January 11, 2017
MATTHEW LOUIS BANKER, Applicant-Appellant,
STATE OF IOWA, Respondent-Appellee.
from the Iowa District Court for Johnson County, Nancy A.
Banker appeals the district court's denial of his
application for postconviction relief. AFFIRMED.
A. Simmons, Bettendorf, for appellant.
J. Miller, Attorney General, and Jean C. Pettinger, Assistant
Attorney General, for appellee State.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
Banker attended a party in Iowa City. Following the party,
two women notified police that Banker sexually assaulted or
attempted to sexually assault them. The State charged Banker
with third-degree sexual abuse and assault with intent to
commit sexual abuse, and a jury found him guilty as charged.
This court affirmed his judgment and sentence and preserved
two ineffective-assistance-of-counsel claims for
postconviction relief. See State v. Banker, No.
11-0355, 2012 WL 2122369, at *1 (Iowa Ct. App. June 13,
filed an application for postconviction relief, asserting his
trial attorney was ineffective in several respects. The
postconviction court denied Banker's claims following an
appeal, Banker contends his trial attorney was ineffective in
failing to (1) move for separate trials, (2) invoke an
exception to Iowa's "rape shield" rule, (3)
impeach the testimony of one of the witnesses, (4) call an
expert to testify about the "blackout effect"
associated with over-consumption of alcohol, and (5) seek
exclusion of a surreptitious recording of him. He also
contends cumulative errors mandate reversal.
prevail, Banker must show (1) counsel breached an essential
duty and (2) prejudice resulted. Strickland v.
Washington, 466 U.S. 668, 687 (1984). "If we
conclude a claimant has failed to establish either of these
elements, we need not address the remaining element."
State v. Thorndike, 860 N.W.2d 316, 320 (Iowa 2015).
elect to resolve the issues under the Strickland
prejudice prong. We begin by examining whether Banker
established prejudice on each claim, then we proceed to a
cumulative error analysis. See State v. Clay, 824
N.W.2d 488, 500, 501-02 (Iowa 2012) (citing with approval
precedent in which "we analyzed all [ineffective
assistance] claims individually and cumulatively" and
stating because we are analyzing "the prejudice prong of
Strickland without considering trial counsel's
failure to perform an essential duty, [we] can only dismiss
the postconviction claim if the alleged errors, cumulatively,
do not amount to Strickland prejudice").
Prejudice requires proof of "a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different."
Strickland, 466 U.S. at 694.
Ineffective Assistance of Counsel
contends his trial attorney should have moved to sever the
two charges. He relies on Iowa Rule of Evidence 5.404(b),
which provides that evidence of other acts "is not
admissible to prove the character of a person in order to
show that the person acted in conformity there with, "
but may "be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident." He argues,
"[T]here was no 'legitimate issue' that would
allow the State to use evidence of a similar crime against
[him] in separate trials."
Iowa Supreme Court rejected a virtually identical argument in
State v. Romer, 832 N.W.2d 169, 183 (Iowa
2013). After reiterating the distinction between our bad acts
rule, Iowa Rule of Evidence 5.404(b), and our severance rule,
Iowa Rule of Criminal Procedure 2.6(1), the court stated:
[W]e have previously found that an attempt to equate our
evidentiary rule's principles with rule 2.6(1)'s
principles is inapposite. "This evidentiary rule deals
with what evidence is properly admissible to prove the crime
charged. The joinder of offenses rule deals with the more
basic question of what crimes can be charged and tried in a
single proceeding . . . . The two rules deal with different
questions, making the wholesale importation of the
evidentiary rule into the law dealing with joinder of
Romer, 832 N.W.2d at 183 (quoting State v.
