State Of Iowa Vs. Kyle Michael Cromer

IN THE SUPREME COURT OF IOWA
No. 05–1344
Filed May 1, 2009
STATE OF IOWA,
Appellee,
vs.
KYLE MICHAEL CROMER,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Muscatine County, Patrick J.
Madden, Judge.
Defendant seeks further review of court of appeals decision affirming
judgment of conviction for sexual abuse in the third degree. DECISION OF
COURT OF APPEALS VACATED; JUDGMENT OF CONVICTION
REVERSED; SENTENCE VACATED AND CASE REMANDED FOR NEW
TRIAL.
Kent A. Simmons, Davenport, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant
Attorney General, Gary R. Allison, County Attorney, and Dana Christiansen,
Assistant County Attorney, for appellee.
2
CADY, Justice.
In this direct appeal from a judgment of conviction for sexual abuse in
the third degree entered by the district court following remand from an
earlier appeal after a jury trial, we must decide whether the defendant is
entitled to a new trial based on several claims of error, including ineffective
assistance of trial counsel. On our review, we reverse the judgment and
sentence of the district court and remand the case for a new trial.
I. Background Facts and Proceedings.
The relevant facts and circumstances of this case began when Kyle
Cromer went to the “Wooden Nickel” tavern in Wilton, Iowa, on a Saturday
night in March 2003. He had been drinking alcoholic beverages earlier in
the day. As the evening progressed, the tavern became densely populated
with patrons, who had come to enjoy the live music of a band and the
merriment of the occasion. A woman whom we identify as N.S. 1 was among
the group of patrons that evening. She attended a wedding earlier in the day
and had consumed numerous beers prior to arriving at the tavern. She was
accompanied by several friends. Many of the patrons were friends or
acquaintances, including Cromer and N.S. Cromer was with Donnie
Schultheis, who was a distant relative of N.S.
Like many of the other patrons, Cromer, Schultheis, and N.S.
consumed copious amounts of alcoholic beverages during the evening,
including shots of liquor. They became extremely intoxicated. N.S. danced
in a provocative manner with Cromer and Schultheis at various times during
the evening, which included some touching and fondling below the waist.
1We have in the past protected the identity of the complaining witness in our written
opinions involving crimes of sexual abuse, and we choose to do so under the circumstances
of this case as well. See State v. Knox, 536 N.W.2d 735, 736 (Iowa 1995) (identifying
complaining witness in sex-abuse case only as “complainant”); State v. Plaster, 424 N.W.2d
226, 227 (Iowa 1988) (identifying complaining witness in sex-abuse case by first name only).
3
Sometime after midnight, N.S. left the tavern with Cromer and
Schultheis after telling a girlfriend the two men were going to give her a ride
home. They left in Schultheis’ car. At this point, N.S. lost the ability to
recall the remaining events of the evening. However, she awoke the next
morning in a room at the Muskie Motel in Muscatine. She was naked and
lying on a bed between Cromer and Schultheis. She located most of her
clothing in the bathroom of the motel room and discovered her underwear
and shoes in Schultheis’ car. After arriving home, numerous fingerprint-
sized bruises could be observed on her arms and inner thighs. She had a
lump on her forehead and a bruise on her jaw. She was upset and crying.
A week later, N.S. reported the incident to the police. At the
suggestion of police, N.S. called Cromer on the telephone. She had not
talked to him since the incident. The police prepared N.S. for the call by
suggesting topics of conversation, and two detectives were present and
coached her at times during the conversation. They also suggested many of
the questions propounded by N.S. and prodded her to keep talking when the
conversation ebbed. The entire fifty-minute conversation was recorded onto
a police computer.
N.S. began the conversation by calmly telling Cromer she could not
remember the events of the evening and asked Cromer to tell her what
happened. Cromer mentioned he was extremely intoxicated and could not
precisely remember the evening’s events, but he did allude to sexual activity
between them. As the conversation progressed, N.S. began to alternate
between periods of composure and periods of intense anger and sadness.
