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IN THE COURT OF APPEALS OF IOWA No. 0-790 / 10-0182 Filed December 22, 2010 MONTRELL DESHONE ANDERSON, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee. ______________________________________________________________ Appeal from the Iowa District Court for Black Hawk County, Bruce B. Zager, Judge.

Applicant appeals the district court order denying his request for postconviction relief. AFFIRMED.

Scott A. Hall of Carney & Appleby, P.L.C., Des Moines, for appellant. Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kim Griffith, Assistant County Attorney, for appellee.

Considered by Mansfield, P.J., Danilson, J., and Miller, S.J.* Tabor, J., takes no part.
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).

2 MILLER, S.J. I. Background Facts & Proceedings Montrell Anderson was convicted of first-degree burglary and seconddegree sexual abuse, in violation of Iowa Code sections 709.3 and 713.3 (2005). The State alleged that on July 31, 2005, Anderson entered the home of Lynn, with whom he had been having a romantic relationship, uninvited and engaged in sex acts with her against her will. During the first day of Andersons criminal trial, on November 2, 2005, Lynn testified Anderson did not have a key to her home and she did not invite him over on July 31, 2005. Lynn stated she "cringed" when she heard Anderson come into her home because he had earlier left a telephone message for her that stated, "Bitch, soon as I see you, Im going to check you, Bitch. On my life, Bitch, your ass is void when I see you," and she understood that to mean he was going to hurt or kill her.1 She testified Anderson poked her in the head with his index finger, which was painful to her because she recently had surgery on her neck. She stated Anderson grabbed her throat and put her up against the wall in her bedroom. Lynn stated she believed Anderson was either going to strangle her or paralyze her as "I was supposed to be extremely careful because of my plates being fused into my spine." Anderson told Lynn to take her pants off so he could put his fingers inside her vagina because he believed he would be able to tell if she had been with another man. Lynn testified she laid down on the bed and complied "[b]ecause I didnt know what he was going to do to me and I was scared that he was going to
1

Lynn stated the parties had an argument on the evening of July 30, 2005.

3 hurt me more." After Anderson put his fingers in Lynns vagina, he stated he needed to do the next test of having sexual intercourse with her to determine if she had been with anyone else. Lynn testified she told him no, but he pulled down his pants and proceeded to have sexual intercourse with her. On the second day of trial Lynn affirmed, outside the presence of the jury, that everything she had testified to the day before was truthful and accurate. She expressed some concerns to the court that Anderson could be sentenced to sixty years in prison if convicted, and she believed that was too much. The judge warned Lynn she could not mention anything about sentencing. Lynn then

testified for the defense, stating Anderson had a key to her home. She also stated she sent Anderson sexually explicit text messages in the early morning hours of July 31, 2005. Yvonne Weatherly, Lynns neighbor, testified she telephoned the police over Lynns objections. Weatherly stated Lynn "was just, like, she was confused, you know, like--well, yeah, it happened but really it didnt happen, like that." She also stated, "she [Lynn] didnt really know if it was really rape or she didnt really know if it was just rough sex because he was mad at her." The State impeached Weatherly with evidence of prior convictions for forgery, and asked if she had been sentenced to fifty years in prison.2 Desirai Wright, another neighbor, testified that immediately after the incident Lynn stated she had been raped by Anderson and "as he was raping her he was choking her and pointing at her head like this with his finger." Wright

2

The State also questioned Weatherly concerning prior convictions for failure to affix a drug tax stamp and sale or manufacturing of a narcotic.

4 testified she believed Anderson was living at Lynns home. The State impeached Wright with evidence she had two previous convictions for fifth-degree theft. Anderson did not testify. The district court denied Andersons motion for judgment of acquittal. The State made an oral motion in limine asking to prevent Anderson from arguing that the sex acts were consensual because he had presented no evidence of consent. The district court ruled there was no

evidence the sex acts were consensual, and determined Anderson could not argue consent. The court went on to state, "you can certainly argue that it wasnt by force or against her will based on circumstantial evidence that you have." Defense counsel argued the court was placing a burden on defendant to come forward with some evidence. The court ordered defense counsel could not use the term "consensual," but could still argue the State had failed to prove it was by force or against the will. During closing argument the prosecutor stated that under one theory for first-degree burglary, the State needed to show Anderson remained in the home after his right, license, or privilege to be there had expired. stated: But the other thing is which hasnt been so much as even rebutted here, is under 4, the alternative for 4, all we would have to prove for element 4 is either the first part or the second. The defendant remained there after his right, license, or privilege to be there had expired. And [Lynn] has never said anything to the contrary that she said all along, she told him to leave, stop it, I dont want to do this, no, leave. Defense counsel moved for a mistrial on the ground that when the prosecutor said the evidence on this issue had not even been rebutted, the State The prosecutor

5 was attempting to place the burden on the defense. The prosecutor stated "I place no burden on the defense, Im just commenting on the evidence in this particular case." The district court denied the motion for a mistrial. The jury returned verdicts on November 8, 2005, finding Anderson guilty of first-degree burglary and second-degree sexual abuse. In a letter dated

