State v. Polly
| Decision Date | 26 February 2003 |
| Docket Number | No. 02-0283.,02-0283. |
| Citation | 657 N.W.2d 462 |
| Parties | STATE of Iowa, Appellee, v. Douglas Robert POLLY, Appellant. |
| Court | Iowa Supreme Court |
Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines and Robert J. Glaser, Assistant Attorneys General, and Michael A. Riepe, County Attorney, for appellee.
A man caught with his pants down assaulting a nurse claims there is no proof of his sexual intent. The State charged Douglas Polly with assault with intent to commit sexual abuse with bodily injury, a class D felony, and three counts of interference with official acts. A jury convicted Polly of the charges. Polly appeals asserting ineffective assistance of counsel regarding three trial matters. Because we find Polly failed to prove ineffective assistance of counsel as to each of his three claims, we affirm.
Douglas Polly was incarcerated at the Mt. Pleasant Correctional Facility after a felony conviction. Polly went to the facility's medical clinic complaining of severe bleeding from hemorrhoids. The examining nurse did not find any evidence of a medical problem. As the exam concluded, Polly attacked the nurse. She fought back and Polly struck her on both sides of her head. Throughout the assault Polly's pants were around his ankles.
The nurse escaped to the waiting room and called for help. Polly pulled his pants up and fled. Four officers chased after Polly. Polly fought them before being restrained. During interviews with a prison investigator, Polly admitted the attack had been sexually motivated—he planned to force the nurse to perform oral sex. Additional relevant facts will be discussed below.
The State charged Polly with assault with intent to commit sexual abuse with bodily injury, a class D felony, and three counts of interference with official acts. A jury found him guilty as charged. Polly appeals only his conviction for assault with intent to commit sexual abuse with bodily injury. He claims his trial counsel was ineffective.
We review ineffective assistance of counsel claims de novo. State v. Myers, 653 N.W.2d 574, 576 (Iowa 2002) (citing Kane v. State, 436 N.W.2d 624, 626 (Iowa 1989)).
On appeal we are asked to examine three issues. First, Polly argues his trial counsel was ineffective for failing to move for a judgment of acquittal based upon the State's alleged failure to introduce "other proof" corroborating Polly's confession of his intent to commit a sexual crime. As a related matter, Polly also argues his counsel should have requested a jury instruction requiring the jury to find such "other proof" to corroborate the crime as charged. Finally, Polly asserts his counsel was ineffective for failing to call Polly as a witness to testify on his own behalf.
To prove an ineffective assistance of counsel claim, Polly must show by a preponderance of the evidence: (1) trial counsel failed to perform an essential duty; and (2) prejudice resulted from counsel's error. Myers, 653 N.W.2d at 577 (citing State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996)); State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002); State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). Failure to demonstrate either element is fatal to a claim of ineffective assistance. Id. We begin our discussion with the presumption that counsel acted competently. Id. (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674, 694 (1984)). A claim of ineffective assistance is more likely to prevail when counsel lacked diligence as opposed to the exercise of judgment. Id. (citing Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001)).
The State charged Polly with assault with intent to commit sexual abuse with bodily injury. Polly admits the evidence was sufficient to warrant a conviction of assault causing bodily injury. However, he argues there is no "other proof" to corroborate Polly's confession of intent to commit sexual assault, a crime of specific intent. Polly asserts his trial counsel was ineffective for failing to move for a judgment of acquittal based upon the State's claimed failure to introduce "other proof" corroborating Polly's confession of his intent to sexually assault the nurse.
Escobedo v. Illinois, 378 U.S. 478, 488-89, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977, 985 (1964).
Apart from the confession itself, the "other proof" against Polly consists of the following facts. Polly went to the nurse complaining of severe bleeding from hemorrhoids. The nurse took Polly into an examination room where he lowered his pants and laid face down on an exam table. The nurse did not see any inflamed tissue consistent with Polly's complaint. The only item of note was a piece of toilet paper with a very small amount of blood on it between Polly's buttocks. The nurse removed the tissue and gave Polly gauze squares to use. She told Polly he could come back the next day and see a doctor. As the nurse stepped away from the exam table, Polly lunged at her and began strangling her. The nurse fought back and Polly struck her on both sides of her head. Throughout the assault Polly's pants were around his ankles. Polly did not say anything sexually suggestive during the attack.
Polly's confessions to the prison investigator revealed the following facts. Polly admitted the attack had been sexually motivated —he planned to force the nurse to perform oral sex. He explained to the investigator that he had been watching the nurses for about five or six months. Polly determined a nurse worked alone on the weekends. Polly said he "was going to beat [the nurse] until she quit fighting." When asked if he was having sexual thoughts when he attacked the nurse, Polly responded "yes." He told the investigator he had no intention of letting her go. Polly stated he was grabbing at the nurse's clothing.
The question is whether Polly was prejudiced when his trial counsel failed to move for a judgment of acquittal based upon the State's claimed failure to introduce corroborating evidence of sexual intent. Prejudice is shown when "there is a reasonable probability that, but for the counsel's unprofessional error, 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 one sufficient to undermine confidence in the outcome. State v. Kone, 557 N.W.2d 97, 102 (Iowa Ct.App.1996). The State must prove sufficient "other proof" to corroborate Polly's confession in order for the confession itself to serve as a basis for his conviction. See id. (citing Opper, 348 U.S. at 89, 75 S.Ct. at 162, 99 L.Ed. at 106); Iowa R.Crim. P. 2.21(4). "Evidence is sufficient to support a conviction if, viewing it in the light most favorable to the prosecution, `any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Lopez-Alvarez, 970 F.2d 583, 589 (9th Cir.1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979)).
99 L.Ed. at 109). It is the court's duty to determine the existence of corroborative evidence and the jury's obligation to determine the sufficiency of such evidence. State v. Origer, 418 N.W.2d 368, 371 (Iowa Ct.App.1987) (citing White, 319 N.W.2d at 214).
In the case before us, there is no doubt the crime of assault actually occurred. It was a tangible crime supported by the testimony...
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