She repeatedly told Cromer he took “advantage of” her. N.S. also emotionally
related that she was plagued by painful thoughts about the incident and felt
“dirty.” She lamented that she would be required to live with her feelings the
remainder of her life. She also told Cromer she could not sleep at night and
4
had nightmares of resisting an attack by two men. He searched for words of
consolation, but was unsuccessful.
Eventually, N.S. told Cromer she would never have consented to
engaging in sexual intercourse with two men at the same time and
demanded to know exactly what happened at the motel. In response,
Cromer described in more detail how he and N.S. engaged in oral sex and
sexual intercourse at the motel. N.S. repeatedly expressed her belief that
she must have been unconscious and unable to make any decision to engage
in sexual intercourse that evening. Midway through the conversation she
began to accuse Cromer of rape and date rape.
Cromer repeatedly replied to her accusations of rape and date rape by
saying, “It wasn’t like that.” Thirty minutes into the conversation, N.S.
emotionally demanded to know what Cromer would call the incident if it had
happened to his sister. At first, Cromer refused to call such an incident date
rape. A few minutes later, however, N.S. again demanded to know how
Cromer would describe their sexual encounter. After Cromer admitted he
“took advantage of a drunk girl,” N.S. pressed for him to acknowledge he
engaged in date rape. She pleaded with him to acknowledge his conduct for
her benefit and well-being. Minutes later, approximately forty minutes into
the conversation, Cromer agreed he would call the encounter “date rape” if it
had happened to his sister. He also told N.S. he should not have taken
advantage of her.
Throughout the conversation, N.S. told Cromer she trusted him and
Schultheis because she had known them for many years. She also
repeatedly told him any decent person would have taken her home. Near the
end of the conversation, she began to cry and told Cromer that she “should
have been safe with you guys.” Overall, the conversation was emotionally
charged, and N.S. doggedly pressured Cromer to acknowledge culpability.
5
Seven months later, Cromer was charged with the sexual abuse of N.S.
The case proceeded to trial where various witnesses, including N.S. and
Cromer, testified to the events of March 29. Numerous patrons at the tavern
testified to the level of intoxication N.S. exhibited before she left the Wooden
Nickel that evening. Some witnesses said she was having difficulty walking
and, at times, even standing, while other witnesses said she was inebriated
but coherent and generally under control. All witnesses agreed N.S. was
engaged and enjoying herself. Yet, she testified she had no memory of the
evening from the time she left the bar with Cromer and Schultheis until
awakening the next morning. A certified substance abuse counselor testified
about a condition commonly known as “blackout.” The expert described
blackout as a loss of memory caused by rapid intoxication where an
intoxicated person is awake and functioning during the blackout period.
Cromer admitted he and Schultheis engaged in various sex acts with
N.S., but denied she was unconscious, mentally incapacitated, or physically
helpless. Cromer testified N.S. initiated the sex acts and was at all times a
willing participant. He said the sex acts began in the car and continued
after the three checked into the motel. He also said they took a group
shower before retiring to bed. However, an acquaintance of Cromer’s who
was in the jail for a brief period of time with Cromer after his arrest testified
Cromer admitted to him that N.S. was unconscious when Cromer and
Schultheis performed sex acts on her at the motel. This acquaintance of
Cromer’s received a reduced sentence in a case involving unrelated criminal
charges in exchange for his testimony.
The recording of the telephone conversation between Cromer and N.S.
was admitted into evidence and played in its entirety to the jury. Trial
counsel made no objection to the admission of the recorded conversation.
6
The district court submitted the case to the jury on three separate
counts. Count I required the State to prove sexual abuse in the second
degree, a class “B” felony under Iowa Code section 709.3(3) (2003). 2 Count II
required the State to prove sexual abuse in the third degree, a class “C”
felony under section 709.4. The only theories of sexual abuse submitted to
the jury under this count were based on mental incapacitation or physical
helplessness of the other person. 3 Count III required the State to prove
Cromer committed assault with the intent to commit sexual abuse and
causing bodily injury, a class “D” felony under section 709.11.
