James Robert Ernst II v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 23-1598
Filed January 23, 2025

JAMES ROBERT ERNST II,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer,

Judge.

James Ernst appeals the district court’s denial of his application for

postconviction relief. AFFIRMED.

Karmen Anderson, Des Moines, for appellant.

Brenna Bird, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee State.

Considered by Chicchelly, P.J., Buller, J., and Bower, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2025).
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BOWER, Senior Judge.

James Ernst II appeals the district court’s denial of his application for

postconviction relief (PCR) following his 2016 conviction for first-degree murder.

Ernst claims his trial counsel was ineffective by failing to strike a juror for cause,

failing to locate and depose State and defense witnesses, failing to object to the

prosecutor’s closing statement that he asserts amounted to misconduct, failing to

object to a defense witness who testified while attired in inmate clothing along with

handcuffs and shackles, and for failing to request a spoliation instruction

concerning a lost video. Ernst also raises a claim of ineffective assistance of PCR

counsel. Upon our review, we affirm the denial of Ernst’s PCR application.

I. Background Facts and Proceedings

In its ruling affirming Ernst’s conviction on direct appeal, our court set forth

the following background facts:

On the evening of December 5, 2014, Ernst rented a white Lincoln
MKX in Cedar Rapids and drove to Waterloo accompanied by his
friend Iviontae Jackson. Around 1:00 a.m., Jackson and Ernst met
up with friends Shaumara Taylor and Katie Werner. For a reason
never resolved at trial, the group stopped at a local convenience
store. At the convenience store, Taylor got in a physical fight with a
woman, Angela Norris, who had arrived at the convenience store in
another car. Campbell was also at the convenience store. Campbell
and his friends stopped to watch the fight between Taylor and Norris.
One of Campbell’s friends called other people about the fight; before
long, there was a group of over fifteen people surrounding the
combatants. Ernst testified he did not know anyone in this crowd
except his three friends. The fight was recorded by the store’s
security camera.
The fight between Taylor and Norris subsided after members
of the crowd intervened. However, after several minutes, the two
began fighting again. The second fight was not in the view of the
security camera. What happened next is the subject of dispute.
According to the State’s witnesses, one of the bystanders, the
father of Norris’s child, tried to pull Taylor away from Norris. There
was a verbal argument between some of the men watching the fight,
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Ernst fired his handgun, and Campbell was shot and killed. None of
the State’s witnesses observed any physical fighting between the
men.
According to Ernst, Ernst saw a man push Taylor in an attempt
to break up the fight. Ernst then grabbed Taylor to drag her away
from the fight. As Ernst dragged Taylor away from the fight, she
continued to argue with the man who had pushed her. As Ernst
approached his car, he heard a cocking sound, turned, and saw two
men with their hands at their waists. Ernst testified he held up his
hand and said, “Stop, this is just a girl fight. This ain’t got nothing to
do with me.” One of the men, later identified as Campbell, allegedly
replied, “No, fuck that. I’m Crip. I’m on that.” Campbell then
punched Ernst in the jaw, stepped back, and reached toward his belt.
Ernst had a permit to carry a concealed weapon and had a gun on
his person. Ernst pulled out his handgun and fired five shots at
Campbell at close range. Ernst claims he aimed low to disable
Campbell but recoil forced the gun higher. Ernst stopped firing when
he saw Campbell put his hand to his chest. Ernst and his three
friends fled the scene.
After Ernst fled the scene, Campbell’s friends drove Campbell
to a local hospital. He was pronounced dead shortly after arrival at
1:51 a.m. Campbell had been shot twice, once in the chest and once
in the neck. Meanwhile, Ernst returned to Taylor’s apartment for
roughly thirty minutes before leaving town with Jackson. Ernst went
to Dubuque to visit a female friend. He then drove to Davenport to
visit his sister. Finally, he returned to Cedar Rapids. The State
alleged Ernst attempted to evade police for some period of time after
the shooting. Ernst denied this. Regardless, the police were unable
to locate Ernst for several weeks. Ultimately, Ernst was arrested
January 1, 2015, for the murder of Campbell.

