Opinion
No. 1-888 / 00-1794.
Filed March 13, 2002.
Appeal from the Iowa District Court for Louisa County, DAVID B. HENDRICKSON, Judge.
Curtis Stamper appeals the district court's denial of his application for postconviction relief from his 1996 conviction of second-degree sexual abuse. REVERSED AND REMANDED.
Philip Mears, of Mears Law Office, Iowa City, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, David L. Matthews, County Attorney, and William L. Matthews, Assistant County Attorney, for appellee.
Heard by MAHAN, P.J., and MILLER and HECHT, JJ.
Curtis Stamper appeals the district court's denial of his application for postconviction relief from his 1996 conviction of second-degree sexual abuse. On appeal, Stamper contends the district court erred in failing to grant relief due to ineffective assistance of counsel, exculpatory evidence, and newly discovered evidence. Because we find the district court erred in denying postconviction relief based on newly discovered evidence and ineffective assistance of counsel, we reverse and remand for a new trial.
I. Factual Background and Proceedings.
Stamper's conviction for second-degree sexual abuse stems from an incident which occurred on or about July 30, 1994. D.A., seven years old at the time, her younger brother, father, and stepmother were visiting the home of a relative. D.A.'s father and Stamper, a family friend, assisted in remodeling the relative's home. The group stayed the night in the living room. D.A. testified that at some time during the night, Stamper moved her from the floor in front of the doorway to an area behind the couch, where he sexually molested her.
In the fall of 1995, D.A. informed her mother of the allegations against Stamper. Her mother contacted the Louisa County Sheriff who subsequently interviewed Stamper. In the interview, Stamper admitted he moved D.A. to the area behind the couch, but denied any sexual contact. Stamper was also interviewed by an agent of the Division of Criminal Investigations. The agent testified Stamper initially denied any wrongdoing, but later stated it might have happened, he just did not remember it. Stamper further indicated to the agent that D.A. was probably telling the truth.
On October 6, 1995, Stamper was charged with sexual abuse in the second-degree in violation of Iowa Code sections 709.1 and 709.3(2) (1995). At trial, Stamper testified that he could have abused D.A. in his sleep and that she could be telling the truth about the abuse. Stamper was found guilty and sentenced to a twenty-five year term of incarceration.
On direct appeal, Stamper argued his trial counsel was ineffective in failing to object to testimony from D. A.'s father regarding Stamper's silence when confronted about the alleged sexual abuse. Stamper contended his alleged lack of response amounted to a "tacit admission," prohibited by the Fifth Amendment's proscription against self-incrimination. His conviction was affirmed on appeal and the issue of ineffective assistance of counsel was preserved for postconviction proceedings.
Stamper filed an application for postconviction relief alleging ineffective assistance of counsel in a number of respects. In particular, Stamper alleged his trial counsel was ineffective in (1) failing to object to the tacit admission evidence presented by the State, (2) failing to depose D.A.'s mother or father prior to trial, rendering him ill prepared for their testimony, (3) objecting to favorable testimony by D.A.'s mother regarding a counselor's finding that there was no sexual abuse, and (4) failing to object to the mother's testimony D.A. was showing signs of sexual abuse. He further alleges his appellate counsel was ineffective for not raising issues two through four on direct appeal.
Stamper amended his application in July 2000 upon the discovery of two documents: a Des Moines County Sheriff's Department incident report on November 6, 1994 which indicates D.A.'s mother suspected she and her brother were being molested by their father, and a doctor's report from June 24, 1994 regarding D.A.'s mother's suspicions of possible sexual abuse. Stamper advances that a new trial should be ordered because the evidence was (1) exculpatory and not divulged by the State and (2) newly discovered. The district court denied his application for relief. Stamper appeals.
II. Standard of Review.
When a postconviction relief action implicates constitutional issues, our consideration is in the nature of a de novo review. Key v. State, 577 N.W.2d 637, 639 (Iowa 1998). When no constitutional safeguards are at issue, our review is for errors at law. Fenske v. State, 592 N.W.2d 333, 338 (Iowa 1999). When reviewing for errors at law, we will not disturb the district court's denial of postconviction relief if the trial court's findings of fact are supported by substantial evidence and are justified as a matter of law. Carroll v. State, 466 N.W.2d 269, 271 (Iowa Ct.App. 1990).