The jury convicted Cromer of count II—sexual abuse in the third
degree based on the mental incapacitation or physical helplessness of the
other person—and acquitted him on counts I and III. Cromer then moved for
a new trial. He contended, in part, the district court erred in failing to
instruct the jury that he could not be convicted unless it was shown he knew
N.S. was incapacitated due to intoxication. He also argued insufficient
evidence to support the verdict.
The district court granted the motion for new trial on the ground that
it had failed to properly instruct the jury. The district court did not address
the sufficiency-of-the-evidence claim.
The State sought discretionary review from the district court decision
to grant a new trial, and we transferred the case to the court of appeals. The
court of appeals held Cromer did not need to have knowledge N.S. was
incapacitated for the jury to convict him of sexual abuse under the mental-
incapacitation and physical-helplessness alternatives. Consequently, it
2Unless noted otherwise, all statutory references are to the 2003 Iowa Code.
3Iowa Code section 709.4 provides, “A person commits sexual abuse in the third
degree when the person performs a sex act . . . while the other person is mentally
incapacitated, physically incapacitated, or physically helpless.”
7
determined the district court did not err in instructing the jury.
Additionally, the court of appeals found Cromer waived review of his claim of
insufficient evidence by failing to request a ruling on the claim by the district
court after it granted a new trial. The court of appeals remanded the case to
the district court “for entry of judgment of conviction.”
On remand, Cromer filed a new motion for new trial. He again asked
the district court to grant a new trial based on insufficient evidence and
sought additional review on other grounds. The district court determined
the claim of insufficiency of the evidence could not be considered nor
decided. It found it had no authority to decide the question in light of the
mandate issued by the court of appeals to enter a judgment of conviction.
Consequently, the district court entered judgment and imposed sentence.
Cromer was sentenced to an indeterminate term of incarceration not to
exceed ten years.
Cromer again filed an appeal, which is the appeal presently before us.
He claims the district court should have granted his motion for a new trial
based on the insufficiency of the evidence. He also claims his counsel was
ineffective for failing to obtain a ruling on the sufficiency of the evidence and
in failing to object to the admission into evidence at trial of the recorded
telephone conversation between Cromer and N.S.
We transferred the case to the court of appeals. It found the
sufficiency-of-the-evidence claim was not before the district court on remand
and affirmed the ruling entered by the district court. In addition, the court
of appeals found the record was inadequate to decide the claims of ineffective
assistance of counsel. We granted further review.
II. Standard of Review.
We review the postremand actions of the district court in carrying out
a mandate of an appellate court for legal error. Winnebago Indus. v. Smith,
8
548 N.W.2d 582, 584 (Iowa 1996). We review ineffective-assistance-of-
counsel claims de novo. State v. Horness, 600 N.W.2d 294, 297 (Iowa 1999).
III. Sufficiency of Evidence.
The only claim of trial court error raised on direct appeal in this case
is whether the district court properly refused to decide Cromer’s challenge,
on remand, to the sufficiency of the evidence to support the conviction. The
other claims of error raised by Cromer pertain to ineffective assistance of
trial counsel. While defendants in criminal cases are not required to raise
claims of ineffective assistance of counsel on direct appeal to preserve the
claims for postconviction relief, such claims may nevertheless be raised on
direct appeal. Iowa Code § 814.7(2) (2009). When raised in a direct appeal,
we can proceed to decide them if the record is adequate for our review. Id.
§ 814.7(3).
Because we ultimately conclude Cromer is entitled to a new trial based
on the failure of his trial counsel to object to the admission of the recorded
telephone conversation, we do not need to decide the claim of trial error
raised by Cromer on direct appeal. 4 Accordingly, we proceed to consider the
ineffective-assistance-of-counsel claim.