Lam, 391 N.W.2d 245, 249 (Iowa 1986)). In discussing
nonconstitutional prejudice under the severance rule, the
court declined to employ an analysis premised on rule
5.404(b), focusing instead on the relevancy of the evidence,
the "legally intertwined" nature of the evidence,
and the district court's submission of a cautionary
instruction. See id.; cf. State v. Elston,
735 N.W.2d 196, 199-200 (Iowa 2007) (applying rule 5.404(b)
balancing test and finding under the test certain evidence
was "admissible to prove the indecent contact charge
against [the defendant] whether or not the trial of that
charge was joined with the trial of the sexual exploitation
charges"). The court concluded the defendant did not
show "unfair prejudice by joining the interrelated eight
counts into one trial." Romer, 832 N.W.2d at
apply the nonconstitutional prejudice factors set forth in
Romer to determine whether, under
Strickland, there is a reasonable probability a
motion to sever would have been granted had one been filed.
The assaults on the two women occurred on the same night, in
the same house, and under similar circumstances. One woman
was in the basement with her boyfriend; the other was
upstairs on a couch. Both testified that a man placed his
hand on their stomachs and engaged in sexual touching below
their belt lines. Although the facts underlying one count
were not essential to establishing the second count, the
Romer court found complete congruence unnecessary.
See id. at 182. The court stated, "Even if some
of the evidence needed to prove count I was irrelevant to
whether [the defendant] committed the acts he was charged
with in count IV, for example, the State had the right to
charge multiple counts in the same offense, to achieve
judicial economy." Id. The same is true here.
The two acts were sufficiently intertwined to conclude the
district court would not have abused its discretion in
denying a motion to sever. Finally, as in Romer, the
district court cautioned the jury about its obligation with
respect to each count, instructing the jury as follows:
The Defendant has been charged with two (2) counts. This is
just a method for bringing each of the charges to trial. If
you find the Defendant guilty o[r] not guilty on any one of
the two counts, you are not to conclude the Defendant is
guilty or not guilty on the other count. You must determine
whether the Defendant is guilty or not guilty separately on
acknowledge this instruction did not address the danger of
propensity evidence underlying rule 5.404(b). However, the
language conveyed this concern by exhorting jurors not to
find that because Banker may have committed one crime he also
committed the other crime. See Thomas v.
State, No. 11-0275, 2012 WL 836839, at *8 (Iowa Ct.
App. Mar. 14, 2012) (concluding the identical instruction
"minimiz[ed] any possible prejudice" associated
with the denial of a severance motion).
conclude there is no reasonable probability a motion to sever
would have been granted had one been filed. See Crawley
v. State, No. 05-1666, 2007 WL 2376671, at *3
(Iowa Ct. App. Aug. 22, 2007).
2. Iowa Rule of Evidence 5.412.
sought to elicit testimony from one of the women about her
sexual activity with her boyfriend shortly before the
assault. Following an objection by the prosecutor and an
off-the-record discussion, Banker withdrew the question.
contends his attorney should have invoked an exception to the
rule that prohibits this type of evidence. See Iowa
R. Evid. 5.412. The rule, commonly known as the "rape
shield law, " precludes the admission of
"reputation or opinion evidence of the past sexual
behavior of an alleged victim of sexual abuse." Iowa R.
Evid. 5.412(a). The rule also precludes the admission of
"evidence of a victim's past sexual behavior other
than reputation or opinion evidence" unless the evidence
is "[a]dmitted in accordance with [certain requirements
of the rule] and is constitutionally required to be
admitted." Iowa R. Evid. 5.412(b)(1). In Banker's
view, testimony concerning the woman's sexual activity
with her boyfriend was "constitutionally required"
because the evidence furnished "good reason for [the
woman] to wonder whether a sexual assault 'really
The postconviction court addressed this argument as follows:
When considering the issue of whether the evidence is
constitutionally required to be admitted pursuant to Iowa R.