State v. Ernst, No. 16-0628, 2017 WL 5185403, at *1 (Iowa Ct. App. Nov. 8, 2017).

In affirming Ernst’s conviction, we determined his claims of prosecutorial

misconduct presented significant issues and thus preserved his ineffective-

assistance-of-counsel claims for postconviction-relief proceedings. Id. at 5.

II. Standard of Review

“We generally review a district court’s denial of an application for [PCR] for

errors at law.” Doss v. State, 961 N.W.2d 701, 709 (Iowa 2021). However, when
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a basis for relief involves a constitutional violation, such as claims of ineffective

assistance of counsel, our review is de novo. Id.

III. Discussion

Ernst raises six claims on appeal, five related to his trial counsel’s

representation, and one related to his PCR counsel’s representation. To prove his

counsel ineffective, Ernst must prove (1) counsel’s performance fell below

objectively reasonable standards and (2) if counsel had acted differently, there

would have been a reasonable probability of a different outcome at trial. Strickland

v. Washington, 466 U.S. 668, 687–88, 694 (1984). “We may affirm the district

court’s rejection of an ineffective-assistance-of-counsel claim if either element is

lacking.” Anfinson v. State, 758 N.W.2d 496, 499 (Iowa 2008).

A. Counsel’s Failure to Strike a Juror for Cause. Ernst first claims counsel

was ineffective for not striking a juror, J.T., for cause after she stated she “had an

Orintheo as a student many years past.” Ernst assumes that Orintheo Campbell,

the victim, is the same person J.T. was referring to from years ago. Ernst asserts

this connection demonstrates an inference of implicit bias and warranted J.T.’s

removal. Although the follow-up questioning by counsel to this statement from J.T.

was limited, counsel did ask if there would be anything which would affect her

ability to sit on the jury. J.T. responded, “I don’t think so.” Even if a potential juror

indicates they were acquainted with a party, witness, or victim to a case, if the juror

states they will be unbiased in their duties, it is not improper for counsel to refrain

from striking that juror. See Reynolds v. State, No. 06-1272, 2007 WL 2257083,

at *4 (Iowa Ct. App. Aug. 8, 2007); see also State v. Sommer, 86 N.W.2d 115,

124–25 (Iowa 1957). Potential bias from a juror “may be actual or implied.” State
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v. Webster, 865 N.W.2d 223, 236 (Iowa 2015). “Implied bias arises when the

relationship of a prospective juror to a case is so troublesome that the law

presumes a juror would not be impartial.” Id.

Ernst cites a California case, People v. Romero, which determined a juror

should have been discharged from trial because of a previous academic

relationship with the victim. 222 Cal. Rptr. 3d 322, 328 (Cal. Ct. App. 2017). The

court found implicit bias was shown because the juror stated she remembered the

victim and could recall her academic performance as “good.” Id. at 779.

But Romero is distinguishable from this case. J.T. stated she “had an

Orintheo as a student” and “the name stuck with [her].” She did not indicate any

opinion about the victim’s academic performance or any personal opinion on the

victim’s character. This does not rise to a troublesome relationship with the victim

where the law “presumes a juror would not be impartial.” Webster, 865 N.W.2d at

236. More importantly, there is no evidence in the record showing Campbell was

the same Orintheo which J.T. taught. At the PCR hearing, trial counsel stated he

determined J.T. did not show any prejudice through her statements, and she never

confirmed Campbell was her student. The decision to forgo striking J.T. was a

strategic one, and Ernst has failed to show prejudice. See Dixon v. State, No. 16-

2195, 2018 WL 3471833, at *5 (Iowa Ct. App. July 18, 2018) (“It is well established

that we will not find counsel ineffective if counsel made a reasonable strategic

decision to take or forego particular action.”).

