Opinion
No. 2-994 / 02-0261
Filed February 12, 2003
Appeal from the Iowa District Court for Buena Vista County, John P. Duffy, Judge.
Joe Thomas Carter appeals his conviction for sexual abuse in the third degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and Phil Havens, County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Vaitheswaran, JJ.
Carter appeals his conviction for sexual abuse in the third degree in violation of Iowa Code sections 709.1 and 709.4(2)(b) 2001.
Carter was charged with this offense based on allegations of sexual contact with twelve-year-old B.J. in July 2001. The record indicates B.J. first told her sister, N.J., approximately one month following her sexual experience with Carter. N.J. told their half-sister, Mary, about B.J.'s allegations. Mary subsequently told B.J.'s mother, Sheryl, about what N.J. had told her. At trial B.J. testified to the events underlying her claims of sexual abuse by Carter. N.J. and Sheryl testified without objection concerning their conversations about B.J.'s allegations. Mary, over Carter's hearsay objections, was permitted to testify concerning her conversation with N.J. Carter was subsequently convicted, resulting in this appeal.
On appeal Carter contends he was denied effective assistance of trial counsel and the trial court erroneously admitted Mary's hearsay testimony. Carter also contends the trial court should have granted his motion for new trial based on newly discovered evidence.
I. Evidentiary Issues and Ineffective Assistance of Counsel.
To establish a claim of ineffective assistance of counsel, Carter has the burden to prove: (1) counsel failed in an essential duty and (2) prejudice resulted therefrom. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001); State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). To establish the requisite prejudice, Carter must show that there is a reasonable probability, but for counsel's unprofessional errors, the result of the proceedings below would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
An ineffective assistance of counsel claim may be disposed of if the applicant fails to prove either prong. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). Both of the elements must be established by a preponderance of the evidence. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). There is a strong presumption of competence and reasonable professional judgment. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Ordinarily, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow for full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, we will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998).
Carter bases his ineffective assistance of counsel claim on trial counsel's failure to request an explanation from the court on its ruling on his objection to Mary's testimony. Erroneously admitted hearsay evidence is presumed prejudicial unless the State can affirmatively establish otherwise. State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998). However, there is no prejudice if the admitted hearsay is merely cumulative. Id. As noted in the factual background, Mary's testimony was essentially the same as B.J.'s, N.J.'s, and Sheryl's testimony. Therefore, Mary's testimony was merely cumulative and not prejudicial. Hildreth, 582 N.W.2d at 170. Carter's ineffective assistance of counsel claim accordingly fails because he cannot establish the requisite prejudice. Query, 594 N.W.2d at 445. Because we find the foregoing dispositive, we do not reach the other arguments Carter raises with respect to ineffective assistance of trial counsel.
Carter also seeks to preserve for postconviction proceedings claims that trial counsel was ineffective for not making a proper Iowa Rule of Evidence 5.412 motion and failing to properly handle jury selection. With respect to these claims, Carter does not specify how an act or omission on the part of trial counsel would have affected the trial outcome. In the absence of greater specificity, we are unable to address these ineffective assistance of counsel claims on direct appeal or preserve them for future postconviction relief proceedings. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (defendant must state specific ways counsel's performance was inadequate and how competent representation would have changed the outcome).
II. Motion for New Trial.
We review a district court's ruling on a motion for new trial based on newly discovered evidence for an abuse of discretion. State v. Smith, 573 N.W.2d 14, 17 (Iowa 1997). The court is slower to interfere with the grant of a new trial than with its denial. Iowa R.App.P. 6.14(6)( d).
The court may grant a motion for a new trial when "the defendant has discovered important and material evidence in the defendant's favor since the verdict, which the defendant could not with reasonable diligence have discovered and produced at trial." Iowa R.Crim.P. 2.24(2)( b)(8) (emphasis added). Carter claims new evidence of a strained relationship between B.J. and her father would have identified her father as the abuser. Admission of this evidence, Carter claims, would have created reasonable doubt resulting in his acquittal. Carter fails to specify why reasonable diligence could not have produced the evidence at trial. As a result of that failure, the trial court did not abuse its discretion in denying the motion for new trial. See Iowa R.App.P. 6.14(1)( c).
The trial court is affirmed in its entirety.