State v. Tracy, 90-130

• Decision Date: 18 March 1992
• Docket Number: No. 90-130,90-130
• Citation: 482 N.W.2d 675
• Parties: STATE of Iowa, Appellee, v. Ronald R. TRACY, Appellant.
• Court: Iowa Supreme Court

Page 675

482 N.W.2d 675

STATE of Iowa, Appellee, v. Ronald R. TRACY, Appellant.

No. 90-130.

Supreme Court of Iowa.

March 18, 1992.

Kent A. Simmons, Davenport, for appellant.

Bonnie J. Campbell, Atty. Gen., Sheryl A. Soich, Asst. Atty. Gen., and Kjas T. Long, County Atty., for appellee.

Considered en banc.

SNELL, Justice.

Appellant, Ronald R. Tracy, appeals his conviction of third-degree sexual abuse in violation of Iowa Code section 709.4(2)(c)(1) (1991). On application by appellant our court remanded for the purpose of making a record on the issue of ineffective assistance of defense counsel. After hearing evidence, the trial court found that counsel was not ineffective. On appeal, the court of appeals affirmed the conviction. We have considered the case on further review. Because we conclude that error occurred in the admission of certain items of evidence and that Tracy's defense was thereby prejudiced, we vacate the decision of the court of appeals, reverse and remand for a new trial.

On October 2, 1989, the Jackson County attorney filed a trial information charging Tracy with third-degree sexual abuse of his stepdaughter, hereinafter K.A. The jury returned a verdict of guilty, and Tracy was sentenced to a term of imprisonment not to exceed ten years.

A suspicion that K.A. was being sexually abused first arose in March, 1989, when she indicated to a friend at school, Deanna, that her dad was molesting her. At that time K.A. was sixteen years old. Later, that month, Deanna's mother phoned the school nurse, Jackie Crowley. Nurse Crowley then arranged a meeting with Deanna and K.A. At the meeting, Deanna told Nurse Crowley that K.A. had complained of being "touched in a way she was upset about." There was also some complaint about being touched in a "sexual manner." Deanna added that "there were some problems with her stepfather whom she called her dad." In response to this information, Nurse Crowley arranged for a second meeting with a child abuse investigator.

At the second meeting on March 22, 1989, K.A. indicated that she and Tracy had engaged in sexual intercourse on several occasions. This statement was made before Nurse Crowley, Ceatta Mann, a child abuse investigator, and Millie Kopp, an employee from the sheriff's office. A typewritten summary of K.A.'s statement was prepared, which K.A. then signed. The statement alleged instances of sexual intercourse, i.e., genital to genital contact, between K.A. and her stepfather. Later that same day K.A. was removed from Tracy's home and placed in foster care.

On March 23, 1989, K.A. was examined by Dr. Kathleen Opdebeeck, a developmental pediatrician. Dr. Opdebeeck compiled a social history on K.A. and then conducted a vaginal examination. Based upon her exam, Dr. Opdebeeck concluded that K.A. had engaged in sexual intercourse at some point in time.

On May 10, 1989, K.A. returned to Nurse Crowley's office and stated that everything she had said in her signed statement was a lie. At trial, K.A. testified that she had made up the story about her stepfather sexually abusing her in order to get out of his home. She explained that the hard work and long hours associated with Tracy's hog and dairy operation eliminated any time she might otherwise have had for social and extra-curricular school activities. Apparently, K.A. was required to get up at 4:00-4:30 a.m. in order to work before attending school; after school, she often had to work until 8:30 or 9:00 p.m. K.A. testified that her scheme worked; after making the complaint of sexual abuse, K.A. and her sister, Kari, were removed from the home and placed in foster care, which provided more time for school activities and dating.

Dr. Hunter Comly, a child psychiatrist, met with K.A. on July 17, 1989. Dr. Comly testified that he spent about an hour to an hour and a half with K.A. and conducted various psychological tests. Dr. Comly further testified, without objection, that there was evidence that K.A. was suffering from child sexual abuse accommodation syndrome. He indicated that the syndrome would explain K.A.'s retraction of the written statement she had signed in Nurse Crowley's office. In addition, Comly was allowed to testify that in his opinion, K.A. was telling the truth when she first reported sexual abuse by her stepfather.

The State also offered the testimony of K.A.'s nine-year-old sister, Kari. She testified that in June or July of 1988 she had seen K.A. and Tracy on the bed in K.A.'s bedroom. Kari indicated that Tracy was partially undressed and "had his arm in her private spot going up and down." She added that "K.A. had her hand on Tracy's penis and was squeezing." The State also presented the testimony of Deanna who stated that she asked K.A. if they actually had sex and K.A. responded "yes."

