State v. Iowa Dist. Court for Polk County

• Decision Date: 19 December 1990
• Docket Number: No. 89-1024,89-1024
• Citation: 464 N.W.2d 244
• Parties: STATE of Iowa, Plaintiff, v. IOWA DISTRICT COURT FOR POLK COUNTY, Defendant. John R. MAYER, Appellee, v. STATE of Iowa, Appellant.
• Court: Iowa Supreme Court

Page 244

464 N.W.2d 244

STATE of Iowa, Plaintiff, v. IOWA DISTRICT COURT FOR POLK COUNTY, Defendant.

John R. MAYER, Appellee, v. STATE of Iowa, Appellant.

No. 89-1024.

Supreme Court of Iowa.

Dec. 19, 1990.

Thomas J. Miller, Atty. Gen., Julie A. Halligan, Asst. Atty. Gen., James Smith, County Atty., Nan Horvath and Scott Rosenberg, Asst. County Attys., for appellant.

David D. Butler, Des Moines, for appellee.

Considered en banc.

SNELL, Justice.

The State brought this appeal from the grant of postconviction relief and filed a petition for certiorari to separately challenge a provision in the same judgment. The district court set aside the petitioner's prior (and previously affirmed) conviction of third-degree sexual abuse. The question involves the use of closed circuit television during the testimony of witnesses who were minors. We affirm the grant of postconviction relief. We sustain a writ of certiorari issued on the State's petition to challenge the district court's disposition of the case.

Petitioner John R. Mayer was charged on January 27, 1987, with third-degree sexual abuse of three mentally retarded students who were riders on a school bus he was driving. There were four students on the bus at the time of the incident. The trial court found that three of the young witnesses were competent to testify. Following a jury verdict of guilty Mayer's conviction was affirmed on his direct appeal by the Iowa court of appeals in an unpublished opinion. See State v. Mayer, 438 N.W.2d 35 (Iowa App.1988) (table).

On the State's motion, the trial court employed a closed circuit television arrangement to shield the young witnesses from Mayer while they testified. Mayer's counsel did not object, and in fact agreed to the arrangement, at trial and previously when they were deposed. The failure of Mayer's counsel to object to the State's motion for the protection of the witnesses in his case, meant that the issue was not preserved for appeal. For this reason, appellate counsel did not raise the issue on direct appeal. See State v. Miles, 344 N.W.2d 231, 233 (Iowa 1984).

Mayer brought an action in district court pursuant to Iowa Code chapter 663A (1987), claiming trial counsel's failure to preserve error constituted ineffective assistance of counsel. The district court agreed, and granted Mayer's application for postconviction relief. As a result, the district court set aside Mayer's conviction, dismissed the charge, ordered Mayer released from custody, and granted the State sixty days in which to reindict. The court also ordered that contingent upon the filing of charges, the same conditions of bail be set for Mayer that obtained prior to the first trial or in the event he could not post bond, that the petitioner be freed within the context of the pretrial release program.

I. Sequestering Defendant.

Prior to trial the State moved that the trial testimony of the child-witnesses be taken out of the presence of the defendant. The State asked this in order to avoid a face-to-face contact or the viewing by the child-witnesses of the defendant. The motion asserted that all the child-witnesses have some form of learning or mental disability. Authorities for the relief requested were cited as Iowa Rule of Criminal Procedure 12(2), and Iowa Code chapter 910A (1985). Some of the witnesses were alleged to be children, as defined by Iowa Code section 702.5 (1985).

The State asked that the defendant be confined to an adjacent room or behind a screen or mirror that would permit the defendant to see and hear the child-witnesses during their testimony, but would not allow them to see or hear the defendant. Further, the State asked that the arrangement provide that defendant and his counsel be able to confer during the testimony and that the children be informed that the defendant could see and hear their testimony.

Mayer's counsel agreed to the shielding of the witnesses from Mayer believing it was legitimized by our decision in State v. Coy, 397 N.W.2d 730 (Iowa 1986), and his understanding of our rules of evidence regarding the shielding of rape victims during testimony. Iowa R.Evid. 412. He was apparently not aware that Coy was at that time on appeal to the United States Supreme Court.

