David Paul Douglass v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 20-0011
Filed November 23, 2021

DAVID PAUL DOUGLASS,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin,

Judge.

Applicant appeals the denial of his postconviction relief application.

AFFIRMED.

Nicholas Einwalter, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee State.

Considered by Tabor, P.J., and Greer and Badding, JJ.
2

GREER, Judge.

After being convicted of assault with intent to commit sexual abuse1 and

pleading guilty to the charge of lascivious acts with a child,2 David Douglass

challenges the denial of his application for postconviction relief (PCR). 3 Drilling

down, he posits his trial counsel made several errors that “went to the heart of his

case” in his jury trial involving the assault with intent to commit sexual abuse. Most

of his complaints relate to issues about an exhibit containing phone data and his

counsel’s failure to obtain other phone data and consider and develop Douglass’s

defense strategy to confront an eyewitness. Under these theories, Douglass

challenges his conviction for assault with intent to commit sexual abuse. 4 We

affirm the denial of his PCR application.

Standard of Review.

“We normally review postconviction proceedings for errors at law.” Castro

v. State, 795 N.W.2d 789, 792 (Iowa 2011). If the PCR applicant raises a

1 After his jury trial, David Douglass appealed directly from his criminal conviction
and alleged ineffective assistance of counsel over his trial counsel’s strategy of
allowing an eyewitness identification of him from a police photo lineup. See State
v. Douglass, No. 16-2221, 2018 WL 1865106, at *2–3 (Iowa Ct. App. Apr. 18, 2018)
(setting out detailed factual findings). Douglass unsuccessfully asserted his trial
counsel breached an essential duty by allowing a photo-array identification
process that identified him as a suspect; he also advocated for a new approach to
conduct the identification of suspects. Id.
2 The State at first charged Douglass with burglary in the second degree and

sexual abuse in the third degree. The jury found Douglass guilty of the lesser
included charge of assault with intent to commit sexual abuse. Because later
Douglass pled guilty in another case to lascivious acts with a child, the district court
sentenced Douglass to ten years in prison, which ran consecutive to his jury
conviction for a total term of incarceration not to exceed fourteen years.
3 Douglass authored a pro se application for PCR and filed it November 30, 2018.
4 In the PCR trial, Douglass also addressed his guilty plea in the other case, but

he makes only passing reference to those ineffective-assistance-of-counsel
arguments in this appeal. So we do not consider them.
3

constitutional claim involving ineffective assistance of counsel, our review is de

novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).

Analysis.

To prevail, Douglass must show (1) counsel breached an essential duty and

(2) prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

To prove prejudice, Douglass “must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. To make this determination, we consider the evidence

as a whole, including the extent of the effect of counsel’s purported error on the

overall trial. State v. Graves, 668 N.W.2d 860, 882–83 (Iowa 2003). Finally, we

presume the performance of trial counsel falls within a range of professional

assistance. State v. Harris, 891 N.W.2d 182, 186 (Iowa 2017). Douglass has the

burden to prove otherwise by a preponderance of the evidence. See State v.

Ondayog, 722 N.W.2d 778, 784 (Iowa 2006).

With a passionate appeal, Douglass urges his counsel’s failures went to the

“heart” of his case and were matters of “utmost importance.” The State contends

Douglass failed to prove either Strickland prong. We peel back the developed

theories to see if there is any merit to Douglass’s claims.

The text messages and other phone data.

First, Douglass contends trial counsel should have objected to the

admission of an exhibit at trial that showed a redacted text message exchange. At

the trial, the victim verified that the exhibit shows that she and Douglass exchanged

texts about his assault on her and that Douglass apologized. True, the exhibit

contained no identifying information about who sent the text message or who was
4

receiving the text message. Complaining that the exhibit failed to tie him to the

text message exchange, Douglass told the PCR court: “I do not know what the text

messages said. I know that it gives her saying that I was there and mine saying

I’m sorry or something.” (Emphasis added.) When asked about what part of the

covered message would have helped his case, Douglass answered “I have no

idea.” Put simply, Douglass maintains that the exhibit should have been “thrown

out.”

But trial counsel did object to the exhibit—both in a pretrial hearing and at

trial—and the district court overruled the objections.5 Based on this record, we do

not see how trial counsel’s conduct is unreasonable under the circumstances.

Because we examine claims of ineffective assistance of counsel in light of the

totality of the circumstances, Douglass failed to prove his counsel’s breach of duty

as it relates to the text message exhibit. See Ledezma, 626 N.W.2d at 142.

At the same time, Douglass complains that his request to gather data from

his own phone to use at trial was ignored by his trial counsel. He characterizes

that failure as ineffective assistance of counsel. Still, other than pointing to the

lack of response to his request, Douglass neglected to explain how any data from

his phone would have enhanced his defense. Moreover, trial counsel testified

Douglass never disputed that he was the person who sent the text message, so

requesting Douglass’s phone data likely would have bolstered the State’s case.

