                    IN THE COURT OF APPEALS OF IOWA

                                    No. 17-1904
                               Filed January 9, 2020


DEMARRIO DESHON WRIGHT,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer,

Judge.



      DeMarrio Wright appeals following the denial of his application for

postconviction relief. AFFIRMED.




      Richard Hollis, Des Moines, for appellant.

      DeMarrio D. Wright, Fort Dodge, pro se appellant.

      Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee State.




      Considered by Bower, C.J., and May and Greer, JJ.
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BOWER, Chief Judge.

       DeMarrio Wright appeals following the denial of his application for

postconviction relief (PCR). We conclude Wright has failed to prove his claim of

ineffective assistance of counsel. We affirm.

       I.     Background Facts & Proceedings

       On August 15, 2011, a criminal complaint was filed accusing Wright of

lascivious acts with a child. A trial information filed on October 31, and amended

in July 2012, also charged Wright with sexual abuse in the third degree, sexual

abuse in the second degree, and indecent contact with a child.1 The minor victim

alleged Wright perpetrated multiple incidents of indecent contact and sex abuse

between 2005 and November 2010 in both Iowa and Mississippi.

       In October 2012, a jury found Wright guilty of sexual abuse in the second

and third degree and indecent contact with a child.2 We upheld his conviction on

direct appeal. State v. Wright, No. 12-2138, 2014 WL 956064, at *7 (Iowa Ct. App.

Mar. 12, 2014). Wright’s direct appeal challenged the admission of testimony

regarding a subsequent sex-abuse incident in Mississippi and alleged a speedy-

indictment violation. See id. at *3, *5. The supreme court denied further review.

       On June 23, 2014, Wright filed a PCR application. In a recast application,

Wright alleged multiple ways his counsel provided ineffective assistance at trial.

Following the PCR trial, at which Wright and his trial counsel testified, the district

court dismissed the application.


1 The original charge of lascivious acts with a child was dismissed by the court as
violating the speedy-indictment rule.
2 This was the second trial for Wright because the judge declared a mistrial during

the first trial.
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       Wright appeals, claiming his counsel provided ineffective assistance.

       II.    Standard of Review

       “Our review of postconviction-relief proceedings is typically for correction of

errors at law. But when . . . reviewing an ineffective-assistance-of-counsel claim,

we do so de novo because such claims are constitutional in nature.” Ruiz v. State,

912 N.W.2d 435, 439 (Iowa 2018) (internal citations omitted).

       To succeed on [an] ineffective-assistance-of-counsel claim, [Wright]
       must prove (1) counsel failed to perform an essential duty and (2)
       prejudice resulted. To establish the first prong, [Wright] must show
       his counsel “made errors so serious that counsel was not functioning
       as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
       We approach the first prong with the presumption counsel performed
       their duties competently; “we measure counsel’s performance
       against the standard of a reasonably competent practitioner.”
       Although not required to predict changes in the law, “counsel must
       ‘exercise reasonable diligence in deciding whether an issue is “worth
       raising.”’” Counsel is not burdened with the duty to raise an issue
       that has no merit. The second prong—prejudice—results when
       “there is a reasonable probability that, but for the counsel’s
       unprofessional errors, the result of the proceeding would have been
       different.”

State v. Brown, 930 N.W.2d 840, 855 (Iowa 2019) (citations omitted).

       “The claimant must prove both elements by a preponderance of the

evidence.” State v. Madsen, 813 N.W.2d 714, 724 (Iowa 2012). An applicant’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).

