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Banker v. State

Court of Appeals of Iowa

January 11, 2017

MATTHEW LOUIS BANKER, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Johnson County, Nancy A. Baumgartner, Judge.

         Matthew Banker appeals the district court's denial of his application for postconviction relief. AFFIRMED.

          Kent A. Simmons, Bettendorf, for appellant.

          Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant Attorney General, for appellee State.

          Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.

          VAITHESWARAN, Judge.

         Matthew 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, 2012).

         Banker filed an application for postconviction relief, asserting his trial attorney was ineffective in several respects. The postconviction court denied Banker's claims following an evidentiary hearing.

         On 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.

         To 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).

         We 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.

         A. Ineffective Assistance of Counsel

         1. Severance.

         Banker 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 ...


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