Gary Lee Alexander v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 24-0235
Filed January 23, 2025

GARY LEE ALEXANDER,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

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

Judge.

An applicant for postconviction relief appeals the district court’s denial of his

most recent application. AFFIRMED.

Jessica Donels of Parrish Kruidenier, L.L.P., Des Moines, for appellant.

Brenna Bird, Attorney General, and Nicholas E. Siefert, Assistant Attorney

General, for appellee State.

Considered by Tabor, C.J., and Ahlers and Sandy, JJ.
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SANDY, Judge.

Gary Lee Alexander appeals the dismissal of his most recent application for

postconviction relief (PCR). He argues his trial counsel was ineffective for

(1) failing to move to suppress his statements to authorities on the basis he had

not been read his Miranda rights and (2) failing to object to trial testimony from law

enforcement officials on the basis that their testimony was vouching for the victim.

We affirm the district court’s dismissal of Alexander’s PCR application.

I. Background Facts and Proceedings

Alexander ran an afterschool basketball program for young girls that he

called “Gary’s Girls.” He misused that position of access and authority to sexually

exploit and abuse a young girl hundreds of times for over half a decade, beginning

in 1997 when she was in fifth grade.

The victim was tall for her age and enjoyed basketball but had quit playing

due to her parents’ inability to provide transportation for the sport. After Alexander

met the victim, he convinced her parents to allow him to drive her home from

practices so that she could participate in “Gary’s Girls.” He would keep the victim

at the gym following practices for “individualized sessions,” during which he would

touch her inappropriately, including pulling her hips against his groin. Alexander

also became trusted by the victim’s family, praising her athletic ability and

continuing to assist with transporting her to basketball events.

Alexander gradually continued to groom the victim, taking her to parks

where eventually he would touch her inappropriately. He then began to drive her

to places other than training locations, including the local mall. Then, after one

practice, Alexander took the victim to a hotel and told her she needed to shower.
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After she showered, Alexander compelled the victim to walk across the hotel room

naked while he watched her in a state of undress. He forced himself on the victim,

then eleven years old, and proceeded to rape her.

Following those acts, Alexander pressured the victim into keeping quiet,

calling her a “good girl” and suggesting her family would be disappointed if she did

not continue playing basketball. He conditioned the victim’s future playing time on

allowing him to continue raping her. These acts, including oral sex, occurred at

local parks, hotels, and his residences. His behavior escalated into other forms of

violence as well, including biting her genitals, handcuffing her, and binding her to

a bed. In one incident “he hit [the victim] so hard the condom broke” so he took

her to the emergency room for a morning-after pill and “pretended to be [her]

father.” On another occasion he chased her around his apartment with a knife

when she attempted to end the relationship of abuse.

Following the victim’s completion of fifth grade, Alexander entered her into

beauty pageants and acted as her “manager” to further justify his increasing

exposure to the victim. He would photograph her in different clothes and swimsuits

under the guise of modeling. Alexander’s grooming of the victim was so thoroughly

effective that the victim gradually transitioned from viewing him as a father figure

to believing she loved him romantically. She wrote him letters envisioning their

future marriage.

Alexander was not always careful about hiding his predation. In addition to

the emergency room incident, there were a couple of occasions, including a car

accident, in which police had reason to ask why he was alone with the victim, but

she never revealed what was happening. Eventually he pushed too far. When the
4

victim was a junior or senior in high school, he adamantly argued to her mother

that she should put the victim on birth control. Taken aback, the victim’s mother

asked Alexander, “Are you having sex with my daughter?” She testified “it [was]

the first time I’ve ever seen him be flustered for words, and you could almost see

the color drain out of his face, just got kind of ashen gray.” The mother prohibited

the victim from further contact with Alexander.

The victim later told a boy she trusted and “really liked” what Alexander had

been doing to her. The boy encouraged her to report the behavior. He informed

a school counselor and the counselor asked the victim what had been going on

between her and Alexander. The victim stated nothing had happened because

she “didn’t want something to happen to [the boy].” But Alexander found out and

“started threatening [the boy]’s life.” The victim tried to end her contact with

Alexander, which led to the knife-chasing incident. She never directly contacted

him after that.

