Dale Robert Tournier v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 21-0985
Filed August 3, 2022

DALE ROBERT TOURNIER,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Bremer County, DeDra L. Schroeder,

Judge.

An applicant appeals the denial of his application for postconviction relief.

AFFIRMED.

Thomas M. McIntee, Williamsburg, for appellant.

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

General, for appellee State.

Considered by May, P.J., and Greer and Chicchelly, JJ.
2

GREER, Judge.

Dale Tournier was convicted of one count of second-degree sexual abuse

of a child under the age of twelve. See Iowa Code §§ 709.1; 709.3(1)(b) (2016).

In this postconviction-relief (PCR) action, he asserts he was afforded ineffective

assistance by his trial counsel and that the trial court abused its discretion by not

granting his motion for a new trial. Because his allegations of ineffective

assistance are either not preserved or fail because he cannot establish both a

breach of essential duty and prejudice, and because res judicata prevents us from

reviewing the motion for a new trial, we affirm the denial of his PCR application.

I. Background Facts and Proceedings.

Tournier was accused of sexually abusing Z.K., a child who lived next door

to Tournier and who often played with his daughter, K.T. On July 4, 2016—when

Z.K. was six years old—Z.K. told her grandmother Tournier had earlier that day

touched her genitalia and anus. Tournier was charged with two counts of second-

degree sexual abuse of a child under the age of twelve. Following advice from his

counsel, Tournier waived his right to a jury trial. At the bench trial, Tournier

presented evidence from his nine-year-old son and three adults who were in his

vicinity during the time he was alleged to have sexually abused Z.K. K.T., who

was four years old at the time of the incident and also present during the relevant

times, did not testify. The district court found Tournier guilty of one count of

second-degree sexual abuse;1 he was sentenced to twenty-five years in prison

and required to register as a sex offender. Tournier appealed, and a panel of this

1The district court found Tournier had touched Z.K.’s genitalia but that the State
had not carried its burden with regards to other contact.
3

court and then our supreme court affirmed his conviction. State v. Tournier,

No. 17-1697, 2018 WL 6707740, at *2 (Iowa Ct. App. Dec. 19, 2018) (affirming the

conviction and remanding to determine Tournier’s ability to pay restitution); State

v. Tournier, No. 17-1697, 2019 WL 1868199, at *1 (Iowa Apr. 26, 2019) (per

curiam) (affirming the conviction and remanding with additional instructions for

determining restitution). Tournier then applied for PCR, which the PCR court

ultimately denied. He now appeals.

II. Error Preservation.

The State argues that several of Tournier’s challenges are not preserved

for our review. For the reasons stated below, we agree.

Tournier’s first argument is that his trial counsel was ineffective with regards

to the waiver of a jury trial. His most pressing concern is that trial counsel did not

properly vet the district court judge, including asking questions on the record about

potential biases and background. Tournier alleges the trial court had “a deep-

seated personal bias” about the veracity of child sex-abuse victims after stating,

“In the Court’s opinion, its experience, . . . a child that age does not . . . initiate that

kind of conversation [about sexual contact] unless . . . it’s something they’ve

actually experienced.” Tournier acknowledges that error has not been preserved

as it was not raised to or ruled upon by 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.”). So, he presents the issue as a matter of

ineffective assistance of counsel to bypass our typical error-preservation concerns.

See State v. Ondayog, 722 N.W.2d 778, 784 (Iowa 2006) (“Ineffective-assistance-
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of-counsel claims are not bound by traditional error-preservation rules.”). Were

Tournier stating his PCR counsel was ineffective for failing to raise the issue to the

PCR court, this exception would open a road over error preservation to him; but

here, the barrier remains because Tournier’s focus is the ineffective assistance of

his trial counsel, not his PCR counsel, and traditional rules of error preservation

apply. See Ross v. State, No. 19-1920, 2021 WL 1016570, at *3 (Iowa Ct. App.

March 17, 2021).2 Also in regards to the jury-trial waiver, Tournier argues his trial

counsel was ineffective for having the waiver proceedings at the time of trial rather

than ten days prior as required by Iowa Rule of Criminal Procedure 2.17(1) and

failing to advise him the judge would have information about Tournier’s prior

convictions that a juror would not. Again, these arguments were not raised to nor

ruled upon by the PCR court, so error has not been preserved. See Meier, 641

N.W.2d at 537.

III. Analysis.

Tournier makes two sets of arguments: (1) various allegations that his trial

counsel provided ineffective assistance and (2) that the district court abused its

discretion in denying his motion for a new trial. Generally, a review of the dismissal

of a PCR application is for errors at law, but we review ineffective-assistance-of-

counsel allegations de novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).

2Tournier raises this same concern under two separate headings in his brief.
Seeing no meaningful distinction between the two arguments, we address them as
one.
5

A. Ineffective Assistance of Counsel.

Tournier posits his trial counsel was ineffective in failing to (1) ensure the

court properly explained the consequences of waiving the right to a jury trial,

(2) call K.T. as an eyewitness, and (3) take depositions of K.T. and Z.K. before the

trial. And, together, he believes these failures amount to cumulative error.