B. Counsel’s Failure to Locate and Depose Witnesses. Ernst next claims

trial counsel failed to depose State’s witnesses prior to trial, which would have

enhanced cross-examinations. “An inadequate investigation by defense counsel
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can be ineffective assistance.” Brown v. State, No. 03-1741, 2004 WL 2672255,

at *3 (Iowa Ct. App. Nov. 24, 2004) (citing Thomas v. Lockhart, 738 F.2d 304, 308

(8th Cir. 1984)). If counsel makes strategic trial decisions after a “less than

complete investigation” those decisions “must be based on reasonable

professional judgments which support the particular level of investigation

conducted.” State v. Virgil, 895 N.W.2d 873, 879 (Iowa 2017) (quoting Ledezma

v. State, 626 N.W.2d 134, 143 (Iowa 2001)). Ernst asserts his counsel’s strategy

to forgo depositions of State witnesses to preserve a “big reveal” at trial

demonstrating Campbell had reached for a gun prior to Ernst shooting him was

unwarranted, as it was already known the defense was justification.

Counsel testified at the PCR trial he discussed with co-counsel this strategy

to forgo depositions after reviewing the minutes of testimony. The defense was in

possession of discovery materials, including sworn statements from twelve

witnesses. Counsel determined these sworn statements were useful, and they

had the witnesses “pinned down.” Because defense counsel felt deposing these

witnesses would be counterproductive, tipping off prosecutors to lines of

questioning to be used at trial, they decided to refrain from taking them. Trial

counsels’ strategy to forgo taking depositions was “based on reasonable

professional judgments,” which supported the degree of their investigation. See

Ledezma, 626 N.W.2d at 143. Thus, counsel did not breach an essential duty.

Ernst also claims trial counsel was ineffective for failing to locate three

witnesses to investigate whether each had knowledge which would bolster his

defense. Ernst asserts the witnesses were present and eyewitnesses to the

incident. Counsel testified their investigator was diligent in attempting to locate
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witnesses helpful to the defense, based on Ernst’s statements and the police

report. At the PCR trial, Ernst did not present testimony from these witnesses or

any evidence showing what these witnesses knew about the incident. Ernst did

not show there was “a reasonable probability” if counsel had contacted these

witnesses, “the result of the proceeding would have been different.” Id. (quoting

Strickland, 466 U.S. at 694). Thus, Ernst was not prejudiced by this claim. This

analysis also applies to Ernst’s additional claim that counsel failed to interview

three other witnesses, one of which ignored attempts to contact her. Again, Ernst

presented no testimony or evidence of the witnesses’ purported knowledge of the

incident at the PCR trial, and thus he was not prejudiced.

C. Defense Counsel’s Failure to Object to Prosecutorial Misconduct. Ernst

next claims his counsel should have objected to statements in the prosecutor’s

closing argument, asserting the prosecutor misstated the law which was improper.

Concerning the alleged misstatement of law, Ernst takes issue with the prosecutor

stating Ernst had alternative courses of action that undermined his justification

defense. When a court reviews a nonconstitutional error, the analysis must

determine whether “the rights of the complaining party have been injuriously

affected by the error or that he has suffered a miscarriage of justice.” State v.

Paredes, 775 N.W.2d 554, 571 (Iowa 2009) (citation omitted). Under this analysis,

“[w]e presume prejudice . . . and reverse unless the record affirmatively establishes

otherwise.” Id. (quoting State v. Newell, 710 N.W.2d 6, 19 (Iowa 2006)).

Ernst’s trial counsel did not fail to perform an essential duty by failing to

object to the prosecutor’s alleged misstatement of law. “Counsel may draw

conclusions and argue permissible inferences which reasonably flow from the
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evidence presented.” State v. Reeves, No. 13-0908, 2014 WL 2884864, at *4

(Iowa Ct. App. June 25, 2014) (quoting State v. Carey, 709 N.W.2d 547, 554 (Iowa

2006)). Although neither Iowa Code section 704.1 nor section 704.3 require a

person to retreat in a self-defense circumstance, the prosecutor inferred Ernst

could have left the scene of the incident. While the prosecutor stated Ernst “had

an obligation and requirement to seek that alternative course of action,” the

statement Ernst finds objectionable only referred to his ability to get into the car

and leave. The alleged misstatement of law referred to the availability of

alternative courses of action. Ernst’s trial counsel did not fail to perform an

essential duty to object to the statement, as the prosecutor’s statement was a

reasonable inference from the evidence. See Reeves, 2014 WL 2884864, at *4.

