IN THE COURT OF APPEALS OF IOWA
No. 16-1909
Filed August 16, 2017
VINCENT MUMMAU,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Clayton County, Michael J.
Shubatt, Judge.
Defendant appeals the district court decision denying his petition for
postconviction relief from his conviction for third-degree sexual abuse.
AFFIRMED.
Angela Campbell of Dickey & Campbell Law Firm, P.L.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee State.
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
2
BOWER, Judge.
Vincent Mummau appeals the district court decision denying his petition
for postconviction relief from his conviction for third-degree sexual abuse. We
find Mummau has failed to show he received ineffective assistance from his
defense and appellate counsel. We also find the postconviction court did not
abuse its discretion in denying Mummau’s request for a subpoena of certain cell
phone records. We affirm the district court’s decision denying Mummau’s
request for postconviction relief.
I. Background Facts & Proceedings
The following facts are set out in Mummau’s direct appeal:
On July 7, 2011, B.K. arrived at the home of Vincent
Mummau to fix his television and pick up eggs. After working on
one television in the lower level of the home, Mummau suggested
she also see the one upstairs and offered her a tour of his home.
The two walked upstairs to the second level of the home. Mummau
asked whether she “need[ed] some loving” to which she responded
“not today.” The tour continued to Mummau's bedroom, where B.K.
declined his advances again. At some point, Mummau forced B.K.
onto the bed, landing on top of her. Mummau then instructed her to
remove her clothes. B.K. stood and complied. Mummau
performed various sex acts on B.K. and left the room. B.K.
reported the incident to police several days later.
State v. Mummau, No. 12-1082, 2013 WL 2145994, at *1 (Iowa Ct. App. May 15,
2013) (footnote omitted). At the time of the incident, B.K. was a seventy-three
year old woman in poor health.
Mummau was charged with sexual abuse in the third degree, in violation
of Iowa Code section 709.4(1)(a) (2011). Mummau admitted he engaged in
sexual conduct with B.K. but stated the encounter was consensual. A jury found
Mummau guilty of third-degree sexual abuse. He was sentenced to a term of
3
imprisonment not to exceed ten years. Mummau’s conviction was affirmed on
appeal. See id. at *7.
On April 27, 2015, Mummau filed an application for postconviction relief,
claiming he received ineffective assistance of counsel during his criminal trial.
He claimed defense counsel (1) failed to object to certain evidence and failed to
move for a mistrial; (2) failed to impeach witnesses properly; (3) failed to present
character evidence; (4) failed to investigate evidence that could have been used
to impeach B.K.; and (5) was generally ineffective. Mummau also claimed
appellate counsel failed to raise issues that should have been raised.1
During the postconviction proceedings, Mummau filed a motion seeking
the production of the cell phone records of B.K. and eight other people for thirty
days before and thirty days after July 7, 2011. He stated the evidence was
needed to show defense counsel did not adequately investigate impeachment
evidence concerning B.K.’s testimony about who she told of the sexual assault
and when she told them. The State resisted the motion. The court granted the
motion as to B.K.’s cell phone records but denied the request for the cell phone
records of the other people. Subsequently, B.K.’s estate objected to the order
requiring the production of her cell phone records.2 After a hearing, the court
denied Mummau’s motion to authorize the disclosure of B.K.’s cell phone
records.
At the postconviction hearing, the deposition of defense counsel was
presented. The district court found Mummau failed to show counsel breached an
1
Mummau’s counsel for his direct appeal was the same attorney who represented him
during the criminal trial.
2
By the time of the postconviction proceedings, B.K. was deceased.
4
essential duty or he was prejudiced by counsel’s conduct. The court concluded
Mummau failed to show he received ineffective assistance of counsel. Mummau
now appeals the district court’s decision.
II. Ineffective Assistance
We conduct a de novo review of claims of ineffective assistance of
counsel. State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish a
claim of ineffective assistance of counsel, a defendant must prove (1) counsel
failed to perform an essential duty and (2) prejudice resulted to the extent it
denied the defendant a fair trial. Id. A defendant’s failure to prove either element
by a preponderance of the evidence is fatal to a claim of ineffective assistance.
State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).
