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holding “the rule in Tracy should not be expanded to permit the admission into evidence of statements made by an adult victim identifying her abuser by name as statements-for-purposes-of-medical-diagnosis exception to hearsay”
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No. 4-361 / 03-1087.
August 11, 2004.
Appeal from the Iowa District Court for Johnson County, Patrick R. Grady, Judge.
Applicant-appellant Carlston Donald appeals the district court's decision denying him postconviction relief following his conviction and sentence for second-degree sexual assault under Iowa Code sections 709.1(1), 709.3(1), and 702.17 (1995). REVERSED AND REMANDED.
Eric Tindal of Nidey Peterson Erdahl Tindal, Williamsburg, for appellant.
Thomas J. Miller, Attorney General, Robert Ewald, Assistant Attorney General, J. Patrick White, County Attorney, and Anne Lahey, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
Applicant-appellant Carlston Donald appeals the district court's decision denying him postconviction relief following his conviction and sentence for second-degree sexual assault under Iowa Code sections 709.1(1), 709.3(1), and 702.17 (1995). On appeal Donald claims the district court erred in (1) concluding his Sixth Amendment confrontation and fair trial rights were not violated; (2) failing to consider prosecutorial misconduct in determining his speedy trial rights were not violated; and (3) finding he was not prejudiced by the admission of hearsay testimony. We reverse and remand
I. BACKGROUND FACTS AND PROCEEDINGS
In 1995 Donald was charged with first-degree kidnapping, willful injury, second-degree sexual assault, and eluding arrest. According to testimony in the postconviction hearing, following the arrest of Donald there was reason to believe the alleged victim's life was in danger. The alleged victim, Rosalind Lee, moved to a domestic violence shelter. Lee received help in moving to South Carolina. The Victim's Rights Coordinator in the Johnson County Attorney's Office testified she arranged the trip and contacted a local church which paid her bus fare. The prosecutor kept in contact with Lee and twice made airline reservations for Lee to return to Iowa for depositions. Lee did not appear either time. The prosecutor went to South Carolina in an attempt to escort Lee back. The prosecutor made contact with Lee, but when she arrived to pick her up, Lee did not answer her door. The prosecutor attempted to reschedule the flight, but was still unable to find Lee. A representative of the Domestic Violence Intervention Project then went to South Carolina to escort Lee back for trial but also was unable to contact her. All attempts to bring Lee back to Iowa were unsuccessful, and the State dismissed all charges except the attempt-to-elude charge, alleging more time was required to gather evidence. On June 29, 1995 Donald pled guilty to the attempt-to-elude charge and was sentenced to 320 days in jail.
On January 25, 1996 at about the time Donald was to be released from jail, the State re-filed the second-degree sexual abuse charge. During the subsequent jury trial, the State introduced testimony from Iowa City Police Officer Debora Petersen, who responded to Lee's 911 call; emergency room nurse Barbara Heck, who treated Lee; Dr. Charles Huss, who also treated Lee; and Johnson County Deputy Sheriffs Michael Sheetz and Robert Dolezal, who interviewed Lee approximately two hours after she arrived at the hospital. Petersen, Heck, Huss, and Sheetz testified that Lee told them she rejected the sexual advances from someone named "Charleston," "Carlton," or "Carlston," and that he responded by making her stand in cold water and snow for an extended period of time and also by penetrating her vaginally with something cold which felt like steel and was possibly a gun.
Lee was not present at trial. The State's case against Donald was based on statements Lee made to others, as there was no testimony from other witnesses, nor was there physical evidence that Lee was sexually abused. The State sought to prove its case through testimony of Petersen, Heck, Huss, Sheetz, and Dolezal as to statements made by Lee, and through testimony by Steven Taylor, a cell-block mate of Donald's, who testified Donald told him he had beat a woman up, "had her naked," and "made her think he was going to drown her." Taylor also testified Donald claimed he "shoved a gun into [the woman's] vagina." All these witnesses were available to the State at the time the case was initially dismissed.