We concur with the PCR court’s finding:

The statements made by the prosecutors in closing argument about
the law on justification and whether Petitioner had an alternative
course of action available to him involved an interpretation of the
evidence that was contrary to Petitioner’s interpretation of the
evidence, but they did not involve misstatements about the law on
the availability of an alternative course of action. Petitioner’s trial
counsel had no duty to make a meritless objection . . . .

Turning to Ernst’s second assertion, he takes issue with the prosecutor

emphasizing defense witnesses had tailored their testimony by viewing security

footage while the State’s witnesses had not. Prosecutorial misconduct includes

but is not limited to “questioning witnesses about other’s deceit, distorting

testimony, making unsupported statements during closing argument . . . [and]

making other inflammatory or prejudicial statements about the defendant.” State

v. Coleman, 907 N.W.2d 124, 139 (Iowa 2018) (alteration in original) (citation

omitted). While prosecutors are allowed latitude during closing arguments in
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making inferences and conclusions based on evidence, they may not convey

personal beliefs. State v. Graves, 668 N.W.2d 860, 874 (Iowa 2003) (citing State

v. Phillips, 226 N.W.2d 16, 19 (Iowa 1975)). Prosecutors may attack a defense

theory as long as they do not make inflammatory or denigrating comments of a

personal nature. State v. Veal, 930 N.W.2d 319, 336 (Iowa 2019).

Relating to both a claim of prosecutorial misconduct or a claim of

prosecutorial error, Ernst must prove the misconduct or error resulted in prejudice

which denied him a fair trial. See Graves, 668 N.W.2d at 869. In determining if

Ernst was prejudiced by the conduct, we look to several factors including “(1) the

severity and pervasiveness of the misconduct; (2) the significance of the

misconduct to the central issues in the case; (3) the strength of the State’s

evidence; (4) the use of cautionary instructions or other curative measures; and

(5) the extent to which the defense invited the misconduct.” Id. (internal citations

omitted).

Because we can resolve this claim on the prejudice prong, we assume

without deciding the prosecutor’s comments amounted to prosecutorial error.

Applying the factors listed above, we, like the PCR court, find Ernst failed to show

he was prejudiced by the error. First, the conduct was not pervasive as it was the

only statement that qualified as vouching in the closing argument. The other

statements made by the prosecutor were based on legitimate inferences such as

how Campbell reacted after being shot, and inconsistencies between defense

witnesses’ testimony and statements to police. And the strength of the State’s

evidence was such that it showed a very low probability that Ernst’s actions

qualified as justification. Also, the jury was provided with standard instructions that
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statements from the attorneys are not evidence and should not be considered as

evidence. Ernst never presented evidence showing the jury failed to adhere to

these instructions. Thus, Ernst did not prove he was denied a fair trial due to

prejudice. And because we find Ernst cannot prove fair-trial prejudice under

Graves, we conclude he also cannot prove the reasonable probability of a different

outcome at trial if his counsel had objected, which means he cannot show

Strickland prejudice. See Coleman, 907 N.W.2d at 142–43 (observing “even if the

comments at issue amounted to prosecutorial misconduct, they were not severe

and pervasive as to represent a persistent effort on the part of the prosecutor to

present prejudicial information to the jury. As a result, there is nothing to suggest

the decision of Coleman’s counsel not to object to these statements from the

prosecutor was ‘so glaring that we are justified in saying so upon an examination

of the record’ or that the decision not to object resulted in prejudice” under the

ineffective-assistance framework (citation omitted)).

