RODNEY MCCARTY, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-637 / 08-1772
Filed September 2, 2009
RODNEY MCCARTY,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,
Judge.
Rodney McCarty appeals the district court’s denial of his application for
postconviction relief. AFFIRMED.
Gary Dickey Jr. of Dickey & Campbell Law Firm, P.L.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney
General, John P. Sarcone, County Attorney, and Michael T. Hunter, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., Potterfield, J., and Huitink, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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PER CURIAM
Rodney McCarty appeals the district court’s denial of his application for
postconviction relief seeking to set aside his convictions for first-degree burglary
and first-degree theft.
The background facts of this case are set forth in this court’s opinion
involving McCarty’s direct appeal. State v. McCarty, No. 03-1151 (Iowa Ct. App.
April 28, 2004). On appeal, we affirmed McCarty’s convictions and preserved his
ineffective-assistance-of-counsel claim for postconviction proceedings. Id.
McCarty’s amended application for postconviction relief asserted trial
counsel was ineffective in (1) failing to object to inadmissible prior bad acts
testimony, (2) failing to secure a written, pretrial ruling on his motion in limine,
(3) failing to adequately cross-examine the complaining witness, (4) failing to
obtain the results of the rape/sexual assault kit and have it examined by an
independent expert, and (5) failing to adequately investigate the State’s
witnesses. After a hearing on the merits, the district court concluded McCarty’s
trial counsel was not ineffective. McCarty appeals.
This court reviews claims of ineffective assistance of counsel de novo.
State v. Martin, 704 N.W.2d 665, 668 (Iowa 2005).
To prove a claim of
ineffective assistance of counsel, McCarty must show by a preponderance of the
evidence that his trial counsel (1) failed to perform an essential duty and
(2) prejudice resulted. Id. To prove prejudice on this test, “[t]he defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698
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(1984).
“A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. Absent evidence to the contrary, we assume the
attorney’s conduct falls within the wide range of reasonable professional
assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995).
We have thoroughly reviewed the briefs and the record in this case and
find no error. The district court’s ruling on the application was well reasoned and
fully supported by the record. For all the reasons stated therein, we affirm. See
Iowa Ct. R. 21.29(1)(d), (e).
We address only one issue further. McCarty asserts that trial counsel was
ineffective in failing to object to testimony by the complaining witness about her
prior sexual relationship with McCarty and that McCarty had been abusive.1
The district court wrote:
McCarty had a prior romantic and sexual relationship with
the victim. His defense at trial was that on the day she claims he
sexually assaulted her, the victim had invited him into her home
where they drank wine and had consensual sex. To bolster that
defense McCarty wanted to present evidence of the nature of his
prior relationship with the victim. The trial court ruled that if
McCarty presented that evidence, the State would be allowed to
present evidence of the true nature of the prior relationship,
including evidence of McCarty’s prior abusive behavior toward the
victim. Defense counsel advised McCarty of this fact. McCarty
remained adamant in his desire to nevertheless go forward with
evidence of his prior relationship with the victim. As it turned out,
McCarty never presented this evidence. Rather, it was solicited by
the State from the victim during direct examination without any
objection.
There was nothing wrong with defense counsel’s
performance in this respect. It is a perfectly understandable and
rational strategy decision to conclude, as apparently McCarty
himself did, that the harm of not presenting evidence of a long term
1
With respect to McCarty’s prior bad acts claims, we note our supreme court has
recently decided State v. Reynolds, 765 N.W.2d 283, 290-91 (Iowa 2009), in which it
discusses the relevance of prior threats and assaults toward the same victim.
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prior romantic relationship between the victim and the defendant
outweighed the harm of “opening the door” to evidence of abuse
within the relationship. Further, allowing the State to present this
evidence got the facts before the jury without McCarty having to
testify about it himself and subject[ing] himself to cross
examination.
McCarty complains this ruling was erroneous because he did not “open the door”
to the evidence.
We find McCarty’s argument specious. It is evident from this record that
McCarty’s defense to the charges against him rested on his claim that sex with
the victim had been consensual.
McCarty insisted that trial counsel present
evidence of his prior consensual sexual relationship with the victim in support of
his defense. Trial counsel testified that he and the State agreed they “were going
to talk to [the victim] about their prior relationship.” Trial counsel stated, “I don’t
think it was a thing where I had to get into it first before” the county attorney did.
Under all the circumstances, we conclude McCarty has failed to show counsel’s
performance was deficient or that prejudice resulted.
AFFIRMED.
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