Carl Gene Garnica, Applicant-Appellant v. State of Iowa ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 12-1810
Filed July 16, 2014
CARL GENE GARNICA,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, John D. Telleen,
Judge.
Carl Garnica appeals following the district court’s denial of his application
for postconviction relief. AFFIRMED.
Timothy J. Tupper of Tupper Law Firm, Davenport, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney
General, Michael J. Walton, County Attorney, and Julie Walton, Assistant County
Attorney, for appellee State.
Considered by Danilson, C.J., and Potterfield and McDonald, JJ.
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POTTERFIELD, J.
Carl Garnica appeals following the district court’s denial of his application
for postconviction relief. Of seven distinct allegations of ineffective assistance of
trial counsel presented to the district court, Garnica brings three for our review on
appeal: first, that trial counsel’s motion for a directed verdict of acquittal failed to
preserve what would otherwise have been an appealable issue; second, that trial
counsel failed to move for a mistrial based on prosecutorial misconduct; and
third, that trial counsel failed to sufficiently investigate the case. After a careful
review of the record, we are persuaded that the district court’s disposition on
these assertions was correct, and we affirm.
I. Factual and Procedural Background
On January 6, 2009, Garnica went to trial on two counts of sexual abuse
in the second degree as to two different alleged victims. Defense counsel
collected names and contacted potential witnesses while preparing the case for
trial. Counsel did not depose the State’s witnesses. The jury acquitted Garnica
on the count involving the first alleged victim and convicted on the count involving
the second alleged victim.
During the trial, the State presented as a witness a social worker who was
a counselor for the alleged victim in the first charge. During the witness’s
testimony, defense counsel raised several hearsay objections. The district court
sustained the first objection and directed the State to lay sufficient foundation for
any testimony offered as a hearsay exception. Defense counsel continued to
object, but the court overruled several of those objections as the State continued
to develop the testimony.
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Following the State’s case in chief, Garnica’s trial counsel moved for a
directed verdict of acquittal “on the grounds that there is not substantial evidence
in the record from which a rational fact finder could find guilt beyond a
reasonable doubt. That motion [was] made with respect to both counts.”
Counsel stated in addition, “[T]here is not sufficient or substantial evidence in the
record from which a juror could find beyond a reasonable doubt that, if they
believe abuse occurred with respect to [the second count], that abuse occurred
prior to the twelfth birthday of the child.”
After sentencing, Garnica appealed, and this court affirmed his conviction.
State v. Garnica, No. 09-0370, 2010 WL 446521, at *1 (Iowa Ct. App. Feb. 10,
2010). He later filed an application for postconviction relief based on seven
theories of ineffective assistance of trial counsel. The district court denied the
application on September 13, 2012. Garnica now appeals the denial of three of
his asserted bases for relief.
II. Scope and Standard of Review
We review postconviction proceedings for errors at law, but we review
claims of ineffective assistance of counsel de novo. Collins v. State, 588 N.W.2d
399 (Iowa 1998).
III. Discussion
For Garnica to succeed on his ineffective-assistance-of-counsel claims, he
must establish both that his trial counsel failed to perform an essential duty and
that he was prejudiced as a result. See State v. Maxwell, 743 N.W.2d 185, 195
(Iowa 2008). The first element, failure to perform an essential duty, is satisfied
only if counsel performed below the standard of a reasonably competent
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attorney. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). “We presume
the attorney performed competently, and the applicant must present an
affirmative factual basis establishing inadequate representation.” Millam v. State,
745 N.W.2d 719, 721 (Iowa 2008). “We will not second-guess reasonable trial
strategy.” Fullenwider v. State, 674 N.W.2d 73, 75 (Iowa 2004).
Garnica must also show that any failure to perform an essential duty
caused him prejudice, meaning “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Ledezma, 626 N.W.2d at 143 (quoting Strickland v. Washington, 466
U.S. 668, 695 (1984)). This prong requires that counsel’s error undermine our
confidence in the outcome of the criminal trial. Id.