4We agree with Cromer that his claim to a new trial based on insufficient evidence
was not waived by failing to request a ruling from the district court. After the district court
granted a new trial based on legal error in the jury instructions, Cromer was not required to
request an additional ruling prior to the first appeal in order to preserve the claim to a new
trial based on the alternative ground of insufficient evidence. A successful party in district
court is not required to request the district court to rule on alternative grounds raised, but
not relied upon by the district court in making its ruling, in order to assert those grounds in
support of affirming the ruling of the district court when appealed by the opposing party.
Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 774 n.3 (Iowa 2009) (citing Moyer v. City of
Des Moines, 505 N.W.2d 191, 193 (Iowa 1993)). Thus, the court of appeals erred in
concluding otherwise in the first appeal. Nevertheless, this ruling became the law of the
case on remand, whether the ruling was right or wrong. See State ex rel. Goettsch v. Diacide
Distrib., Inc., 596 N.W.2d 532, 537 (Iowa 1999) (“Pursuant to this rule, ‘legal principles
announced and the views expressed by a reviewing court in an opinion, right or wrong, are
binding throughout further progress of the case upon the litigants, the trial court and this
court in later appeals.’ ” (quoting State v. Grosvenor, 402 N.W.2d 402, 405 (Iowa 1987))).
Consequently, while the district court had authority to consider a motion for new trial prior
9
IV. Ineffective Assistance of Counsel.
First, Cromer argues trial counsel was ineffective in failing to object to
the introduction of the recorded telephone conversation into evidence at
trial. He asserts many of the statements made during the conversation were
inadmissible for four independent reasons, and his counsel failed to fulfill an
essential duty to object to admission of the recording. He points to various
statements on the tape and argues (1) the probative value of some of the
statements was substantially outweighed by their unfairly prejudicial effect
on the jury, (2) other statements constituted improper lay opinions or
opinions on legal standards, (3) some statements were coerced, and (4) other
statements constituted inadmissible hearsay. The State argues defense
counsel could have refrained from objecting to the offer of the recorded
conversation based on reasonable trial strategy, and in any event, any error
did not result in prejudice.
A. Elements of Ineffective Assistance of Counsel. Generally,
claims of ineffective assistance of counsel made on direct appeal will be
preserved for postconviction relief actions. Horness, 600 N.W.2d at 297.
However, “we will consider such claims on direct appeal where the record is
adequate.” Id.; see also Iowa Code § 814.7(3) (2009) (“If an ineffective
assistance of counsel claim is raised on direct appeal from the criminal
proceedings, the court may decide the record is adequate to decide the claim
or may choose to preserve the claim under chapter 822 [postconviction
proceedings].”).
In addressing ineffective-assistance-of-counsel claims, we recognize
the “[d]efendant has the burden of proof to establish by a preponderance of
the evidence that counsel rendered ineffective assistance.” State v. Aldape,
to entering its judgment on remand, see Iowa R. Crim. P. 2.24(4), it could only consider
those grounds for new trial collateral to the appeal.
10
307 N.W.2d 32, 42 (Iowa 1981). The successful ineffective-assistance-of-
counsel claim requires proof by a preponderance of the evidence that (1)
counsel failed to perform an essential duty, and (2) prejudice resulted.
Horness, 600 N.W.2d at 298.
B. Trial Counsel’s Failure to Perform an Essential Duty. In
analyzing the first prong of the test, we presume counsel acted competently.
Id. We also require more than mere “[i]mprovident trial strategy,
miscalculated tactics, mistake, carelessness or inexperience,” as viewed with
the clarity of hindsight. Parsons v. Brewer, 202 N.W.2d 49, 54 (Iowa 1972).
Instead, we ask whether “counsel’s performance fell below the normal range
of competency.” Horness, 600 N.W.2d at 298. “[D]efense counsel has not
failed to perform an essential duty when counsel fails to raise a claim or
make an objection that has no merit.” Id. Consequently, to determine
whether counsel failed to perform an essential duty in failing to object to
introduction of the audio-recorded telephone conversation, we can first
analyze whether the conversation was admissible under our rules of
evidence.