A. Vouching
1. Mummau claims defense counsel should have objected because
witnesses were improperly permitted to vouch for the credibility of B.K. A witness
may not directly or indirectly render an opinion on the credibility of another
witness. See State v. Dudley, 856 N.W.2d 668, 676 (Iowa 2014). This is
because a witness should not comment on a defendant’s guilt or innocence.
State v. Brown, 856 N.W.2d 685, 689 (Iowa 2014).
First, during the trial, Maria Farmer, a sexual assault response nurse who
examined B.K., was asked, “Can you describe [B.K.’s] demeanor when you were
getting her medical history from her?” The court overruled defense counsel’s
objections. Farmer then testified B.K. “was very open about what was going on
and talked very strongly about the events that had occurred the night before, but
by the time of the end of it, she was tearful, when it really got down to the details
5
of the event.” We find there was no breach of duty because defense counsel did
object to the question. Additionally, Farmer’s testimony concerned B.K.’s
demeanor and was not improper vouching. See id.
Second, Farmer was asked, “As a trained sexual assault response nurse,
is a delay in reporting common?” Defense counsel raised several objections,
which were overruled by the district court. Farmer answered, “Yes, it’s common
that they delay in receiving treatment.” Defense counsel did not breach an
essential duty because he objected to the question. Furthermore, Farmer’s
testimony was not improper because she gave no opinion about this specific
case, stating only a delay was common. See Dudley, 856 N.W.2d at 676 (citing
State v. Payton, 481 N.W.2d 325, 327 (Iowa 1992)).
Third, defense counsel asked Farmer if there was medical evidence that
would dispute Mummau’s version of the events and Farmer responded, “History
taking in the medical profession is evidence. Your statement to me, just as in
chest pain, is medical evidence. So, yes, medical evidence is what you state is
wrong with you.” This question and answer did not relate to improper vouching,
and Mummau has not shown he received ineffective assistance on this ground.
Fourth, Deputy Brent Ostrander was asked why a photograph of Mummau
was taken when he was not wearing a shirt. Ostrander replied, “I assume that it
was the State’s idea that since there is a sexual assault and at the time that the
sexual assault was reported, it was believed that Vincent wasn’t wearing a shirt.”
No objection was made to this statement. We find this statement does not
involve improper vouching because Deputy Ostrander was not stating another
witness was credible. He gave no opinion as to whether an investigation was
6
warranted, but stated there was an investigation of Mummau, which would have
been apparent from the fact he was being prosecuted for sexual abuse. Cf.
Brown, 856 N.W.2d at 689 (finding it was improper for an expert witness to state
an investigation of a witness’s account of sexual abuse was “clearly warranted”).
Mummau has not shown he received ineffective assistance due to counsel’s
failure to object to the statement.
Fifth, Deputy Steven Holst testified B.K. was a strong woman. When
questioned about this statement on cross-examination, Deputy Holst stated, “she
was strong in the fact that she faced a traumatic experience and she was able to
express her feelings about it.” No objection was made. As the postconviction
court pointed out, the evidence B.K. was a strong woman was consistent with the
defense’s theory she would not have complied with Mummau’s request for sex if
she did not agree with it. The postconviction court also noted an objection to the
evidence would have drawn more attention to it. We conclude Mummau has not
shown he received ineffective assistance due to defense counsel’s failure to
object.
2. Mummau claims defense counsel should have filed a motion for
mistrial due to improper vouching for B.K. based on the following statements,
which were objected to during the trial. Deputy Ostrander was asked to
described B.K.’s demeanor and he stated, “My time with [B.K.], I have noticed
her as a very direct and what I would consider an honest person.” The district
court sustained defense counsel’s objection and directed the jury to disregard the
answer. Also, when Deputy Ostrander was asked about B.K.’s demeanor, he
7
stated, “[B.K.] was fearful.”3 Defense counsel’s objection was denied by the
court. Special Agent Mike Krapfl testified, “In my opinion, [B.K.] did not go to the
bed on her own.” The court sustained defense counsel’s objection to the
statement.
In his deposition, defense counsel testified to his reasons for not filing a
motion for a mistrial:
That jury that we had contained a lady who Vince went to
church with, who ended up being the foreman of that jury, it had a
lady whose brother had been wrongfully accused of sexual
harassment, and I believe two or three other men who had been
criminal defendants.
