Thomas S. Millam Vs. State Of Iowa ( 2008 )

IN THE SUPREME COURT OF IOWA
No. 140 / 05–1970
Filed February 29, 2008
THOMAS S. MILLAM,
Appellee,
vs.
STATE OF IOWA,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Scott County, David H.
Sivright, Judge.
Postconviction applicant challenges the court of appeals’ reversal of
the district court’s order granting a new trial on charges of sexual abuse.
DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF
DISTRICT COURT AFFIRMED; CASE REMANDED.
Thomas J. Miller, Attorney General, and Darrel L. Mullins,
Assistant Attorney General, for appellant.
Kent A. Simmons, Davenport, for appellee.
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LARSON, Justice.
Thomas Millam was convicted of two counts of second-degree
sexual abuse under Iowa Code section 709.3(2) (1999) and sentenced to
two concurrent twenty-five-year terms of imprisonment. We dismissed
Millam’s appeal pursuant to Iowa Rule of Appellate Procedure 6.104.
Millam filed an application for postconviction relief under Iowa Code
chapter 822, which was granted by the district court. The court of
appeals reversed, and we granted Millam’s application for further review.
We vacate the decision of the court of appeals, affirm the judgment of the
district court, and remand for a new trial.
I. Facts and Prior Proceedings.
Counts I and II of the sexual-abuse charges against Millam
pertained to Millam’s girlfriend’s seven-year-old daughter, J.S. Count III
pertained to Millam’s daughter. A jury convicted Millam on counts I and
II, but acquitted him on count III. In his application for postconviction
relief, Millam raised several claims of ineffective assistance of counsel,
including counsel’s failure to move to sever counts I and II from count III,
counsel’s failure to offer evidence of J.S.’s prior false claims of sexual
abuse, counsel’s failure to conduct a reasonable investigation, and
counsel’s failure to investigate and rebut the State’s suggestion of flight,
as well as counsel’s failure to assert a claim of prosecutorial misconduct.
The district court granted Millam’s application for postconviction relief,
concluding Millam’s trial counsel was ineffective for failing to move to
sever counts I and II from count III. The court of appeals reversed.
Because we conclude Millam’s counsel was ineffective for failing to offer
evidence of J.S.’s prior false claims of sexual abuse, we do not reach
Millam’s other arguments.
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II. Standard of Review.
Postconviction relief proceedings are generally reviewed for
correction of errors at law. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa
2001). However, ineffective-assistance-of-counsel claims are
constitutional in nature, and as such, our review is de novo. Id. We give
weight to the lower court’s determination of witness credibility. Id.
III. Applicable Law.
Iowa law regarding ineffective assistance of counsel is well
established. In order to prevail on such a claim, the applicant must
prove, by a preponderance of the evidence, that trial counsel failed to
perform an essential duty and the applicant was prejudiced thereby.
State v. Williams, 695 N.W.2d 23, 28–29 (Iowa 2005); Ledezma, 626
N.W.2d at 142.
An attorney fails to perform an essential duty when the attorney
“perform[s] below the standard demanded of a reasonably competent
attorney.” Ledezma, 626 N.W.2d at 142. We presume the attorney
performed competently, and the applicant must present “an affirmative
factual basis establishing inadequate representation.” State v. Oetken,
613 N.W.2d 679, 683 (Iowa 2000). “Miscalculated trial strategies and
mere mistakes in judgment normally do not rise to the level of ineffective
assistance of counsel.” Ledezma, 626 N.W.2d at 143. However,
“strategic decisions made after a ‘less than complete investigation’ must
be based on reasonable professional judgments which support the
particular level of investigation conducted.” Id. (quoting Strickland v.
Washington, 466 U.S. 668, 690–91, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d
674, 695 (1984)). “Trial counsel has no duty to raise an issue that has
no merit.” State v. Graves, 668 N.W.2d 860, 881 (Iowa 2003). We do not
expect counsel to anticipate changes in the law, and counsel will not be
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found ineffective for a lack of “clairvoyance.” See Williams, 695 N.W.2d
at 30. However, “[i]n situations where the merit of a particular issue is
not clear from Iowa law, the test ‘is whether a normally competent
attorney would have concluded that the question . . . was not worth
raising.’ ” Graves, 668 N.W.2d at 881 (quoting State v. Schoelerman, 315
N.W.2d 67, 72 (Iowa 1982)); see also State v. Westeen, 591 N.W.2d 203,
210 (Iowa 1999).
