Opinion
No. 5-390 / 04-0912
Filed June 15, 2005
Appeal from the Iowa District Court for Clinton County, James E. Kelley, Judge.
Ricky James Short appeals his convictions for two counts of sexual abuse in the third degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, Michael L. Wolf, County Attorney, and Gary Strausser, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
Ricky James Short appeals his convictions for two counts of sexual abuse in the third degree in violation of Iowa Code section 709.1 and 709.4(2)(b) (2003). Short asserts (1) the district court abused its discretion in excluding a defense witness; (2) his trial counsel was ineffective for failing to give timely notice of the excluded defense witness; and (3) his trial counsel was ineffective in failing to exclude evidence of Short's sexual orientation. We conclude the district court did not abuse its discretion in excluding the witness who was not disclosed until mid-trial and Short's counsel was not ineffective for failing to exclude evidence of his sexual orientation as it was a reasonable trial defense strategy. However, the record is inadequate for us to review Short's claim his counsel was ineffective for failing to give timely notice of a defense witness. We accordingly preserve that issue for possible postconviction relief.
I. Background Facts and Proceedings
In January of 2004, the State filed a trial information charging Short with two counts of sexual abuse in the third degree. Following a bench trial the district court made these findings of fact:
In June, 2003, [B.S] was residing in his grandmother's house in Dewitt, Clinton County, Iowa, with his uncle, Defendant Ricky J. Short. In June, 2003, [B.S.] was twelve years of age. In June, 2003, [M.C.] was also twelve years of age. Both [B.S.] and [M.C] testified that one night in June, 2003, when [M.C.] was staying overnight with B.S., they were both in Ricky Short's room when he removed the clothing covering each boy's genitals and committed a sex act upon each boy while all three persons were in the same room. The court finds the sex acts were committed by the Defendant upon each of the victims beyond a reasonable doubt.
Short's theory of defense was that the sexual abuse never occurred. In an effort to substantiate this defense Short testified that one of the alleged victims, his nephew B.S., was a difficult-to-manage child who had threatened to make allegations of sexual abuse if Short did not give in to B.S.'s demands. Short also testified that B.S. had threatened to tell Short's co-workers that Short was homosexual. Short further attempted to demonstrate that the other alleged victim, M.C., had made allegations of abuse against Short because B.S. intimidated him into doing so and because M.C. did not like homosexuals.
These demands usually consisted of either being allowed to stay out late with his friends or requests for money.
After the close of the State's case in chief, Short attempted to call his mother, Hazel Short, as a witness to partially corroborate Short's claim that the sexual abuse never occurred. Hazel, B.S., and Short all lived at Hazel's house when the abuse allegedly occurred. According to Short, at the time in question, Hazel was sitting at a table just five to seven feet from Short's open bedroom door where B.S. and M.C. stated the abuse occurred.
B.S. and M.C. both testified that the door to Short's bedroom was closed when the abuse occurred and that Hazel was in her bedroom.
The State objected to Hazel testifying, asserting that it had not been given notice that she would be called as a witness. The only indication the State had of Short's intention to call this witness was a brief reference to her in Short's opening statement. Following the objection, the district court ruled that Hazel was excluded as a defense witness. No offer of proof was made regarding Hazel's testimony.
II. Exercise of Discretion in Excluding a Defense Witness
Iowa Rule of Criminal Procedure 2.13(3) provides:
At or before the time of the taking of a deposition by a defendant . . . the defendant shall file a written list of the names and addresses of all witnesses expected to be called for the defense (except the defendant and surrebuttal witnesses), and the defendant shall have a continuing duty before and throughout trial promptly to disclose additional defense witnesses. Such witnesses shall be subjected to being deposed by the state.
In this case depositions were taken during the four months from the time Short was arrested to the day of his trial. Short had ample time to notify the State of his intent to call Hazel as a witness if he expected her to corroborate his defense that the abuse never occurred. Yet, the State was not notified of Short's intent to call his mother as a witness until the day of trial. In fact, the only "notice" the State received prior to Short attempting to call Hazel as a witness after the State had rested its case was a brief reference to Short's intent to do so in his opening statement. No reason was provided by Short or his attorney for this last minute disclosure. Thus, we conclude Short's failure to promptly notify the State of his intent to call Hazel as a defense witness was in contravention of the requirements of rule 2.13(3). See State v. Braun, 495 N.W.2d 735, 742 (Iowa 1993).
The sanctions available to the district court for failing to comply with subsection (3) of rule 2.13 are found in subsection (4) of the rule, which states in pertinent part:
If the defendant . . . does not disclose to the prosecuting attorney all of the defense witnesses (except the defendant and surrebuttal witnesses) at least nine days before trial, the court may order the defendant to permit the discovery of such witnesses, grant a continuance, or enter such other order as it deems just under the circumstances. It may, if it finds that no less severe remedy is adequate to protect the state from undue prejudice, order the exclusion of the testimony of any such witnesses.
These sanctions are discretionary and will be reversed only if the district court abused its discretion in exercising them. See State v. Babers, 514 N.W.2d 79, 82 (Iowa 1994). Exclusion of a witness is expressly provided in rule 2.13(4) in order to protect the State from undue prejudice. See Braun, 495 N.W.2d at 742
The district court, in choosing to exclude Hazel as a witness, ruled, "The depositions having been taken, the State must get notice of the witnesses. The objection is sustained." The inference from the district court's ruling appears to be that the State would suffer prejudice if Short were allowed to call an undisclosed witness who purportedly would provide exculpatory testimony. Because the trial had already progressed to the point of the State resting its case, we do not find this choice of remedies to be an abuse of the district court's discretion.