In 2009 the victim reported the abuse to the director of residence life at her

college. Although the director encouraged her to report the abuse to the police,

she did not do so because she believed it would be difficult to prosecute Alexander

after all that time. She did report the abuse to her parents. Three years after that

she reported the abuse to an old family friend who took her to the police to make

an official report. The victim explained she “had established [herself] . . . in Atlanta.

And [she] felt like [she] ha[d] enough willpower to come forward.”

The subsequent investigation corroborated the victim’s account of events.

Police found handcuffs and twine attached to Alexander’s bed and other handcuffs

and twine in storage in his residence. There were more than one thousand
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photographs of the victim strewn throughout the apartment including on the walls

and in Alexander’s wallet. There was a picture of the victim in a bathing suit hung

on the wall, and police found the exact bathing suit depicted in that image in

storage in the apartment. Five letters the victim had written to Alexander were also

recovered from the residence.

During that search, Alexander was at the Cedar Falls police department

because the police requested that he come in to talk. The police informed

Alexander they were investigating the victim’s report, and he agreed to come in for

the interview. Alexander gave numerous inconsistent accounts within that

interview. After initially claiming he had never seen the victim naked, he shortly

after admitted that he had sex with her when she was in eighth or ninth grade and

eventually conceded to having had sex with her when she was in sixth grade. He

also admitted to having the victim perform oral sex on him, using food during sex

acts, and tying her to the bed.

Alexander’s counsel advised him not to testify in his own defense at trial.

Alexander was advised that testifying in his own defense would remove any

possibility of having his police interview confession suppressed or excluded. But

Alexander decided from the onset that he would testify in his own defense. Due

to that insistence, his counsel stated that the entire trial strategy had been planned

around allowing the confession to be submitted so that Alexander could address

it. Alexander personally confirmed to the district court that this was how the trial

strategy was formulated.

THE COURT: All right. Do you want to make any further
record at this time?
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ALEXANDER’S COUNSEL: I'd simply ask that Mr. Alexander
to confirm the record that that has been the extent of our discussions
with respect to [his trial strategy]. Is that correct, Mr. Alexander?
ALEXANDER: Yes, that's correct.

During his testimony, Alexander claimed he purposely made admissions to the

interviewing officer as a tactical measure to expose “entrapment” and “lies” by the

Cedar Falls police. He also claimed his cavalier attitude and laughter while

describing the sexual abuse he engaged in was “acting” and that he was “laughing

at [the interviewing officer].”

Alexander was convicted of one count of second-degree sexual abuse and

two counts of third-degree sexual abuse, in violation of Iowa Code section 709.1

(2013). We affirmed his convictions on direct appeal. See State v. Alexander

(Alexander I), No. 14-0173, 2015 WL1332344, at *1 (Iowa Ct. App. Mar. 25, 2015).

Alexander filed his first PCR application in July 2015, which was denied on the

merits. On appeal, it became apparent that his PCR counsel had not developed a

sufficient record on which his PCR claims could be decided. See Alexander v.

State (Alexander II), No. 17-0390, 2020 WL 820329, at *2–3 (Iowa Ct. App.

Feb. 19, 2020). While the appeal of the first PCR was still pending, Alexander filed

a second PCR application in July 2017, raising issues not fully litigated in the first

PCR application. We then affirmed the district court on his first PCR appeal. Id.

at *3. Alexander next filed a third PCR application in June 2020, alleging ineffective

assistance of his first PCR application counsel. The second and third PCR

applications were combined into a single PCR action, which is the action before us

on appeal. The district court denied the combined PCR action on the merits.

Alexander now appeals.
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II. Standard of Review

We review claims for ineffective assistance of counsel de novo. Ledezma

v. State, 626 N.W.2d 134, 141 (Iowa 2001).

III. Discussion

Alexander argues his trial counsel was ineffective for (1) failing to move to

suppress his statements to police on the basis he had not been read his Miranda

rights and (2) failing to object to trial testimony from law enforcement officials on

the basis that their testimony was vouching for the victim.