An applicant is prejudiced by counsel’s failure to perform an
essential duty when “ ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.’ ” Ledezma, 626 N.W.2d at 143 (quoting Strickland, 466
U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). “A reasonable
probability is one that is ‘sufficient to undermine confidence in the
outcome.’ ” State v. Bayles, 551 N.W.2d 600, 610 (Iowa 1996) (citations
omitted).
IV. Discussion.
During the course of investigating J.S.’s claims that she was
sexually abused by Millam, investigators were informed by J.S.’s mother
that J.S. had made similar accusations against one of her mother’s
previous boyfriends. J.S. later recanted those accusations. Millam’s trial
counsel did not offer this information into evidence, believing it was
excluded by Iowa’s rape-shield law⎯Iowa Rule of Evidence 5.412.
Millam contends his trial counsel breached an essential duty by failing to
offer this information into evidence, and Millam was prejudiced thereby.
Both the district court and court of appeals disagreed, concluding the
law regarding whether a victim’s prior false claims of sexual abuse were
protected by the rape-shield law was unsettled at the time, and counsel
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was under no duty to anticipate changes in the law. Therefore, counsel
had no duty to raise the issue.
Iowa’s rape-shield law provides, in pertinent part:
Notwithstanding any other provision of law, in a
criminal case in which a person is accused of sexual abuse,
evidence of a victim’s past sexual behavior other than
reputation or opinion evidence is also not admissible . . . .
Iowa R. Evid. 5.412(b). At the time of Millam’s trial, we had not yet
determined whether a victim’s prior false claims of sexual abuse were
“evidence of a victim’s past sexual behavior” and, therefore, inadmissible
pursuant to rule 5.412(b). However, in State v. Alvey, 458 N.W.2d 850,
852 (Iowa 1990), we excluded such evidence, concluding that, even if it
was outside the rape-shield law, it was inadmissible under general
relevancy considerations.
In 2004 we decided the case of State v. Baker, 679 N.W.2d 7 (Iowa
2004), in which we held that a victim’s prior false claims of sexual abuse
do not constitute “sexual behavior” and, thus, are not protected by our
rape-shield law. Today, in order for evidence of the victim’s prior false
claims of sexual abuse to be admitted into evidence, the defendant must
first make a threshold showing to the court that “(1) the complaining
witness made the statements and (2) the statements are false, based on a
preponderance of the evidence.” State v. Alberts, 722 N.W.2d 402, 409
(Iowa 2006). If the prior claims are determined to be false, the rape-
shield law is inapplicable, and the claims are admissible if they meet
“ ‘all other applicable evidentiary requirements and considerations.’ ” Id.
at 410 (quoting State v. Quinn, 490 S.E.2d 34, 40 (W. Va. 1997)).
It is clear that, at the time of trial in the present case, Iowa law was
unsettled on the question of whether prior false claims of sexual abuse
were protected by the rape-shield law. In Alvey we specifically declined
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to address whether such claims fall outside the rape-shield law and,
thus, are admissible if relevant. Though some of our prior case law
indicates that counsel has no duty to raise an issue if the law is merely
unsettled, see, e.g., Bayles, 551 N.W.2d at 610, we have since made it
clear that the test to determine whether counsel is required to raise an
issue “ ‘is whether a normally competent attorney would have concluded
that the question . . . was not worth raising.’ ” Graves, 668 N.W.2d at
881 (quoting Schoelerman, 315 N.W.2d at 72); see also Westeen, 591
N.W.2d at 210. This test does not require an attorney to be clairvoyant,
but rather to research the relevant legal issues and determine whether,
given the circumstances of the particular case, the issue is “worth
raising.”
