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Jones v. State

Court of Appeals of Iowa

July 24, 2019

JESSIE JAMES JONES, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Clinton County, Tom Reidel, Judge.

         The applicant appeals the denial of his application for postconviction relief, following his conviction for sexual abuse in the second degree.

          Stuart G. Hoover of Blair & Fitzsimmons, P.C., Dubuque, for appellant.

          Thomas 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.

         Jessie 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.

         I. Background Facts and Proceedings.

         In fall 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.

         A jury 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.

         A.E.-S. 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.

         A 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.

         The 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.

         After 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.

         The defense did not present any evidence; outside the presence of the jury, defense counsel made the following record with Jones:

Q. Mr. Jones, you understand that you have an absolute right to testify on your own behalf if you want to?
A. Correct.
Q. You also understand that you have an absolute right not to testify if you chose not to?
A. Correct.
Q. And I can make recommendations and suggestions to you, but you understand that ultimately the decision is yours to make?
A. Correct.

         The 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.

         Jones 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 ...


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