I thought we had a favorable jury. Vince always wanted to
try to get this over with, as did I. And I think Vince, if he's honest
about it, and we had talked about it, felt we had a good jury. To ask
for a mistrial, if it was granted, would have put him seeking a retrial
in front of a jury that would not be as favorable as what this jury
seemed to me to be.
We conclude defense counsel engaged in a reasonable trial strategy to try the
case to the jury already present, rather than seeking a mistrial. See State v.
Ross, 845 N.W.2d 692, 698 (Iowa 2014) (noting a claim of ineffective assistance
requires “more than a showing that trial strategy backfired” or another attorney
would have tried the case differently). We agree with the district court’s
statement, “Further, given that the jury was perceived as favorable to the
defense, it was reasonably strategic for counsel not to move for a mistrial over
this issue.”
3
We additionally find this statement about B.K.’s demeanor was not improper
vouching. See Brown, 856 N.W.2d at 689.
8
B. Hearsay Evidence
In general, hearsay evidence is not admissible. Iowa R. Evid. 5.802.
“‘Hearsay’ is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Iowa R. Evid. 5.801(c). Hearsay evidence may be admissible if it
comes within one of the exceptions to the hearsay rule. See Iowa R. Evid. 5.803;
State v. Newell, 710 N.W.2d 6, 18 (Iowa 2006) (“Hearsay is not admissible
unless it falls within one of several enumerated exceptions.”).
During the criminal trial, the State presented a recording of a jail
conversation between Mummau and Marvin Kahr, a mutual friend of Mummau
and B.K. Defense counsel filed a motion to suppress and a motion in limine, and
objected during the trial but the district court ruled the recording was admissible.
Mummau now claims defense counsel should have sought to keep out portions
of the recording on hearsay grounds. In his deposition, defense counsel stated if
the tape was going to come in, it was better for the whole thing to come in. He
stated parts of the recording were helpful to the defense. Defense counsel also
stated, “[Y]ou have to conserve your objections when you’re trying a case.” We
find defense counsel made a strategic decision not to object to the recording on
hearsay grounds. As the postconviction court found, “This was not a random
decision or an oversight on [defense counsel’s] part.”
Mummau claims defense counsel should have objected to B.K.’s
testimony concerning Kahr’s statements when she told him what had happened
with Mummau. The statements—“Oh, my God,” “Well, let’s go to Oelwein, and
we can talk about it,” and “Are you going to turn him in?”—were not offered for
9
the truth of the matter asserted, and therefore, do not constitute hearsay. See
Iowa R. Evid. 5.801(c). “Counsel does not fail to perform an essential duty by
failing to raise a meritless objection.” State v. Lopez, 872 N.W.2d 159, 169 (Iowa
2015).
B.K. also testified she talked to Deputy Holst, who told her she had ten
years to report an offense of sexual abuse, said “What’s going on?” and told her
to get checked out at a hospital. Again, the statements were not offered for the
truth of the matter asserted. See Iowa R. Evid. 5.801(c). Defense counsel had
no obligation to object to the statements on hearsay grounds.
Deputy Ostrander testified “[B.K.] had conveyed to us at the time we
arrived that she had a neighbor staying there to try to help her because she was
fearful for her safety. She was fearful that something was going to happen now
that this has come out.” Defense counsel objected on hearsay grounds and the
objection was denied by the district court. Mummau has not shown defense
counsel breached an essential duty.
Deputy Ostrander testified concerning B.K.’s statements to him about
what Mummau was wearing and described the sheets in his bedroom. The
postconviction court found, “At least in part, this was a strategic decision by the
defense because there were inconsistencies between what B.K. told Ostrander
and what she said on other occasions. In a case largely dependent on credibility,
any inconsistencies are valuable to the defense.” The court additionally noted
Mummau was not prejudiced by the statements because he did not deny B.K.
came to his house on the day in question. We conclude Mummau has not shown
he received ineffective assistance on this issue.
10
Deputy Ostrander testified Mummau’s shorts were sent to the crime lab for
DNA testing and they were positive for seminal fluid belonging to Mummau.
