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Archer v. State

Court of Appeal of Iowa

September 5, 2013

KIM ARCHER, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

Appeal from the Iowa District Court for Clinton County, Charles H. Pelton, Judge.

Applicant appeals the district court decision denying his application for postconviction relief on his convictions for second-degree sexual abuse and third-degree sexual abuse.

Jack E. Dusthimer, Davenport, for appellant.

Kim Archer, Anamosa, appellant pro se.

Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant Attorney General, Michael J. Wolf, County Attorney, and Ross Barlow, Assistant County Attorney, for appellee.

Considered by Vogel, P.J., Danilson, J., and Miller, S.J. [*]

MILLER, S.J.

I. Background Facts & Proceedings

In 2008, a teenage girl, A.A., reported that her father, Kim Archer, had sexually abused her over the course of many years. A Clinton police officer, Dannie Howard, asked A.A. to telephone her father in an effort to generate more evidence to support a criminal prosecution of Archer. A.A. agreed to allow officers to record a telephone conversation between A.A. and Archer, and her mother was aware that the recording would occur.

Kim Archer was charged with sexual abuse in the second degree and sexual abuse in the third degree. The State alleged there had been incidents both before and after A.A. was twelve years old.[1] During the jury trial defense counsel did not object to the introduction of a recording of the telephone conversation between A.A. and Archer. A.A. testified, describing acts of sexual abuse perpetrated upon her by Archer beginning when she was five years of age and ceasing only when she was thirteen years of age. A jury found Archer guilty of second-degree and third-degree sexual abuse. He was sentenced to twenty-five years and ten years in prison, to be served concurrently.

Archer filed an application for postconviction relief, claiming he had received ineffective assistance of defense counsel, and his convictions should be overturned due to newly discovered evidence. Archer's defense counsel testified he did not object to the introduction of the recording of the telephone conversation because he believed it would be admissible and he wanted to avoid making excessive objections in the presence of the jury. Archer's son, Brandon Archer, testified that about two or three years previously, he had asked A.A. if Archer had sexually abused her and she told him, "No." Brandon also stated he saw what he believed was A.A.'s diary, in which she wrote, "Why did I put him away, since he didn't do it?" Brandon did not have the diary at the time of the postconviction hearing. At the postconviction hearing Howard testified he had received the consent of A.A. and her mother prior to recording the telephone conversation.

The district court denied Archer's application for postconviction relief. The court determined Archer had not shown he received ineffective assistance of counsel. The court also denied Archer's claim of newly discovered evidence, finding Brandon was not a credible witness and his testimony was "entitled to very little weight, if any." Archer now appeals the decision of the district court denying his application for postconviction relief.

II. Ineffective Assistance of Defense Counsel

Archer claims he received ineffective assistance of counsel in several different ways. We review claims of ineffective assistance of counsel de novo. Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective assistance of counsel, an applicant must show (1) the attorney failed to perform an essential duty, and (2) prejudice resulted to the extent it denied applicant a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2008). "In determining whether an attorney failed in performance of an essential duty, we avoid second-guessing reasonable trial strategy." Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010). In order to show prejudice, a defendant must show that, but for counsel's unprofessional errors, the result of the proceeding would have been different. State v. Madsen, 813 N.W.2d 714, 727 (Iowa 2012).

A. Section 808B.2(2)(b) provides:

It is not unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, if the person is a party to the communication or one of the parties to the ...

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