                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-0971
                                 Filed May 6, 2015


JONATHAN QUINCY ADAMS,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Robert J. Blink,

Judge.



       Jonathan Adams appeals from the district court’s denial of his application

for postconviction relief. REVERSED AND REMANDED.




       Alfredo Parrish of Parrish Kruidenier Dunn Boles Gribble Gentry Brown &

Bergmann LLP, Des Moines, for appellant.

       Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney

General, John P. Sarcone, County Attorney, and James Ward, Assistant County

Attorney, for appellee State.



       Considered by Danilson, C.J., Potterfield, J., and Miller, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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DANILSON, C.J.

       Jonathan Adams appeals from the district court’s denial of his application

for postconviction relief (PCR). He maintains the district court wrongly denied his

application because he established he received ineffective assistance from trial

counsel.   Specifically, he maintains trial counsel was ineffective for failing to

challenge the lack of proximate cause between intoxicated driving and the

victim’s death and for failing to request a jury instruction regarding proximate

cause. Because we find counsel was ineffective for failing to challenge the lack

of proximate cause and seek an instruction on proximate cause and there is a

reasonable probability the result of the proceeding would be different, Adams has

established his claim of ineffective assistance. We reverse the decision of the

district court and grant a new trial.

I. Background Facts and Proceedings.

       We adopt our recitation of facts from Adams’ direct appeal:

               At approximately 10:45 p.m. on Friday, December 8, 2006, a
       vehicle operated by Jonathan Adams struck a bicycle ridden by
       Tina Marie Brown in the westbound lane of Park Avenue in Des
       Moines. Brown died as a result of the injuries she received in the
       accident.
               On the day of the accident, Jodi Woods, a friend of Jonathan
       Adams, hosted a party at her house in Des Moines. The party
       started at approximately 8:30 a.m. The party had chips and snack
       trays for everyone, but guests were to bring their own beverages.
       People came and went throughout the day, and it was estimated
       that somewhere between fifteen and thirty people attended the
       party.
               ....
               At approximately 5:00 p.m., Sean Erickson, a friend who
       lived in the same apartment complex as Adams, came to Adams’s
       apartment to get a ride to Woods’s party. Adams and Erickson
       soon left for the party, but they decided to pick up some beer
       en route at a local gas station. Adams purchased a twelve-pack of
       Budweiser cans, while Erickson purchased a twenty-pack of
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Budweiser bottles. These transactions were recorded on the
store’s surveillance video, which was shown to the jury.
         Upon arriving at the party between 5:30 and 5:45 p.m.,
Adams placed his beer into the refrigerator and spent several hours
talking to guests in the kitchen. During trial nine witnesses were
called to testify as to their interaction with Adams while at the party,
mainly on the subject of whether Adams appeared intoxicated.
         Jodi Woods, the host, admitted she was intoxicated. She
testified that she did not even remember Adams and Erickson
showing up at the party.
         Erickson testified that he got “pretty drunk” at the party and
that he was still “intoxicated” when he and Adams left the party later
that evening. Although Erickson denied to some extent that Adams
was intoxicated, he also confirmed his prior deposition testimony
that “[he] wouldn’t say [Adams] was sober” while at the party.
Erickson also acknowledged having told his cousin after the
accident that both he (Erickson) and Adams were intoxicated.
Erickson testified that he could have consumed some of Adams’s
beer, and vice versa.
         Andrew Mattes, a guest, testified that Adams “came off as a
little bit arrogant” and “obnoxious” at the party. He also stated that
Adams had a beer in his hand at the party, but he did not know if he
was drunk.
         Jennifer Mattes, Andrew’s wife, also spent time in the
kitchen talking to Adams. She testified that Adams was “loud and
obnoxious” and that “the entire time [she] saw him he had a can of
beer or a bottle of beer in his hand.” However, she did not see
enough of Adams to form a judgment whether he was intoxicated,
although she did not believe that Adams was intoxicated.
         Matthew Montgomery, another guest, spent a majority of his
time at the party in the garage and living room, where the kitchen is
not visible. However, Montgomery did interact with Adams on one
occasion when Adams made fun of Montgomery’s Philadelphia
Eagles sport jacket.          Adams is a Pittsburgh Steelers fan.
Montgomery testified that he thought Adams was “a little unsteady
on his feet. His speech seemed to be a little bit slurred.”
Montgomery also noted that Adams rocked back and forth and was
wobbly, that Adams “was kind of aggressive, and he was kind of
belittling some people.” Montgomery further testified that he
thought Adams was too intoxicated to drive home. Montgomery did
admit he had used marijuana twice that evening.
         Chad Adams, Jonathan Adams’s brother, testified that his
brother was drinking but did not appear intoxicated. Also, Chad
Adams’s wife, Michelle Mullica, testified she spoke with Jonathan
Adams while at the party and did not believe he was intoxicated.
Jose Padilla testified that Jonathan Adams did not appear
intoxicated although he had a beer in his hand.
                                   4


