David Paul Douglass v. State of Iowa ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0011
Filed November 23, 2021
DAVID PAUL DOUGLASS,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin,
Judge.
Applicant appeals the denial of his postconviction relief application.
AFFIRMED.
Nicholas Einwalter, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee State.
Considered by Tabor, P.J., and Greer and Badding, JJ.
2
GREER, Judge.
After being convicted of assault with intent to commit sexual abuse1 and
pleading guilty to the charge of lascivious acts with a child,2 David Douglass
challenges the denial of his application for postconviction relief (PCR). 3 Drilling
down, he posits his trial counsel made several errors that “went to the heart of his
case” in his jury trial involving the assault with intent to commit sexual abuse. Most
of his complaints relate to issues about an exhibit containing phone data and his
counsel’s failure to obtain other phone data and consider and develop Douglass’s
defense strategy to confront an eyewitness. Under these theories, Douglass
challenges his conviction for assault with intent to commit sexual abuse. 4 We
affirm the denial of his PCR application.
Standard of Review.
“We normally review postconviction proceedings for errors at law.” Castro
v. State, 795 N.W.2d 789, 792 (Iowa 2011). If the PCR applicant raises a
1 After his jury trial, David Douglass appealed directly from his criminal conviction
and alleged ineffective assistance of counsel over his trial counsel’s strategy of
allowing an eyewitness identification of him from a police photo lineup. See State
v. Douglass, No. 16-2221, 2018 WL 1865106, at *2–3 (Iowa Ct. App. Apr. 18, 2018)
(setting out detailed factual findings). Douglass unsuccessfully asserted his trial
counsel breached an essential duty by allowing a photo-array identification
process that identified him as a suspect; he also advocated for a new approach to
conduct the identification of suspects. Id.2 The State at first charged Douglass with burglary in the second degree and
sexual abuse in the third degree. The jury found Douglass guilty of the lesser
included charge of assault with intent to commit sexual abuse. Because later
Douglass pled guilty in another case to lascivious acts with a child, the district court
sentenced Douglass to ten years in prison, which ran consecutive to his jury
conviction for a total term of incarceration not to exceed fourteen years.
3 Douglass authored a pro se application for PCR and filed it November 30, 2018.
4 In the PCR trial, Douglass also addressed his guilty plea in the other case, but
he makes only passing reference to those ineffective-assistance-of-counsel
arguments in this appeal. So we do not consider them.
3
constitutional claim involving ineffective assistance of counsel, our review is de
novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).
Analysis.
To prevail, Douglass must show (1) counsel breached an essential duty and
(2) prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
To prove prejudice, Douglass “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. To make this determination, we consider the evidence
as a whole, including the extent of the effect of counsel’s purported error on the
overall trial. State v. Graves, 668 N.W.2d 860, 882–83 (Iowa 2003). Finally, we
presume the performance of trial counsel falls within a range of professional
assistance. State v. Harris, 891 N.W.2d 182, 186 (Iowa 2017). Douglass has the
burden to prove otherwise by a preponderance of the evidence. See State v.
Ondayog, 722 N.W.2d 778, 784 (Iowa 2006).
With a passionate appeal, Douglass urges his counsel’s failures went to the
“heart” of his case and were matters of “utmost importance.” The State contends
Douglass failed to prove either Strickland prong. We peel back the developed
theories to see if there is any merit to Douglass’s claims.
The text messages and other phone data.
First, Douglass contends trial counsel should have objected to the
admission of an exhibit at trial that showed a redacted text message exchange. At
the trial, the victim verified that the exhibit shows that she and Douglass exchanged
texts about his assault on her and that Douglass apologized. True, the exhibit
contained no identifying information about who sent the text message or who was
4
receiving the text message. Complaining that the exhibit failed to tie him to the
text message exchange, Douglass told the PCR court: “I do not know what the text
messages said. I know that it gives her saying that I was there and mine saying
I’m sorry or something.” (Emphasis added.) When asked about what part of the
covered message would have helped his case, Douglass answered “I have no
idea.” Put simply, Douglass maintains that the exhibit should have been “thrown
out.”
But trial counsel did object to the exhibit—both in a pretrial hearing and at
trial—and the district court overruled the objections.5 Based on this record, we do
not see how trial counsel’s conduct is unreasonable under the circumstances.
Because we examine claims of ineffective assistance of counsel in light of the
totality of the circumstances, Douglass failed to prove his counsel’s breach of duty
as it relates to the text message exhibit. See Ledezma, 626 N.W.2d at 142.
At the same time, Douglass complains that his request to gather data from
his own phone to use at trial was ignored by his trial counsel. He characterizes
that failure as ineffective assistance of counsel. Still, other than pointing to the
lack of response to his request, Douglass neglected to explain how any data from
his phone would have enhanced his defense. Moreover, trial counsel testified
Douglass never disputed that he was the person who sent the text message, so
requesting Douglass’s phone data likely would have bolstered the State’s case.
