Carlos Rafael Navarrette v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 21-1864
Filed July 13, 2023

CARLOS RAFAEL NAVARRETTE,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Stuart Werling, Judge.

An applicant appeals the denial of his postconviction-relief application.

AFFIRMED.

Thomas Hurd of the Law Office of Thomas Hurd, PLC, Des Moines, for

appellant.

Brenna Bird, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee State.

Considered by Schumacher, P.J., and Chicchelly and Buller, JJ.
2

SCHUMACHER, Presiding Judge.

Carlos Navarrette appeals the denial of his post-conviction relief (PCR)

application. He claims his trial counsel was ineffective in failing to investigate the

possibility of certain defenses and in failing to obtain an expert witness. We find

Navarrette’s trial counsel did not breach an essential duty. Accordingly, we affirm.

I. Background Facts & Proceedings

Navarrette was charged with four counts of second-degree sex abuse and

one count of lascivious acts with a child in 2013. The charges stemmed from

sexual abuse Navarrette committed against two children, A.N. and C.N., between

2010 and 2012. The children made allegations of sexual abuse perpetrated by

Navarrette to their mother, police, and Dr. Barbara Harre, a child abuse

pediatrician and director of the Davenport Child Protection Response Center.

Navarrette’s trial counsel focused on a theory that the children were

coached by their mother, who was angry with Navarrette for having a second family

at the same time that he was dating the mother. Navarrette’s counsel hired Tina

Flaherty, a licensed independent social worker, to review the children’s interview

with Dr. Harre. Trial counsel tasked Flaherty with determining whether the

interview process complied with forensic interviewing techniques. While

Navarrette’s counsel did not plan to hire Flaherty as an expert witness,1 he hoped

the report would shed light on whether it would be worthwhile to hire an expert. In

her report, Flaherty noted some technical errors in the interview but ultimately

found the errors were too minor to undermine the reliability of the children’s

1Navarrette’s counsel knew Flaherty personally and believed that fact could be
used to undermine her credibility as an expert witness.
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statements. As a result, Navarrette’s counsel did not obtain an expert witness on

issues related to the reliability of the children’s statements.

A bench trial was held in 2014. Consistent with counsel’s prior strategy, the

defense focused on a theme of the mother coaching the children. The defense

presented no witnesses but offered text messages showing the mother of the

children was upset with Navarrette around the time the allegations surfaced. While

defense counsel did interview the potential witnesses suggested by Navarrette,

none of the three testified, either because of immigration concerns or because the

information they possessed was irrelevant. The district court found Navarrette

guilty on all charges. In doing so, the court expressly found the children credible.

The court elaborated:

The court found the victims’ testimony extremely credible for
many reasons. Their mother testified they did not want to be alone
with the defendant, a sign of an abusive relationship. There was
evidence presented that A.N. and C.N. are now having behavior
problems consistent with sexual abuse victims. The victims were
very obviously afraid of the defendant in court and could not out of
fear even look directly at him. They wept and trembled recalling the
abuse. They were not hesitant in describing the abuse or confused
as to what took place. They have been consistent in telling their
stories and facts as to what took place to their mother, Dr. Harre, and
in court. . . . There was no evidence contradicting or discrediting
their testimony.

Navarrette appealed, claiming his trial counsel was ineffective for failing to

object to prior bad acts evidence and failing to object to inferences the district court

drew in its findings of fact. State v. Navarrette, No. 14-0662, 2015 WL 1817041,

at *1 (Iowa Ct. App. Apr. 22, 2015). This court upheld the convictions. Id. at *2.

In doing so, the appellate court found it was unnecessary to examine whether

counsel breached an essential duty because there was “overwhelming evidentiary
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support for the district court’s findings of guilt.” Id. at *1. In particular, the court

highlighted the district court’s findings related to the children’s credibility. Id.

Navarrette filed a PCR application on June 16, 2016. As relevant to this

appeal, he alleged his trial counsel was ineffective in failing to properly investigate

the use of a medical expert witness to challenge the reliability of the children’s

statements. At the PCR trial, the court heard testimony from Dr. Katherine Jacobs.

Dr. Jacobs opined that there were several factors suggesting the children’s

statements may not be reliable and that an expert would have been able to explain

those factors at trial. Navarrette’s trial counsel, Dr. Harre, and Navarrette also

testified. The court denied Navarrette’s application, finding in relevant part that his

counsel was not ineffective because his counsel adequately investigated the case

by obtaining and following Flaherty’s report. Navarrette appeals.

II. Standard of Review

While we typically review PCR actions for the correction of errors at law, we

review claims of ineffective assistance of counsel de novo. Ledezma v. State, 626

N.W.2d 134, 141 (Iowa 2001).