A. Deficient Motion for Acquittal. Garnica first asserts that his trial
counsel’s motion for a directed verdict of acquittal was not specific enough to
preserve the issue of sufficiency of the evidence for appeal. However, we agree
with the district court that the language of counsel’s motion at least implied there
was insufficient evidence as to the occurrence of the offending act.
Counsel made his motion based on insufficient evidence as to both
counts. The motion alleged in the alternative—and as to the second count
only—that there was insufficient evidence of the age of the alleged victim even if
the jury found that the act had occurred. By negative inference, counsel’s
primary objection was to the sufficiency of the evidence of the offending acts.
Therefore, the issue was in fact preserved for appeal despite the alleged lack of
specificity because “we recognize an exception to the general error-preservation
rule when the record indicates that the grounds for a motion were obvious and
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understood by the trial court and counsel.” State v. Williams, 695 N.W.2d 23, 27
(Iowa 2005). Therefore, the district court was correct to conclude that counsel
did not breach a duty in his motion for a directed verdict and that Garnica
suffered no prejudice from it.
B. Failure to Move for a Mistrial for Prosecutorial Misconduct. Garnica
next alleges counsel failed to make a pivotal motion for a mistrial based on
prosecutorial misconduct during the State’s direct examination of the social
worker. However, counsel voiced several objections throughout the testimony of
the social worker, some of which the district court sustained and some of which it
overruled. As a result of the objections, the State withdrew any impermissible
questions and went on to lay sufficient foundation to render the evidence
admissible. Counsel was under no duty to move for a mistrial under these
circumstances. Additionally, the witness in question testified only with regard to
the alleged victim in the first count of the trial information. Garnica was acquitted
on that count, which undermines his contention that the testimony was inherently
prejudicial.
C. Failure to Investigate. Garnica lastly alleges that trial counsel failed to
sufficiently investigate the case. He predicates this assertion on three facts: first,
that counsel conducted no formal discovery, i.e. depositions; second, that
counsel did not speak with Judy Anthony, Garnica’s girlfriend at the time of the
alleged abuse, about testifying; and third, that counsel did not call Mary Davis,
Garnica’s girlfriend at the time the allegations were made, as a witness for the
defense. However, at the postconviction hearing in the district court, trial counsel
provided cogent and reasonable strategic justifications for conducting the trial
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without taking these steps, negating Garnica’s claim that counsel failed an
essential duty.
First, as to formal discovery, trial counsel explained that deposing the
State’s witnesses can alert the State to holes in its case, and counsel preferred
to expose those holes in front of the jury. He also noted that deposing the
State’s witnesses may compromise his ability to negotiate favorable plea
agreements and that deposition testimony may come into the trial record if the
State’s witnesses become unavailable. He therefore chose not to conduct formal
discovery.
Second, regarding Judy Anthony, the record shows that Anthony was
difficult and uncooperative with counsel. Trial counsel attempted to reach out to
her on multiple occasions, but she failed to respond. She testified at the
postconviction trial that she attempted to return counsel’s calls only one time and
failed to reach him. Anthony’s failure to cooperate will not render counsel’s
assistance ineffective. Additionally, it is unclear how Anthony’s testimony would
have assisted the defense, since part of Garnica’s theory of the case was that
Anthony herself helped orchestrate the allegations of sexual abuse with the
alleged victims.
Lastly, regarding Mary Davis, counsel testified that he had been in contact
with her about the case and had discussed the existence of other witnesses with
her. He elected not to call Davis to the stand because her testimony would have
been cumulative. Any new evidence she could have added to the record would
have amounted to character evidence, which would have opened the door for
rebuttal witnesses from the State.
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The record shows that defense counsel did sufficiently investigate the
case to provide effective assistance of counsel. The facts allegedly amounting to
a failure to investigate were reasonable trial strategy determinations. Trial
counsel did not fail to perform any duty owed to Garnica, and Garnica was not
prejudiced by any of counsel’s strategic decisions.
IV. Conclusion
Garnica has failed to persuade us that his trial counsel was ineffective.
The language of counsel’s motion for a directed verdict was sufficient, the
decision not to move for mistrial based on prosecutorial misconduct was
reasonable, and counsel adequately investigated the case. We affirm the district
court’s denial of postconviction relief.
AFFIRMED.