III. Newly Discovered Evidence.
Stamper asserts the sheriff's incident report and the doctor's report are newly discovered evidence requiring a new trial. We agree. The November 6, 1994 sheriff's report reveals D.A.'s mother suspected her ex-husband of molesting D.A. and her brother. The report also indicates that the mother suspected D.A. had seen her father and his new wife having sex. Stamper correctly contends the sheriff's report demonstrates an important witness called by the State to testify against Stamper suspected D.A.'s father as a perpetrator of sexual abuse against the victim at times proximate to the events of July 30, 1994; and that D.A. had reason to know about sexual matters independent of the alleged incident which formed the basis of the charge against Stamper.
The doctor's report reveals D.A.'s mother took her two children to the doctor on June 24, 1994 to report possible sexual abuse due to certain behavioral changes. During postconviction proceedings. D.A.'s mother testified she suspected abuse a month or two before the actual doctor's visit; however, at Stamper's criminal trial she testified she first suspected abuse in August 1994. Stamper correctly contends the doctor's report demonstrates the mother's suspicions of sexual abuse predated the July 1994 incident by at least sixty days. Moreover, he contends the newly discovered evidence would be instrumental in proving (1) the mother's testimony was false or inaccurate, and (2) D.A.'s father, who was in the room at the time of the alleged offense, might have been the perpetrator.
Iowa Code section 822.2(4) authorizes postconviction relief applications where "[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." An applicant alleging this ground as the basis for postconviction relief must show: (1) the evidence was not discovered until after judgment; (2) the evidence could not have been discovered earlier through the exercise of reasonable diligence; (3) the evidence is material to the issue, not merely cumulative or impeaching; and (4) the evidence would probably change the result if a new trial is granted. Summage v. State, 579 N.W.2d 821, 822 (Iowa 1998).
The State concedes the evidence was not discovered until after the verdict, but contends Stamper cannot establish the evidence is material or that it would have probably changed the result of trial. We disagree. We find the sheriff's and doctor's reports are material to the central issues in this case: the identity of the abuser and D.A.'s knowledge of sexual acts. We further find sufficient probability that the newly discovered evidence would have changed the outcome of the trial. D.A. was asleep in a dark room at the time of the incident. Both her father and Stamper were present. The fact the mother suspected D.A.'s father of abuse prior to and after the alleged incident is reasonably likely to form reasonable doubt as to Stamper's guilt in the minds of jurors. Furthermore, both of the newly discovered reports tend to create reasonable doubt since D.A.'s knowledge of sexual acts may have stemmed from previous abuse by another perpetrator, not necessarily from molestation by Stamper.
The State contends the evidence would not have been admissible pursuant to Iowa Rule of Evidence 412.
Rule 412, Iowa's rape shield law, prohibits in a sexual abuse case "reputation or opinion evidence of the past sexual behavior of an alleged victim of such sexual abuse." Iowa R. Evid. 412(a). The rule also prohibits . . . "evidence of a victim's past sexual behavior other than reputation or opinion evidence" unless "such evidence other than reputation or opinion evidence" is evidence of "past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury." Iowa R. Evid. 412(b)(2)(A). In addition, the rule prohibits evidence of the "victim's past sexual behavior other than reputation or opinion evidence" unless "such evidence other than reputation or opinion evidence is . . . constitutionally required to be admitted." Iowa R. Evid. 412(b)(1).
State v. Mitchell, 568 N.W.2d 493, 496 (Iowa 1997). In support of its contention, the State points to State v. Jones, 490 N.W.2d 787, 790 (Iowa 1992), which held past sexual behavior "encompasses prior sexual abuse perpetrated upon the victim." The court in Jones, after administering the constitutional relevancy analysis required by 412(b)(1), found the evidence of past abuse, which occurred five years prior, was marginally relevant and more prejudicial than probative. Id. at 791. The court further found the past evidence of abuse should not have been admitted for the purpose of showing an alternate source of child's ability to describe the sex act perpetrated on her because she was thirteen years old and had been through sexual counseling and sexual education programs at school. Id.
