Opinion
No. 04-0870.
March 16, 2005.
Appeal from the Iowa District Court for Cherokee County, Don E. Courtney, Judge.
Applicant-appellant, Ricky Weaver, appeals from the district court's denial of his application for postconviction relief. AFFIRMED.
James Piazza, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and Mark R. Cozine, County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Applicant-appellant, Ricky Weaver, appeals from the district court's denial of his application for postconviction relief. Weaver was convicted in 1998 of the May 1997 second-degree sexual abuse of his stepdaughter, Kendra, who was born in December 1992. He contends his trial counsel was ineffective in failing to call the victim as a witness, in moving to have her videotaped interview excluded, and in failing to use three witnesses to impeach his wife's testimony. We affirm.
Background facts and proceedings.
At the time of the incident, Ricky Weaver was married to Kendra's mother, Ramona. The Weavers have a daughter of their own born in 1996. At the time of the incident the Weavers lived in a mobile home. Ramona worked full time on weekdays and Saturdays, and appellant worked days as a truck driver and evenings at his father's farm. When Ramona returned home from work on Friday, May 16, 1997, Weaver was there with the girls, whom he had brought home from their babysitter. Weaver then left for his father's farm. Later, Ramona took the girls to the farm where she gave Kendra and her cousin a four-wheeler ride. Ramona also took the two girls to a restaurant for pizza, then returned home and put the girls to bed about 9:00. Weaver returned home about 10:00 or 11:00.
On Saturday morning, May 17, Ramona left for work shortly after 6:30 a.m. Weaver and the girls were still asleep. He cared for the girls while Ramona was at work. Ramona returned from work at around 3:00 p.m. Sheila Fisher and her husband and child, Weaver, and the two girls were in the trailer. Kendra was watching television. Sheila Fisher, who is Ramona's half-sister, frequently babysat the girls. She had come to pick up her payment. The Fishers left about forty-five minutes later. Nobody indicated anything unusual had happened. About 4:30 p.m. Weaver told Ramona that Kendra had been bleeding from the vaginal area but said he had done nothing to cause it. He then left for his father's farm.
Ramona observed vaginal bleeding and blood on Kendra's underpants. She changed Kendra's clothes, then went to look for Weaver. When she found him, she asked him what had happened, and he said he did not know. Ramona took the girls home. Ramona made phone calls to her father, to Sheila, and to her sister-in-law, Michelle Weaver. Ramona asked Michelle to send Weaver home. When he returned home, they talked about what happened and decided to take Kendra to the hospital in Cherokee. Upon examination it was decided Kendra should go to a Sioux City hospital. Kendra was taken to Sioux City. Ramona and Weaver went back to the trailer to get something and then drove together to Sioux City.
Dr. Michael Jung, medical director of a child protection center, examined Kendra in the Sioux City hospital and observed fresh blood in Kendra's genital area, with continued bleeding. A sexual assault evidence collection kit revealed Kendra had been the victim of sexual abuse. Dr. Jung's examination revealed a complete tear through the hymen to the muscle that closes the sphincter. The tear was over an inch long and required sutures to repair. Dr. Jung believed the injury was fresh, occurring within the previous twenty-four hours, and was caused by a penetrating object the size of at least two adult fingers or an erect penis.
Police arrested Weaver and had him examined by a doctor. Blood samples and penile swabs were obtained. Blood stains were found on the swab of Weaver's penis. The doctor's visual examination of Weaver revealed no sign of injuries that could have caused his own bleeding. Police searched Weaver's home, where they recovered sweatpants, and obtained Weaver's underpants from the county jail where he was in custody. Blood stains were found on both the outside left leg and inside front crotch of Weaver's sweatpants and on Weaver's underwear. Although the DNA on swabs of Weaver's penis and Weaver's underwear was insufficient for identification, DNA testing showed that the DNA profile of both stains on Weaver's sweatpants matched Kendra's DNA profile.
Weaver was charged with second-degree sexual abuse. Defense counsel filed an application to depose Kendra. She had not been listed as a prosecution witness. At the hearing on the request the district court was told the State might introduce into evidence a videotaped interview of Kendra. Weaver contended he should have an opportunity to depose Kendra even if she were not called as a witness because he had a right under the Sixth Amendment to confront witnesses. He also argued it was probable the deposition would yield exculpatory evidence. Weaver pointed to contradictions in Kendra's responses in the interview as to when the bleeding started and what caused the bleeding. The district court denied the request for the deposition.
The State filed a motion in limine to determine the admissibility of the videotape of Kendra's interview. Defense counsel filed a motion to suppress the videotape, contending it was not credible and was unfairly prejudicial. The district court denied the State's motion, finding the State had failed to show Kendra was unavailable to testify. It also denied Weaver's motion to suppress.