Mummau claims the DNA evidence was hearsay and defense counsel should
have objected. Even if the evidence was hearsay, it was not prejudicial to
Mummau. He admitted to a sexual encounter with B.K., but claimed it was
consensual, although B.K. now regretted the encounter. The fact his seminal
fluid was in his shorts was not prejudicial and he was not harmed by counsel’s
failure to object.
Special Agent Krapfl testified Mummau told him he called Kahr and B.K.
on July 7, 2011, but when Krapfl looked at cell phone records, he did not see
where Mummau had called Kahr. Mummau claims defense counsel should have
objected because the contents of the cell phone records were hearsay. The
postconviction court stated:
First, the testimony seems to verify Mummau’s statement that he
had, in fact, called B.K., which was helpful to the defense. Whether
or not he called Kahr is a minor point in light of all of the evidence
offered at trial, and Mummau has not shown a likelihood that the
outcome of the trial would have been different if this testimony had
been kept out.
We agree with the court’s statements and conclude Mummau has not shown he
received ineffective assistance of counsel on this ground.
C. Confrontation Clause
Under the Confrontation Clauses of the United States and Iowa
Constitutions, a defendant has the right “to be confronted with the witnesses
against him.” U.S. Const. amend. VI; Iowa Const. art. I, § 10. “A testimonial out-
of-court statement made by a declarant who is unavailable to testify is
11
inadmissible if the defendant has not had an opportunity to cross-examine the
declarant.” State v. Wells, 738 N.W.2d 214, 218 (Iowa 2007).
Mummau briefly mentions the admission of the recording of his
conversation with Kahr violated his rights under the Confrontation Clause
because he was not allowed to cross-examine Kahr about the statements. He
does not cite any authority or give further explanation of his claim. We conclude
the issue has not been adequately raised. See Iowa R. App. P. 6.903(2)(g)(3)
(“Failure to cite authority in support of an issue may be deemed waiver of that
issue.”).
Mummau also claims the admission of the DNA results violated his rights
under the Confrontation Clause and defense counsel should have objected to the
admission of the evidence. The admission of evidence in violation of the
Confrontation Clause does not require reversal if the error was harmless beyond
a reasonable doubt See id. We find the guilty verdict was not attributable to the
evidence Mummau’s DNA was found in his shorts, and conclude any error in
admitting the DNA evidence was harmless beyond a reasonable doubt.
D. Impeachment of B.K.
Mummau claims he received ineffective assistance because defense
counsel did not properly impeach B.K. He states defense counsel should have
done more to bring out inconsistencies in her testimony.4
4
Mummau relies in part on the inconsistencies between B.K.'s trial testimony in April
2012 and her statements in a civil deposition in October 2013. As the postconviction
court pointed out, defense counsel "cannot be criticized for failing to impeach B.K. with
deposition testimony that did not yet exist."
12
Defense counsel confronted B.K. with some of the inconsistencies in her
statements. He stated, however, he felt it was more productive to attempt to
show B.K. agreed to the sexual encounter with Mummau but changed her mind
and had a case of regret rather than attempt to show she was a liar. Defense
counsel testified, “I was concerned about making her appear to be more of a
victim.” We conclude defense counsel made a reasonable strategic decision
concerning his questioning of B.K. We find Mummau has not shown defense
counsel breached an essential duty by failing to impeach B.K. with absolutely
every inconsistency in her statements. He has failed to show he received
ineffective assistance of counsel on this ground.
E. Character Evidence
Prior to trial, Mummau indicated he wanted to present the testimony of
witnesses to show he was a peaceful, non-aggressive person. The district court
ruled the testimony was inadmissible and Mummau made an offer of proof. On
appeal, Mummau claimed the district court erred in not allowing testimony from
the character witnesses. Mummau, 2016 WL 2145994, at *3. We found no error
by the district court, concluding the evidence, as shown in the offers of proof, did
not meet the foundational requirements found in State v. Hobbs, 172 N.W.2d
268, 271 (Iowa 1969). Id. at *5. In his postconviction action, Mummau claims he
received ineffective assistance because defense counsel did not lay a sufficient
foundation for the character evidence to be admissible.