With no showing of how any of the phone data would have benefitted his defense,
5 In the hearing on the redacted portion of the text message, in the presence of
Douglass, the State confirmed the redacted portion contained information about a
previous, unrelated sexual abuse act against the victim. Douglass asked the court
to include all of the content of the message but the request was overruled.
5
Douglass fails to meet his burden to prove counsel was ineffective. See Dunbar
v. State, 515 N.W.2d 12, 15 (Iowa 1994) (finding that applicant did not identify what
the investigation would have revealed or how anything discovered would have
affected the outcome, thus his complaints about the adequacy of counsel’s
representation were not shown). “[I]t is not enough to simply claim that counsel
should have done a better job.” Id. Such is the case here, and we find Douglass
did not establish his counsel was ineffective for failing to request his phone data.
The eyewitness in the backyard strategy.
According to Douglass, he formulated a successful strategy for trial, which
was ignored by his trial counsel. He presumes that presenting a picture to the jury
of the “six-foot privacy fence” at the back of the house where the assault had
occurred would have shown them that the “five-foot” eyewitness lied about
identifying Douglass entering the house. Douglass explained the theory to the
PCR court.
Q. Were there some issues about that backyard that you
thought would be helpful in your defense? A. Yes.
Q. Could you let the Court know what concerns you had about
that backyard area? A. My concern was the—his original statement
was he saw the back of my head for three to five seconds over a 6-
foot wooden privacy fence between the neighbor’s house and the
house that I was allegedly at, and, I mean, I don’t see how that was
a possibility. I mean, the guy’s 5-foot tall. So, I mean—and to get a
good facial description of my face from the back, three to five
seconds was kind of odd how he did that.
Q. So based on those concerns, did you feel those were
reasons why you might have wanted to depose [the eyewitness]?
A. Yes.
Q. And in terms of investigation, did you want somebody to go
and check out or photograph this backyard? A. Yes.
Q. And what would have been the use of that? What would
you have done with that information? A. To show that you cannot
see the front of somebody’s face over a 6-foot privacy fence from the
6
garage to the back door of the house. You can’t get—I mean, you
just can’t see somebody’s face from the front to the back.
But Douglass admitted at the PCR trial that his trial counsel found problems with
this defense strategy.
Q. You were present when we deposed [trial counsel] about a
month or two ago; is that right? A. Yes.
Q. And so you heard the testimony that he gave; correct?
A. Yes.
Q. And that he testified that he has an investigator that works
for his office; right? A. Yes.
Q. And that he asked that investigator to go out to this crime
scene and take photographs of the privacy fence; right? A. That is
what he said.
Q. That’s what you wanted him to do; right? A. Yes.
....
Q. Would you agree with me that [trial counsel] said that the
evidence that he found was not helpful to you? Do you recall him
saying that? A. Yes, I would agree that he said that, yes.
And in fact in the deposition of trial counsel submitted to the PCR court, trial
counsel said:
Well, because the pictures showed that the privacy fence was
not as tall as what was presented to us initially and that was
Mr. Douglass’s representation to us that the—I think it was [the
eyewitness], would not have been able to see him at the back door
because the privacy fence would have prevented it.
The picture showed otherwise. There was a privacy fence,
but it was not tall to the extent that it would cover the back door. So
I determined the photographs would not be helpful.
A defense trial strategy that conflicts with the facts can be worse than no strategy
at all when a jury must assess the credibility of both a defendant and trial counsel.
Thus, trial counsel’s failure to pursue a losing strategy does not equate to
improvident trial strategy. See Harris, 891 N.W.2d at 186 (“Trial counsel is not
ineffective in failing to urge an issue that has no merit.”).
7
Under this theory, Douglass failed to show trial counsel functioned outside
the normal range of competency. See Ondayog, 722 N.W.2d at 785 (“[A]
defendant must overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’”) (citations omitted).
Conclusion.
Under the record presented here, Douglass’s trial counsel performed within
the standard of a reasonably competent attorney. And because Douglass failed
to show his trial counsel performed deficiently, we need not reach the prejudice
prong;6 so we affirm the denial of the PCR application without further
consideration. See State v. Russell, 897 N.W.2d 717, 730 (Iowa 2017) (“[I]f one
prong is not met, the other need not be addressed.”).
AFFIRMED.
6 Given the strong evidence against Douglass, including direct testimony from the
victim of the assault, it is unlikely a different result would have been possible. See
Ledezma, 626 N.W.2d at 143–44 (“To satisfy this requirement, an applicant must
meet ‘the burden of showing that the decision reached would reasonably likely
have been different absent the errors.’” (citation omitted)).