Weaver waived a jury trial, and the case was tried to the court. In a detailed ruling, the court found Kendra's injuries were not self-inflicted or accidental but were the result of a sex act by another. The court was firmly convinced of Weaver's guilt and found beyond a reasonable doubt Weaver committed the act on May 17, 1997, while Kendra was in his care.
On appeal, the court of appeals affirmed in part, reversed in part, and remanded for new trial. State v. Weaver, No. 98-1214 (Iowa Ct.App. Oct. 15, 1999). On further review, the supreme court vacated the court of appeals decision and affirmed Weaver's conviction. State v. Weaver, 608 N.W.2d 797, 806 (Iowa 2000). Weaver did not claim on direct appeal that trial counsel was ineffective.
In January 2003 Weaver filed an application for postconviction relief. He alleged his trial counsel was ineffective (1) in failing to call Kendra as a witness, (2) in successfully suppressing the videotape of Kendra's interview, and (3) in failing to call witnesses to impeach Ramona's testimony. The State did not raise a claim Weaver had not raised these issues on direct appeal. At the postconviction hearing, Weaver called Angela Langholdt, one of Kendra's babysitters, Burdette Weaver, his father, Michelle Weaver, his sister, and Ramona, his former wife. He introduced affidavits from Burdette and Michelle. He did not call trial counsel to testify and did not testify himself.
Ramona had testified Angela babysat Kendra on Friday. Angela testified she did not baby-sit Kendra that day. Ramona had testified she went to the farm Friday evening and there were plans for Michelle and her daughter to have pizza with them at a local restaurant. Burdette testified he worked in the yard Friday evening and did not see Ramona at the farm. Michelle testified Ramona did not come to the farm and there were no plans for a pizza dinner.
The court ruled against Weaver on all three claims and dismissed his application. It determined defense counsel did not fail in an essential duty in not calling Kendra as a witness and Weaver failed to prove prejudice. It determined Weaver failed to prove there was a reasonable probability admitting the videotape would have changed the outcome of the trial or that his attorney "performed below the standard of a reasonably competent attorney." The court found Ramona's testimony about Kendra being fine when she went to bed Friday evening was credible. It concluded Weaver failed to show a reasonable probability the impeachment testimony of Angela, Burdette, and Michelle would have changed the outcome of the trial.
Scope and standards of review.
We generally review postconviction relief proceedings for errors at law. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). However, when the appellant raises claims of a constitutional nature, our review is de novo. Id. We review claims counsel was ineffective de novo. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000). To prove a claim counsel was ineffective, an appellant must show by a preponderance of the evidence counsel failed to perform an essential duty and prejudice resulted. State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003). We may dispose of the claim if the appellant fails to demonstrate either element. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). In evaluating counsel's performance, we presume counsel acted competently. State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987).
Discussion.
Generally, an applicant must show good cause for failure to raise issues on direct appeal before raising them in postconviction proceedings. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). However, the State offered no objection or resistance to the claims alleged in the application for postconviction relief as having been waived, therefore we may reach the merits. See Devoss v. State, 648 N.W.2d 56, 63 (Iowa 2002).
A. Failure to call Kendra as a witness.
The postconviction court determined defense counsel's decision not to call Kendra was a reasonable trial tactic. Weaver challenges that determination, contending it was unreasonable not to call her because she made potentially exculpatory statements during her videotaped interview, so her testimony would have been helpful. He argues her testimony could have supported an inference Kendra was abused while at the babysitter's on Friday, thus implicating someone other than himself as the perpetrator and directly contradicting the State's theory of the case.
A review of the patient interview report, which contains the questions and answers from the interview, reveals conflicting responses to questions about when and where the abuse occurred. When asked where she was when the bleeding started, Kendra said, "I was at the babysitter's and I comed home and I sleeped." Moments later, Kendra said it was "Dad's" finger that made her bleed, it happened when she and Weaver were at home and her mother was at work. Using anatomical dolls, Kendra demonstrated how Weaver used his hand to touch her vaginal area, causing her to bleed. Other than the statement she was at the babysitter's when she started bleeding, Kendra's responses to questions and demonstration with the dolls consistently point to Weaver as the perpetrator.
Before trial, defense counsel unsuccessfully sought to depose Kendra. With her inconsistent accounts of what happened and where, counsel could reasonably decide her testimony at trial would not be credible. With the majority of her testimony likely to point to Weaver as the perpetrator, counsel could reasonably conclude calling her as a witness would be harmful to the defense. We agree with the postconviction court that the decision not to call Kendra as a witness at trial was a reasonable trial strategy. Improvident trial strategy, miscalculated tactics, and mistakes in judgment do not necessarily constitute ineffective assistance of counsel. Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001). Where defense counsel's decisions are made according to a reasonable trial strategy, appellate courts will not find ineffective assistance of counsel. See Hinkle v. State, 290 N.W.2d 28, 34 (Iowa 1980). We conclude defense counsel did not provide ineffective assistance by choosing not to call Kendra as a witness.
