Opinion
No. 1-265 / 00-0843.
Filed June 13, 2001.
Appeal from the Iowa District Court for Fayette County, JAMES L. BEEGHLY, Judge.
Dennis Michael Folkers appeals his convictions of two counts of second-degree sexual abuse in violation of Iowa Code section 709.3(2) (1999). Folkers contends his trial counsel was ineffective for not pursuing and obtaining discovery of exculpatory videotape evidence in the State's possession. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen C. Odell and Virginia Barchman, Assistant Attorneys General, W. Wayne Saur, County Attorney, and Joel Dryer, Assistant County Attorney, for appellee.
Considered by MAHAN, P.J., and MILLER and VAITHESWARAN, JJ.
Dennis Michael Folkers appeals his convictions of two counts of second-degree sexual abuse in violation of Iowa Code section 709.3(2) (1999). Folkers contends his trial counsel was ineffective for not pursuing and obtaining discovery of exculpatory videotape evidence in the State's possession. We affirm.
I. BACKGROUND FACTS
Folkers' wife, with some assistance from Folkers, operated a day care center in their home. One of the children for whom they provided day care was A.F., a three-year-old female. On May 14, 1999 A.F.'s father picked her up from the Folkers' day care and drove her to Minnesota, where he lived, for a visit. En route A.F. made an allegation to her father of sexual abuse by Folkers. The next day her father took A.F. to the Midwest Children's Resource Center where she was examined and interviewed by Mary Dentz, a pediatric nurse practitioner. Ms. Dentz videotaped the interview with A.F. regarding possible sexual abuse. During the videotaped portion of the interview A.F. denied any sexual abuse. However, after the tape was turned off and Dentz went to summon A.F.'s father, A.F. stated "Dennis rubbed me here," with her hand in her vaginal area. A.F. also stated she was at Barb's when Folkers touched her. Dentz asked A.F. if Folkers had touched any other children in this same way and A.F. said he had also rubbed R.B., another three-year-old female at the day care.
R.B. was then also interviewed regarding the alleged sexual abuse. The interview was conducted in Cedar Rapids, at St. Luke's Hospital Child Protection Center, by Rosanne Matuszek, the lead child abuse interviewer at the Center. During the taped interview R.B. did not acknowledge or assert any sexual abuse or impropriety by Folkers. Copies of both videotaped interviews were given to the Iowa Department of Human Services.
The allegations against Folkers were investigated by Shawn Wilson of the Iowa Department of Human Services. Wilson interviewed Folkers at Folkers' home on June 3, 1999. Wilson was accompanied by Sergeant James Tuecke with the Oelwein Police Department. During this audiotaped interview Folkers made several incriminating admissions regarding his conduct and actions with the girls, including having touched and rubbed both girls' vaginal areas with his hand and having had them touch his penis. Following the interview, Tuecke arrested Folkers. Tuecke interviewed Folkers again at the police department and Folkers again made incriminating statements regarding his actions with the girls. This interview was videotaped.
Folkers was charged by trial information with two counts of sexual abuse in the second degree in violation of Iowa Code section 709.3(2). Prior to trial Folkers filed a motion for discovery, which was sustained by the court. It sought, among other things, any evidence that was "favorable to the accused or exculpatory in nature and is material to either guilt or punishment." The jury found Folkers guilty on both counts. Following trial, Folkers filed a motion for new trial based on the videotaped interviews of the two children, alleging the State failed to turn over exculpatory evidence that was material in violation of the discovery order. The court denied the motion and sentenced Folkers to two concurrent terms of imprisonment of not to exceed twenty-five years each. Folkers appeals, alleging his trial counsel was ineffective for failing to obtain exculpatory evidence, the videotapes of the interviews of the two children.
II. SCOPE AND STANDARD OF REVIEW
A defendant is entitled to the assistance of counsel under the Sixth Amendment of the United States Constitution and Article 1, section 10 of the Iowa Constitution. The right to counsel is a right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984). Because a claim of ineffective assistance of counsel implicates constitutional rights, we review de novo the totality of the circumstances surrounding counsel's representation of the defendant. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999); State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987).
III. MERITS
To establish an ineffective assistance of counsel claim, the defendant must show "(1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom." Wenmark v. State, 602 N.W.2d 810, 814 (Iowa 1999) (quoting State v. Miles, 344 N.W.2d 231, 233-34 (Iowa 1984)). A reviewing court may look to either prong to dispose of an ineffective assistance claim. Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984). The test of ineffective assistance of counsel focuses on whether the performance by counsel was reasonably effective. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. The defendant must show that performance fell below an objective standard of reasonableness so that counsel failed to fulfill the role in the adversary process that the Sixth Amendment envisions. Id. A strong presumption exists that counsel's performance falls within the wide range of reasonable professional assistance. Wenmark, 602 N.W.2d at 814. The defendant has the burden of proving by a preponderance of the evidence both of the two elements of a claim of ineffective assistance. State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996); Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989).
