Daniel King v. State of Iowa , 797 N.W.2d 565 ( 2011 )

IN THE SUPREME COURT OF IOWA
No. 08–0430
Filed April 22, 2011
DANIEL KING,
Appellant,
vs.
STATE OF IOWA,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Linn County, Nancy A.
Baumgartner, Judge.
On further review, appellant asserts the court of appeals erred in
denying postconviction relief. AFFIRMED.
Wallace L. Taylor, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers,
Assistant Attorney General, Harold L. Denton, County Attorney, and
Todd D. Tripp, Assistant County Attorney, for appellee.
2
APPEL, Justice.
The appellant, Daniel King, requests further review of the court of
appeals’ decision affirming his denial of postconviction relief. King
argues his trial counsel was ineffective in not properly attacking DNA
evidence offered by the State at trial. Upon our review of the record, we
conclude that King has failed to show a reasonable probability that the
verdict would have been different had trial counsel more adequately
developed a response to the State’s evidence. As a result, we affirm the
decision of the district court denying King’s application for postconviction
relief.
I. Background Facts and Proceedings.
This is a postconviction relief action filed by Daniel King to vacate
his conviction for sexual abuse in the third degree in violation of Iowa
Code sections 709.4(2)(c)(4) 1 and 901A.2(3) (2003). The State alleges that
on April 25, 2004, King, who was twenty-two years old at the time, had
sex with a fifteen-year-old girl. The girl, A.A., alleged the nonconsensual
sex took place in the front passenger seat of King’s car between the
hours of 2 and 4 a.m. There were no witnesses to the alleged event.
1Iowa Code section 709.4(2)(c)(4) provides:
A person commits sexual abuse in the third degree when the
person performs a sex act under any of the following circumstances:
....
2. The act is between persons who are not at the time
cohabitating as husband and wife and if any of the following are true:
....
c. The other person is fourteen or fifteen years of age and any of
the following are true:
....
(4) The person is four or more years older than the other person.
3
Sometime during the afternoon of April 25, A.A. told her mother of
the alleged incident. A.A.’s mother immediately called the police. Officer
Mullen, from the Cedar Rapids Police Department, was dispatched to
A.A.’s home. After being informed of A.A.’s sexual assault, Mullen
requested the clothing A.A. had been wearing during the incident. A.A.
informed Mullen that the clothing had not been washed and was lying in
a pile on her bedroom floor. The clothing consisted of a pair of
underwear, jeans, and a tank top. Mullen placed all three pieces of
clothing in an unsealed paper bag. He then placed the unsealed bag in
the trunk of his police car. The bag remained in the trunk of the police
car until Mullen returned to the police department, where he delivered it
to the department’s evidence custodian. Upon delivery, it was placed in
an evidence locker.
A.A. was taken to the emergency room where a nurse examined her
and collected evidence for a sexual assault kit. Among other things, the
nurse examining A.A. found large areas around the neck that looked like
hickeys, purple bruising of both breasts, and a swollen rectum with
tears. The nurse found these injuries consistent with sexual assault.
The nurse also found abrasions in the vaginal area that suggested recent
penetration.
On June 2, both the sexual assault kit and the paper bag
containing A.A.’s clothing, along with buccal (DNA) swabs taken from
King, were transported to the Iowa Division of Criminal Investigation
(DCI) laboratory for examination. The technician who received the
evidence testified that the paper bag containing A.A.’s clothing was not
sealed when it arrived at the laboratory.
Before performing any tests, the DCI criminologist separated the
three items of clothing and placed them in separate bags. The
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criminologist then examined the underwear. The criminologist found
seminal fluid on the crotch of the underwear that contained an epithelial
cell with King’s DNA.