        Christopher Dow, a school teacher and a friend of Adams,
testified that he arrived at the party at 10:00 p.m., shortly before
Adams left. At the time of his arrival, Dow believed that Adams was
not intoxicated.
        Adams, who took the stand in his own defense, claimed that
he “opened” three or four cans of beer and “sipped” them during the
evening. He testified that others consumed some of the beer he
had brought. Adams also admitted that he opened a bottle of
Budweiser. He denied that he was under the influence of alcohol
when he left the party.
        At around 10:45 p.m., Adams and Erickson decided to go
home in Adams’s car. It is undisputed that the right front headlight
on Adams’s car, a Chevrolet Monte Carlo, was not operating.
Adams drove while Erickson sat in the passenger seat. When they
left, Adams and Erickson had four cans (out of an original twelve)
and two bottles (out of an original twenty) of beer remaining. These
were placed in the backseat of the car. Adams testified that as he
was proceeding west on Park Avenue, he took his eyes off the road
to change the satellite radio station in his car. At that time, his
vehicle struck Brown who was riding her bicycle in the same
westbound direction near the curb. Brown was thrust onto the hood
of the vehicle and her head slammed into the windshield collapsing
it inward. Brown’s body then rolled to the right, broke the passenger
side mirror and came to rest 86.4 feet from the initial collision point.
As a result of this collision, Brown suffered skull fractures that
caused her death.
        Erickson and Adams each told a different story about what
happened after the collision. Erickson testified that he did not know
what the car had hit, but when they were stopped at a red light a
block after the collision, he turned and asked Adams what had
happened. Adams then responded, “Shut the f–––up and let me
think for a minute.” After that, Adams proceeded to drive to the
apartment complex.
        Adams disputed Erickson’s version. He testified that after
the collision he immediately turned to Erickson and asked him what
they had hit. According to Adams, Erickson answered that he
thought they had hit a trash can. Adams went on to testify that as
they approached the red light at the intersection it turned green so
he proceeded through it, still confused and trying to figure out what
had just happened. Adams also stated that when they parked at
the apartment complex, Erickson finally stated that maybe they had
hit a bike, to which Adams responded that it could not have been a
bike at this time of night in December.
        After arriving at the apartment complex, Adams and Erickson
retired to their respective apartments. Adams called his brother
Chad to talk about what had just happened. According to their
testimony, Chad attempted to calm Adams by reassuring him that
                                          5


         he could not have struck a bicycle; it must have been just a trash
         can.
                 At no point during that night did Adams or Erickson contact
         the police. Rather, around 11:00 p.m., another motorist discovered
         Brown’s body in the road. He made an emergency 911 call, and
         Brown was pronounced dead at the scene. The Des Moines police
         immediately began an investigation. During Saturday, December 9,
         the police canvassed local parking lots and advised local media
         outlets that they were looking for a red-colored vehicle with
         extensive front end damage.
                 The following morning, Sunday, December 10, Chad saw the
         news reports of the incident and called Adams. Later that
         afternoon, Adams had his mother take him to Wal–Mart where he
         purchased a car tarp to cover his vehicle.
                 Police continued to investigate the accident, but neither
         Adams nor Erickson contacted the police. Eventually, on Sunday
         night, Erickson telephoned a cousin in Texas and told him that both
         he and Adams had been intoxicated and that they had hit and killed
         a woman. The cousin contacted the police, who immediately went
         to the apartment complex to talk to Adams and Erickson. Neither
         were home at the time, but the police did discover the car under the
         tarp.
                 On Monday, December 11, 2006, Adams contacted an
         attorney and turned himself in. Adams was eventually charged by
         trial information with homicide by vehicle, OWI, and leaving the
         scene of an accident. A jury trial was held from December 12
         through December 18, 2007, and Adams was found guilty on all
         charges. Motions for arrest of judgment and new trial were denied,
         and the court sentenced Adams to twenty-five years imprisonment
         for homicide by vehicle, one year for OWI, and two years for
         leaving the scene of an accident, all sentences to run concurrently.
         Adams is required to serve at least seven-tenths of his twenty-five
         year sentence.

State v. Adams, No. 08-0513, 2009 WL 3337603, at *1–3 (Iowa Ct. App. Oct. 7,

2009).

         On direct appeal, Adams maintained trial counsel was ineffective “for

failing to request a jury instruction on causation and properly raise the State’s

proof of causation.” State v. Adams, 810 N.W.2d 365, 372 (Iowa 2012). Our

supreme court held the State has the burden to prove a causal connection

between the defendant’s intoxicated driving and the victim’s death. Id. at 371.
                                        6


Because trial counsel had “not been permitted an opportunity to explain whether

a causation defense was considered” or “whether there were plausible strategic

reasons for not pursuing it,” the supreme court affirmed Adams’ conviction and

preserved his claim of ineffective assistance for possible PCR proceedings. Id.

at 373–74.

      Adams again raised the claims of ineffective assistance in his application

for PCR. The district court held a hearing on the matter on March 27, 2014. At

the hearing, trial counsel testified he “did not believe that [the proximate cause

instruction] was required” prior to the supreme court’s holding in Adams’ direct

appeal. Trial counsel also testified he did not consider defending the case for

lack of proximate cause but stated he was aware that the State had the burden to

prove the causation element before the trial.        Counsel believed the jury

instruction that was used properly summarized the law.