With no showing of how any of the phone data would have benefitted his defense,

5 In the hearing on the redacted portion of the text message, in the presence of
Douglass, the State confirmed the redacted portion contained information about a
previous, unrelated sexual abuse act against the victim. Douglass asked the court
to include all of the content of the message but the request was overruled.
5

Douglass fails to meet his burden to prove counsel was ineffective. See Dunbar

v. State, 515 N.W.2d 12, 15 (Iowa 1994) (finding that applicant did not identify what

the investigation would have revealed or how anything discovered would have

affected the outcome, thus his complaints about the adequacy of counsel’s

representation were not shown). “[I]t is not enough to simply claim that counsel

should have done a better job.” Id. Such is the case here, and we find Douglass

did not establish his counsel was ineffective for failing to request his phone data.

The eyewitness in the backyard strategy.

According to Douglass, he formulated a successful strategy for trial, which

was ignored by his trial counsel. He presumes that presenting a picture to the jury

of the “six-foot privacy fence” at the back of the house where the assault had

occurred would have shown them that the “five-foot” eyewitness lied about

identifying Douglass entering the house. Douglass explained the theory to the

PCR court.

Q. Were there some issues about that backyard that you
thought would be helpful in your defense? A. Yes.
Q. Could you let the Court know what concerns you had about
that backyard area? A. My concern was the—his original statement
was he saw the back of my head for three to five seconds over a 6-
foot wooden privacy fence between the neighbor’s house and the
house that I was allegedly at, and, I mean, I don’t see how that was
a possibility. I mean, the guy’s 5-foot tall. So, I mean—and to get a
good facial description of my face from the back, three to five
seconds was kind of odd how he did that.
Q. So based on those concerns, did you feel those were
reasons why you might have wanted to depose [the eyewitness]?
A. Yes.
Q. And in terms of investigation, did you want somebody to go
and check out or photograph this backyard? A. Yes.
Q. And what would have been the use of that? What would
you have done with that information? A. To show that you cannot
see the front of somebody’s face over a 6-foot privacy fence from the
6

garage to the back door of the house. You can’t get—I mean, you
just can’t see somebody’s face from the front to the back.

But Douglass admitted at the PCR trial that his trial counsel found problems with

this defense strategy.

Q. You were present when we deposed [trial counsel] about a
month or two ago; is that right? A. Yes.
Q. And so you heard the testimony that he gave; correct?
A. Yes.
Q. And that he testified that he has an investigator that works
for his office; right? A. Yes.
Q. And that he asked that investigator to go out to this crime
scene and take photographs of the privacy fence; right? A. That is
what he said.
Q. That’s what you wanted him to do; right? A. Yes.
....
Q. Would you agree with me that [trial counsel] said that the
evidence that he found was not helpful to you? Do you recall him
saying that? A. Yes, I would agree that he said that, yes.

And in fact in the deposition of trial counsel submitted to the PCR court, trial

counsel said:

Well, because the pictures showed that the privacy fence was
not as tall as what was presented to us initially and that was
Mr. Douglass’s representation to us that the—I think it was [the
eyewitness], would not have been able to see him at the back door
because the privacy fence would have prevented it.
The picture showed otherwise. There was a privacy fence,
but it was not tall to the extent that it would cover the back door. So
I determined the photographs would not be helpful.

A defense trial strategy that conflicts with the facts can be worse than no strategy

at all when a jury must assess the credibility of both a defendant and trial counsel.

Thus, trial counsel’s failure to pursue a losing strategy does not equate to

improvident trial strategy. See Harris, 891 N.W.2d at 186 (“Trial counsel is not

ineffective in failing to urge an issue that has no merit.”).
7

Under this theory, Douglass failed to show trial counsel functioned outside

the normal range of competency. See Ondayog, 722 N.W.2d at 785 (“[A]

defendant must overcome the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial strategy.’”) (citations omitted).

Conclusion.

Under the record presented here, Douglass’s trial counsel performed within

the standard of a reasonably competent attorney. And because Douglass failed

to show his trial counsel performed deficiently, we need not reach the prejudice

prong;6 so we affirm the denial of the PCR application without further

consideration. See State v. Russell, 897 N.W.2d 717, 730 (Iowa 2017) (“[I]f one

prong is not met, the other need not be addressed.”).

AFFIRMED.

6 Given the strong evidence against Douglass, including direct testimony from the
victim of the assault, it is unlikely a different result would have been possible. See
Ledezma, 626 N.W.2d at 143–44 (“To satisfy this requirement, an applicant must
meet ‘the burden of showing that the decision reached would reasonably likely
have been different absent the errors.’” (citation omitted)).