Cromer does not argue the entire audio-recorded conversation was
inadmissible. For example, he concedes some statements were relevant and
acknowledges his statements constituted admissions, or nonhearsay
statements. See Iowa R. Evid. 5.801(d)(2) (“Admission by party-opponent”).
Likewise, he does not argue all of the statements made by the complaining
witness were inadmissible. Cromer also does not make a statement-by-
statement attack on the admissibility of the recording, delineating exactly
which statements were admissible and which were inadmissible. Instead, he
provides examples of those statements he claims were inadmissible under
various rules of evidence and that presented the greatest opportunity for the
trial to result in injustice.
11
1. Rule 5.403 balancing. Cromer first argues certain statements were
inadmissible because their probative value was substantially outweighed by
their unfairly prejudicial effects. “Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of
unfair prejudice [or] confusion of the issues . . . .” Iowa R. Evid. 5.403. In
determining whether evidence should be excluded from a trial under rule
5.403, we first consider the probative value of the evidence. See State v.
Harmon, 238 N.W.2d 139, 145 (Iowa 1976) (explaining courts’ duty to “ ‘first,
[decide] whether the offered evidence has some probative force, and second,
to balance the value of that evidence . . . against the danger of its prejudicial
or wrongful effect upon the triers of fact’ ” (quoting State v. Wallace, 259
Iowa 765, 770, 145 N.W.2d 615, 619 (1966))).
The probative value of evidence is different than the “relevancy” of
evidence. Relevancy relates to the tendency of evidence “to make a
consequential fact more or less probable.” State v. Plaster, 424 N.W.2d 226,
231 (Iowa 1988). On the other hand, the “probative value” of evidence
“gauges the strength and force of that tendency.” Id.
The crux of this case dealt with whether N.S. was a willing participant
in the sex acts or was mentally incapacitated at the time, or physically
helpless, due to her intoxication. Several statements made by Cromer and
N.S. during the telephone conversation clearly tended to strengthen the
probability that N.S. was mentally incapacitated or physically helpless. Yet,
the statements by Cromer that add to the probative value of the evidence
were made in response to an emotional plea by N.S. to make the statements.
In State v. Quintero, 480 N.W.2d 50, 52 (Iowa 1992), we pointed out
that coercion used to obtain an admission from an accused is not only
relevant to a constitutional analysis of the admission of evidence, but is also
relevant to the balancing of the probative value and the prejudicial effect
12
under Iowa Rule of Evidence 5.403. Coercion diminishes the reliability of an
admission because “the law has no way of measuring the improper influence
or determining its effect on the mind of the accused.” Quintero, 480 N.W.2d
at 52. Of course, coercion can come in many forms.
In this case, the conversation between Cromer and N.S. was very
emotional. The two were longtime friends, and N.S. was distraught. She
looked to Cromer to help piece together the events of the evening and to help
her deal with her personal suffering. The effect of this emotion on Cromer
was apparent over the course of the conversation. N.S. repeatedly appealed
to their friendship, recounted her feelings of shame, and told of her
nightmares and inability to sleep. She also forcefully exclaimed she would
never have consented to intercourse with two men, declared she must have
been unconscious, and continuously told Cromer he took advantage of her
and raped her. In the face of her intense emotion and anger, Cromer
gradually began to agree with the accusations leveled by N.S.
At the same time, police officers were present and coaching N.S.
throughout the phone call. The police officers prepared N.S. for the call by
suggesting many of the questions she asked Cromer, including the question
about what Cromer would call the situation if it happened to his sister. They
also used hand motions to prod N.S. to keep talking when the conversation
subsided.
Consequently, the probative value of the statements made during the
conversation was ultimately diminished by the coercive environment. Under
a rule 5.403 analysis, this environment tended to make the statements less
probative of the ultimate issue. 5
5We are not deciding whether the actions by the police officers in orchestrating the
telephone conversation rendered the entire statement inadmissible as coercive under due-
process standards. Cf. State v. Morgan, 559 N.W.2d 603, 608–09 (Iowa 1997) (addressing
voluntariness of confession claimed to be coerced in violation of constitutional due process);
13
We next turn to balancing the probative value of the challenged
evidence against any unfair prejudice that may accompany the evidence.