The criminologist also examined some of the other items related to
the case. The criminologist examined the vaginal slides of A.A.’s rape kit,
finding seminal fluid with some sperm. The criminologist, however, was
unable to develop a DNA profile from the sperm. The swabs taken from
both sides of A.A.’s neck revealed King’s DNA. Swabs were also taken
from each of A.A.’s breasts. A DNA profile could not be developed from
the left breast swab, but a DNA profile from the right breast swab
excluded King from being the donor. No DNA or seminal fluid was found
on the oral, rectal, or dental swabs. The criminologist did not review
debris swabs from the genital area.
To aid in examining the State’s DNA evidence, King’s trial counsel
hired a DNA expert, Professor David Soll. King’s attorney sent Soll the
following letter:
I want to thank you for your willingness to review the
D.C.I. Lab Report regarding the DNA findings and the State’s
discovery file against my client in this case.
I have enclosed for your compensation, a trust check
from my law firm made out to you in the amount of
$1,000.00.
Would you please contact me after you have reviewed
the enclosed material with any opinions you may have
regarding whether, or not, you can assist in Mr. King’s
defense?
The DCI laboratory report and the State’s discovery file were sent
along with this letter. A receipt detailing the evidence tested revealed
that one of the exhibits was a paper bag containing the victim’s
underwear, jeans, and shirt worn the morning of the assault. The receipt
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also indicates the bag was not sealed. The receipt was included in the
file of materials sent by King’s counsel to Soll.
Upon receipt of the materials, Soll “skimmed everything.” He then
proceeded to review the testing procedures used by the DCI. He
determined that the laboratory used the correct methods for testing the
DNA and its findings were accurate. King’s attorney sent a letter to King
and King’s mother explaining Soll’s conclusions.
Soll did not testify at King’s trial. The jury found King guilty of
sexual assault in the third degree. Because King had a prior conviction
for assault with intent to commit sexual abuse, he was sentenced to an
indeterminate term of twenty-five years in prison with an eighty-five
percent mandatory minimum sentence. See Iowa Code § 901A.2(3).
After the trial, King’s mother met with Soll “to see if there was
anything that didn’t seem right.” She presented Soll with the DCI report
that showed that the three articles of clothing were placed in the same
bag. Based on the DCI report and his review of other documents, Soll
developed a few “pretty extreme” concerns. After reviewing these
materials, Soll became concerned that the DNA found on A.A.’s
underwear could have been transferred to the underwear from either her
shirt or jeans, as all of A.A.’s clothing had been placed in the same paper
bag. He further noted that the lack of sperm in the seminal fluid
suggested a “big possibility” of cross-contamination, which produced a
“bigger probability” that King was not the source of the seminal fluid.
King’s mother took notes of her conversation with Soll and relayed
Soll’s concerns to her son’s attorney. In response, defense counsel filed a
motion for a new trial and/or a motion in arrest of judgment. In this
motion, counsel claimed King should be granted a new trial because the
underwear on which the DCI laboratory found King’s DNA was placed in
6
a bag with other clothing that may have cross-contaminated the
underwear, making it an unreliable piece of evidence.
Attached to the motion was an affidavit by Soll. In this affidavit,
Soll stated that, because the items of clothing that were worn by A.A. at
the time of the alleged incident were placed together in a sack without
being separated, there was an issue of cross-contamination. This raised
doubts as to which article of clothing was the source of the DNA sample.
Further, the seminal fluid in the underwear could not be matched to a
particular person because there was no sperm in it. Additionally, there
was no sperm in the vaginal slides to make an identification of the donor.
The district court denied the motion on the basis that the evidence
could have been discovered previously and presented at trial. King
appealed. On appeal, his counsel determined that any ineffective-
assistance-of-counsel claim he might have could not be decided on direct
appeal, but only in a postconviction relief action in which a record could
be more fully developed. As a result, appellate counsel filed a motion to
dismiss the appeal as frivolous, which this court granted.
This postconviction action was filed pro se by King in December
2006. An amended application was later filed by King’s attorney. In the
amended application, King claimed that his trial counsel was ineffective
for failing to raise the issue of DNA cross-contamination at trial, failing to
present additional testimony that contradicted A.A.’s testimony, and
failing to present evidence of A.A.’s possible motives for accusing King of
rape.
