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Mummau v. State

Court of Appeals of Iowa

August 16, 2017

VINCENT MUMMAU, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Clayton County, Michael J. Shubatt, Judge.

         Defendant appeals the district court decision denying his petition for postconviction relief from his conviction for third-degree sexual abuse.

          Angela Campbell of Dickey & Campbell Law Firm, P.L.C., Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney General, for appellee State.

          Considered by Danilson, C.J., and Potterfield and Bower, JJ.

          BOWER, Judge.

         Vincent 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.

         I. Background Facts & Proceedings

         The 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 later.

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 poor health.

         Mummau 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.

         On 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.[1]

         During 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.[2] After a hearing, the court denied Mummau's motion to authorize the disclosure of B.K.'s cell phone records.

         At the 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.

         II. Ineffective Assistance

         We 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).

         A. Vouching

         1. 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).

         First, 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 ...


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