As an initial matter, we agree with Alexander that his claims in this matter

are not barred by res judicata. The district court ruled in his favor on this issue,

finding that Alexander’s counsel in his first PCR action was ineffective in “fail[ing]

to perform an essential duty because [PCR counsel] did not ensure that the

underlying trial court record from [the criminal trial] became part of the record in

the first post-conviction relief trial, which a reasonably competent attorney would

have done.” And in his first PCR appeal, we found the lack of record available for

review would make it “improvident for us to assess trial counsel’s effectiveness in

the criminal proceedings.” Alexander II, 2020 WL 820329, at *2. So we now review

the issues presented in this PCR appeal in light of the fully developed record.

Alexander’s claims concern the ineffectiveness of his first PCR counsel

which, in turn, are reliant on the ineffectiveness of his trial counsel. On each claim,

Alexander “must establish by a preponderance of the evidence that ‘(1) his trial

counsel failed to perform an essential duty, and (2) this failure resulted in

prejudice.’” State v. Lopez, 907 N.W.2d 112, 116 (Iowa 2018) (quoting State v.

Harris, 891 N.W.2d 182, 185 (Iowa 2017)); accord Strickland v. Washington, 466
8

U.S. 668, 687 (1984). Failure to prove either will preclude relief. State v. McNeal,

897 N.W.2d 697, 703 (Iowa 2017).

Alexander carries the burden to prove, by a preponderance of the evidence,

that his counsel’s alleged failure resulted in prejudice. See Strickland, 466 U.S. at

687; Lopez, 907 N.W.2d at 116. That requires a showing that a reasonable

probability exists that the result of the proceeding would have been different; “[a]

reasonable probability is a probability sufficient to undermine confidence in the

outcome.”. Irving v. State, 533 N.W.2d 538, 540 (Iowa 1995) (citation omitted) .

A. Suppression of Statements to Police

Alexander argues that he “received ineffective assistance of counsel, to his

prejudice, when trial counsel failed to file a motion to suppress his un-warned

interrogation.” He argues that the circumstances surrounding his statements to

authorities indicate he was subjected to a custodial interrogation, thus implicating

Miranda. We disagree.

The Fifth Amendment to the United States Constitution provides that “[n]o

person . . . shall be compelled in any criminal case to be a witness against himself.”

The United States Supreme Court explained in Miranda v. Arizona that “when an

individual is taken into custody or otherwise deprived of his freedom by the

authorities in any significant way and is subjected to questioning, the privilege

against self-incrimination is jeopardized.” 384 U.S. 436, 478 (1966). If the Miranda

warning is not given, “the prosecution may not use statements, whether

exculpatory or inculpatory, stemming from custodial interrogation of the

defendant.” Id. at 444.
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“Miranda warnings are not required unless there is both custody and

interrogation.” State v. Countryman, 572 N.W.2d 553, 557 (Iowa 1997). There is

no dispute that the officer interviewing Alexander was conducting an interrogation

or that Alexander was not given a Miranda warning. Thus, we only need to

determine whether Alexander was in custody during the interview.

To determine whether the individual being interrogated was in custody, we look to

“the objective circumstances of the interrogation” rather than the “subjective views

harbored either by the officer or the person being questioned.” Id. We examine

all the circumstances surrounding the interrogation but ultimately make our

decision based on “whether there was a formal arrest or restraint on freedom of

movement of the degree associated with a formal arrest.” Stansbury v. California,

511 U.S. 318, 322 (1994) (cleaned up). We ask whether a reasonable person in

Alexander’s position would understand themselves to be in custody. See State v.

Ortiz, 766 N.W.2d 244, 251 (Iowa 2009) (quoting Berkemer v. McCarty, 468 U.S.

420, 442 (1984)). The four factors we consider in this determination are: “(1) the

language used to summon the individual; (2) the purpose, place, and manner of

interrogation; (3) the extent to which the defendant is confronted with evidence of

her guilt; and (4) whether the defendant is free to leave the place of questioning.”