The district court denied King’s application. The district court
stated that it was Soll who failed to notice a possible cross-contamination
problem with the evidence and that error could not be attributed to
defense counsel. The district court further found that the failure to offer
7
testimony from additional witnesses did not rise to ineffective assistance
of counsel.
King appealed the district court’s decision, and his appeal was
routed to the court of appeals. The court of appeals affirmed the district
court. King filed an application for further review with this court, which
we granted.
II. Scope of Review.
We review claims of ineffective assistance of counsel de novo. State
v. Lyman, 776 N.W.2d 865, 877 (Iowa 2010). In conducting our de novo
review, “we give weight to the lower court’s findings concerning witness
credibility.” Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).
III. Discussion and Analysis.
A. State vs. Federal Constitution. In this postconviction relief
action, King presents an ineffective-assistance-of-counsel claim. He does
not, however, indicate whether the case has been brought under the
Sixth Amendment to the United States Constitution or article I, section
10 of the Iowa Constitution. When there are parallel constitutional
provisions in the federal and state constitutions and a party does not
indicate the specific constitutional basis, we regard both federal and
state constitutional claims as preserved, but consider the substantive
standards under the Iowa Constitution to be the same as those
developed by the United States Supreme Court under the Federal
Constitution. State v. Wilkes, 756 N.W.2d 838, 842 n.1 (Iowa 2008).
Even in these cases in which no substantive distinction had been made
between state and federal constitutional provisions, we reserve the right
to apply the principles differently under the state constitution compared
to its federal counterpart. State v. Bruegger, 773 N.W.2d 862, 883 (Iowa
2009).
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B. Framework for Evaluation of Claims of Ineffective
Assistance of Counsel. To establish an ineffective-assistance-of-counsel
claim under the Federal Constitution, an applicant must demonstrate
that “ ‘(1) his trial counsel failed to perform an essential duty, and (2) this
failure resulted in prejudice.’ ” State v. Ortiz, 789 N.W.2d 761, 764 (Iowa
2010) (quoting State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006)); see
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80
L. Ed. 2d 674, 693 (1984). The applicant must prove both elements by a
preponderance of the evidence. Ledezma, 626 N.W.2d at 142.
To prove the first prong of the Strickland test, the claimant must
demonstrate that the attorney’s performance fell below the “standard
demanded of a reasonably competent attorney.” Id. We measure the
attorney’s performance against the “ ‘prevailing professional norms.’ ” Id.
(quoting Strickland, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at
694). In evaluating the performance of counsel, we presume the attorney
performed competently, and it is the applicant’s burden to present facts
establishing inadequate representation. Millam v. State, 745 N.W.2d
719, 721 (Iowa 2008). “Miscalculated trial strategies and mere mistakes
in judgment normally do not rise to the level of ineffective assistance of
counsel.” Ledezma, 626 N.W.2d at 143. However, “strategic decisions
made after a ‘less than complete investigation’ must be based on
reasonable professional judgments which support the particular level of
investigation conducted.” Id. (quoting Strickland, 466 U.S. at 691, 104
S. Ct. at 2066, 80 L. Ed. 2d at 695). The “investigation must be
reasonable under the circumstances”; therefore, we look to the facts of
the case to determine whether there was a lack of diligence. Id.
Even when attorneys accept cases “in an area in which they are
unfamiliar, they bear the responsibility to perform the work competently.
9
No client should be made to suffer through an attorney’s learning curve.”
Comm. on Prof’l Ethics & Conduct v. Pracht, 505 N.W.2d 196, 198 (Iowa
1993). A reasonable investigation has been described as “a thorough
study of as much literature in a particular field as [the attorney] can
possibly absorb in the time allotted.” Harry A. Gair, Selecting and
Preparing Expert Witnesses, in 2 Am. Jur. Trials 585, 635 (1964). It is
also suggested that an attorney with no experience in the particular field
of the case should read at least one quality book on the subject. Id.