The trial court made a record with counsel regarding screening the defendant from the witnesses. The court specifically referred to our case of Coy which had approved a screening procedure. The trial court believed the defendant's right of confrontation under the constitutions of Iowa and the United States was protected.

At trial the testimony of the alleged victims was taken in the courtroom while defendant Mayer was confined to the judge's chambers. He was able to see his counsel in the courtroom and could see the witnesses by looking at a television screen. The witnesses could not see defendant.

Defendant objected to this procedure at the outset and complained to his counsel. He said he would get a "fairer" trial if he could see the children face-to-face at trial. He told counsel he wanted to be present at the depositions and also during trial but his counsel explained to him that the law at that time was that they could keep the children sequestered from him.

II. Postconviction Requirements.

In order to prevail in this postconviction proceeding, Mayer must prove both that his trial counsel failed to perform an essential duty and that prejudice resulted from counsel's failure. State v. Hill, 449 N.W.2d 626, 628 (Iowa 1989); State v. Miles, 344 N.W.2d 231, 233-34 (Iowa 1984) (citing Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981)). In examining the prejudice element, we are guided by the following principle:

The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984).

In Strickland the Supreme Court stated that even a professionally unreasonable error made by counsel does not warrant setting aside a judgment if the error had no effect on the judgment. Id. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 696.

Mayer's confrontation claim must of course now be viewed in its postconviction context, not as it would have been if raised on direct appeal. In this proceeding he made a showing that his counsel in the direct appeal passed the confrontation issue only because there had been no trial objection, and hence the matter was not preserved for review. Mayer thinks the failure to preserve error on this crucial constitutional question denied him effective assistance of counsel, and that we should therefore consider the error at the postconviction stage. Such a view finds some support in our earlier postconviction opinions. Cf. State v. Goff, 342 N.W.2d 830, 838 (Iowa 1983) (counsel ineffective because of failure to object to marshaling instruction). In State v. White, 337 N.W.2d 517 (Iowa 1983), we determined that ineffective assistance of appellate counsel will provide sufficient reason to permit the issue of ineffective trial counsel to be raised for the first time in the postconviction proceeding.

Our postconviction opinions have undergone an evolution and now embrace the two-step analysis of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). See, e.g., Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981). Our changed view on the question was spelled out frankly in State v. Broughton, 450 N.W.2d 874 (Iowa 1990), where we qualified Goff:

[I]neffective-assistance-of-counsel claims, based on failure to preserve error, are not to be reviewed on the basis of whether the claimed error would have required reversal if it had been preserved at trial. It is incumbent on a convicted person seeking relief on a claim of ineffective assistance of counsel to demonstrate within the totality of the trial the dual elements of (a) breach of an essential duty, and (b) prejudice.

Id. at 876.

Our review of this issue of constitutional significance is de novo.

Whether we call such a review de novo or a review under the totality of circumstances our function is the same. We consider anew all the matters presented to, and which should have been considered by, the trial court and reach our own conclusion on whether the constitutional safeguard was violated. It makes no practical difference whether such a review is called de novo or one under the totality of circumstances.

Kellogg v. State, 288 N.W.2d 561, 563 (Iowa 1980).

III. Essential Duty.

To establish a breach of an essential duty, the first element, the challenged legal representation must be shown to fall below the range of normal competence. State v. Blackford, 335 N.W.2d 173, 178 (Iowa 1983); State v. Aldape, 307 N.W.2d 32, 41-42 (Iowa 1981). One claiming ineffectiveness must overcome a presumption of effectiveness. Sims v. State, 295 N.W.2d 420, 423 (Iowa 1980).

Defendant Mayer was tried for committing sexual abuse against H.M., C.B., and M.M. At the time of trial, H.M. was fourteen years old; M.M. was fifteen years old. He was convicted on the count involving the fifteen-year-old and acquitted on the other two counts.

The statutory authority for the confrontation procedure stems from rule 12(2)(b) regarding depositions. That rule states:

The court may upon motion of a party and notice to the other parties order that the testimony of a victim or witness who is a child, as defined in Iowa Code section 702.5, be taken by deposition for use at trial. Only the judge, parties, counsel, persons necessary to record the deposition, and any person whose presence, in the opinion of the court, would contribute to the welfare and well being of the child may be present in the room with the child during the child's deposition.

The court may require a party be confined to an...