within which the trial proceeds.” We
       have recognized structural error occurs when: (1) counsel is
       completely denied, actually or constructively, at a crucial stage of the
       proceeding; (2) where counsel does not place the prosecution’s case
       against meaningful adversarial testing; or (3) where surrounding
       circumstances justify a presumption of ineffectiveness, such as
       where counsel has an actual conflict of interest in jointly representing
       multiple defendants.

Lado v. State, 804 N.W.2d 248, 252 (Iowa 2011) (citations omitted).

       But when a claimant has raised more than one ineffective-assistance-of-

counsel claim, “the cumulative prejudice from those individual claims should be

properly assessed under the prejudice prong” of the ineffective-assistance-of-

counsel test. Clay, 824 N.W.2d at 501. It is a different claim to assert the

cumulative effect of the alleged instances of ineffective assistance of counsel

resulted in prejudice than to contend structural error occurred in the proceeding.
                                         13


Maddox did not raise the issue of structural error below, and we therefore will not

address the claim on appeal. See Lee v. State, 844 N.W.2d 668, 676-77 (Iowa

2014) (“As a general proposition, ‘issues must be raised in the district court before

we may review them on appeal.’” (citation omitted)). Even if we could conclude

Maddox asserted a structural-error claim below, we do not find any such error

occurred in these proceedings.

IV. Conclusion.

       Because we conclude Maddox has not established trial or appellate counsel

rendered ineffective assistance, we affirm.

       AFFIRMED.