“[I]mprovident trial strategy, miscalculated tactics, and mistakes in judgment do not

necessarily amount to ineffective assistance of counsel.” State v. Ondayog, 722

N.W.2d 778, 786 (Iowa 2006) (citation omitted). “[W]e will not reverse where

counsel has made a reasonable decision concerning trial tactics and strategy,

even if such judgments ultimately fail.” Id. (citation omitted).
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       III.   Analysis

       A.     Ineffective assistance of counsel. On appeal, Wright raises three

issues of counsel’s failure to investigate. First, counsel failed to investigate and

present cell-phone-location-data evidence showing Wright’s location during the

Mississippi allegation. Second, counsel did not call Wright’s sisters and an ex-

paramour as witnesses.       Finally, counsel failed to investigate potential DNA

evidence and present expert testimony.        On appeal, Wright claims counsel’s

alleged failures rose to the level of structural error, allowing prejudice to be

presumed. See Lado v. State, 804 N.W.2d 248, 252 (Iowa 2011) (noting structural

error renders the underlying trial so unreliable as to entitle the defendant to a new

proceeding without showing actual prejudice).

       At the outset, we address the structural-error claim.

       We have recognized structural error occurs when: (1) counsel is
       completely denied, actually or constructively, at a crucial stage of the
       proceeding; (2) where counsel does not place the prosecution’s case
       against meaningful adversarial testing; or (3) where surrounding
       circumstances justify a presumption of ineffectiveness, such as
       where counsel has an actual conflict of interest in jointly representing
       multiple defendants.

Id. The types of error Wright alleges here are those addressed under our general

ineffective-assistance standard; they do not rise to a level “where, under the

circumstances, the likelihood of counsel rendering effective assistance is too

remote.” See Krogmann v. State, 914 N.W.2d 293, 313 (Iowa 2018).

       Cell phone location data. Wright’s first claim of ineffective assistance is that

counsel did not obtain records from his cell phone provider showing his location

the night of the Mississippi incident. He argues the location information would have

disproved the Mississippi allegation and led the jury to doubt the victim’s testimony.
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       Counsel obtained records of Wright’s cell phone calls on the relevant dates.

He did not request location data from where Wright’s calls were made or received.

It is not clear the call location data would have been available at the time the

records were obtained, and Wright has not provided any evidence the information

was available from his service provider. Moreover, Wright has not produced any

evidence indicating the location data would place him away from the crime scene

on the night in question.3 Counsel determined calling a person from the cell phone

company as a witness would not provide a benefit to Wright and made a strategic

decision not to do so based on the information in his possession. While this

strategy may have failed, it does “not clearly appear to have been misguided.” See

Ondayog, 722 N.W.2d at 786.

       Impeachment witnesses. Wright claims counsel should have called his

sisters and ex-paramour to testify to discredit testimony by two of the State’s

witnesses.4 First, Wright claims his sisters should have been called to discredit

statements made by the victim’s aunt to police during the investigation. But, the

statements to be discredited were not testified to or part of the record before the

jury. Wright claims the impeachment of the unrelated statements would have

made the jury question the aunt’s credibility regarding the victim’s report of the

abuse to her.

       “Except for a criminal conviction under [Iowa Rule of Evidence] 5.609,

extrinsic evidence is not admissible to prove specific instances of a witness’s


3 Testimony at his trial indicated Wright had spoken with the victim’s mother on his
own mother’s telephone after the incident that night.
4 Neither Wright nor the State provide any legal authority on the admissibility of the

witnesses’ testimony or counsel’s duty to put them on the stand.
                                         6


conduct in order to attack or support the witness’s character for truthfulness.” Iowa

R. Evid. 5.608(b). The impeachment testimony as described by Wright therefore

would not have been admissible, and he has not identified how the testimony

otherwise would have been admissible. Counsel has no duty to raise an issue that

has no merit. Brown, 930 N.W.2d at 855. Counsel did not err in not having

Wright’s sisters testify as impeachment witnesses.

       Wright also claims his former paramour should have been called to describe

what she saw of his interactions with the victim to counter a statement made by

the investigator regarding an allegation that may have occurred in Des Moines.

Wright admitted he did not know if counsel or his investigator spoke with his

paramour during the investigation. He did not present an affidavit or testimony

from his paramour describing how she would have testified if called. Having

reviewed the trial transcript, the investigator—whom Wright claims his paramour

might have contradicted—did not allude to any allegations occurring in Des

Moines. Counsel does not perform incompetently in failing to rebut testimony that

was not given.