Countryman, 572 N.W.2d at 558 (cleaned up). Based on these factors, we

determine that Alexander was not in custody during the interrogation at the Cedar

Falls police station.

Beginning with the first factor, Alexander was never placed in handcuffs.

When the special agent and detective contacted him at his apartment, they

informed him of the reason for their visit and requested he speak with them at the
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police station. They assured him that he would not be arrested nor held against

his will. He was not placed in a police vehicle and did not even accompany them

to the station. He drove to the station in his own vehicle after first showering in his

home.

On the second factor, while an interrogation at the police station is generally

considered more “coercive” than when taking place in another location, see State

v. Schlitter, 881 N.W.2d 380, 396 (Iowa 2016), this interview did not transform into

a custodial interrogation at any point. Moreover, that the interview lasted three-

and-a-half hours does not automatically transform the interview into custodial

interrogation. See Countryman, 572 N.W.2d at 558. We consider the number of

people conducting questioning, availability of breaks in questioning, and the

manner of the questioning. State v. Tyler, 867 N.W.2d 136, 172 (Iowa 2015). In

Alexander’s case, only the plain-clothed special agent interviewed him. Alexander

frequently laughed during the interview and took an unsupervised bathroom break.

In Tyler our supreme court found there to be no custodial interrogation under

similar facts to this case and where even more law enforcement personnel were

present:

Here, although the interrogation took place over the course of
a three-hour period, the room in which it occurred was carpeted and
well lit. Although the special agents who questioned [the defendant]
were armed, they were dressed in plain clothes. During the
questioning, only two special agents were present at any given time.
In fact, for the majority of the questioning only [one] Special
Agent . . . was present. At the start of the interview, [a] Special
Agent . . . asked [the defendant] if she needed to go to the restroom
and told her that if she needed anything to drink, to let them know.

Id. (internal citations omitted).
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The third factor—the extent to which the defendant is confronted with

evidence of his guilt—is the strongest factor in support of Alexander’s argument.

But at worst the special agent was confronting Alexander relating to

inconsistencies in his own story. He confirmed to Alexander that there were

allegations made against him. The special agent’s suggestion that more evidence

could be obtained or that the victim had made allegations against him, on their

own, do not support a finding that Alexander was in custody.

And lastly, the fourth factor heavily weighs against custody. “The most

obvious and effective means of demonstrating that a suspect has not been taken

into custody or otherwise deprived of freedom of action is for the police to inform

the suspect that an arrest is not being made and that the suspect may terminate

the interview at will.” State v. Miranda, 672 N.W.2d 753, 760 (Iowa 2003).

Alexander was repeatedly told he was not under arrest and could freely walk out.

The special agent informed Alexander, “You’re free to go at any time,” and if he

walked down the hallway, “you’re out of here.”

Near the interview’s halfway point, the special agent offered Alexander a

restroom break and a drink. When Alexander suggested “you’re keeping me a

long time,” the special agent confirmed, “Well, as long as you’re okay with it.”

When Alexander suggested he needed to leave for a doctor appointment, the

special agent said, “Okay.” And after taking his restroom break, Alexander again

requested confirmation that he was not under arrest and was “free to go anytime.”

The special agent again confirmed that Alexander would be “walking out of this

police department.” Any of the special agent’s attempts to convince Alexander to

stay to complete the interview are heavily outweighed by the multiple, explicit
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statements confirming Alexander was free to leave at any time. During the

interview the officer was not blocking Alexander’s exit. Because Alexander was

not in custody, his trial counsel committed no error in not moving to suppress that

interview.

B. Impermissible Vouching

Alexander next argues he received ineffective assistance of counsel, to his

prejudice, when trial counsel failed to object to inadmissible vouching testimony.

He complains that his trial counsel was ineffective because counsel did not object

when the special agent and detective “testified repeatedly that they found [the

victim] to be truthful, and that they believed her story.”