Harmon, 238 N.W.2d at 145. The admission of the recorded conversation
without objection, or a request for a limiting instruction, carried at least two
pieces of harmful baggage—risk of unfair prejudice and risk of confusion of
issues. “ ‘ “Unfair prejudice” within its context means an undue tendency to
suggest decision on an improper basis, commonly, though not necessarily,
an emotional one.’ ” Old Chief v. United States, 519 U.S. 172, 180, 117
S. Ct. 644, 650, 136 L. Ed. 2d 574, 588 (1997) (quoting Fed. R. Evid. 403
advisory committee’s note 6). In the context of a criminal case, unfair
prejudice “speaks to the capacity of some concededly relevant evidence to
lure the factfinder into declaring guilt on a ground different from proof
specific to the offense charged.” Id. at 180, 117 S. Ct. at 650, 136 L. Ed. 2d
at 587–88.
Here, N.S. repeatedly and emotionally stated her opinion that Cromer
took advantage of her. N.S. presented herself as a sympathetic, suffering
victim, as shown by such comments as decent guys would have taken her
home and that “little pieces” of her had been “taken away.” Conversely,
these statements suggested Cromer was not a “decent guy” and implied he
was deserving of punishment on that ground. Overall, there was an
abundance of comments that likely appealed to the jury’s emotion and
created a danger for the jury to convict Cromer based on the contents of the
emotional conversation.
The second piece of unwanted baggage weighing against admission of
the evidence was the risk of confusion of the issues. A substantial part of
Jensen v. Schreck, 275 N.W.2d 374, 384 (Iowa 1979) (requiring state action as element of
due-process claim).
6Federal Rule of Evidence 403 is identical to our rule 5.403.
14
the recorded conversation dealt with whether “rape” or “date rape” occurred
during the evening. As a part of the conversation, the parties discussed
their respective definitions of date rape. Neither definition resembled the
legal elements necessary to prove the crimes charged in this case. For
example, N.S. opined that date rape was “taking advantage” of an intoxicated
person. Yet, that view blurs the line between mere intoxication and the
mental or physical incapacitation required by Iowa Code section 709.4(4).
Additionally, Cromer finally acquiesced that he had “taken advantage” and
that he would label his conduct as date rape if it had happened to his sister.
No limiting instruction was requested nor given to the jury to explain that
Cromer’s admissions were not admissions to any of the crimes charged.
Based on the limited probative value and the potential for unfair
prejudice, and considering the availability of the parties to testify as to their
recollections of the evening independent of the telephone conversation,
significant parts of the recording should not have been introduced to the
jury. The State argues defense counsel strategically decided to admit the
tape because it demonstrated Cromer’s compassion, and even if this was
poor strategy in hindsight, trial counsel did not fail in an essential duty. We
disagree. Considering the critical issue presented to the jury, reasonably
competent counsel would have objected to at least some of the statements in
the recording and would have requested limiting instructions for many
others.
2. Improper opinions and arguments on legal standards. Cromer next
argues the tape recording contained inadmissible opinions expressed by N.S.
Specifically, Cromer takes issue with the repeated and forceful declarations
by N.S. that she was raped.
The State acknowledges N.S. has no memory of the events that took
place at the motel, including the sex acts. Thus, her declarations that rape
15
occurred, even if sincere, were not based on personal knowledge. Such
declarations of fact implicate our rule that testimony be “rationally based on
the perception of the witness”—i.e., on personal knowledge. Iowa R. Evid.
5.701. Thus, N.S.’s belief she was raped should not have been admitted or,
at the very least, was subject to a limiting instruction indicating those
statements not based on personal knowledge are not proof of the element of
incapacitation.
