James Eugene Fay, Applicant-Appellant v. State of Iowa ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-1212
Filed June 24, 2015
JAMES EUGENE FAY,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Palo Alto County, David A. Lester,
Judge.
Petitioner appeals from the district court’s denial of his application for
postconviction relief. AFFIRMED.
Matthew G. Sease of Kemp & Sease, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney
General, and Lyssa Henderson, County Attorney, for appellee State.
Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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DANILSON, C.J.
James Fay appeals from the district court’s denial of his application for
postconviction relief (PCR). He maintains the district court wrongly denied his
application because he established he received ineffective assistance from trial
counsel. Specifically, he maintains trial counsel was ineffective for failing to
object to testimony regarding a “founded” child abuse report and failing to
request a mistrial or curative instruction due to the prejudicial nature of the
testimony. Because Fay has not proved trial counsel’s representation fell below
an objective standard of reasonableness, we affirm the district court’s denial of
his PCR application.
I. Background Facts and Proceedings.
In 2007, Fay’s son and daughter began seeing a therapist due to highly
sexualized behavior exhibited by Fay’s son. The son was four years old, and the
daughter was five years old at the time. The therapist reported her observations
to the Iowa Department of Human Services (DHS), and an investigation was
conducted. DHS ultimately issued a “founded” child abuse report.
On April 14, 2008, Fay was charged with two counts of sexual abuse in
the second degree and two counts of incest.
The case proceeded to jury trial in November 2009. At trial, the county
attorney made the following statements during his opening statement:
COUNTY ATTORNEY: This case also runs parallel to a
Child in Need of Assistance Petition, Child in Need of Assistance,
CINA. CINA takes care of children that are at risk. Child in Need of
Assistance is a juvenile case with completely different standards.
Preponderance of the evidence is what the standard is to keep
children safe in a CINA.
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DEFENSE COUNSEL: Judge, I’m going to object to this.
This—May we approach?
THE COURT: Yes.
(Off-the-record discussion.)
After the off-the-record discussion, the county attorney continued with his
opening statement.
During the trial, DHS child-abuse investigator Kelly McKeever testified
about the founded child abuse report filed by DHS. The following exchanges
occurred during direct examination by the State:
Q: Did you include that information in your decision to make
this a founded child abuse report? A: I did.
DEFENSE COUNSEL: I object—
THE COURT REPORTER: Did you say something?
DEFENSE COUNSEL: I’m going to object to that, Judge.
May we approach?
(Off-the-record discussion.)
DEFENSE COUNSEL: Judge, I withdraw my objection at
this time.
....
Q: What does it mean to say a child abuse report is
founded? A: There’s three separate things that can happen with a
child abuse report. The first is a not confirmed report which means
that there’s not enough—not enough information or evidence to
state that abuse occurred. We work on what’s called a
preponderance of the evidence meaning if the scales of justice
wiggle ever so much, 51 percent is a preponderance. So if there’s
51 percent of the evidence that says abuse—or that abuse did not
occur, then you have to not confirm a report meaning there’s not
enough evidence.
Q: Did you feel you had enough evidence in this particular
interview and this particular case to make that determination?
A: Yes. So then you turn into what’s called a confirmed report of
abuse. A confirmed report means 51 percent or more of the
evidence indicates that abuse occurred. The difference between
confirmed and founded—There’s a difference in Iowa where a
confirmed report of abuse doesn’t go on to the child abuse registry.
DEFENSE COUNSEL: Judge, I’m going to object to this.
May we approach?
(Off-the-record discussion.)
....
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Q: You are a child abuse investigator, and you produce the
report to determine if it’s founded, confirmed or denied?
DEFENSE COUNSEL: Object. I’m going to object, Judge.
THE COURT: Sustained.
DEFENSE COUNSEL: Thank you, Your Honor.
Q: I can rephrase that. [Defense counsel] asked you if you
closed your case after you conducted your investigation. Do you
remember that question? A: I do.
Q: And the answer to that is? A: My case was closed. I
submitted my report and things went from there.
Q: And when you say “things went from there,” there’s a
whole other part of DHS that works with the family; do they not?
A: Yes. There is ongoing social work—
DEFENSE COUNSEL: Object. It’s irrelevant, Judge.
Q: He brought it up.
DEFENSE COUNSEL: I didn’t bring it up. We’re talking
about—
THE COURT: Sustained.
DEFENSE COUNSEL: Thank you, Your Honor.
Q: Are the children safe?
DEFENSE COUNSEL: Object, irrelevant. This is a criminal
prosecution for the prosecution of James Fay, and the State has an
obligation to bring evidence forward in this case. This is not
juvenile court. Object. It’s irrelevant.
Q: Response, Your Honor?
THE COURT: All right.
Q: He’s implying that Mr. McKeever did not do his job
because he closed his case. I need to confirm that there—
THE COURT: I didn’t get that inference at all, counsel.
Objection is sustained.
DEFENSE COUNSEL: Thank you, Your Honor.
After deliberation, the jury found Fay guilty of each of the charged
offenses. In March 2010, Fay was sentenced to two terms of incarceration not to
exceed twenty-five years with a mandatory minimum of seventy percent to be
served before parole eligibility and two terms of incarceration not to exceed five
years. All sentences were ordered to run consecutively.
Fay filed a direct appeal of his convictions. In State v. Fay, No. 10-0404,
2011 WL 2556034, at *9, (Iowa Ct. App. Jun. 29, 2011), we affirmed his
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convictions and sentence. The issue raised in this proceeding was not raised in
the direct appeal.