We find this case distinguishable from Jones in several respects. The evidence implicates Stamper's right to present a defense. Since both D.A.'s father and Stamper were in the living room at the time the incident occurred, the evidence is relevant to the identity of the perpetrator. Moreover, the evidence is relevant for the purpose of showing an alternate explanation of D.A.'s ability to describe the sex act perpetrated on her. D.A. was eight at the time of trial, unlike the victim in Jones, and not the appropriate age for sexual education programs at school. Furthermore, the evidence of allegations of past abuse is clearly more proximate in time than the evidence in Jones; the doctor's progress note evidences a medical examination conducted less than forty days before the alleged abuse, and the sheriff's incident report was filed just a few months after the incident occurred. Under the circumstances presented in this case, we reject the State's contention that the newly discovered evidence is inadmissible. We conclude the newly discovered evidence requires a new trial.
IV. Ineffective Assistance of Counsel.
A defendant receives ineffective assistance of counsel when: (1) the defense attorney fails in an essential duty and (2) prejudice results. State v. Martin, 587 N.W.2d 606, 609 (Iowa Ct.App. 1998) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
In proving the first prong of this test, Stamper must overcome the strong presumption counsel's actions were reasonable under the circumstances and fell within the normal range of professional competency. State v. Hildebrant, 405 N.W.2d 839, 841 (Iowa 1987). To prove the second prong, Stamper must establish prejudice by showing "there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698). A reasonable probability is a probability sufficient to undermine confidence in the outcome. State v. Query, 594 N.W.2d 438, 444-45 (Iowa Ct.App. 1999).
V. Error Preservation.
The State correctly notes Stamper did not raise on direct appeal certain claims asserted in his application for postconviction relief. Typically, a claim not raised on direct appeal cannot be raised in a postconviction relief proceeding unless the applicant can demonstrate a sufficient cause or reason for not properly raising the issue previously. Iowa Code § 822.8 (1995); Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001) (citations omitted). The applicant must also prove he was actually prejudiced by the alleged error. Id.
Our supreme court has previously determined ineffective assistance of appellate counsel can constitute a sufficient reason for failing to raise the issue of ineffective assistance of trial counsel on direct appeal. Id. We utilize the same two-part test to determine ineffective assistance of appellate counsel as we do to judge ineffective assistance of trial counsel Ledezma, 626 N.W.2d at 141. To prove appellate counsel's deficient performance resulted in prejudice, the applicant must show his ineffective assistance of trial counsel claim would have prevailed if it had been raised on direct appeal. Id. Therefore, before we can determine whether error has been preserved, we must first analyze the merits of Stamper's claims of ineffective assistance of trial counsel. Id. at 141-42. If we determine Stamper cannot establish a sufficient ineffective assistance claim against his trial counsel, we need not address his ineffective assistance claims against his appellate counsel. Id. at 145.
VI. Trial Counsel's Objection to Mother's Testimony.
Stamper contends his trial counsel was ineffective by objecting to favorable evidence during D.A.'s mother's testimony. In particular, trial counsel objected when D.A.'s mother testified a counselor had seen D.A. twice after July 1994 and determined she had not been sexually abused. Stamper's trial counsel objected on the grounds of hearsay and the objection was sustained. During postconviction proceedings, trial counsel conceded he was confused during the mother's testimony and acknowledged the evidence of the counselor's opinion was favorable to Stamper.
We conclude trial counsel failed to perform an essential duty by objecting to D.A.'s mother's favorable testimony that a counselor had determined D.A. had not been abused. Viewing this objection and the record as a whole, we conclude Stamper was prejudiced by trial counsel's objection and our confidence in the outcome is undermined by trial counsel's actions.
Because we find Stamper's ineffective assistance of trial counsel claim to be meritorious, Stamper was prejudiced by appellate counsel's failure to assert it on direct appeal. Thus, Stamper adequately preserved error. Accordingly, Stamper is entitled to a new trial.
VII. Conclusion.
Having found the sheriff's and doctor's reports constitute newly discovered evidence and having found ineffective assistance of counsel, we reverse his conviction and remand for a new trial.
REVERSED AND REMANDED FOR NEW TRIAL.