from the Iowa District Court for Scott County, Marlita A.
Connell appeals from the denial of his application for
R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for
J. Miller, Attorney General, and Benjamin M. Parrott,
Assistant Attorney General, for appellee.
Considered by Danilson, C.J., and Mullins and McDonald, JJ.
DANILSON, Chief Judge.
Connell was convicted of first-degree murder and child
endangerment resulting in death. State v. Connell,
No. 12-0661, slip op. at *2, 2013 WL 6116831 (Iowa Ct. App.
Nov. 20, 2013). Connell's convictions resulted from the
death of A.B., who was a child of the woman with whom Connell
lived, V.B. Id. This court affirmed his convictions
but remanded for resentencing because of the
"one-homicide" rule. Id., slip op. at *27.
filed an application for postconviction relief (PCR)
asserting trial counsel was ineffective in a number of
respects. After trial, the PCR court entered a
detailed ruling, addressed each of Connell's claims, and
concluded Connell had failed to prove his ineffectiveness
appeal, Connell challenges only two of the PCR court's
conclusions, asserting trial counsel was ineffective in (1)
failing to make offers of proof regarding excluded evidence
and (2) failing to investigate potential juror misconduct. He
also asserts postconviction counsel was ineffective in
failing to investigate potential juror misconduct.
review constitutional claims such as ineffective assistance
of counsel de novo. Ledezma v. State, 626 N.W.2d
134, 141 (Iowa 2001). In order to prevail on a claim of
ineffective assistance of counsel, Connell must prove that
counsel failed to perform an essential duty and prejudice
resulted. See id. at 142. "However, both
elements do not always need to be addressed. If the claim
lacks prejudice, it can be decided on that ground alone
without deciding whether the attorney performed
asserts trial counsel should have made an offer of proof
concerning V.B.'s involvement with the department of
human services (DHS) both here in Iowa and in Montana
relating to her children,  and counsel should have attacked the
privacy restriction of Iowa Code 235A.15 (2009), concerning
access to child-abuse report information. Connell contends
that if his trial counsel had made an offer of proof about
whether DHS workers told the child's mother about their
investigation into the child's death and had been able to
cross-examine the mother about that investigation,
"there would have been evidence to present on appeal to
show how the failure to include the evidence from that
investigation showed a clear motive and bias for [the] mother
to change her story." He acknowledges that on appeal,
this court found Connell was able to "strongly
suggest" the mother was motivated to change her
testimony due to feeling threatened by the loss of custody of
her other child. See Connell, No. 12-0661, slip op.
at *24. Yet, he argues there could have been more
compelling evidence available if there had been an offer
court determined trial counsel did not fail to perform an
essential duty and, in any event, Connell suffered no
prejudice. We agree. Trial counsel explained in his testimony
that he did not make an offer of proof because he was not
certain the testimony in the offer of proof would have been
consistent with other evidence supportive of his theory that
the mother was biased and motivated to change her story.
Thus, counsel's decision not to make an offer of proof
was a reasonable strategic decision. Moreover, even if the
testimony had been admitted and was consistent with the same
theory, the jury was still entitled to reject such evidence
and theory. There was expert testimony the child died by
blunt force trauma and the child was in Connell's care
when he died. There was also evidence Connell had anger
issues, was trying to "toughen up" the child,
admitted he had pushed on the child's stomach at their
apartment, and considered suicide near the time of the
child's death. We find no prejudice.
next asserts trial counsel was ineffective in failing to
investigate potential juror "misconduct." Trial
counsel testified at the PCR hearing,
Well, it didn't come to me as misconduct. I remember Jim
Connell, who is Zach's father, who is a bailiff here in
the courthouse, mentioned to me that he had heard somewhere
that there was something happened in the jury room that one
of the jurors didn't like. I didn't hear it as