In order to meet the second prong of the Strickland test, an
applicant must show that there is a reasonable probability that the result
would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at
2068, 80 L. Ed. 2d at 698. The likelihood of a different result need not
be more probable than not, but it must be substantial, not just
conceivable. Id. at 693–94, 104 S. Ct. at 2067–68, 80 L. Ed. 2d at 697–
98.
C. Ineffective Assistance for Failure to Develop DNA Defense.
In this case, King’s counsel recognized that DNA would play a major role
in the case. King’s counsel, however, did not have much experience with
DNA issues. As a result, he hired Soll to provide him with expert
assistance in the case.
As he was preparing for trial, King’s counsel sent a letter asking
Soll to look at the DNA evidence and determine “whether or not [Soll]
could assist in Mr. King’s defense.” King’s counsel sent Soll a file
containing materials that indicated A.A.’s shirt, pants, and underwear
were placed in the same evidence bag the day after the incident. Despite
this, King’s counsel did not direct Soll’s attention to the issue of cross-
contamination.
10
Soll apparently interpreted counsel’s request narrowly as one to
“review the technology of the Des Moines crime lab that was doing the
DNA analysis” to see if the results were correct. Essentially, Soll thought
he was simply to determine whether the DNA found on A.A.’s clothing
really belonged to King. Soll claimed it was not his job to put the DNA
results into context. Prior to King’s trial, he did not identify any issue
related to cross-contamination and thus did not consider whether the
potential of cross-contamination would have any impact on the State’s
case.
After trial, Soll connected the dots. He realized that, because the
DNA in the seminal fluid came from epithelial cells and not sperm cells,
there was a “high probability” that the DNA found in the seminal fluid
had migrated from another piece of clothing that was in the bag or from
some other kind of contamination. Further, Soll recognized that,
because the seminal fluid in the underwear did not contain sperm, which
is relatively hardy and long lasting, there was a “bigger probability” that
the seminal fluid in the crotch of the underwear was not King’s.
Thus, Soll now concluded that the powerful and seemingly
irrefutable evidence at trial that the seminal fluid found in the crotch of
the underwear contained the DNA of King could have been substantially
undermined in two ways. First, the epithelial cell containing King’s DNA
could have been transferred to the underwear from one of the other
articles of clothing. Second, the seminal fluid in the underwear was
probably not King’s because of the lack of sperm. If Soll’s newly
developed opinions had been presented to the jury, it could have
concluded that, while King had some kind of contact with A.A., the
contact could have been a result of conduct other than sexual
intercourse.
11
When an attorney hires an expert to assist in the defense, effective
counsel cannot simply present the file to the expert and ask for an
opinion. Instead, the effective attorney must engage in a two-stage
process. First, the attorney must develop a basic working knowledge of
the subject matter about which the expert is consulted. See Richey v.
Bradshaw, 498 F.3d 344, 362–63 (6th Cir. 2007). Second, the attorney
must then consult with the expert and competently explore the potential
issues. The mere hiring of an expert is meaningless “if counsel does not
consult with that expert to make an informed decision about whether a
particular defense is viable.” Id. at 362. The question in this case is
whether King’s counsel engaged in this two-stage process.
In this case, King’s attorney appears not to have remembered the
O.J. Simpson trial in which issues of contamination of apparently highly
incriminating DNA evidence were at the heart of the defense attack. See,
e.g., William C. Thompson, DNA Evidence in the O.J. Simpson Trial, 67 U.
Colo. L. Rev. 827 (1996) (reviewing various cross-contamination issues).