We do not allow opinion testimony that vouches for or bolsters the credibility

of another witness. See State v. Dudley, 856 N.W.2d 668, 676–77 (Iowa 2014)

(“Our system of justice vests the jury with the function of evaluating a witness’s

credibility.”). “Much of our case law has dealt with indirect vouching or bolstering,

with experts being asked to provide statistics on how rarely children misreport

sexual abuse, or by explaining if a complaining child’s behavior is consistent with

that of a victim’s behavior.” State v. Gillson, No. 15-2045, 2017 WL 2181176, at

*3 (Iowa Ct. App. May 17, 2017).

But here, the special agent was asked directly why he questioned Alexander

in the manner that he did. The prosecutor asked the special agent why he did not

begin the interview by interrogating Alexander about the accusations and what

factors would impact whether he starts an interrogation relating to the accusations.

The special agent directly answered this line of questioning by clarifying that he
13

was going to conduct an interrogation no matter what because he believed the

victim’s story.

And on cross-examination Alexander’s counsel directly asked the special

agent if he believed the victim while inquiring into why it took so long to arrest

Alexander.

ALEXANDER’S COUNSEL: [O]n January 4th by that time
you’d interviewed the accuser, are you saying that you weren’t
exactly sure that you believed all of her statements to you?
SPECIAL AGENT: No, I absolutely believed her, but there’s
still some investigation that needs to be done. We needed to
interview the defendant and see where he was going to go. And to
be quite honest, I didn’t know what he was going to admit to.

The special agent was also asked about his objective in interrogating a person:

ALEXANDER’S COUNSEL: Is what you’re looking for is an
admission?
SPECIAL AGENT: Correct.
ALEXANDER’S COUNSEL: There’s no question that that’s
what your goal was in this.
SPECIAL AGENT: I’m looking to get to the truth.
ALEXANDER’S COUNSEL: And but an admission, correct?
SPECIAL AGENT: An admission to the truth.
ALEXANDER’S COUNSEL: And again, it’s an admission to
the truth as you believe it based on your interview with the accuser,
correct? Because you weren’t there, you can’t say what—you didn’t
witness any of these events, correct?
SPECIAL AGENT: That’s correct. I wasn’t there for all those
years.
ALEXANDER’S COUNSEL: Okay. So it is the truth based on
your investigation and your interview of the accuser, correct?
SPECIAL AGENT: Correct.
....
ALEXANDER’S COUNSEL: Okay. And so that that’s what—
why you wanted to establish the age of the accuser at the time that
the alleged relationship initiated, correct?
SPECIAL AGENT: Sure. I wanted to get to the truth.
ALEXANDER’S COUNSEL: Okay. And again, it’s the truth as
you believe it based on your interviews with the accuser and other
information you received from the police officers. Correct?
SPECIAL AGENT: Yes.
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The detective was also asked about his investigation following his conversation

with the victim:

ALEXANDER’S COUNSEL: After you spoke with her, what
did you do?
DETECTIVE: I wanted to try to corroborate as many of the
statements as she told me as I could just to show that she was a
truthful person.

In contrast to the typical vouching case, the detective and special agent were not

expert witnesses opining on the victim’s credibility. They only offered those

credibility statements in direct response to questions asking them to explain the

motive behind their investigative actions. See, e.g., State v. Newell, 710 N.W.2d 6,

31–32 (Iowa 2006) (finding no improper bolstering where detective claimed he

would believe a witness if their story was corroborated). It was not ineffective

assistance of counsel for Alexander’s counsel to pursue a trial strategy portraying

law enforcement as biased for the victim. Moreover, his trial counsel testified in

the first PCR case that he was aware of the prohibition on experts vouching for

child sexual abuse victims and that he did not view that as occurring in this trial.

“Improvident trial strategy, miscalculated tactics, and mistakes in judgment do not

necessarily amount to ineffective assistance of counsel.” State v. McKettrick, 480

N.W.2d 52, 55 (Iowa 1992).

Alexander’s counsel was not ineffective in failing to object to the alleged

vouching testimony.

IV. Conclusion

Because Alexander’s trial counsel was not ineffective, we affirm the district

court’s order denying his combined PCR application.

AFFIRMED.