The State’s case against Millam was based almost exclusively on
J.S.’s testimony. There was no physical evidence of the sexual abuse,
nor were there any witnesses. This was a case of “he said, she said.” As
a result, J.S.’s credibility was pivotal to the State’s case. Any evidence
undermining that credibility could only work in Millam’s favor,
particularly evidence that J.S. had made, and later recanted, similar
claims of sexual abuse. Millam’s trial counsel testified that he did not
research whether the evidence would be admissible despite the rape-
shield law. In fact, research of the law in other jurisdictions would have
revealed that many jurisdictions had concluded that prior false claims of
sexual abuse were not protected by their rape-shield laws. See Baker,
679 N.W.2d at 10 (“Virtually all cases considering the issue have found
that false claims of prior sexual conduct do not fall within the coverage of
rape-shield laws.”); see generally Nancy M. King, Annotation,
Impeachment or Cross-Examination of Prosecuting Witness in Sexual
Offense Trial by Showing That Similar Charges Were Made Against Other
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Persons, 71 A.L.R. 4th 469 (1989). In this case, the wording of the rape-
shield law itself is quite clear: it refers to sexual behavior, and quite
simply, claims of sexual abuse are not sexual behavior. It seems that,
even before Baker, defense attorneys would seize on the plain language of
the law and offer evidence of a victim’s prior false claims. We conclude
Millam’s counsel failed in an essential duty by not offering evidence of
J.S.’s prior false claims of sexual abuse.
Next, we must determine whether Millam was prejudiced by
counsel’s failure. We think so. “When the performance of counsel
relates to the failure to present evidence, we must consider what bearing
the evidence may have had on the outcome of the case.” Ledezma, 626
N.W.2d at 148. Evidence of J.S.’s prior false claims of sexual abuse
could have greatly impugned her credibility, thus lending credence to
Millam’s contention that he did not sexually abuse her. In fact, J.S.’s
own mother doubted her claims against Millam due to her prior false
claims. Because of the State’s reliance on J.S.’s claims and the lack of
supporting physical evidence, this evidence would have “challenged the
very core of the State’s case.” Id. at 149. In a case in which the evidence
against the defendant is not overwhelming, such evidence is imperative
to an effective defense. Id. at 148; see also State v. Carey, 709 N.W.2d
547, 559 (Iowa 2006) (the strength of the State’s case is important when
determining prejudice). “It becomes easier to doubt the fundamental
fairness of a trial, and to question the reliability of the verdict, when the
evidence by the State is not overwhelming and the errors by counsel are
significant.” Ledezma, 626 N.W.2d at 148–49. In a case also involving
sexual misconduct (though not in the context of ineffective assistance of
counsel), we analyzed the prejudice suffered by a defendant as a result of
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the court’s refusal to allow him to prove the victim made prior false
claims of sexual misconduct:
The verdict was primarily ground[ed] on the conflicting
testimony of R.M. and Alberts. R.M. testified Alberts
sexually assaulted her. Alberts admits having sex with her,
but claims the sex was consensual. There was no physical
evidence of an assault. No other witnesses testified Alberts
sexually assaulted the victim. The jury’s assessment of the
relative credibility of R.M. and Alberts was the key to the
conviction, thereby enhancing the relevance of the allegedly
false prior allegation. By denying Alberts the opportunity to
prove to the court R.M. made a prior false claim of sexual
misconduct, the court hampered Alberts’ ability to argue
R.M. accused another man of improper conduct to disguise
her own questionable behavior. This error may have unduly
prejudiced Alberts’ defense and therefore requires us to
remand the case so the trial court may determine whether
R.M. made false statements to Josh.
Alberts, 722 N.W.2d at 412. Our reasoning in Alberts is equally
applicable to the present case. We conclude that the possibility that this
evidence would have impugned J.S.’s credibility is “ ‘sufficient to
undermine confidence in the outcome.’ ” Bayles, 551 N.W.2d at 610
(quoting Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984)). As a result,
“ ‘there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’ ”
Ledezma, 626 N.W.2d at 143 (quoting Strickland, 466 U.S. at 694, 104
S. Ct. at 2068, 80 L. Ed. 2d at 698).
V. Conclusion.
Millam was denied his constitutional right to effective assistance of
counsel when his counsel failed to offer evidence of J.S.’s prior false
claims of sexual abuse, and Millam was prejudiced thereby. An
attorney’s duty to raise unsettled legal issues is not, of course, unlimited.
However, in the present case, the legal issue was in flux. That fact,
coupled with the wording of the rule itself, should have alerted Millam’s
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attorney to the possibility that such evidence may not be protected by the
rape-shield law. Considering that this evidence was central to Millam’s
defense, the issue was certainly worth raising, and counsel should have
taken some action to present this evidence to the fact finder.
DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF
DISTRICT COURT AFFIRMED; CASE REMANDED.