from the Iowa District Court for Clinton County, Tom Reidel,
applicant appeals the denial of his application for
postconviction relief, following his conviction for sexual
abuse in the second degree.
G. Hoover of Blair & Fitzsimmons, P.C., Dubuque, for
J. Miller, Attorney General, and Sheryl Soich, Assistant
Attorney General, for appellee State.
Considered by Potterfield, P.J., and Tabor and Bower, JJ.
POTTERFIELD, PRESIDING JUDGE.
Jones appeals the denial of his application for
postconviction relief (PCR) following his conviction of
sexual abuse in the second degree. Jones claims the PCR court
abused its discretion in denying his application for the
appointment of an expert to testify in his PCR hearing
regarding the standard of professional conduct for attorneys.
Additionally, Jones argues his PCR application should have
been granted because his trial counsel breached an essential
duty by (1) failing to call an expert to emphasize the lack
of rape-kit evidence; (2) failing to contest evidence of
Jones's DNA found on the complaining witness's
"wrong" underwear or explain the limitations to DNA
evidence; (3) failing to challenge whether the jury panel was
made up of a fair cross section of the community; (4) wrongly
advising Jones regarding possible impeachment based on his
prior convictions and, as a result, wrongly advising Jones
not to testify in his own defense. He asks that we consider
the cumulative effect of trial counsel's errors.
Background Facts and Proceedings.
2010, Jones was charged with three counts of sexual abuse in
the second degree. In each of the counts, it was alleged
Jones perpetrated sex acts on nine-year-old A.E.-S.
trial took place over two days in March 2011. At the trial,
A.E.-S, who was a child in the home Jones had been living in
during the relevant time periods, testified Jones pulled her
down onto the air mattress Jones was using as a bed in the
family living room, pulled down her pants and underwear, and
"sticked his nasty part in her butt." A.E.-S
estimated Jones did so for four or five minutes. Afterward,
A.E.-S grabbed a phone and hid under her bed. A.E.-S. called
her mother but was too hysterical for her mother to
understand anything other than that A.E.-S was saying
something about Jones. A.E.-S.'s mother called another
one of her children-A.E.-S.'s older sister-and asked her
to go home to check on A.E.-S. When the older sister, the
older sister's friend, and the adult who had been driving
them arrived at the home, they found A.E.-S. under the bed
crying. She told them, "[Jones] raped me again."
Once A.E.-S.'s stepfather arrived home, he checked
A.E.-S. for any serious external injuries before ultimately
deciding to drive her to the emergency room himself rather
than calling for an ambulance.
was seen by a doctor and nurse at the hospital; the medical
records indicate medical professionals did an external exam
and reported, "Normal genitalia for age, no tenderness,
no lesions, no obvious injury." A sexual-assault exam
was not completed because a police officer who came to the
hospital in response to the allegation of sexual assault,
after speaking to a worker from the department of human
services, advised medical personnel not to complete an exam
as one would be completed at a Child Protection Center (CPC)
later. At trial, the officer admitted this was a mistake, as
A.E.-S. was not seen at a CPC for a number of days.
police officer followed A.E.-S. and her mother home from the
hospital and asked A.E.-S. to provide the clothes she was
wearing at the time of the assault. A.E.-S. went to her room
and retrieved a pair of polka-dot leggings, pink underwear, a
shirt, and a sweatshirt. The officer also took the bedding
from the air mattress.
clothing-but not the bedding-was later tested for the
presence of seminal fluid at the Iowa Department of Criminal
Investigations. The inside crotch of the underwear given to
the officer tested positive for the presence of semen, from
which a DNA sample was taken. The criminalist who completed
the testing testified that he was able to match sixteen out
of sixteen DNA fragments from the sample from the underwear
with the sample taken from Jones at the police station. The
criminalist testified fewer than one out of 100 billion would
be expected to have the same profile.
the State rested, Jones moved for a judgment of acquittal,
which the district court granted as to two of the three
counts of sexual abuse in the second degree.
defense did not present any evidence; outside the presence of
the jury, defense counsel made the following record with
Q. Mr. Jones, you understand that you have an absolute right
to testify on your own behalf if you want to?
Q. You also understand that you have an absolute right not to
testify if you chose not to?
Q. And I can make recommendations and suggestions to you, but
you understand that ultimately the decision is yours to make?
jury found Jones guilty of the remaining count of sexual
abuse in the second degree. He was later sentenced to a term
of incarceration not to exceed twenty-five years.
filed a direct appeal of his conviction, arguing his trial
counsel provided ineffective assistance by not objecting to
prosecutorial misconduct during the State's closing
statement. A panel of our court found that Jones failed to
establish either a breach of duty by counsel or resulting
prejudice and affirmed Jones's ...