Rosales-Martinez v. State

• Decision Date: 21 December 2011
• Docket Number: No. 1-895 / 10-2078,1-895 / 10-2078
• Parties: SANTOS ROSALES-MARTINEZ, Applicant-Appellant, v. STATE OF IOWA, Respondent-Appellee.
• Court: Iowa Court of Appeals

SANTOS ROSALES-MARTINEZ, Applicant-Appellant, v. STATE OF IOWA, Respondent-Appellee.

No. 1-895 / 10-2078

COURT OF APPEALS OF IOWA

Filed December 21, 2011

Appeal from the Iowa District Court for Buena Vista County, Patrick M. Carr, Judge.

Santos Rosales-Martinez appeals from the denial of postconviction relief from his 2002 conviction for second-degree sexual abuse. AFFIRMED.

Darren D. Driscoll of Johnson, Kramer, Good, Mulholland, Cochrane & Driscoll, P.L.C., Fort Dodge, for appellant.

Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, David Patton, County Attorney, and James M. McHugh, Assistant County Attorney, for appellee State.

Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ. Tabor, J., takes no part.

POTTERFIELD, J.

The applicant, Santos Rosales-Martinez, appeals from the denial of postconviction relief from his 2002 conviction for second-degree sexual abuse. On appeal Rosales-Martinez argues that the postconviction court erred in rejecting his ineffective-assistance-of-counsel claims based on trial counsel's failure to object to instances of alleged prosecutorial misconduct and trial counsel's stipulation to the protective order for testimony of the child witness.

I. Background Facts and Proceedings.

Mary Castillo met Santos Rosales-Martinez while living in California with her young daughter A.C. Castillo and Rosales-Martinez married in 1997 and moved to Storm Lake, Iowa, in June of 1999. There, Rosales-Martinez began working night shifts at the IBP plant. The family first lived in a motel room and then a two-bedroom apartment. All three shared one bedroom; the other bedroom was occupied by one of two of Rosales-Martinez's friends, Ruben ("Nacho") or Moses Vargas. Castillo stayed home with seven-year-old A.C. until August when A.C. started school. In September, Castillo began working at a hospital. Twice Castillo worked weekends, during which Rosales-Martinez cared for A.C.

On January 28, 2000, Iowa Department of Human Services (DHS) social worker Susan Garvin began a child abuse assessment concerning A.C. and allegations of sexual abuse. A no-contact order was entered prohibiting Rosales-Martinez from having contact with A.C. or Castillo. Garvin directed Castillo to move with A.C. out of the apartment.

Garvin first interviewed A.C. on January 31, 2000. A.C. told her about having "secrets" with Rosales-Martinez and that she was not supposed to tell about the "touching." Using an anatomical drawing, A.C. indicated that Rosales-Martinez had touched her vaginal area and buttocks with a finger.

On February 3, 2000, Castillo and Garvin drove A.C. to the child advocacy center in Sioux City for a physical examination. Ms. Garvin heard Castillo whispering to A.C. in the car and told Castillo to speak out loud and that there should be no more secrets. Dr. M.J. Jung examined A.C. and found no physical evidence of sexual abuse. A.C. was interviewed by a child protection worker while in Sioux City. Garvin observed the interview, during which seven-year-old A.C. made no statements about sexual abuse.

DHS removed A.C. from Castillo's custody that same month and placed her with a foster family.

Ms. Garvin interviewed A.C. a second time a year later, on February 27, 2001. Police Officer Chris Cole was present and took notes. A.C. told Garvin that Rosales-Martinez put his mouth on her private part and he put his private part in her mouth.

Following that interview, Officer Cole attempted to reach Rosales-Martinez, but was told he was in California. Officer Cole obtained a warrant for Rosales-Martinez's arrest for sexual abuse.

On March 2, 2001, Officer Cole learned Rosales-Martinez had returned to Iowa and he was arrested. Cole "tried to interview" Rosales-Martinez that day, but "learned he didn't want to speak with [Cole]." Rosales-Martinez denied the charges and requested an attorney.

On March 19, 2001, the State charged Rosales-Martinez with second-degree sexual abuse alleging he committed sex acts on A.C., a child under twelve years of age, between June 5 and October 5 in 1999.

Pursuant to Iowa Code section 915.38 (2001), the State moved for a protective order concerning the discovery deposition of A.C. On June 11, 2001, the district court held an evidentiary hearing on the motion. Finding "A.C. would suffer serious trauma caused by testifying in the presence of the defendant and that it would impair A.C.'s ability to communicate," the court ruled A.C. would be deposed using a one-way mirror, and that she would not be told defendant Rosales-Martinez would be watching.