Fay filed a PCR application on November 22, 2012. On September 20,
2013, he filed a motion to amend his application. The court granted Fay’s motion
on March 19, 2014, and a hearing on the amended application was held on
March 27, 2014. Trial counsel was not called at the PCR hearing. Fay was the
only person who testified at the trial. After he was identified, the following
exchange is the total of his testimony:
Q: And in that case did you proceed to trial? A: Yes.
Q: And during that trial, was there a witness by the name of
Kelly McKeever? A: Yeah.
Q: Who was Kelly McKeever? A: DHS caseworker, I
believe.
Q: And can you describe what his role was what he—if you
recall, what he testified to at the trial? A: Yeah. He testified
about—oh, how do I put it?
Q: Was he the person that did the investigation on the
underlying DHS case? A: Yeah, yeah.
Q: And he was the investigator? A: Yeah, yeah.
Q: Do you recall in his testimony, did he testify at all about
the child abuse report that was part of the underlying DHS and child
in need of assistance case? A: Yeah.
Q: And do you recall if he testified whether or not his abuse
report was founded? A: I don’t believe so.
Q: If the transcripts stated that he testified that the
underlying abuse report from those cases was founded, would you
disagree with that? A: Yes.
Q: What role did his abuse report play in his testimony, if you
recall? Let me rephrase that, Jim, so you can—and if you can’t
hear me or my question, just ask me. When he testified, did he
testify about his abuse report? A: Yes.
Q: And he testified extensively about what his findings in the
report were, didn’t he? A: Yes, yeah.
Q: And when he testified that it was a founded report, and
you just stated that you disagreed with that, your view is that it
shouldn’t have been a founded report; is that right? A: Yes.
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The district court issued its ruling on June 27, 2014, and denied Fay’s
application. The court concluded Fay’s trial counsel’s conduct “was not
unreasonable under the circumstances, and did not fall below the standards of a
reasonably competent attorney.” Fay appeals.
II. Standard of Review.
We typically review PCR proceedings on error. Ledezma v. State, 626
N.W.2d 134, 141 (Iowa 2001). However, when the applicant asserts claims of a
constitutional nature, our review is de novo. Id. Thus, here we review the
applicant’s claim of ineffective assistance de novo. See id.
III. Discussion.
Fay maintains he received ineffective assistance because trial counsel
failed to object to the admission of testimony regarding a “founded” child abuse
report and failed to request a mistrial due to the prejudicial nature of the
testimony.
To prevail on a claim of ineffective assistance of counsel, Fay must prove
by a preponderance of the evidence (1) the attorney failed to perform an
essential duty and (2) prejudice resulted from the failure. State v. Rodriguez, 804
N.W.2d 844, 848 (Iowa 2011). To prove counsel failed to perform an essential
duty, he must show “counsel’s representation fell below an objective standard of
reasonableness . . . under prevailing professional norms.” See Strickland v.
Washington, 466 U.S. 668, 688 (1984). Fay must overcome a strong
presumption of counsel’s competence. See id. at 689. To establish prejudice,
he must show there is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
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See id. at 694. “The likelihood of a different result must be substantial, not just
conceivable.” State v. Ambrose, 861 N.W.2d 550, 557 (Iowa 2015). We “will not
reverse where counsel has made a reasonable decision concerning trial tactics
and strategy, even if such judgments ultimately fail.” Brewer v. State, 444
N.W.2d 77, 83 (Iowa 1989). The claim fails if either element is lacking. See
Everett v. State, 789 N.W.2d 151, 159 (Iowa 2010).
“Representation is presumed competent and a defendant has the burden
to prove by a preponderance of the evidence that counsel was ineffective.”
Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). The record before us shows
trial counsel objected each time the county attorney or the witness referenced the
founded report. Each time, the court either sustained trial counsel’s objection or
an off-the-record conversation was held and then the county attorney seemed to
change the line of questioning.1 Because trial counsel was not called to testify at
the PCR hearing, we do not know what discussion was held off the record. We
also do not know why trial counsel did not request a mistrial or curative
instruction. Additionally, Fay maintains counsel should have at least requested a
curative jury instruction and asked the court to strike any comments about the
founded abuse report. But again, because trial counsel was not called to testify
at the PCR hearing, we do not know what strategy counsel employed. A PCR
hearing is meant to allow for development of the record and to allow trial counsel
to defend against the charge. See State v. Tate, 710 N.W.2d 237, 240 (Iowa
2006). “Even a lawyer is entitled to his day in court, especially when his
1
Fay’s reply brief suggests an objection was not made on one occasion when the report
was discussed, but we disagree on the state of the record.
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professional reputation is impugned.” State v. Bentley, 757 N.W.2d 257, 264
(Iowa 2008). Here, the record made during the PCR trial failed to develop the
record and illuminate upon trial counsel’s strategy and the off-the-record
discussions. We presume the “attorney performed competently and avoid
second-guessing and hindsight.” State v. Brubaker, 805 N.W.2d. 164, 171 (Iowa
2011). Fay has failed to overcome the presumption of trial counsel’s
competence. We need not consider whether he suffered prejudice. See Everett,
789 N.W.2d at 159. A different result may have been reached if trial counsel had
not objected to the improper evidence. See State v. Huston, 835 N.W.2d 531,
535–39 (Iowa 2013) (finding no probative value of a founded abuse report in a
criminal action).
IV. Conclusion.
Because Fay has not proved trial counsel’s representation fell below an
objective standard of reasonableness, we affirm the district court’s denial of his
application for PCR.
AFFIRMED.