To prove ineffective assistance, an applicant must prove (1) a breach

occurred when their counsel failed to perform an essential duty and (2) that failure

resulted in prejudice. Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012). Failure

to prove either prong is fatal to the claim. State v. Gant, 597 N.W.2d 501, 504

(Iowa 1999).

To prove breach of essential duty, Tournier has the burden to prove “his

trial attorney performed below the standard demanded of a ‘reasonably competent

attorney.’” Lamasters v. State, 821 N.W.2d 856, 866 (Iowa 2012) (quoting

Strickland v. Washington, 466 U.S. 668, 687 (1984)). We do not second guess

“counsel’s reasonable tactical decision[s]” and begin from the presumption the

attorney acted competently. Id. “[I]neffective assistance is more likely to be

established when the alleged actions or inactions of counsel are attributed to a

lack of diligence as opposed to the exercise of judgment.” Id. (citation omitted).

The prejudice prong requires the applicant to “show the probability of a different

result is ‘sufficient to undermine confidence in the outcome.’” Everett v. State, 789

N.W.2d 151, 158 (Iowa 2010) (citation omitted). “In determining whether this

standard has been met, we must consider the totality of the evidence, what factual

findings would have been affected by counsel’s errors, and whether the effect was
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pervasive or isolated and trivial.” State v. Graves, 668 N.W.2d 860, 882–83 (Iowa

2003).

i. Jury-Trial Waiver.

Tournier renews his argument that his counsel inadequately informed him

about the decision to waive his right to a jury trial, meaning the waiver was made

unknowingly, involuntarily, and unintelligently. See Iowa R. Crim. P. 2.17(1)

(“Cases required to be tried by jury shall be so tried unless the defendant

voluntarily and intelligently waives a jury trial in writing and on the record . . . .”). A

court ensures this waiver is made voluntarily and intelligently by conducting a

colloquy, on the record, asking and informing the defendant that “(1) twelve

members of the community compose a jury; (2) the defendant may take part in jury

selection; (3) jury verdicts must be unanimous; and (4) the court alone decides

guilt or innocence if the defendant waives a jury trial.” State v. Liddell, 672 N.W.2d

805, 810–11 (Iowa 2003) (citation omitted). The court should also “ascertain

whether [the] defendant is under [the] erroneous impression that he or she will be

rewarded, by either court or prosecution, for waiving [a] jury trial.” Id. at 811

(alterations in original).

Tournier filed a written waiver to a jury trial. The waiver had a list of things

the court would ensure Tournier was aware of, including that:

1. Twelve (12) members of the community compose a jury;
2. The Defendant may take part in jury selection;
3. Jury verdicts must be unanimous;
4. The Court alone decides guilt or innocence if the Defendant
waives a jury trial;
5. Whether the Defendant is under the erroneous impression
that he or she will be rewarded, by either the Court or by the
prosecution, for waiving a jury trial.
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And, at the waiver hearing before Tournier’s trial, the district court conducted a

thorough colloquy that addressed all these issues and others. Tournier confirmed

he understood each of them. Combined, these facts create prima facie evidence

that the waiver was voluntary, knowing, and intelligent. See id. (“There is prima

facie evidence [the defendant] waived his right to a jury trial knowingly, voluntarily,

and intelligently, because [the defendant] personally signed a written waiver of his

right to a jury trial which is part of the record before us.”); see also State v. Miranda,

672 N.W.2d 753, 763–64 (Iowa 2003) (finding a jury-trial waiver was knowing,

intelligent, and voluntary when the district court “conducted an extensive in-court

colloquy” with the defendant that substantially complied with the topics of inquiry

found in Liddell). As further support, at the PCR hearing, Tournier agreed he

“knowingly, voluntarily, and intelligently waive[d his] right under the United States

and Iowa Constitution to have a jury trial.” We find no evidence to the contrary;

Tournier’s counsel breached no essential duty over informing him about the jury-

trial waiver. See Liddell, 672 N.W.2d at 811 (“[The defendant] bears the burden to

show his waiver was not knowing, voluntary, and intelligent, but on appeal he fails

to point to any evidence to suggest otherwise. Thus we cannot conclude [the

defendant’s] trial counsel breached an essential duty; his ineffective-assistance of

counsel claim must fail.” (internal citations omitted)).

ii. K.T. as an Eyewitness.

Tournier next asserts his counsel breached an essential duty by not having

his daughter, K.T., testify at the trial—what Tournier describes as “a fundamental

mistake of judgment with epic negative consequence.” But, at the PCR hearing,

Tournier’s trial counsel testified that he did not feel the daughter’s testimony was
8

necessary because Z.K.’s story was “inconsistent with her [Child Protection

Center] interview,” because she was very young, and because she often answered

questions with “I don’t remembers.” He also testified that he and Tournier together

agreed that, because the allegations occurred while there were adults in the home,

presenting just the adults’ testimony that they had seen no inappropriate behavior

was sufficient. See Ondayog, 722 N.W.2d at 785 (“Courts generally presume

counsel is competent and a ‘defendant must overcome the presumption that, under

the circumstances, the challenged action “might be considered sound trial

strategy.”’”). Tournier has made no argument why this strategy was unreasonable.