Mummau had a prior conviction for assault in 2010, which the State
claimed was sexually motivated. Defense counsel filed a motion in limine and
the district court ruled the evidence of the conviction was inadmissible. Defense
13
counsel recognized putting on evidence to show Mummau was peaceful and
non-aggressive made it much more likely the evidence of his prior conviction for
assault would have been admissible to impeach the testimony of the character
witnesses. The postconviction court stated:
Thus, counsel was not ineffective for not offering this character
evidence. Said another way, it was better for Mummau that this
particular door remained closed. At the very least, Mummau
cannot show that admission of the testimony likely would have led
to a different outcome, and thus cannot show prejudice.
We agree with the postconviction court’s conclusions and determine Mummau
has not shown he received ineffective assistance of counsel on this issue.
F. Investigation
Mummau claims he received ineffective assistance because defense
counsel did not adequately investigate the case. He states defense counsel
should have done more to reveal evidence to show B.K. had a financial
motivation to testify against him. After the criminal case, B.K. was a party in a
civil action against Mummau. He states defense counsel should have
investigated whether B.K. was a party in other lawsuits, her cell phone records, a
domestic abuse petition she filed against another man, and other instances in
which she called the police.
Defense counsel’s duty to investigate “depends on the facts and
circumstances of a particular case.” Schrier v. State, 347 N.W.2d 657, 662 (Iowa
1984). “[T]he duty to investigate and prepare a defense is not limitless.” Id. “It
does not require that counsel pursue ‘every path until it bears fruit or until all
conceivable hope withers.’” Id. (citations omitted). “The extent of the
14
investigation required in each case turns on the peculiar facts and circumstances
of that case.” Id.
Defense counsel testified he believed it would have “made us look silly in
front of the jury” to argue B.K. had a financial motive for alleging she was
sexually abused by Mummau. We find defense counsel made a reasonable
strategic decision not to pursue an argument during the criminal trial B.K. was
making false statements for a financial motive. The cell phone records were not
in evidence at the postconviction hearing and Mummau only speculates they
would have provided evidence helpful to the defense. As to the other matters
raised by Mummau, we find the evidence would not have been relevant to the
charges against him. Additionally, we agree with the postconviction court’s
statement, “The Court finds nothing in this evidence to suggest that its admission
likely would have changed the outcome.” We conclude Mummau has not shown
he received ineffective assistance due to defense counsel’s failure to investigate.
G. Appellate Counsel
Mummau claims he received ineffective assistance from appellate counsel
because the issues he now raises concerning vouching were not raised on
appeal. He also claims his hearsay and Confrontation Clause issues should
have been raised on appeal. We have determined these issues are without
merit. We agree with the postconviction court’s statement, “There has been no
showing that raising the issues on the direct appeal would have resulted in a
reversal that would have vacated the conviction and sentence.”
15
III. Cell Phone Records
Mummau claims the postconviction court abused its discretion by not
permitting him to subpoena the cell phone records of B.K. and eight other people.
He wanted the records to attempt to show defense counsel failed to conduct a
reasonable investigation. Mummau states the cell phone records would show
whether B.K. was truthful in her statements about who she contacted after her
sexual encounter with him. “We review a district court’s discovery decisions for
an abuse of discretion.” Willard v. State, 893 N.W.2d 52, 58 (Iowa 2017).
The district court first noted Mummau sought the records under 47 U.S.C.
§ 551(c)(2)(b), which applies only to governmental agencies. Because Mummau
is not a governmental agency, he is not entitled to cell phone records under this
statute. See Interscope Records v. Does 1-7, 494 F.Supp.2d 388, 390 (E.D. Va.
2007). Additionally, the court found the cell phone records were not reasonably
calculated to lead to the discovery of admissible evidence. The records would
not give Mummau any information about the content of B.K.’s calls. The court
determined the cell phone records “would seem to have little bearing on the
issues before the Court, given that [Mummau] knows of numerous individuals
with whom [B.K.] had contact during the relevant time period.” We conclude the
district court did not abuse its discretion in denying Mummau’s request for a
subpoena of cell phone records.
We affirm the district court’s decision denying Mummau’s application for
postconviction relief.
AFFIRMED.