       DNA evidence. Wright claims his counsel should have obtained the victim’s

clothing and bedding from the trip to Mississippi and test it for DNA. The initial

report of the Mississippi incident, made to the Iowa Department of Human

Services, did not occur until February 2012—three months after the family returned

from Mississippi.   The investigation prompted by the report revealed earlier

incidents of abuse, which had occurred in Iowa and led to a criminal complaint

against Wright in August. Counsel was not appointed for an additional two months

after that. Nothing in the record indicates the victim’s clothing or bedding from
                                          7


Mississippi were preserved or that the items were available for the type of DNA

testing Wright speculates could exonerate him. Moreover, it is worth noting the

evidence, if it existed, would have related to witness credibility and not the charges

Wright faced—the charges all related to Iowa incidents of abuse.

       Wright has not established by a preponderance of the evidence his counsel

failed to perform an essential duty or committed an unprofessional error. This

claim of ineffective assistance of counsel fails.

       B.     Pro Se Issues. Wright also filed a pro se brief with additional claims

of ineffective assistance of counsel.5 First, Wright claims his counsel should have

investigated and raised at trial the mother’s history of sexual abuse as evidence of

coaching the child. Wright’s second claim is counsel failed to present evidence or

testimony of the unreliability of non-doctors questioning children on their

memories. Third, he challenges a failure to strike a juror based on language

limitations. Wright also challenges the evidence of the Mississippi allegations. In

his final claim, Wright states counsel should have objected to the State’s closing

argument, including “personal thoughts about the incident that occurred and [the

prosecutor’s] feelings towards those individuals that might undergo those kinds of

offenses.”6


5 We note Iowa Code section 822.3B(1) was recently enacted and prohibits
defendants from filing pro se briefs when represented by counsel. See 2019 Iowa
Acts ch. 140, § 35. Our supreme court has not squarely addressed this change in
law. However, the supreme court recently addressed similar language contained
in another section of the same legislation. See State v. Macke, 933 N.W.2d 226,
227–28 (Iowa 2019). It concluded the change in law “appl[ies] only prospectively
and do[es] not apply to cases pending on July 1, 2019.” Id. at 235. We apply this
reasoning to section 822.3B(1) and conclude it does not apply to this appeal, which
was filed prior to July 1, 2019.
6 Wright also raised the DNA-evidence issue, which we addressed above.
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       We agree with the district court’s analysis on the first and third claims and

conclude they were properly dismissed. Likewise, we dismiss his challenge to the

admission of evidence relating to the Mississippi allegations because the issue

was addressed on direct appeal. See Wright, 2014 WL 956064, at *5.

       As to the unreliability of non-doctor forensic interviews, Wright’s trial counsel

did hire an expert to review the forensic interviews performed during the

investigation. Counsel testified, “[I]t’s my recollection that she did not see any

significant problems that would benefit the case.”         We note the expert was

unavailable to testify during the trial due to scheduling conflicts, and the court

overruled a motion to continue after a hearing where the expert spoke by

telephone. Wright has not presented any evidence the forensic interviews were

not conducted properly or were otherwise unreliable. Moreover, the prosecution

did not rely solely on the recorded forensic interviews—both the victim and the

interviewer testified and were cross-examined before the jury, giving the jury ample

opportunity to evaluate the witnesses’ testimony. Counsel was not ineffective in

failing to present expert testimony evaluating the interviews.

       Finally, regarding the closing-arguments claim, the PCR court found Wright

failed to identify the statements his counsel had a duty to object to, and the jury

was presumed to have followed the instruction to base their verdict only on the

evidence and not the prosecutor’s statements, arguments, questions, and

comments. Wright neither identifies the statements his counsel should have

objected to, nor explained how an objection would have changed the outcome.

See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (“The applicant must state

the specific ways in which counsel’s performance was inadequate and identify how
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competent representation probably would have changed the outcome.”). Wright

has not proved his claim of inadequate representation by a preponderance of

evidence. We affirm the dismissal of his PCR application.

      AFFIRMED.