But, even if Tournier could show this was a breach of an essential duty, he cannot

establish that calling K.T. would have changed the outcome. When K.T. testified

at the PCR hearing, she said she did not see Tournier “do bad touches” to Z.K. but

that she had only learned what a bad touch was weeks earlier in school—years

after the incident took place. And while Tournier states the outcome of his trial

might have been different if the child had testified that he never pulled Z.K.’s pants

or underwear down or placed his hand inside Z.K.’s clothes or genitalia, he can

offer no proof that is what she would have testified to or even that she could have

had such an understanding at a younger age. See State v. Couser, 567 N.W.2d

657, 660 (Iowa 1997) (“Just as we are unable to conclude that counsel’s tactical

decision was not fully justified, we are similarly unable to conclude, even with the

benefit of hindsight, that the result of including that offense was prejudicial to the

defendant.”). And, her testimony would have only added to the adults who testified

they did not witness any of the abuses alleged. See Schrier v. State, 347 N.W.2d

657, 664 (Iowa 1984) (“[T]he withholding of cumulative testimony is not a sufficient
9

showing of prejudice . . . .”). Unable to meet either the breach or prejudice prong,

this argument must fail.

iii. Failure to Investigate.

Tournier’s next argument is similar to his last, namely that his trial counsel

failed to investigate and depose K.T.3 Tournier asserts the failure to depose K.T.

left the “allegations [against him] largely untested and deprived [him] an effective

defense.” But, “it is not always necessary for defense counsel to depose witnesses

before trial.” State v. Williams, 341 N.W.2d 748, 752 (Iowa 1983). And, the

decision not to depose K.T. is consistent with trial counsel’s strategic decision to

rely on the testimony of other, adult witnesses rather than K.T. See Schrier, 347

N.W.2d at 664 (“[C]ounsel’s failure to call these witnesses involved the consistent

application of the same trial strategy which supported his determination not to call

petitioner as a witness.”). As Tournier has shown no breach, this argument must

fall with his last.

iv. Cumulative Error.

Tournier’s final ineffective-assistance claim is that all of his trial counsel’s

errors together amount to cumulative error. See State v. Clay, 824 N.W.2d 488,

501 (Iowa 2012) (“If the defendant raises one or more claims of ineffective

assistance of counsel, and the court analyzes the prejudice prong of Strickland

3 Tournier makes a similar claim about investigating Z.K. At the PCR hearing, the
issue was briefly danced around but never addressed head on; accordingly, the
PCR court did not rule on it and no post-trial motion was filed seeking a ruling. See
Meier, 641 N.W.2d at 537 (“When a district court fails to rule on an issue properly
raised by a party, the party who raised the issue must file a motion requesting a
ruling in order to preserve error for appeal.”). We do not address this unpreserved
issue.
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without considering trial counsel’s failure to perform an essential duty, the court

can only dismiss the post-conviction claim if the alleged errors, cumulatively, do

not amount to Strickland prejudice.”). But, because we have analyzed Tournier’s

assertions of ineffective assistance through the essential duty prong and found no

breach, we need not consider cumulative error.

B. Motion for a New Trial.

Tournier argues the trial court abused its discretion by failing to grant him a

new trial because the verdict was contrary to the weight of the evidence. As the

PCR court noted, this issue was raised in Tournier’s direct appeal. See Tournier,

2019 WL 1868199, at *1 (affirming in relevant part Tournier, 2018 WL 6707740, at

*1–2). As the issue has been fully litigated already, we do not address it. See

Holmes v. State, 775 N.W.2d 733, 735 (Iowa Ct. App. 2009) (“A post-conviction

proceeding is not intended as a vehicle for relitigation, on the same factual basis,

of issues previously adjudicated, and the principle of Res judicata bars additional

litigation on this point.” (quoting State v. Wetzel, 192 N.W.2d 762, 764 (Iowa

1971))); see also Iowa Code § 822.8 (2021) (“Any ground finally adjudicated . . . in

the proceeding that resulted in the conviction or sentence, or in any other

proceeding the applicant has taken to secure relief, may not be the basis for a

subsequent application, unless the court finds a ground for relief asserted which

for sufficient reason was not asserted or was inadequately raised in the original,

supplemental, or amended application.”).

IV. Conclusion.

Because Tournier’s ineffective-assistance-of-counsel claims are either

unpreserved or unable to support both breach of an essential duty and prejudice,
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and because res judicata bars us from reviewing his motion-for-a-new-trial claim,

we affirm the denial of his PCR action.

AFFIRMED.