"Improvident trial strategy, miscalculated tactics, mistake, carelessness or inexperience do not necessarily amount to ineffective counsel." State v. Aldape, 307 N.W.2d 32, 42 (Iowa 1981) (quoting Parsons v. Brewer, 202 N.W.2d 49, 54 (Iowa 1972)); see also Wenmark, 602 N.W.2d at 814. A defendant is not entitled to perfect representation, but rather only that which is within the range of normal competency. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000); Cuevas v. State, 415 N.W.2d 630, 632 (Iowa 1987).
While we often preserve ineffective assistance claims for possible postconviction proceedings, we consider such claims on direct appeal if the record is sufficient. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999). Neither party suggests we should preserve Folkers' ineffective assistance claim for postconviction proceedings, and we find the record is adequate to address it.
An ineffective-assistance-of-counsel claim may be disposed of if the defendant fails to prove either of the two prongs of the claim. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997). Therefore, we need not determine whether counsel's performance is deficient before undertaking the prejudice determination. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). We believe Folkers' claim can readily be resolved by focusing on the prejudice prong of his ineffectiveness claim.
To prove prejudice, the defendant must show 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" of the defendant's trial.
State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997).
For all of the following reasons we find Folkers has failed to prove he was prejudiced by trial counsel not obtaining the videotapes of the victims' interviews.
First, as the trial court noted in ruling on Folkers' motion for new trial, the evidence in question does not go to an issue that was in dispute because the State conceded that the two victims either denied abuse or failed to acknowledge any abuse during the videotaped interviews. Clear and uncontradicted testimony of the interviewers to that effect was presented at trial by the State. Further, in his closing argument Folkers' trial counsel was able to emphasize that in their videotaped interviews the girls had neither accused him of abusing them nor agreed that he had done so.
Second, we agree with the trial court's characterization of the videotapes as being merely cumulative of the trial testimony of the interviewers. Each expert who interviewed one of the children testified at trial. Each testified to a child's denial of the touching and abuse. Therefore, this information was before the jury for its consideration and the videotapes would have provided no new or additional information to the jury. See Schrier v. State, 347 N.W.2d 657, 664 (Iowa 1984) (holding that counsel's withholding of cumulative evidence does not constitute a sufficient showing of prejudice); see also State v. Havemann, 516 N.W.2d 26, 28-29 (Iowa Ct. App. 1994) (noting, in finding that counsel was not ineffective, that certain impeachment evidence would have been merely cumulative to other impeachment evidence in the record).
Finally, we find the other evidence against Folkers, specifically his own admissions, was so substantial that any failure of counsel to obtain the videotapes could not have worked to Folkers' actual and substantial disadvantage. Both Shawn Wilson and Deputy Tuecke testified regarding the inculpatory statements Folkers made to them during interviews with them. Additionally, the videotape of Folkers' interview with Tuecke in which he made these statements was admitted and played for the jury at trial. During this interview Folkers admitted, among other things, to his attraction to young girls, pulling down the victims' pants on several occasions and rubbing their vaginal areas, and that he had pulled down his pants on various occasions and made the girls touch his penis.
To summarize, the evidence in question did not go to an issue that was in dispute, the evidence was merely cumulative, and Folkers' repeated admissions constituted essentially overwhelming evidence of his guilt. We conclude there is no reasonable probability that, but for counsel not obtaining and presenting the videotapes of the victims' interviews, the result of the proceeding would have been different.
Folkers' brief may arguably be read as claiming the State suppressed exculpatory evidence in violation of its obligation, under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to disclose such evidence. It is clear and undisputed from the record that Folkers was aware of the videotapes prior to trial. His awareness came from a report from St. Luke's and a report from the Midwest Children's Resource Center, both of which were produced by the State during discovery, and from a deposition of Mary Dentz. It is also clear he was aware the reports indicated that while the videotapes were made the girls either denied abuse occurred or at least did not acknowledge that any abuse occurred. Exculpatory evidence is not "suppressed" if the defendant was aware of the evidence. Cornell v. State, 430 N.W.2d 384, 385 (Iowa 1988). Because Folkers was aware of the evidence in question any Brady claim is without merit.
IV. CONCLUSION
Folkers has failed to prove by a preponderance of the evidence there is any reasonable probability that but for counsel's failure to obtain and present the videotaped interviews of the victims the result of the proceeding would have been different. Thus, he has not proved he was prejudiced by counsel's actions. His convictions are affirmed.
AFFIRMED.