The jury convicted Donald of second-degree sexual abuse, and he was sentenced to twenty-five years in prison. Donald's appellate counsel determined any appeal by Donald was frivolous and filed a motion for leave to withdraw under current Iowa Rule of Appellate Procedure 6.104. Appellate counsel sent Donald a brief outlining potential issues for appeal. Those issues included (1) whether sufficient evidence supported the verdict; (2) whether defendant's motion to dismiss should have been granted based on his speedy trial rights; (3) whether the trial court's ruling on a then-rule 412 ("rape-shield") challenge was erroneous; (4) whether testimony was properly admitted at trial as "excited utterance" testimony; and (5) whether Donald's sentence was an abuse of discretion. Donald responded by requesting a twenty-day extension to file a response to counsel's 6.104 motion. The supreme court granted Donald an additional twenty days. He never responded. The supreme court dismissed his appeal on March 20, 1997, and procedendo issued on April 4, 1997. Donald filed his postconviction application on February 24, 2000.
II. SCOPE OF REVIEW
We review postconviction relief proceedings for errors at law. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). When the applicant's constitutional rights are implicated, we review de novo. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998).
We review ineffective assistance of counsel claims de novo. Osborn, 573 N.W.2d at 920. To establish a claim of ineffective assistance of counsel, defendant must demonstrate, by a preponderance of the evidence, both that his trial counsel failed to perform an essential duty and that prejudice resulted from that failure. State v. Smothers, 590 N.W.2d 721, 722 (Iowa 1999). We may dispose of the claim if defendant fails to demonstrate either element. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). To sustain his burden of proof with respect to the duty element, defendant must overcome the strong presumption that counsel's actions were reasonable under the circumstances and fell within the normal range of professional competency. Smothers, 590 N.W.2d at 722. Miscalculated trial strategies and mere mistakes in judgment generally do not rise to the level of ineffective assistance of counsel. Ledezma, 626 N.W.2d at 143. Thus, claims of ineffective assistance which involve tactical or strategic decisions of counsel must be examined in light of all the circumstances to determine whether counsel's actions were a product of strategy or inattention to the responsibilities of an attorney guaranteed defendant under the Sixth Amendment. Id.
III. ANALYSIS
A. Preservation
Donald's postconviction claims involve alleged errors at trial. On direct appeal defendant's counsel determined Donald's appellate claims were frivolous and filed a 6.104 motion for leave to withdraw. Appellate counsel sent Donald a letter indicating his decision and advising Donald to write the Iowa Supreme Court Clerk and request another attorney if he disagreed with appellate counsel's conclusions as to the merits of his case. Donald filed a response requesting a twenty-day extension and stating, "Let there be no mistake, I do not want to dismiss my appeal, and do not agree that it is frivolous." The supreme court granted Donald the requested twenty-day extension. He never responded.
The supreme court has articulated the following standard with respect to issues which can be raised for the first time in postconviction proceedings:
When a direct appeal ends in an unresisted dismissal under Iowa Rule of Appellate Procedure 6.104, a postconviction relief applicant must comply with section 822.8 and show "sufficient reason" why the applicant's postconviction relief claims were not raised on direct appeal. However, a rule 6.104 dismissal "which is contested or objected to by the [defendant-appellant] does not prevent issues which could have been presented upon direct appeal from being embraced in a petition for postconviction relief" under section 822.8.
Manning v. State, 654 N.W.2d 555, 561 (Iowa 2002) (citations omitted).
Under House File 2325, effective July 1, 2004, a postconviction applicant no longer must raise his ineffective-assistance-of-counsel claims on direct appeal in order to raise them in postconviction proceedings.
In deciding whether Donald must show "sufficient reason" for failing to raise his claims on direct appeal, we must determine whether he resisted his appellate counsel's 6.104 motion. Donald's letter to the Clerk clearly resists the motion, but Donald failed to provide any substantive resistance after being granted a twenty-day extension to do so. The supreme court has refused to impute an appellate counsel's decision to forego an appeal, which a defendant resists, to the defendant, reasoning that appellate counsel cannot waive grounds for postconviction relief contrary to the desires of the client. Bugley v. State, 596 N.W.2d 893, 896-97 (Iowa 1999). When a 6.104 motion is not resisted, however, the court has reasoned that counsel's decision not to raise grounds on direct appeal is properly transformed into the decision of the applicant. Id.