III. Ineffective Assistance of Counsel
Short asserts his trial counsel was ineffective in the following respects: (1) in failing to file notice of a defense witness; and (2) in failing to exclude evidence of his sexual orientation. Our review of a claim of ineffective assistance of counsel is de novo. See State v. Truesdell, 679 N.W.2d 611, 615 (Iowa 2004). To prevail on such a claim, Short must demonstrate both that his counsel failed in an essential duty and that he was prejudiced by such failure. State v. Arne, 579 N.W.2d 326, 328-29 (Iowa 1998). "To establish the first prong, the applicant must demonstrate the attorney performed below the standard demanded of a reasonably competent attorney." Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (citations omitted). To demonstrate prejudice, Short must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 143 (citations omitted). These elements must be proven by a preponderance of the evidence. Id. at 142 (citations omitted).
Claims of ineffective assistance of counsel raised on direct appeal are generally preserved for postconviction relief proceedings for the development of a sufficient record and to allow the attorney an opportunity to defend his or her actions. See State v. Allen, 348 N.W.2d 243, 248 (Iowa 1984). However, where the record on appeal is sufficient to allow us to determine that either prong of an ineffective assistance claim is lacking, we may decline to preserve the issue and may instead address the claim on direct appeal. State v. Brown, 656 N.W.2d 355, 364 (Iowa 2003).
A. Failure to Provide Notice of Defense Witness
The record does not indicate when Short informed his attorney that he believed Hazel would corroborate his defense. Thus, the record is not sufficient to determine whether Short's trial attorney breached an essential duty in not providing the State timely notice of Hazel being called as a defense witness. Moreover, with regard to the prejudice prong of Short's ineffective assistance of counsel claim, Short indicated in his testimony that Hazel could partially corroborate his defense by testifying that she was sitting at the dining room table at the time the victims reported the abuse occurred. Hazel confirmed Short's testimony when she stated in a letter she wrote to the trial judge that she was sitting at the dining room table at the time the abuse purportedly occurred. However, while this letter was included in the pre-sentence investigation report, this report was not available to the court until after Short's trial. Additionally, no offer of proof was made during the trial regarding exactly what Hazel would testify to. Consequently, the record is insufficient for us to determine whether Short suffered prejudice as a result of the exclusion of Hazel as a defense witness. We accordingly preserve this claim for possible postconviction relief proceedings in order to develop a sufficient record and to allow Short's attorney an opportunity to explain the untimely notice of this defense witness.
The transcript of Short's sentencing hearing reveals the following conversation took place between Short's attorney and the court regarding this letter:
[Short's Attorney]: I just have a brief statement, your Honor. First of all, Mr. Short's mother has written letter. [The prosecutor] has seen it. I don't know if you'll consider it or not, I would like to submit it or just add it to —
The Court: Thank you. The letter will be placed in the court file as part of the presentence investigation file. It will be confidential pursuant to law.
See State v. Kirchner, 600 N.W.2d 330, 335 (Iowa Ct.App. 1999) ("[A] lawyer is entitled to his day in court, especially when his professional reputation is impugned.").
B. Evidence of Sexual Orientation
Trial strategy, miscalculated tactics, mistake or inexperience do not normally constitute ineffective assistance. Ledezma, 626 N.W.2d at 143. The United States Supreme Court has stated, Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.
Strickland v. Washington, 446 U.S. 668, 689, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 694 (1984).
The record demonstrates that part of Short's defense strategy was the claim that the victims accused him of sexual abuse in order to make good on their threats, which Short claimed were intended to force him to give into their demands. In order to demonstrate the victims' willingness to threaten him, Short testified that the victims had threatened to "tell everyone he was gay." Furthermore, the record reveals that Short also introduced evidence of his sexual orientation in order to show the victims did not like gay people and thus had a motivation to fabricate their allegations of abuse. From the record before us, it appears Short's counsel's judgment to allow this evidence was a reasonable tactical decision. Therefore, we cannot conclude that Short's trial counsel failed in an essential duty by not excluding evidence of Short's sexual orientation. See Hall v. State, 360 N.W.2d 836, 839 (Iowa 1985) (finding that trial counsel was not ineffective for allowing otherwise inadmissible statements as the challenged statements helped corroborate the primary theory of defense); see also Ledezma, 626 N.W.2d at 142 ("Considering the standard of reasonableness utilized in determining ineffective assistance claims, ineffective assistance is more likely to be established when the alleged actions or inactions of counsel are attributed to a lack of diligence as opposed to the exercise of judgment.").
Moreover, our review of the record reveals that the evidence of Short's sexual orientation did not factor into the district court's finding of guilt. This finding was instead based primarily on the district court's determinations regarding the credibility of the witnesses as evidenced by the following:
The versions of what happened by each victim were substantially similar, and did not differ materially from the version given to investigators or in depositions. The court finds that both victims are more credible than the Defendant in their testimony. The court finds there is no credible evidence that the victims made up or concocted their versions of events of the acts in question.
Finally, we note that thereis less danger of unfair prejudice resulting from the use of potentially prejudicial evidence when a case is not tried to a jury but to the court. See State v. Jacobs, 607 N.W.2d 679, 689 (Iowa 2000); State v. Casady, 491 N.W.2d 782, 786 (Iowa 1996). Consequently, we conclude that even if Short's attorney did fail in an essential duty in not excluding testimony of Short's sexual orientation, Short was not prejudiced by this failure.
IV. Conclusion
We affirm the judgment and sentence of the district court and preserve the ineffective assistance of counsel claim regarding notification of defense witness for possible postconviction relief proceedings.