B. Seeking exclusion of the videotape of the interview.
Before trial, defense counsel moved to suppress the videotape of Kendra's interview. The State filed a motion in limine seeking a determination the videotape was admissible. Defense counsel contended that, because Kendra was not listed as a witness, admitting the videotape would have the same effect as calling her as a witness but not allowing cross-examination. Defense counsel also claimed:
The tape is not credible in that the interviewer uses leading questions and is prompted by law enforcement from behind a one-way mirror through the use of an ear microphone. Even though the defendant was represented by counsel, no one but the State was allowed to question the accuser or participate in the interview. The child had also been significantly influenced by the mother to provide no information about the incident resulting in charges against Ricky Weaver.
. . . .
The tape itself includes contradictory statements in that [the child] first stated that she started bleeding at the babysitter's house and was not at home where she later said she was bleeding. It is obvious that the four-year-old child in this incident was confused and the information provided was not credible.
The trial court denied both motions, so the videotape was not admitted.
In the postconviction proceeding, Weaver contended the reasons defense counsel sought to suppress the videotape were precisely the reasons it should have been admitted. He claims the biased nature of the interview and Kendra's conflicting accounts would have produced reasonable doubt. The court concluded that, even if defense counsel had succeeded in suppressing the videotape, "miscalculated trial strategies and mere mistakes in judgment generally do not rise to the level of ineffective assistance of counsel" and that Weaver failed to show admitting the videotape probably would have changed the outcome of the trial.
Although the videotape of the interview contains the potentially exculpatory statement that the incident occurred at the babysitter's, the great majority of Kendra's answers and her demonstration with the anatomical dolls all pointed to Weaver as the perpetrator. Although her inconsistent accounts could have made the tape less credible, we find defense counsel's efforts to suppress it were reasonable trial strategy. We also find it unlikely admission of the videotape would have changed the outcome of the trial. We conclude Weaver has failed to prove defense counsel failed in an essential duty or that prejudice resulted.
C. Failure to impeach Ramona Weaver's credibility.
The trial court expressly found Ramona "to be a very credible witness." Part of Ramona's testimony concerned events on Friday evening, May 16, 1997. In the postconviction proceeding, Weaver presented evidence from his father, sister, and sister-in-law that directly contradicted Ramona's testimony about certain events of that Friday evening. The court found Ramona's testimony to be credible. It also found Weaver failed to show prejudice from defense counsel's failure to offer the proposed impeachment testimony.
On appeal, Weaver argues the testimony "would have put Ramona's testimony in question" and changed the trial court's view of her as a credible witness. He claims this caused him prejudice. The State contends the proffered testimony relates to collateral matters and does not contradict Ramona's testimony Kendra was fine when she put her to bed on Friday night or refute the physical evidence indicating Weaver abused Kendra on Saturday. The State also suggests it is significant the impeachment testimony comes from family members.
The postconviction court had the opportunity to hear the impeachment testimony the trial court did not hear. It was able to observe the demeanor of all the witnesses, including Ramona. The postconviction court expressly found credible Ramona's testimony that Kendra was fine and not bleeding on Friday night. It determined Weaver did not show the impeachment testimony probably would have changed the outcome of the trial. It found he thus did not prove prejudice.
Although our review is de novo, we give weight to the district court's findings concerning the credibility of witnesses. Iowa R. App. P. 6.14(6)( g); Ledezma, 626 N.W.2d at 141. This is because the court has the opportunity to observe the demeanor of the witnesses. See State v. Taylor, 516 N.W.2d 38, 41 (Iowa Ct.App. 1994). A check Ramona wrote to the pizza restaurant on Friday, May 16 supports her testimony. We, like the postconviction court, find Ramona's testimony credible that Kendra was fine Friday night when she put her to bed. The physical evidence of Kendra's blood in the crotch area of Weaver's pants also supports the trial court's finding Weaver was the perpetrator of the sexual abuse. We conclude Weaver has failed to prove a reasonable likelihood the outcome of the trial would have been different if defense counsel had offered the testimony of the three witnesses in an attempt to impeach Ramona's credibility.
Summary.
We find defense counsel did not fail in an essential duty by not calling Kendra as a witness. Weaver has failed to demonstrate prejudice from not having the videotape of Kendra's interview admitted at trial. He also has failed to demonstrate he was prejudiced by defense counsel not offering impeachment evidence concerning Ramona's credibility. We therefore affirm the trial court's denial of Weaver's application for postconviction relief.