Under this reasoning, we must conclude that although Donald did not provide any substantive resistance to his counsel's 6.104 motion to withdraw, given Donald's letter stating his wish not to dismiss the appeal and his belief that the appeal was not frivolous, Donald's attorney's decision not to pursue an appeal clearly was not also his own. It therefore cannot be imputed to him. We conclude the 6.104 motion was resisted, and Donald need not show "sufficient reason" for failing to directly appeal the issues he now raises in his postconviction application.
B. Merits
Hearsay.
The question we must first address is whether appellate counsel rendered ineffective assistance in not challenging the out-of-court statements at issue as inadmissible hearsay on direct appeal. We agree with Donald that his appellate attorney breached a professional duty in failing to challenge on appeal testimony by two of the State's witnesses as inadmissible hearsay. See Fullenwider v. State, 674 N.W.2d 73, 77-78 (Iowa 2004).
We first look at whether the statements admitted as "excited utterances" and "statements for purposes of medical diagnosis treatment" should have been challenged. The testimony at issue is that of Officer Petersen, who testified to statements Lee made to her when she responded to Lee's 911 call at approximately 8 a.m.; emergency room nurse Heck, who treated Lee; Dr. Huss, who also treated Lee; and Sheriffs Sheetz and Dolezal, who interviewed Lee from about 10 a.m to 12 noon, beginning approximately two hours after she arrived at the hospital and, at the very least, three hours after the alleged abuse occurred.
Donald's trial counsel renewed Donald's earlier motion in limine at the start of his criminal trial, seeking to exclude testimony by Huss and Heck as to Lee's statements to them regarding the identity of the perpetrator. The trial court denied the motion. Trial counsel also sought to exclude testimony, insofar as it was introduced for the truth of the matter asserted, by Sheriffs Sheetz and Dolezal as to Lee's statements during her interview with them. Trial counsel argued these statements were not excited utterances. Trial counsel sought to introduce them, however, to show inconsistencies in Lee's stories. The trial court appeared to postpone deciding upon the admissibility of the excited utterance evidence, or what its purpose could be, until the evidence was introduced at trial.
At trial Petersen testified to statements Lee made when she arrived at Lee's home at approximately 8 a.m. following Lee's 911 call. There was no objection to testimony by Petersen, who served as a first responder and described Lee to be "very upset and distraught." Under Iowa Rule of Evidence 5.803(2) one hearsay exception is an excited utterance, which is defined as, "A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." The evidence at trial was that Petersen was the First Responder following Lee's 911 call at approximately 8 a.m., and that Lee's comments were made while she was extremely upset and crying and in pain. Trial counsel appeared to concede prior to trial that Petersen's testimony as to Lee's statements was admissible as an excited utterance exception to hearsay. Appellate counsel did not breach a professional duty in not challenging this testimony on appeal.
At issue at trial was whether testimony by Huss and Heck as to statements Lee made during their examinations of her, identifying the perpetrator, were admissible hearsay. Iowa Rule of Evidence 5.803(4) provides, as an exception to the general ban on hearsay,
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
In State v. Tracy, 482 N.W.2d 675, 681 (Iowa 1992), the supreme court adopted the following test articulated in United States v. Renville, 779 F.2d 430, 436 (8th Cir. 1985) for determining whether a statement qualifies under this rule:
[F]irst the declarant's motive in making the statement must be consistent with the purposes of promoting treatment; and second, the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis.
As the State pointed out at trial, the supreme court determined in State v. Mann, 512 N.W.2d 528, 535-36 (Iowa 1994), that the trial court's admission, under the "medical statements" exception, of a victim's description of a truck made during a medical examination was not an abuse of discretion. The supreme court has since determined appellate review of such evidentiary rulings is at law and not for abuse of discretion. See State v. Long, 628 N.W.2d 440, 444-47 (Iowa 2001).
We are not convinced that Heck's and Huss's testimony as to Lee's statements was properly admissible under rule 5.803(4), statements made for purposes of medical diagnosis. In Tracy, the supreme court reasoned that child sexual abuse rarely involved just physical injury, and that to address all of the injuries suffered by a victim of sexual abuse, it was often necessary for a physician to ascertain the identity of the abuser. See Tracy, 482 N.W.2d at 681.