      On June 9, 2014, the district court denied Adams’ application for PCR.

Adams appeals.

II. Standard of Review.

      We typically review postconviction-relief proceedings on error. Ledezma

v. State, 626 N.W.2d 134, 141 (Iowa 2001).        However, when the applicant

asserts claims of a constitutional nature, our review is de novo. Id. Thus, here

we review the applicant’s claim of ineffective assistance de novo. See id.

III. Discussion.

      Adams maintains he received ineffective assistance because trial counsel

failed to challenge the lack of proximate cause between intoxicated driving and
                                        7


the victim’s death and failed to request a jury instruction regarding proximate

cause.

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

prove by a preponderance of the evidence (1) the attorney failed to perform an

essential duty and (2) prejudice resulted from the failure. State v. Rodriguez, 804

N.W.2d 844, 848 (Iowa 2011). 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.” See Strickland v.

Washington, 466 U.S. 668, 688 (1984).          Adams must overcome a strong

presumption of counsel’s competence. See id. at 689. To establish prejudice,

he must show there is “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

See id. at 694. “The likelihood of a different result must be substantial, not just

conceivable.” State v. Ambrose, ___ N.W.2d ___, 2015 WL 47853, at *5 (Iowa

2015). We “will not reverse where counsel has made a reasonable decision

concerning trial tactics and strategy, even if such judgments ultimately fail.”

Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989). The claim fails if either element

is lacking. See Everett v. State, 789 N.W.2d 151, 159 (Iowa 2010).

         A. Duty.

         Prior to Adams’ trial, case law established that in order to sustain a

conviction for manslaughter by drunken driving, it is necessary to show a direct

causal connection between the defendant’s drunken driving and a decedent’s

death. See State v. Rullestad, 143 N.W.2d 278, 280 (Iowa 1966); see also State

v. Wullner, 401 N.W.2d 214, 219 (Iowa Ct. App. 1986) (“In order to sustain an
                                        8


involuntary manslaughter conviction based upon the public offense of drunk

driving, it is necessary to show a direct causal connection between the drunk

driving and the death.”). Additionally, in State v. Wieskamp, 490 N.W.2d 566,

567 (Iowa Ct. App. 1992), our court concluded proof of the causal connection is

required for a conviction under section 707.6A(1)(a)—the statute Adams was

convicted under. We stated, “The evidence is undisputed in this case that a

sober driver with reasonable care would have struck the victim . . . . Therefore

[the defendant’s] intoxicated driving was not a substantial factor in causing the

victim’s death. We dismiss the vehicular homicide charge . . . .” Wieskamp. 490

N.W.2d at 567.

      Here, Adams’ trial counsel failed to challenge the lack of proximate causal

connection between the criminal act of intoxicated driving and the victim’s death

or request a jury instruction on proximate cause. The supreme court preserved

Adams’ claim of ineffective assistance on direct appeal because “[t]rial counsel

ha[d] not been permitted an opportunity to explain whether a causation defense

was considered and if it was considered, whether there was plausible strategic

reasons for not pursuing it.” Adams, 810 N.W.2d at 373–74.

      At the PCR hearing, trial counsel admitted he never considered

challenging the lack of proximate cause. Counsel maintained, in hindsight, that

defending the case two ways—both that Adams was not intoxicated at the time

and challenging the lack of proximate cause—would have overall weakened

Adams’ defense. Although counsel attempted to portray the failure to challenge

the lack of proximate cause as a strategic decision, we do not believe the failure

to consider a possible defense can be characterized as strategy.
                                          9


       Additionally, “[a] fair assessment of attorney performance requires that

every effort be made to eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel’s challenged conduct, and to evaluate the conduct

from counsel’s perspective at the time.” Strickland, 466 U.S. at 690.           Here,

counsel’s attempt to explain why pursuing both defenses may not have been

effective amounts to nothing more than Monday morning quarterbacking.

       Trial counsel’s failure to challenge the lack of proximate cause and

request a jury instruction on proximate cause constituted failure to perform an

essential duty.

       B. Prejudice.

       The record tends to prove that, at the time of the crash, the victim was

wearing dark clothing while bicycling on a high-traveled city street, late at night in

December. Moreover, the right headlight of Adams’ car was not functioning at

the time.1 Our supreme court stated, “Under these circumstances, we think a

rational fact finder could have found Adams’ alleged intoxicated driving was not

the factual cause of Brown’s death because a driver who had not ingested

alcohol before the crash would have struck the victim . . . .” Adams, 810 N.W.2d

at 373 n.9. We agree.

IV. Conclusion.

       Because we find counsel was ineffective for failing to challenge the lack of

proximate cause and seek an instruction on the same, and there is a reasonable

probability the result of the proceeding would have been different, Adams has


1
  The lack of a headlight may reflect negligence but alone does not support criminal
responsibility for involuntary manslaughter.
                                          10


established his claim of ineffective assistance. We reverse the decision of the

district court and a grant a new trial.

       REVERSED AND REMANDED.
