Leon Shivers appeals the denial of his application for postconviction relief (PCR). He argues his trial counsel in an underlying criminal proceeding was ineffective in failing to provide a favorable jury instruction on causation, object to hearsay evidence, and move to exclude or object to opinion evidence using legal terms on a legal conclusion.
Shivers was convicted following a jury trial of vehicular homicide by operating while intoxicated, in violation of Iowa Code section 707.6A(1)(a) (2016). This court affirmed his conviction on direct appeal and preserved claims for PCR proceedings. State v. Shivers, No. 16-1989, 2018 WL 1099239, at *1, *3 (Iowa Ct. App. Feb. 21, 2018). We recited the facts of this case in that opinion and need not repeat them here. Shivers filed his PCR application in June 2018, and trial was held in December 2019. The district court denied the application. Shivers appeals.
“[W]e review claims of ineffective assistance of counsel de novo. In addition, we give weight to the lower courts findings concerning witness credibility.” Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). “To prevail on a claim of ineffective assistance of counsel, the applicant must demonstrate both ineffective assistance and prejudice.” Id. at 142. Applicants must prove both prongs of the test by a preponderance of the evidence. Id. If an appellate court can resolve a claim on solely the prejudice prong, we are free to do so. Id. Counsel has provided ineffective assistance by “breach[ing] an essential duty when counsel makes such serious errors that counsel is not functioning as the advocate the Sixth Amendment guarantees.” Doss v. State, 961 N.W.2d 701, 709 (Iowa 2021) (quoting State v. Ross, 845 N.W.2d 692, 698 (Iowa 2014)). We presume counsel performed competently, but “scrutinize each claim in light of the totality of the circumstances.” Ledezma, 626 N.W.2d at 142. To prove the prejudice prong, “the applicant must demonstrate ‘that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different.’ ” Id. at 143 (quoting Strickland v. Washington, 466 U.S. 668, 690–91 (1984)).
Shiverss first claim is that trial counsel was ineffective in failing to request a causation instruction consistent with the applicable civil standard used in tort law. Our supreme court has examined the interaction of the causation standards used in criminal and tort law. See State v. Tyler, 873 N.W.2d 741, 747–50 (Iowa 2016). Although the court chose to not determine whether “the ‘legal cause’ aspect of the former proximate cause doctrine has any continuing viability in criminal cases after [the] decision in Thompson v. Kaczinski,” the court will affirm if “substantial evidence supports a finding of proximate causation” when examining the record on a sufficiency-of-the-evidence claim. Id. at 750 (citation omitted).
[W]e clarified that when “causation does surface as an issue in a criminal case, our law normally requires us to consider if the criminal act was a factual cause of the harm.” State v. Tribble, 790 N.W.2d 121, 126–27 (Iowa 2010). Except where multiple acts contribute to cause a consequence, the determination of factual causation turns simply on whether “ ‘the harm would not have occurred absent the [defendants] conduct.’ ” Id. at 127 (quoting Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 26, at 346 (2010)).
State v. Adams, 810 N.W.2d 365, 372 (Iowa 2012) (footnote omitted).
The purpose of jury instructions is to “convey the applicable law in such a way that the jury has a clear understanding of the issues it must decide.” State v. Coleman, 907 N.W.2d 124, 138 (Iowa 2018) (quoting Rivera v. Woodward Res. Ctr., 865 N.W.2d 887, 892 (Iowa 2015)). Jury instruction 21 stated: “[Shiverss] intoxicated driving unintentionally ‘caused’ death or serious injury if: 1. The death or serious injury would not have occurred without [Shiverss] intoxicated driving; and 2. [Shiverss] intoxicated driving made the death or serious injury more likely to occur.” At the time of Shiverss trial in 2016, the State needed to prove his conduct was a factual cause of the harm. Adams, 810 N.W.2d at 372. The language of instruction 21 satisfied that requirement. Because the applicable causation law in criminal cases at the time of Shiverss trial was accurately reflected by instruction 21, counsel did not fail to perform an essential duty in failing to request the civil jury instruction. See Doss, 961 N.W.2d at 709. Further, based on our review of the facts set forth in our prior opinion on the appeal from the conviction, we agree with the district court Shivers cannot prove the prejudice prong of an ineffective-assistance claim because there was overwhelming evidence of his guilt. See id.
Second, Shivers argues his trial counsel was ineffective in failing to object to the admission of hearsay evidence. Shivers targets the statements of one police officer and one state trooper who were both asked if they were told about an unidentified witness who allegedly said that Shivers was not driving the car at the time of the accident. Both witnesses responded in the negative. Generally, “hearsay is not admissible unless any of the following provide otherwise: the Constitution of the State of Iowa; a statute; these rules of evidence; or an Iowa Supreme Court rule.” Iowa R. Evid. 5.802. Negative testimony, however, “is not strictly speaking hearsay, but circumstantial evidence tending to prove that the claimed [evidence in dispute] had no existence in fact.” State v. Kern, 307 N.W.2d 22, 26 (Iowa 1981) (quoting Thomas v. State, 14 P.2d 953, 954 (Okla. 1932)); see also State v. Don, 318 N.W.2d 801, 806 (Iowa 1982). The testimony of both the police officer and the state trooper falls into the category of negative testimony, and is thus admissible. Id. We will not find counsel ineffective for failing to make a meritless claim. See State v. Lilly, 930 N.W.2d 293, 309 (Iowa 2019).
Third, Shivers argues his trial counsel was ineffective in failing to object to opinion evidence that used legal terminology and commented on a legal conclusion. Shivers argues that testimony of Dr. John Piper, who treated the decedent, inappropriately used legal jargon to comment on a legal conclusion that was before the jury. When asked by the State if “the injuries [the decedent] received in the motor vehicle crash, the brain injury, were certainly a proximate cause of [the decedents] death,” Dr. Piper responded “yes.” Shivers takes issue with the use of the phrase “proximate cause” and the conclusion that the brain injury was the singular cause of death. He also argues that the State improperly emphasized that conclusion during closing arguments.
Iowa takes a “liberal view of the admissibility of expert opinion testimony.” State v. Akright, 506 N.W.2d 465, 468 (Iowa Ct. App. 1993). Even so, an expert witness cannot “express a direct opinion on the guilt or innocence of the defendant.” State v. Dinkins, 553 N.W.2d 339, 341 (Iowa Ct. App. 1996). Here, Dr. Piper expressed his opinion that the brain injury suffered as a result of the car accident was a cause of the decedents death. Dr. Piper offered no opinion on Shivers guilt or innocence and did not use the phrase “proximate cause” in pronouncing his opinion on the cause of death. Dr. Pipers statement was focused entirely on the facts that led to the decedents death and did not give an opinion on the legal conclusion reserved for the jury; that is, he offered no opinion as to whether Shiverss intoxicated driving caused the death. Id. at 341–42. The jury was properly instructed on the “cause” necessary to find guilt. We need not decide whether counsel breached a duty by failing object to the question posed to Dr. Piper by the State because we find Shivers was not prejudiced. Ledezma, 626 N.W.2d at 141.
Shivers has failed to meet his burden to prove that his trial counsel was ineffective. We affirm the denial of his PCR application.
AFFIRMED.
MULLINS, Presiding Judge.