The rule in Tracy should not be expanded to permit the admission into evidence of statements made by an adult victim identifying her abuser by name as a statements-for-purposes-of-medical-diagnosis exception to hearsay. In Tracy part of the necessary treatment for a child victim of sexual abuse is to remove the child from the home; as a minor, a child is unable unilaterally to remove himself or herself from the home. Tracy, 482 N.W.2d at 681. An adult, in contrast, is not fully reliant upon a treating physician to remove him or herself from an abusive home. We further note there was no evidence in the record that Donald was a member of Lee's household. Moreover, as required in Tracy, there is no evidence either Heck or Huss emphasized to Lee the importance that her statements be truthful for purposes of their medical diagnosis and treatment. See id.
Given the context in which Lee uttered her statements to Heck and Huss, however, we conclude appellate counsel did not fail to perform an essential duty by not raising the claim that Lee's statements as reported by witnesses Heck and Huss were improperly admitted. The excited utterance exception to the hearsay rule generally applies to statements made under the influence of the excitement of an incident rather than on reflection or deliberation. State v. Mateer, 383 N.W.2d 533, 535 (Iowa 1986). Excited utterances need to be spontaneous in order to guarantee they are made under the influence of the incident rather than after deliberations. See Bratton v. Bond, 408 N.W.2d 39, 45 (Iowa 1987). A spontaneous statement is prompted by an event. See State v. Watts, 441 N.W.2d 395, 398 (Iowa Ct.App. 1989).
Lee made her statements to Heck and Huss after being admitted to the emergency room for immediate treatment. Heck testified this was about 8:20 a.m. Testimony indicated the sexual abuse may have occurred as late as 7 a.m. Lee had multiple injuries and was experiencing physical discomfort at the time. Heck and Huss testified Lee was frightened, upset, and tearful when they examined her. Appellate counsel did not render ineffective assistance in failing to challenge the admission of the testimony of Huss and Heck.
We next address whether appellate counsel breached a professional duty in not challenging the admission of the testimony of Sheriffs Sheetz and Dolezal. Defense counsel objected at trial. Testimony indicated that Sheetz and Dolezal began interviewing Lee at approximately 10 a.m., two hours after Petersen responded to her 911 call. Testimony indicated the sexual abuse had occurred between approximately 4 a.m. and 7 a.m. that morning. At the least, Sheetz and Dolezal began interviewing Lee three hours after the abuse took place. Sheetz and Dolezal asked Lee questions, and she answered them. Her statements were prompted by their questions. The court nevertheless found Lee was still under the stress of the attack and allowed the testimony under the excited utterance exception. We conclude appellate counsel breached a professional duty in not challenging the admission of Lee's statements, which were solicited at least three hours after the abuse in a two-hour question-and-answer format interview, as excited utterances exempt from the general ban on hearsay.
The State cites several cases in which statements uttered a significant amount of time after a triggering event were nevertheless deemed excited utterances. See State v. Atwood, 602 N.W.2d 775, 782 (Iowa 1999) (two and one-half hours); State v. Mateer, 383 N.W.2d 533, 535 (Iowa 1986) (one hour); State v. Galvan, 297 N.W.2d 344, 347 (Iowa 1980) (two days); State v. Paulsen, 265 N.W.2d 581, 586 (Iowa 1978) (two hours) and State v. Stafford, 237 Iowa 780, 785-87, 23 N.W.2d 832, 835-36 (1946) (fourteen hours). Those cases are distinguishable. In Atwood, 602 N.W.2d at 782, an officer asked questions for a short four to six minutes, and the statements deemed admissible were answers to his question of "What happened?" Furthermore, we note Atwood would not have been decided at the time of Donald's criminal trial. In Mateer, 383 N.W.2d at 535, three hysterical girls made statements to the first officer on the scene, and the court determined they would have made the statements whether the officer asked them questions or not. In Paulsen, 265 N.W.2d at 586, the declarant was a seriously injured six-year-old child. In Galvan, 297 N.W.2d at 347, the declarant was a two-year-old child. In Stafford, 237 Iowa at 787, 23 N.W.2d at 836, the declarant escaped after being seriously injured at the hands of her husband, hid out and wandered all night, and made the statements at issue when she arrived at her sister's door at 7 a.m. the next morning.