November 12, 2005, Lynn recanted much of her previous testimony. She also wrote an undated letter that stated she told the prosecutor she wanted to tell the truth, and "he threaten me with perjury and going to jail."3 Anderson filed post-trial motions pointing out that the victim had recanted. Lynn testified at a post-trial hearing that she did not tell the truth on the first day of the trial. She stated she had been threatened with perjury when she testified on the second day. The district court denied the motions, finding Lynns written statement was not credible, and her testimony at the hearing was incredible and untruthful. Anderson was sentenced to a term of imprisonment not to exceed twenty-five years on each count, to be served concurrently. Anderson appealed, claiming his convictions should be overturned because Lynn recanted her testimony. The Iowa Court of Appeals affirmed his convictions, noting the trial court was in the best position to assess the victims credibility. See State v. Anderson, No. 06-1212 (Iowa Ct. App. Mar. 14, 2007).

3

This letter is file stamped November 14, 2005. It is not dated, but appears to have been written after the verdict because Lynn states she felt the police "used me to put him away for years for something he didnt do."

6 Anderson filed an application for postconviction relief.4 During the

postconviction hearing, the State questioned Anderson extensively about the contents of the pre-sentence investigation (PSI) report and his criminal history. At one point the court commented, "Just so you know, none of this really has anything to do with the post-conviction relief action." The State also asked the court to take judicial notice of the file in a different criminal case involving Anderson. The court stated it would take judicial notice of the case, but stated, "I think it really went to the States looking into what your purpose, or motive, or intent of filing this post-conviction relief action was. And again, the Courts not really interested in that." In his postconviction action, Anderson raised the following claims of ineffective assistance of counsel: (1) trial counsel failed to object when the

prosecutor mentioned Lynn was in fear of being paralyzed; (2) trial counsel failed to object to the prosecutors intimidation of Lynn; (3) trial counsel failed to object to improper impeachment of Weatherly; (4) trial counsel failed to object to the prosecutors misstatement regarding Weatherlys criminal history; (5) trial counsel failed to object to the prosecutors statement that Anderson had been asked to leave Lynns house; (6) appellate counsel failed to raise the issue that the court improperly ruled on the States motion in limine precluding him from arguing the sex acts were consensual; (7) appellate counsel failed to raise the issue that the court erroneously overruled his objection that the State was attempting to shift the burden of proof; and (8) appellate counsel failed to raise
4

Anderson filed a pro se application for postconviction relief on September 4, 2007. An amended application was filed on July 31, 2008, that further specified his grounds for relief.

7 the other issues set forth in his application for postconviction relief. After

considering and discussing each of these grounds, the district court denied Andersons application for postconviction relief. Anderson now appeals. II. Standard of Review Postconviction proceedings are law actions ordinarily reviewed for the correction of errors at law. Bugley v. State, 596 N.W.2d 893, 895 (Iowa 1999). Claims of ineffective assistance of counsel, however, are reviewed de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty, and (2) prejudice resulted to the extent it denied defendant a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2008). We presume that representation by counsel is competent, and a postconviction applicant has the burden to prove by a preponderance of the evidence that counsel was ineffective. Jasper v. State, 477 N.W.2d 852, 855 (Iowa 1991). III. Ineffective Assistance of Trial Counsel A. Anderson contends he received ineffective assistance of trial

counsel due to counsels failure to object or move for a mistrial when Lynn was threatened with perjury if she recanted her testimony. Lynn wrote a letter dated November 12, 2005, recanting much of her testimony from the first day of trial. In the undated letter she stated, "I tried to get up on the stand, I told the prosecutor I was getting up to tell the truth, and he threaten me with perjury and going to jail." At the hearing on post-trial motions, on December 9, 2005, Lynn testified that on the second day of trial, she had been threatened by the county attorney with

8 perjury if she changed her testimony. She stated she wanted to change her testimony, but was afraid to do so. The State points out there is no evidence during the trial that Lynn was threatened with perjury. Lynn did not testify at the time of the trial that the county attorney had threatened her with perjury charges. On the second day of trial Lynn was questioned outside the presence of the jury, and she stated she affirmed everything she had testified to the day before as being truthful and accurate. She also expressed concern that Anderson was potentially facing sixty years in prison. All of the evidence that Lynn was threatened by the county attorney arose after the verdicts on November 8, 2005. Lynns letter recanting h er testimony from the first day of trial is dated November 12, 2005. Her other undated letter, stating she had been threatened with perjury and going to jail, was apparently written after the verdict because Lynn states she felt she had been "used to put him away for years." Because there was no evidence during the trial that Lynn had been threatened by the county attorney, trial counsel had no reason to object or move for a mistrial. See State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996) (noting

defense counsel has no duty to make a meritless motion). We affirm the district courts decision denying Andersons claim of ineffective assistance of counsel on this issue. B. Anderson claims he received ineffective assistance due to trial

counsels failure to object when the prosecution employed improper methods of

9 impeachment to discredit the testimony of Weatherly. The prosecutor asked

Weatherly whether she had been sentenced to fifty years in prison after pleading guilty to multiple charges of forgery. Weatherly had pled guilty to nine counts of forgery, and the maximum sentence for each count of this class "D" felony is a term of imprisonment not to exceed five years. See Iowa Code

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