The State renewed its motion for protective order as to the child's trial testimony. Rosales-Martinez resisted setting forth specific requirements for protection of his confrontation right, including that the child be informed Rosales-Martinez would be watching her testimony. The court approved the protective order prior to trial.

In early October 2001, the court granted the State's resisted motion to amend the trial information to allege the sexual abuse occurred between June 5, 1999 and January 28, 2000. A jury trial began on October 30, 2001, but resulted in a mistrial due to a deadlocked jury.

A second jury trial began on January 8, 2002. At this trial, defense counsel "continue[d] to object to the findings that were made in July 2001." The court ruled:

[I]t is necessary to protect the minor child [A.C.] from trauma caused by testifying in the physical presence of the defendant in open court.

It is therefore ordered that the testimony of the minor child [A.C.] will be taken in a room other than the courtroom and will be televised live by closed-circuit television for viewing by the jury in the court room.

At trial, the State's first witness was Officer Cole. Cole testified, without objection, that he "was contacted by an attorney that said he was representing Mr. Rosales," who told Cole "Mr. Rosales wasn't going to speak with me." He also testified, again without objection, that he "tried to interview" defendant in March 2001 but "he didn't want to speak with me," defendant denied the charges, and requested an attorney.

Castillo then testified. She stated she did not see the defendant often, though they both worked at IBP. She admitted having told A.C. to lie about the abuse in the past. She also testified she had been charged with child endangerment and was told the charges would be dropped if she agreed to testify truthfully against Rosales-Martinez.

On cross examination, defense counsel asked Castillo if anybody talked to A.C. about the abuse allegations. Castillo stated A.C.'s therapist, Karen Gotto, "talks to her about this, about this all the time" as did Karee Muilenburg, and Susan Garvin. Defense counsel also raised the following issues on cross-examination of Castillo: that the defendant was not charged after A.C. was physically examined; that other males lived in the apartment with Castillo, the defendant, and A.C.; and that Castillo had contact with defendant despite a no-contact order.

Defense counsel then asked Castillo,

Q. When you moved out in January of 2000, Ms. Castillo, it was not because you thought Mr. Rosales was sexually abusingyour daughter, correct? It was because of something else, was it not? A. We were fighting too much, and basically [A.C.] was seeing all that, and he—he struck my daughter.

As a result of this response, defense counsel moved for a mistrial. The court overruled the motion, stating:

The record is clear that the witness Mary Castillo made reference to the defendant hitting the child [A.C.], and that comment should be prohibited by the ruling, court's ruling on the motion in limine [prohibiting evidence of prior bad acts]. However, the—the answer was given on cross-examination. Defense counsel had a—had previously deposed Mary Castillo and should have been aware that she might testify in basically the same manner that she testified to on deposition, where she says that he—the defendant was hitting [A.C.] So I—I view this as not being any flagrant violation of the motion or order on motion in limine. I am not too sure the jury even picked upon the statement.

After the state was—statement was made in open court, defense counsel requested a sidebar. We discussed the matter of the witness Mary Castillo making the statement in the presence of the jury. At that time I informed defense counsel if he—if he wanted to, if he wanted it, I would give the jury an instruction telling the jury to disregard that particular portion of the witness's testimony. Defense counsel elected not to have the court give the jury such an admonition.

Defense counsel continued to cross-examine Castillo and she admitted having lied previously to social workers about the sexual abuse allegations.

Prior to A.C.'s testimony, defense counsel stated "we agree to be bound by the findings of the court on July [2001]." The prosecutor noted that "the statute is fairly specific about some requirements" and procedures were discussed with the court. A.C. then testified via closed circuit television.

A.C. stated Rosales-Martinez touched her "private" with his hand more than once. She said Rosales-Martinez pulled her clothes down and took his boxers off—"He put his private in my private." In addition, A.C. testified that Rosales-Martinez touched her "buppy" with his hand and his "private." A.C. lateradded that Rosales-Martinez's mouth also touched her privates. She circled areas on anatomical drawings of a male and female indicating what she meant by "private" and "buppy": A.C.'s "private" was her vaginal area, her "buppy" was her buttocks area; defendant's "private" was his penis. A.C. stated these incidents happened when Castillo was at work and Moses was in a different room.

DHS worker Susan Garvin then testified she had conducted the child abuse assessment concerning the allegations that Rosales-Martinez had sexually abused A.C. She testified, over defense counsel's hearsay objections, A.C. "talked about...