In the court of appeals of iowa




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IN THE COURT OF APPEALS OF IOWA
No. 3-180 / 02-0771

Filed May 29, 2003


JESSE JACKSON,

Applicant-Appellant,


vs.
STATE OF IOWA,

Respondent-Appellee.

Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.

Jackson appeals the denial of his application for postconviction relief, contending he received ineffective assistance of counsel and is entitled to a new trial. AFFIRMED.


Rockne Cole of Mears Law Office, Iowa City, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett and Robert Glaser, Assistant Attorneys General, and John Schroeder, County Attorney, for appellee.
Heard by Huitink, P.J., and Vogel and Vaitheswaran, JJ.
VAITHESWARAN, J.

A jury heard evidence that a woman named Maria Allar hired Jesse Jackson to kill her former boyfriend. After considering the evidence, the jury found Jackson guilty of first-degree murder. Our court affirmed his conviction. Jackson then applied for postconviction relief. The district court denied the application and this appeal followed.

Jackson contends his trial attorneys were ineffective in failing to: 1) advise him to testify and 2) advise him that certain statements he made to police might be deemed coerced and unusable as impeachment evidence. He also claims he is entitled to a new trial based on newly discovered evidence.

I. Ineffective Assistance of Counsel Claims

To succeed on an ineffective assistance of counsel claim, an applicant ordinarily must show: (1) counsel breached an essential duty and (2) prejudice resulted. State v. Myers, 653 N.W.2d 574, 576-77 (Iowa 2002). Our review is de novo. Id.

A. Failure to Advise Jackson to Testify. Jackson maintains his attorneys advised him not to testify following a threat to his safety. He contends he was prejudiced by this advice because his testimony could have refuted some of the most damaging evidence presented by Allar. The district court rejected this contention, noting that the safety concerns he cited were meritless and Jackson’s decision not to testify was his own. We agree with the court’s reasoning.

Jackson had two trial attorneys. One of them did not have “any recollection of any threats” to Jackson’s safety. He further stated “[t]hreat or not, if it was appropriate for him to testify, he should have testified.” The other attorney recalled a telephone call concerning a possible disruption of the proceedings but did not recall that the threat was viewed “as a threat toward any specific individual.” This attorney stated he was “confident” he did not advise Jackson that there would be a safety concern if he testified. He stated he was concerned with Jackson’s “ability to deal with difficult questions” and was additionally concerned that Jackson might, through his testimony, generate sufficient evidence to submit the case to the jury on an aiding and abetting theory.1 We conclude the attorneys had strategic reasons for keeping Jackson off the stand and, accordingly, did not breach an essential duty by advising him not to testify. State v. Heuser, ___ N.W.2d ___, ___ (Iowa 2003); Fryer v. State, 325 N.W.2d 400, 414 (Iowa 1982).

B. Coercion. Jackson contends a police officer coerced a statement from him by stating it would be to his advantage to tell the truth. He maintains that, had trial counsel advised him the statement, if coerced, could not be used to impeach him, he would have testified at trial and refuted Allar’s statements concerning the crime. The district court rejected this argument on summary judgment. The court found that the police officer’s statement did not amount to prohibited promissory leniency and, accordingly, trial counsel was not ineffective in failing to advise Jackson about this concept. We agree with this reasoning.

Our highest court has held that “[a]n officer can ordinarily tell a suspect that it is better to tell the truth.” State v. Hodges, 326 N.W.2d 345, 349 (Iowa 1982). This is all the officer did here. He did not cross the line and also advise Jackson what advantage could be gained from making a confession. Id. Therefore, the district court was correct in granting summary judgment for the State on this issue.



II. Newly Discovered Evidence

Following trial, Allar wrote to Jackson expressing regret about past events and making reference to an agreement. In pertinent part, the letter stated:

I wish it wouldn’t have turned out this way for you. Can you see my side though? There weren’t a whole lot of options to choose from. We both messed up. Let’s see . . . how should I put this----you didn’t do what we agreed on afterwards-so then I couldn’t either.
Jackson contends the letter is newly discovered evidence entitling him to a new trial. Specifically, he maintains the letter corroborates his story that he never agreed to kill Allar’s boyfriend but only to dispose of the incriminating evidence.

Iowa Code section 822.2(4) (1995) authorizes postconviction relief if ”[t]here exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice.” This provision has been construed to require a showing that (1) the evidence was discovered after judgment, (2) the evidence could not have been discovered earlier in the exercise of due diligence, (3) the evidence was material to the issue, not merely cumulative or impeaching, and (4) the evidence would probably change the result if a new trial were granted. Summage v. State, 579 N.W.2d 821, 822 (Iowa 1998).

The district court concluded Jackson failed to satisfy the third and fourth elements. Our review of this portion of the court’s ruling is for abuse of discretion. State v. Smith, 573 N.W.2d 14, 17 (Iowa 1997).

We discern no abuse of discretion. Focusing on the third element, we note the letter is cumulative evidence. Contrary to Jackson’s assertion that “[t]here was never any mention of an agreement after the killing, ”Allar testified that Jackson entered into an agreement to burn a pair of gloves following the killing. The testimony was as follows:

Q. After you gave him the money, what, if anything, did you say or do? A. We were driving back and he told me that I had better not give his name to the police because we knew they would come looking for me first, and he said if I gave the police his name and he got in trouble, if he could he would come after me and kill me, and if he couldn’t get to me, he would go after my family.

Q. When he left your car, did he have the gun? A. Yes.

Q. Do you know what happened to the gloves? A. He took them with him.

Q. Did he tell you anything about what was going to be done with the gloves? A. We talked about him burning them.


Because the evidence is cumulative, Jackson’s newly discovered evidence claim must fail.

III. Disposition

We affirm the district court’s denial of Jackson’s application for postconviction relief.



AFFIRMED.








1 An aiding and abetting instruction was not given.



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