I. The Turecek Violation.

The State offered the testimony of K.A. as part of its case in chief, knowing full well that K.A. intended to deny any sexual abuse by her stepfather, Ron Tracy. After offering K.A.'s testimony, the State then proceeded to impeach her by various means. The State offered Dr. Comly's opinion that K.A. was suffering from child sexual abuse accommodation syndrome, which accounted for her recantation; Dr. Comly further opined that "there are probably no more than two or three children per thousand who come forth with such a serious allegation who are found later to be dishonest." We note that the admission of Dr. Comly's testimony concerning the truthfulness of K.A.'s testimony is in violation of our holding in State v. Myers, 382 N.W.2d 91, 97-98 (Iowa 1986). However, we choose not to rest our conclusions in the present case upon the Myers violation alone.

To further support their "impeachment" of K.A., the State offered evidence of numerous inconsistent statements made by K.A. prior to her trial testimony. Included among these was the signed statement K.A. had made at the school nurse's office in which she accused her stepfather of sexual abuse. In addition, the State offered testimony by K.A.'s mother, K.T., K.A.'s best friend, Deanna, Jackie Crowley, Ceatta Mann, and Millie Kopp, all of whom recounted the graphic complaints of sexual abuse K.A. had previously related to them.

Clearly, all of the above testimony that merely recounted K.A.'s initial complaint of sexual abuse by her father would have been inadmissible hearsay testimony if offered for any purpose other than impeachment. Iowa R.Evid. 801(c) (" 'hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."). Similarly, Dr. Comly's testimony regarding child sexual abuse accommodation syndrome and the general truthfulness of child abuse victims was relevant to the prosecution's case only insofar as it tended to discredit K.A.'s testimony. Thus, if K.A. had not testified, neither Dr. Comly's testimony nor evidence of K.A.'s prior inconsistent statements would have been admissible.

We have recently condemned this sort of prosecutorial maneuvering in which the State places a witness on the stand who it expects to give unfavorable testimony solely for the purpose of introducing otherwise inadmissible evidence. State v. Turecek, 456 N.W.2d 219, 224-25 (Iowa 1990). In Turecek, we qualified the State's right to impeach its own witnesses as follows:

The right given to the State to impeach its own witnesses under Iowa Rule of Evidence 607 and our decision in State v. Trost, 244 N.W.2d 556, 559-60 (Iowa 1976), is to be used as a shield and not as a sword. The State is not entitled under rule 607 to place a witness on the stand who is expected to give unfavorable testimony and then, in the guise of impeachment, offer evidence which is otherwise inadmissible. To permit such bootstrapping frustrates the intended application of the exclusionary rules which rendered such evidence inadmissible on the State's case in chief.

Turecek, 456 N.W.2d at 225. Given that the record clearly reveals that the State knew K.A. intended to retract the allegations of sexual abuse she had formerly made, we must assume the State orchestrated this series of events merely to place before the trier of fact various items of evidence that would otherwise be inadmissible. As we concluded in Turecek, this sort of maneuvering constitutes reversible error. Id. at 226.

Although defense counsel objected to the testimony given by Jackie Crowley, Ceatta Mann and Millie Kopp as being hearsay, thus properly preserving error on this issue, he failed to lodge similar objections to the testimony given by K.A.'s mother, Deanna and Dr. Comly. Nevertheless, given the seriousness of a Turecek violation, any failure to preserve error at the trial level would entitle Tracy to assert a claim of ineffective assistance of counsel. To establish a claim that trial counsel was ineffective, in derogation of one's sixth amendment right to counsel, two elements must be shown: "(1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom." Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984). In this de novo review, Tracy has the burden to prove both of these elements by a preponderance of the evidence. Id.

In deciding whether trial counsel failed to perform an essential duty, "we require more than a showing that trial strategy backfired or that another attorney would have prepared and tried the case somewhat differently.... Petitioner must overcome a presumption that counsel is competent." Id. "When counsel makes a reasonable decision concerning strategy ... we will not interfere simply because it did not achieve the desired result." State v. Newman, 326 N.W.2d 788, 795 (Iowa 1982).

We do not believe that the trial strategy adopted by Tracy's trial counsel was reasonable in allowing into the record all of the otherwise inadmissible evidence given by K.A.'s mother, Deanna, and Dr Comly. Although Turecek was not decided until after the...