Further, King’s attorney apparently did not acquaint himself with the
literature regarding DNA testing. Had he done so, he would have
recognized the need to explore potential contamination theories to attack
harmful evidence. See, e.g., Comm. on DNA Forensic Sci., Nat’l Research
Council, The Evaluation of Forensic DNA Evidence 80, 83–84 (1996)
(noting concern with sample mishandling and further observing that
sperm DNA can be separated from nonsperm DNA with differential DNA
extraction); Comm. on DNA Tech. in Forensic Sci., Nat’l Research
Council, DNA Technology in Forensic Science 20, 66 (1992) (noting
contamination can result from the handling of other evidence samples
and from mixed samples and noting that forensic investigators should
take care to minimize the risk of contamination); Edward J. Imwinkelried
12
& D.H. Kaye, DNA Typing: Emerging or Neglected Issues, 76 Wash. L. Rev.
413, 473 (2001) (discussing cross-contamination in collecting and
handling of DNA evidence); Michael R. Flaherty, Annotation,
Admissibility, in Prosecution for Sex-Related Offense, of Results of Tests on
Semen or Seminal Fluids, 75 A.L.R. 4th 897, 910 (1989) (stating “expert
examination of a sample to check for contamination . . . may be useful to
call into question the reliability of the results”); William C. Thompson et
al., Evaluating Forensic DNA Evidence: Essential Elements of a Competent
Defense Review, The Champion 16 (April 2003), available
at http://www.bioforensics.com/articles/champion1/champion1.html
(discussing the steps defense lawyers must take to adequately evaluate
DNA evidence offered against their clients). Further, an examination of
DNA case law would have revealed the potential for attack based upon
cross-contamination of DNA evidence. See, e.g., United States v. Lowe,
954 F. Supp. 401, 419 (D. Mass. 1996) (noting cross-contamination due
to handling before, during, or after DNA extraction); State v. Wommack,
770 So. 2d 365, 372 (La. Ct. App. 2000) (raising possible cross-
contamination where clothing bagged together); Mincey v. State, 112
S.W.3d 748, 750, 753 (Tex. Ct. App. 2003) (noting possibility of cross-
contamination when clothing put in same paper bag). Thus, a
reasonably competent lawyer would have determined that a threshold
question in DNA cases is whether there has been contamination of the
evidence.
If King’s counsel had reviewed the literature and been aware of the
potential of cross-contamination, however, it is possible that King’s trial
counsel still would not have understood the significance of the evidence
in this case. A transfer of seminal fluid containing his client’s DNA from
one piece of clothing onto another might not be very helpful. For
13
example, to suggest that his seminal fluid containing DNA was originally
on A.A.’s shirt and then migrated to the crotch of the underwear due to
improper handling or when jostled around in the same paper bag not
only seems improbable, but would not be all that helpful to the defense.
A defense concession that seminal fluid containing King’s DNA was
deposited on the shirt or jeans of the victim would not necessarily
suggest that no sex act occurred between King and A.A.
The issue, however, is more substantial. Not only was there the
possibility that the DNA had migrated into the crotch of the underwear
from other sources, it was also possible that the DNA was not linked at
all to the seminal fluid in the crotch. This is the kind of scientific
knowledge that only an expert would likely bring to the table in a
criminal defense.
The question in this case boils down to this: Under the
circumstances, was King’s counsel ineffective for failing to bring the facts
of cross-contamination to the attention of the expert and to explore
potential challenges to the sample-gathering process to show the
evidence did not necessarily establish that the seminal fluid in the
underwear belonged to King? On the one hand, counsel is not required
to know all the ins and outs of technical subject matter. One of the
functions of an expert is to identify, define, and refine potential issues.
Coleman v. Calderon, 150 F.3d 1105, 1114–15 (9th Cir.), rev’d on other
grounds, 525 U.S. 141, 119 S. Ct. 500, 142 L. Ed. 2d 521 (1998);
Hendricks v. Calderon, 70 F.3d 1032, 1038–39 (9th Cir. 1995). In this
regard, it is noteworthy that King’s counsel did provide Soll with the
discovery file in the case. The discovery file included the police reports
describing that the three articles of clothing were placed in one bag. As
emphasized by the district court, a careful examination of the entire file
14
by Soll would have revealed the potential for cross-contamination. On
the other hand, it is clear that, if King’s counsel had simply directed
Soll’s attention to the facts like King’s mother did after King’s conviction,
the evidence would likely have been fully developed. An attorney has an
obligation to diligently and competently determine whether, given the
circumstances of a particular case, there are issues “worth raising.”