Further, under the circumstances, the recorded declarations by N.S.
that she was raped could have been construed by the jury as an opinion
Cromer was guilty. “[A] witness cannot opine on a legal conclusion or
whether the facts of the case meet a given legal standard.” In re Det. of
Palmer, 691 N.W.2d 413, 419 (Iowa 2005). This rule is based on the belief
that normally “jurors are fully capable of applying the facts of the case to the
law provided to them by the trial judge.” Id. Consequently, any opinion
testimony that the facts meet the applicable legal standard fails the
requirement that all opinion testimony be helpful to the trier of fact. Id.
(citing Iowa Rs. Evid. 701, 702).
Although N.S. did not opine that Cromer was guilty of sexual abuse in
the third degree, she did say “you guys raped me.” In the absence of limiting
instructions regarding the use of such evidence, assuming it is admissible, a
foreseeable danger existed the jury would evaluate the statement as an
opinion of Cromer’s guilt of the crime charged. The danger of harm was
enhanced because N.S. had no personal knowledge of what transpired at the
motel due to her inability to recall. Such opinion testimony is not permitted
by the rules of evidence, and consequently trial counsel had a duty to object,
at a minimum, to the unlimited admission of such evidence.
C. Prejudice. Our determination that trial counsel failed to perform
competently when the State offered the recorded conversation into evidence
16
does not completely resolve Cromer’s ineffective-assistance-of-counsel
claim. 7 Cromer must also show he was prejudiced by his counsel’s failure to
object to the recorded conversation. Specifically, Cromer must show a
reasonable probability the result of the proceeding would have been different
had his counsel objected. Millam v. State, 745 N.W.2d 719, 722 (Iowa 2008).
“ ‘A reasonable probability is one that is “sufficient to undermine confidence
in the outcome.” ’ ” Id. (quoting State v. Bayles, 551 N.W.2d 600, 610 (Iowa
1996)).
Overall, our confidence that the verdict represents the type of justice
demanded in criminal prosecutions is seriously shaken by the recorded
conversation the jury was permitted to hear and consider in reaching its
verdict. The recorded conversation contained a dramatic and emotional
appeal for justice by the complaining witness, which the rules of evidence
would not permit her to make as a witness at trial. This appeal had to
influence the jury, just as it eventually influenced Cromer to respond. The
jury must not be permitted to employ such an emotional approach when
weighing the guilt or innocence of an accused. Without the inadmissible
portions of the recorded conversation, the evidence of Cromer’s guilt was far
from compelling. Stripped to its core, the fighting issue at trial was one of
the mental or physical capacity to consent, and the complaining witness was
unable to explain her state of mind or describe the facts and circumstances
that could help explain her state of mind at the critical times during the
evening. The State was left to make its best case for guilt with key portions
7Cromer also argues many statements by N.S. constituted hearsay. He specifically
points to statements when she quotes acquaintances’ and friends’ accounts of her level of
intoxication and incapacitation while at the tavern on the night in question. The State
responds that the record was replete with similar testimony and argues any error by trial
counsel in this regard would have been harmless. Based on our resolution of the other
grounds for Cromer’s ineffective-assistance-of-counsel claim, we need not address this
subissue.
17
of the emotionally charged appeal by the complaining witness, which clearly
should have been excluded from consideration by the jury.
The only direct evidence of the incapacitation of the complaining
witness outside of the recorded conversation came from a jailhouse
informant. Yet, the informant was compensated for his testimony with a
reduced sentence for crimes he had committed. Under all the facts and
circumstances, a reasonable probability exists that the result would have
been different had trial counsel objected to the inadmissible evidence, and
our confidence in the verdict is sufficiently undermined so as to require
reversal of the conviction. This conclusion is fully supported by the record
before us on direct appeal, and a more developed postconviction record
would not be helpful. 8
V. Conclusion.
We conclude Cromer received ineffective assistance of counsel, which
resulted in prejudice. Consequently, we are required to grant a new trial.
DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF
CONVICTION REVERSED; SENTENCE VACATED AND CASE REMANDED
FOR NEW TRIAL.
All justices concur except Baker, J., who takes no part.
8Our determination trial counsel was ineffective in failing to object to admission of
the audio recording renders Cromer’s other ineffective-assistance claim moot.