In contrast to the above cases, Lee's statements to Sheetz and Dolezal were deliberately elicited during a two-hour interview in a hospital room at least three hours after her attack, after she had already given her story three times before, once to a police officer, and two additional times to medical providers. Given the time frame and the lack of extraordinary circumstances or facts to indicate Lee's statements were unprompted, we conclude they would have been more reflective or deliberative than spontaneous. Appellate counsel failed to perform an essential duty in not challenging the admission of testimony of Sheetz and Dolezal as to Lee's statements under the 5.803(2) excited utterance exception.
We next consider whether this failure by appellate counsel was prejudicial. In determining whether the failure was prejudicial to defendant's case, we must determine whether the exclusion of the evidence would have created a reasonable probability of a different outcome in defendant's trial. See State v. Reynolds, 670 N.W.2d 405, 415 (Iowa 2003). If substantially the same evidence is in the record, erroneously admitted evidence will not be considered prejudicial. State v. Gilmore, 259 N.W.2d 846, 858 (Iowa 1977), cited in State v. Sowder, 394 N.W.2d 368, 372 (Iowa 1986).
In spite of the fact that Petersen, Huss, and Heck identified the perpetrator as "Carlston" or "Carlton" or "Charleston," and described the assault as reported by Lee, we conclude the additional testimony by Sheetz and Dolezal was not merely cumulative but instead prejudiced Donald. Sheetz and Dolezal introduced new facts into the case that neither Petersen, Huss, nor Heck testified to. Sheetz testified that Lee had told him, in answering what would happen to her if she reported the incident, that "Carlston would have other people take care of her." Sheetz further testified that Lee told him about a specific sign saying "600 feet." That sign, he testified, led him to a marina where he found footprints and broken ice. Sheetz's testimony to Lee's out-of-court statements prejudiced Donald by indicating "Carlston" was a continuing threat to Lee and by connecting "Carlston" to the footprints and broken ice Sheetz found at the reservoir. Furthermore, although Petersen, Huss and Heck testified to the identity of the perpetrator, it was only Dolezal who identified him, unequivocally, by his first and last name. On direct examination, when asked if Lee had identified her perpetrator by his first name, Dolezal answered, "Yes." When Dolezal was asked if he was then able to come up with the last name for the perpetrator through evidence from the Sheriff's Office, Dolezal answered, "Yes," and subsequently stated, "The name we came up with was Carlston Donald."
There was no physical evidence of sexual abuse in this case, and there was evidence Lee gave inconsistent stories detailing her actions before the abuse allegedly took place. In light of the State's lack of physical evidence and the complete absence of the victim from the trial, the introduction of her statements by two law enforcement officers in order to identify Donald as the perpetrator by his first and last name and to show he was a continuing threat was prejudicial to his case. We conclude appellate counsel rendered ineffective assistance by failing to challenge the admission of the statements by Sheetz and Dolezal on appeal.
Prosecutorial misconduct.
Donald also claims appellate counsel rendered ineffective assistance in failing to pursue what he contends was a violation of his right to a speedy trial when the case was re-filed after it was dismissed.
Donald appears to contend both that the prosecutor was guilty of misconduct when she dismissed the charges because she could not secure the victim for trial or deposition and also when she re-filed after minimal additional investigation without additional evidence.
The State dismissed the case on June 12, 1995, alleging more time was required to gather evidence, and it refiled the charges on January 25, 1996, about the time Donald was set to be released from jail after serving time on a plea to another charge.
A defendant in Iowa indicted for a public offense who has not waived his or her right to a speedy trial must be brought to trial within ninety days after the indictment is found or the court must order the indictment to be dismissed unless good cause to the contrary is shown. Iowa R. Crim. P. 2.33(2)( b). In Iowa the State is held to a rather rigid statutory time period for bringing its case to trial. State v. Florie, 411 N.W.2d 689, 693 (Iowa 1987). If not complied with, this may result in a dismissal with prejudice. Id.