Millam, 745 N.W.2d at 723. Because of his lack of knowledge or
inattention to the file, the cross-contamination issue was not explored
with Soll by King’s counsel prior to trial.
In this case, however, it is not necessary to decide the issue of
whether King’s counsel provided inadequate assistance because, upon
our review of the entire record, we conclude that King has failed to show
prejudice as required under the Strickland test. Under Strickland, the
question is whether there is a “reasonable probability” that the result
would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at
2068, 80 L. Ed. 2d at 698. Stated in other terms, the question is
whether our confidence in the verdict is undermined by the failure to
present a fuller picture of the DNA evidence. Id.; State v. Graves, 668
N.W.2d 860, 882 (Iowa 2003).
The victim in this case testified that King sexually assaulted her.
She testified that the assault occurred in King’s car between 2 and 4 a.m.
At 4:45 a.m., the victim reappears at a convenience store with visible
hickey-like bruises on her neck. There was also unrebutted medical
evidence that the victim suffered bruised breasts and rectal tears,
indicating that a sexual assault did, in fact, occur. The victim’s
identification of King as the perpetrator was supported by the presence of
King’s DNA on both sides of her neck. While King did not take the stand,
his interview with the police was remarkable for its inconsistency. At
15
first, he denied knowing the victim when presented a photograph of her.
Then he admitted that he knew the victim but claimed he did nothing
improper. Next, when told that the victim was accusing him of sexual
assault, King made the remarkable claim that the victim was falsely
accusing him of sexual assault in response to his claim that she broke
the windshield of his car.
Further, the new DNA evidence offered by King, though helpful in
discrediting some aspects of the State’s DNA evidence, does not
undermine our confidence in the verdict. Based on an experiment Soll
candidly admits was not as accurate or extensive as it could have been,
Soll is prepared to testify that the DNA in the crotch of the underwear
could have migrated from other articles of clothing or been the result of
other contamination, but he cannot exclude the possibility that such
contamination did not, in fact, occur. Also, Soll’s theory is dependent
upon the presence of King’s DNA on the other articles of clothing bagged
with the victim’s underwear. The other articles of clothing that were in
the paper bag were not tested by Soll or anyone else. Therefore, it is not
at all clear that cross-contamination occurred.
Similarly, Soll suggested that the lack of sperm in the crotch of the
underwear indicated that the seminal fluid may have been old. Soll,
however, did not himself perform any testing on the underwear to
confirm the lack of sperm. Further, even if there were no sperm in the
seminal fluid and the seminal fluid was not a result of sexual activity on
the night in question, these facts would not have diverted suspicion away
from King as the assailant on the night of the attack.
Soll also confidently asserted that, if he had examined the sperm
in the vaginal swab, he would likely have been able to find identifiable
DNA. Yet, he did not perform further testing on the sample. This was
16
likely a tactical decision, as King had admitted to counsel that he had
engaged in unprotected intercourse with A.A. The failure to perform
further tests on the vaginal swab material, and indeed on any of the
samples, makes King’s postconviction relief claim less compelling.
Soll offered potential theories that undermined some aspects of the
State’s evidence, but he would have left the jury to speculate whether his
theories were, in fact, correct. Also, the lack of identifiable sperm or
seminal fluid is not determinative of King’s guilt. Indeed, even assuming
that Soll’s revised opinion would have tended to discredit the testimony
regarding DNA in the victim’s underwear, the presence of King’s DNA on
the victim’s neck in the vicinity of hickey-like bruises suggests precursor
activity consistent with the victim’s allegation that King engaged in
sexual intercourse with her. Further, Soll’s testimony will not challenge
the evidence of physical injuries that strongly indicates that a sexual
assault in fact occurred or that King’s story to the police evolved from a
claim not to know the victim into a charge that the victim smashed his
windshield on the night of the alleged incident. 2 See Harrington v.