III. Discussion

Navarrette claims his trial counsel was ineffective in failing to investigate

and obtain an expert witness to challenge the reliability of the children’s

statements. “[A]ll postconviction relief applicants who seek relief as a

consequence of ineffective assistance of counsel must establish counsel breached

a duty and prejudice resulted.” Lamasters v. State, 821 N.W.2d 856, 866 (Iowa

2012) (alteration in original) (quoting Castro v. State, 795 N.W.2d 789, 794 (Iowa

2011)). A failure to prove either element is fatal to an applicant’s claim. Id.
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We begin by examining whether Navarrette’s counsel breached an

essential duty. Navarrette “must demonstrate his trial attorney performed below

the standard demanded of a ‘reasonably competent attorney.’” Id. (quoting

Strickland v. Washington, 466 U.S. 668, 687 (1984)). “We start with the

presumption that the attorney performed competently and proceed to an

individualized fact-based analysis.” Id. Our supreme court has made clear:

[I]neffective assistance is more likely to be established when the
alleged actions or inactions of counsel are attributed to a lack of
diligence as opposed to the exercise of judgment. Improvident trial
strategy, miscalculated tactics or mistakes in judgment do not
necessarily amount to ineffective counsel. When counsel makes a
reasonable tactical decision, this court will not engage in second-
guessing. Selection of the primary theory or theories of defense is a
tactical matter.

Id. (alteration in original) (internal quotations and citations omitted). “Strategic

choices made after thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable; and strategic choices made after less than

complete investigation are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation.” Strickland, 466

U.S. at 690–91.

We determine Navarrette’s trial counsel did not breach an essential duty by

failing to investigate and obtain an expert witness to challenge the reliability of the

children’s statements. Counsel did in fact investigate the issue and obtained a

report from Flaherty, a licensed independent social worker focused on child abuse.

After reviewing relevant case files, Flaherty determined that the interviews with the

children contained certain errors, including “a degree of non-neutrality, a lack of

self-awareness of [the interviewer’s] biases,” and leading questions. Ultimately,
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however, “there were not gross errors in the interview that appeared to impact the

basis of the allegations.” At the PCR hearing, Navarrette’s trial counsel explained

that the report led him to believe pursuing further expert testimony would not be

fruitful. That strategic decision, made on the basis of Navarrette’s counsel’s

investigation and recommendation by an experienced practitioner in the field, does

not fall below the level of effective counsel.

But Navarrette takes his argument a step further on appeal. He claims the

Flaherty report itself contained information that his counsel was obligated to follow-

up on and investigate further. In particular, Flaherty highlighted “suspicions” of two

syndromes, sexual abuse in divorce syndrome and parental alienation syndrome,

that may have been relevant to Navarrette’s defense.

To begin with, we question whether those specific allegations are preserved

for our review.

“It is a fundamental doctrine of appellate review that issues must
ordinarily be both raised and decided by the district court before we
will decide them on appeal.” Meier v. Senecaut, 641 N.W.2d 532,
537 (Iowa 2002). “When a district court fails to rule on an issue
properly raised by a party, the party who raised the issue must file a
motion requesting a ruling in order to preserve error for appeal.” Id.

Lamasters, 821 N.W.2d at 862. Navarrette’s PCR application merely alleges,

“petitioner requested that trial counsel seek a medical expert witness” and “asked

for an expert witness to help present a theory of defense.” The issue of specific

allegations in Flaherty’s report was not discussed at the PCR trial. And as

Navarrette notes in his appellate brief, the district court limited its discussion of this

issue to counsel’s efforts to obtain the report—the court’s decision omits any
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discussion of counsel’s actions after obtaining the report. Thus, the matter was

likely not raised to or decided by the district court.2

Even if we consider the claim, we determine it to lack merit. While Flaherty

did identify the two syndromes as potentially relevant to Navarrette’s defense, she

also noted several factors that did not meet the syndromes’ criteria. Essentially,

while the circumstances surrounding the children’s statements were similar to

those found with either syndrome—parental figures fighting and the timing of the

allegations—the children’s behavior and allegations themselves comported with

neither syndrome. Flaherty found A.N.’s allegations to be highly credible. And

Navarrette’s counsel testified that his approach to examining children differs from

that of adults. There were ample reasons not to further pursue an investigation

into the two syndromes.

In addition to the concerns expressed by counsel at trial, we have our own

doubts as to whether expert testimony that essentially implied the children made

false allegations would be admissible under our precedent. See State v.

McEndree, No. 12-0983, 2013 WL 3458217, at *4–7 (Iowa Ct. App. July 10, 2013)

(affirming the exclusion of expert testimony “that some people make false

allegations of sexual abuse and that the reasons for false allegations include

‘financial motivation, mental illness, and revenge or retribution’” because “the

testimony indirectly rendered an opinion on the credibility or truthfulness of a

witness”); State v. Schott, No. 10-0158, 2011 WL 2071725, at *1–2 (Iowa Ct. App.

2Navarrette does not claim his PCR counsel was ineffective, nor could he in this
appeal. See Goode v. State, 920 N.W.2d 520, 527 (Iowa 2018) (“The applicant
must assert his claim of ineffective assistance of postconviction counsel raised on
appeal in a separate application for PCR.”).
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May 25, 2011) (affirming the exclusion of expert testimony “on general literature

as to why teens might make false allegations of sex abuse,” because it “amounted

to a thinly-veiled attempt to impugn the credibility of [the victim]”). This offers an

additional reason to find counsel was not ineffective.

AFFIRMED.