Evid. 5.412(b)(1), "[t]he defendant's constitutional
rights must be weighed against the recognized interest that
the State has 'to (1) protect the privacy of the victims;
(2) encourage the reporting and prosecuting of sex offenses;
and (3) to prevent time consuming and distracting inquiry
into collateral matters.'" State v. Jones,
490 N.W.2d 787 (1992) (citing State v. Gettier, 438
N.W.2d 1, 3 (Iowa 1989)). "A trial court can properly
exclude evidence of the victim's prior sexual histories
if the evidence were either irrelevant or more prejudicial
than probative." Id.; Iowa R. Evid.
court found the evidence irrelevant to the question of
whether a sexual assault occurred. After engaging in a
detailed factual analysis, the court concluded there was
"little likelihood that the evidence of prior sexual
intercourse with [the boyfriend] would have been admitted,
even had counsel known to follow the requirements of rule
5.412." We fully concur in the court's reasoning. We
conclude there is no reasonable probability of a different
outcome had Banker's trial attorney properly moved to
admit the woman's testimony about her prior sexual
conduct under the specified exception to rule 5.412.
Impeachment of Testimony.
similar vein, Banker challenges his trial attorney's
failure to impeach the same woman with her prior statement to
police. In the earlier statement, the witness described
Banker's position in the bed she shared with her
boyfriend and mentioned other details that Banker
characterizes as "bizarre" and "absolutely]
postconviction court found Banker's argument to be
"a bit of a stretch." We are inclined to agree.
Banker's attorney raised one important and potentially
improbable detail in the statement during his
cross-examination of the officer who questioned the woman.
Although the attorney did not ascribe this detail to the
woman, the jury reasonably could have discerned the source of
the information from the context. Other details in the
woman's prior statement did not detract from the essence
of her trial testimony. The woman described the assault in
precise terms, leaving little doubt that someone other than
her boyfriend committed the act. The following morning, the
woman discovered an open flip phone next to the bed. On
dialing "Mom" and asking whose phone it was, she
learned the phone belonged to Banker. At the postconviction
relief hearing, Banker was asked whether he disputed the cell
phone evidence. Banker responded, "I do not have any
memories that would . . . confirm or deny that." After
the assault, Banker came to the house and apologized for his
conduct. At the postconviction relief hearing, he was asked,
"did you tell . . . a number of people that you felt bad
. . . that something like that had happened to these
girls." Banker responded, "In a sense, yeah."
Two witnesses also testified that, when Banker returned, he
went directly to the basement to retrieve his cell phone. We
conclude there is no reasonable probability of a different
outcome had counsel impeached the woman with her prior
statement to police.
Failure to Present Expert Testimony on
challenges his trial attorney's failure to present expert
testimony concerning the effects of heavy alcohol
consumption. According to Banker, the testimony would have
provided "a scientific/medical explanation for [his]
loss of memory as to key events." Banker further claims
his lack of memory "was an overwhelming factor for
counsel's advice that [he] not take the witness stand
[because] Banker's persistent answers of inability to
remember events would lead the jury to conclude he was not
being truthful, " and expert testimony "would have
allowed the jury to naturally conclude [his] loss of memory
was due to the blackout effect."
postconviction relief hearing, Banker's trial attorney
testified that he consulted an expert about Banker's
"diminished capacity because of his intoxication."
According to counsel, the expert was "adamant that he
could not help" because counsel "could not quantify
the number of drinks or amount of alcohol [Banker] had
consumed in a definitive period of time." While counsel
acknowledged he did not discuss a possible blackout effect
with the expert, this type of testimony also would have been
contingent on knowledge of the precise amount of alcohol
Banker consumed. The postconviction court addressed the
prejudice prong with respect to this claim at length. Again,
we fully concur in the court's analysis. We conclude
there is no reasonable probability a trial expert testifying
to the blackout effect would have changed the outcome.
See, e.g., Heaton v. State, 420 N.W.2d 429, 432
(Iowa 1988) ("[I]n view of the trial court's
reliance on petitioner's own statements which impeached
his testimony as to a blackout, we fail to see any prejudice
caused by his attorney's failure to obtain the services
of an expert.").