Richter, 562 U.S. ___, ____, 131 S. Ct. 770, 792, 178 L. Ed. 2d 624, 647
(2011) (concluding the defendant failed to show prejudice in part because
new expert evidence offered in the posttrial proceeding did not challenge
other conclusions and evidence presented by the State at trial, including
the defendant’s shifting story regarding his involvement in the crime).
2Interestingly, King offered evidence at the postconviction relief hearing that
tended to further incriminate him. A party-goer, Dan Freese, testified that King and the
victim left the apartment together in the early morning hours and that, upon return, the
victim announced that she and King had sex. King was only charged with consensual
sex under Iowa Code section 709.4(2)(c)(4). Therefore, Freese’s testimony tended to
further incriminate King.
17
In light of the entire facts and circumstances, we conclude that
King has failed to demonstrate a reasonable probability under Strickland
that the verdict would have been different in this case if the defense had
presented the evidence developed in the posttrial hearing related to
DNA. 3
D. Failure to Present Additional Testimony and Evidence of
Motive. King also asserts that his trial counsel was ineffective for failing
to elicit testimony from several witnesses at the party A.A. and King
attended prior to the alleged assault. According to King, these witnesses
would testify that several other men at the party touched A.A.’s breasts.
He also claims they heard A.A. announce that she and King had
consensual sex. 4 As we and the district court previously noted, the sole
issue in this case is whether King and the victim had sex.
Under these circumstances, we find it impossible to believe that
testimony indicating others had touched the breasts of a fifteen-year-old
girl who just announced she had sex with King would have changed the
jury’s verdict. King, therefore, has not shown a substantial probability
that a different outcome would have resulted had the additional evidence
been offered. Indeed, as pointed out by the district court, such evidence,
far from exculpating King, would have reinforced his guilt of sexual
assault in the third degree, which only requires a sex act between a
fourteen or fifteen year old and a person four or more years older than
the teenager. See Iowa Code § 709.4(2)(c)(4).
3Wereach our result under the Sixth Amendment of the United States
Constitution and independently under article I, section 10 of the Iowa Constitution.
4By the time of trial, one of these witnesses had left the country unbeknownst to
King’s trial counsel.
18
King also suggests that his counsel provided ineffective assistance
because he failed to call a witness who would have testified that A.A.
made a previous false report of rape. While King offers evidence that the
witness would have so testified, there has been no showing that the
claim was false. As a result, the statement would not be admissible
under Iowa law, State v. Alberts, 722 N.W.2d 402, 409 (Iowa 2006), and
the claim of ineffective assistance necessarily fails.
Finally, counsel was not ineffective for failing to present evidence of
A.A.’s possible motives for making a false claim of sexual assault. King
asserts trial counsel should have asked the victim about her request for
her family members to be reimbursed for lost wages in connection with
the case. He also claims A.A. may have made up the sexual assault to
avoid paying damages for allegedly vandalizing his car on the evening in
question. Evidence related to the alleged vandalization of the car did
come into the record through the testimony of a police officer who
interviewed King, and thus the failure to present additional evidence does
not present a strong ineffective-assistance claim. Even if counsel’s
failure to present evidence of A.A.’s possible motives for accusing King
constituted ineffective assistance of counsel, it is hard to see how these
relatively minor issues had a reasonable probability of affecting the
outcome of this case. Our confidence in the outcome has not been
undermined by these alleged shortcomings of King’s counsel as required
by Strickland.
IV. Conclusion.
King has failed to meet the prejudice prong of Strickland. As a
result, the district court properly denied King’s application for
postconviction relief.
AFFIRMED.
All justices concur except Mansfield, J., who takes no part.