from the Iowa District Court for Clayton County, Michael J.
appeals the district court decision denying his petition for
postconviction relief from his conviction for third-degree
Campbell of Dickey & Campbell Law Firm, P.L.C., Des
Moines, for appellant.
J. Miller, Attorney General, and Tyler J. Buller, Assistant
Attorney General, for appellee State.
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
Mummau appeals the district court decision denying his
petition for postconviction relief from his conviction for
third-degree sexual abuse. We find Mummau has failed to show
he received ineffective assistance from his defense and
appellate counsel. We also find the postconviction court did
not abuse its discretion in denying Mummau's request for
a subpoena of certain cell phone records. We affirm the
district court's decision denying Mummau's request
for postconviction relief.
Background Facts & Proceedings
following facts are set out in Mummau's direct appeal:
On July 7, 2011, B.K. arrived at the home of Vincent Mummau
to fix his television and pick up eggs. After working on one
television in the lower level of the home, Mummau suggested
she also see the one upstairs and offered her a tour of his
home. The two walked upstairs to the second level of the
home. Mummau asked whether she "need[ed] some
loving" to which she responded "not today."
The tour continued to Mummau's bedroom, where B.K.
declined his advances again. At some point, Mummau forced
B.K. onto the bed, landing on top of her. Mummau then
instructed her to remove her clothes. B.K. stood and
complied. Mummau performed various sex acts on B.K. and left
the room. B.K. reported the incident to police several days
State v. Mummau, No. 12-1082, 2013 WL 2145994, at *1
(Iowa Ct. App. May 15, 2013) (footnote omitted). At the time
of the incident, B.K. was a seventy-three year old woman in
was charged with sexual abuse in the third degree, in
violation of Iowa Code section 709.4(1)(a) (2011). Mummau
admitted he engaged in sexual conduct with B.K. but stated
the encounter was consensual. A jury found Mummau guilty of
third-degree sexual abuse. He was sentenced to a term of
imprisonment not to exceed ten years. Mummau's conviction
was affirmed on appeal. See id. at *7.
April 27, 2015, Mummau filed an application for
postconviction relief, claiming he received ineffective
assistance of counsel during his criminal trial. He claimed
defense counsel (1) failed to object to certain evidence and
failed to move for a mistrial; (2) failed to impeach
witnesses properly; (3) failed to present character evidence;
(4) failed to investigate evidence that could have been used
to impeach B.K.; and (5) was generally ineffective. Mummau
also claimed appellate counsel failed to raise issues that
should have been raised.
the postconviction proceedings, Mummau filed a motion seeking
the production of the cell phone records of B.K. and eight
other people for thirty days before and thirty days after
July 7, 2011. He stated the evidence was needed to show
defense counsel did not adequately investigate impeachment
evidence concerning B.K.'s testimony about who she told
of the sexual assault and when she told them. The State
resisted the motion. The court granted the motion as to
B.K.'s cell phone records but denied the request for the
cell phone records of the other people. Subsequently,
B.K.'s estate objected to the order requiring the
production of her cell phone records. After a hearing, the court
denied Mummau's motion to authorize the disclosure of
B.K.'s cell phone records.
postconviction hearing, the deposition of defense counsel was
presented. The district court found Mummau failed to show
counsel breached an essential duty or he was prejudiced by
counsel's conduct. The court concluded Mummau failed to
show he received ineffective assistance of counsel. Mummau
now appeals the district court's decision.
conduct a de novo review of claims of ineffective assistance
of counsel. State v. Maxwell, 743 N.W.2d 185, 195
(Iowa 2008). To establish a claim of ineffective assistance
of counsel, a defendant must prove (1) counsel failed to
perform an essential duty and (2) prejudice resulted to the
extent it denied the defendant a fair trial. Id. A
defendant's failure to prove either element by a
preponderance of the evidence is fatal to a claim of
ineffective assistance. State v. Polly, 657 N.W.2d
462, 465 (Iowa 2003).
Mummau claims defense counsel should have objected because
witnesses were improperly permitted to vouch for the
credibility of B.K. A witness may not directly or indirectly
render an opinion on the credibility of another witness.
See State v. Dudley, 856 N.W.2d 668, 676 (Iowa
2014). This is because a witness should not comment on a
defendant's guilt or innocence. State v. Brown,
856 N.W.2d 685, 689 (Iowa 2014).
during the trial, Maria Farmer, a sexual assault response
nurse who examined B.K., was asked, "Can you describe
[B.K.'s] demeanor when you were getting her medical
history from her?" The court overruled defense
counsel's objections. Farmer then testified B.K.
"was very open about what was going on and talked very
strongly about the events that had occurred the night before,
but by the time of the end of it, she was tearful, when it
really got down to the details of the event." We find
there was no breach of duty because defense counsel did