Failure to Seek Exclusion of Recording.
challenges his trial attorney's failure to seek exclusion
of an audio recording made by a boyfriend of one of the
women. Wearing a wire, the boyfriend asked Banker whether he
had done more than "finger" the woman's
vagina. Banker responded, "I honestly do not think
contends the recording was inadmissible under Iowa Rule of
Evidence 5.403, which states: "Although relevant,
evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury . . . ."
Banker relies on State v. Cromer, 765 N.W.2d 1, 6-11
(Iowa 2009), in which the court found an attorney ineffective
where the attorney failed to object to the admission of a
recorded telephone conversation between the defendant and
postconviction court found Cromer distinguishable
and provided a comprehensive analysis of the differences. We
agree with this analysis. See also State v.
Cain, No. 14-1506, 2015 WL 5285763, at *1-2 (Iowa
Ct. App. Sept. 10, 2015) (distinguishing Cromer).
However, even if this case were on all fours with
Cromer, there is no reasonable probability that a
successful objection to the admission of the recording would
have changed the outcome. Even without the recording, jurors
heard the women's detailed testimony about the assaults
and could have considered the cell phone evidence and
contends cumulative error denied him a fair trial. See
Clay, 824 N.W.2d at 500. We disagree and adopt the
postconviction court's analysis as our own:
The State's case against Banker was strong, despite the
fact N.F. [the woman in the basement with her boyfriend]
could not identify her assailant. Both N.F. and A.R. [the
woman in the living room] described very similar
circumstances in which they were awakened from sleep by the
sensation of a hand on their stomachs, with the hand
eventually reaching down toward their genital area.
Banker's phone was found on the floor near the bed in
[N.F.'s boyfriend's] bedroom. [The boyfriend] and
N.F. testified it was not there when they went to bed. There
is no evidence other than speculation that would support an
argument that someone else placed the phone in the basement.
Even if Banker testified at trial and the jury believed that
he did not go directly to [the boyfriend's] room to look
for his cell phone the next day, evidence of what transpired
in the days following the assault presented a substantial
challenge for the defense. Despite having little to no memory
of what occurred the previous evening, Banker made his way
back to the house the next day to search for his cell phone.
When Banker went to [the boyfriend's] house on Monday
evening and talked to N.F., Banker asked if she was [the
boyfriend's] girlfriend. When she said that she was, he
told her he was sorry for what he did. This was
before Banker knew he had been accused of anything.
N.F. immediately asked him if he knew what he did. Banker
replied he did not know, but that it was something bad. After
N.F. told him what he did, he did not register shock or
denial. After N.F. shut the door on him, he knocked again,
asked for [the boyfriend], and told him he wanted to
apologize to him. Once the police became involved, Banker
repeated his statement that he had done something very bad to
[the officer]. Finally, when confronted with a pointed
question from [the boyfriend] regarding whether he had done
anything more than finger N.F., Banker's reply was that
he didn't think he did anything more than that. Despite
having multiple contacts with the various people at [the
boyfriend's] residence, Banker never denied having sexual
contact with N.F., never asserted he was not the kind of
person that would do that sort of thing, and never said he
had not committed the acts of which he was accused. It is
clear that there is little Banker's testimony could have
done to assist in his defense. Banker does not deny that he
repeatedly apologized for his behavior. He does not deny that
he made the statement on the audio recording. He acknowledged
that he would not have been able to provide any testimony to
account for the fact his cell phone wound up in the basement
bedroom of a person he hardly knew. These critical and
damaging facts would be present even if trial counsel had
done the things Banker alleges are a failure of an essential
duty. Even if Banker had proved that trial counsel failed in
an essential duty, he has not proved there is a reasonable
probability that the outcome of the trial would have been
concur in this cumulative error analysis. We affirm the
postconviction court's denial of Banker's