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Connell v. State

Court of Appeals of Iowa

June 20, 2018

ZACHARY JAMES CONNELL, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.

         Zachary Connell appeals from the denial of his application for postconviction relief.

          Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.

          Thomas 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.

         Zachary 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.

         Connell filed an application for postconviction relief (PCR) asserting trial counsel was ineffective in a number of respects.[1] After trial, the PCR court entered a detailed ruling, addressed each of Connell's claims, and concluded Connell had failed to prove his ineffectiveness claim.

         On 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.

         We 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 deficiently." Id.

         Connell 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, [2] 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 of proof.

         The PCR 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.

         Connell 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 ...

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