D. Counsel’s Failure to Object to Defense Witness Testifying in Handcuffs

and Jail Clothing. Ernst claims counsel was ineffective by failing to object to a

defense witness, appearing in court while in jail clothing and handcuffs. When a

criminal defendant is within the presence of a jury, they are “entitled to the indicia

of innocence in the presence of the jury.” State v. Bratcher, No. 14-2058, 2016

WL 1677997, at *3 (Iowa Ct. App. Apr. 27, 2016) (quoting State v. Wilson, 406

N.W.2d 442, 448 (Iowa 1987)). “Shackling a defendant in front of a jury is

inherently prejudicial.” Id. But the witness was not the defendant in this case,

Ernst was. A witness is not entitled to the same “indicia of innocence in the

presence of the jury” as required of a defendant. Wilson, 406 N.W.2d at 448.
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Defense counsel was aware of this difference and knew an objection would not

succeed. Thus, counsel did not breach an essential duty by failing to object to the

witness testifying in jail clothing.

E. Counsel’s Failure to Request a Spoliation Instruction. Ernst claims his

trial counsel were ineffective because they failed to request a spoliation instruction

concerning a lost video Waterloo Police acquired from the New World Lounge. In

January 2016, the State filed additional minutes of testimony stating that an officer

watched a video from New World Lounge. After watching the video, the officer

stated he placed it on an investigator’s desk. The investigator testified at trial the

video had been lost in the interim, and defense counsel was unable to view it. The

investigator stated he and fellow officers attempted to locate the video, either on a

DVD or flash drive, to no avail. He testified they were able to locate handwritten

notes about the video made by the observing officer.

Spoliation instructions are “direction[s] to the jury that it [may] infer from the

State’s failure to preserve [evidence] that the evidence would have been adverse

to the State.” State v. Hartsfield, 681 N.W.2d 626, 630 (Iowa 2004) (second and

third alterations in original) (quoting State v. Vincik, 398 N.W.2d 188, 795 (Iowa

1987)). The reason for this instruction is because “the fact finder may draw the

inference that the evidence destroyed was unfavorable to the party responsible for

its spoliation.” Id. (quoting State v. Langlet, 283 N.W.2d 330, 333 (Iowa 1979)).

“This inference is based on the rationale that a party’s destruction of evidence is

‘an admission by conduct of the weakness of [that party’s] case.’” Id. (alteration in

original) (quoting Langlet, 283 N.W.2d at 333). The inference of spoliation is not
12

applicable “when the destruction is not intentional.” Id. (quoting Langlet, 283

N.W.2d at 333).

In order to justify a spoliation inference, there must be substantial evidence:

“(1) the evidence was ‘in existence’; (2) the evidence was ‘in the possession or

under control of the party’ charged with its destruction; (3) the evidence ‘would

have been admissible at trial’; and (4) ‘the party responsible for its destruction did

so intentionally.’” Id. (quoting Langlet, 283 N.W.2d at 333). The testimony of the

officer who watched the video and the investigator clearly establish the first two

elements. It is assumed the video would be admissible, as it was relevant and

probative to the case and there was testimony referring to it. The issue then is the

fourth element, whether the video was destroyed intentionally.

There is no indication the State intentionally destroyed the video.

Uncontested testimony shows the Waterloo Police Department mislaid the video

and could not subsequently find it. The video was not lost on purpose, there was

no spoliation inference, and the jury was not entitled to such an instruction. See

id. Also, Ernst’s trial counsel elicited testimony concerning the loss of the video to

show the investigation was not thorough. Ernst’s trial counsel did not fail to perform

an essential duty in not requesting a spoliation instruction.

F. PCR Counsel’s Failure to Present Evidence Showing Defense Witnesses

or Deposition Testimony would have Changed the Outcome of Trial. Ernst claims

his PCR counsel was ineffective because counsel “did nothing to contact

witnesses” Ernst “listed as important to his defense.” We conclude we do not have

an adequate record to decide Ernst’s claim of ineffective assistance against his

PCR counsel. See Goode v. State, 920 N.W.2d 520, 526–27 (Iowa 2018)
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(declining to address a claim that PCR counsel provided ineffective assistance

raised for the first time on appeal from the PCR action because, without evidence

to support the claim, “the record on appeal [was] inadequate to address the new

claim of ineffective assistance of [PCR] counsel”). Accordingly, we will not

consider this claim.

Because of the reasons above, we affirm the denial of Ernst’s PCR

application.

AFFIRMED.