Dismissals for purposes of "facilitating the State in gathering evidence, procuring witnesses, or plea bargaining" do not necessarily preclude reinstatement of the same charges at a later date. See id. (quoting State v. Johnson, 217 N.W.2d 609, 612-13 (Iowa 1974)). However, if it can be demonstrated that a prior dismissal, regardless of its stated purpose, was without adequate cause and that it impacted unfavorably upon a defendant's speedy trial rights, the resulting delay in prosecution would warrant a dismissal on speedy trial grounds. See State v. Gansz, 403 N.W.2d 778, 780 (Iowa 1987). The court in Gansz noted that to hold otherwise would permit the State to employ dismissals under Iowa Rule of Criminal Procedure 27(1) in a manner which would thwart the defendant's speedy trial rights under rule 27(2). Id. For as the court noted in Johnson,
Current Iowa R. Crim. P. 2.33(1).
Current Iowa R. Crim. P. 2.33(2).
If the State is free to commence repeated prosecutions for the same offense following undue delay in going to trial, subject only to the running of the statute of limitations, there is nothing to deter delays at prosecution's convenience in pushing forward to trial, and defendant's constitutional right to a speedy trial is rendered largely meaningless.
Johnson, 217 N.W.2d at 612 (citing Hilbert v. Dooling, 476 F.2d 355, 358 (2nd Cir. 1973)).
In arguing appellate counsel failed to perform the essential duty of claiming prosecutorial misconduct on appeal, Donald has the burden to demonstrate on the merits that the prosecutor's dismissal of the case in the furtherance of justice lacked adequate cause, that it was obtained in bad faith, or that the court otherwise abused its discretion. State v. Knox, 464 N.W.2d 445, 447 (Iowa 1990).
Donald focuses on the conduct of the prosecutor, contending she was not honest with defense counsel or the court as to the situation concerning Lee. The defendant points out that the prosecutor told the district court the State had nothing to do with Lee leaving the state, yet the Victim's Rights Coordinator with the Johnson County Attorney's Office testified she contacted a church and obtained money from it to secure a bus ticket for Lee and her child so she could leave the jurisdiction before trial. Donald also contends the prosecutor was not up-front in keeping defense counsel and the court apprised of the reasons Lee did not appear, including Lee's inability to make it to the airport, childcare problems, oversleeping and the prosecutor's failure to contact Lee about a later flight.
The victim's absence became a problem when, after the first filing and before the scheduled trial date, Donald sought to depose the victim. The State attempted to bring her to Iowa, but she failed to appear for a scheduled deposition or depositions, and her deposition was ultimately set for just before trial. The State did know her whereabouts and made efforts to get her back including sending her plane tickets and sending someone to escort Lee back. Even when Lee did not appear on the morning of one scheduled flight, the prosecutor rescheduled the flight and went from one convenience store to another looking for her.
The close and difficult question is whether the dismissal was an honest attempt to get the victim to Iowa and/or to obtain more evidence or if it was an attempt to avoid Donald's speedy trial rights.
The State assisted the victim in leaving the jurisdiction because she was allegedly afraid of defendant and his friends. While the prosecutor testified she believed the victim would appear for trial, she knew prior to the trial that the victim had not honored promises to appear for depositions. Defendant has indicated there were additional ways of getting the victim to trial, but few were utilized. While we do not necessarily disagree with this argument, the district court was in a better position to determine this issue than are we.
Though the prosecutor contended she contacted the victim ten times after the dismissal, she said she only talked to Lee once. Obviously the State dismissed the case because they did not want to proceed without the victim's testimony. While the prosecutor testified ambiguously to investigations that followed the first dismissal, other testimony would indicate little was actually done. Neither the victim nor additional evidence or witnesses were obtained for the second trial; rather, the State obtained the conviction based on existing evidence. However the fact that a subsequent investigation fails to discover new evidence does not necessarily establish that the prior dismissal was without merit. Knox, 464 N.W.2d at 446.
Donald has failed to demonstrate that the dismissal in the furtherance of justice lacked adequate cause, that it was obtained in bad faith, or that the court otherwise abused its discretion. Id. at 447. While one might wonder why as close a question as this issue is was not raised on appeal, we cannot say appellate counsel was ineffective for failing to pursue this issue.
In conclusion, we find Donald received ineffective assistance of appellate counsel due to counsel's failure to contest on direct appeal the admissibility of the testimony of Sheetz and Dolezal, and the admission into evidence of this testimony prejudiced Donald. We reverse and remand for a new trial. Given our holding, we decline to address Donald's Confrontation Clause challenge.