State of Iowa v. Allen Bradley Clay

              IN THE SUPREME COURT OF IOWA
                              No. 11–0927

                        Filed December 14, 2012


STATE OF IOWA,

      Appellee,

vs.

ALLEN BRADLEY CLAY,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Plymouth County,

Jeffrey L. Poulson, Judge.



      A defendant seeks further review of the court of appeals decision

affirming his conviction for second-degree burglary.        COURT OF

APPEALS DECISION VACATED IN PART AND AFFIRMED IN PART;

DISTRICT COURT AFFIRMED.


      Mark C. Smith, State Appellate Defender, and David Arthur

Adams, Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson,

Assistant Attorney General, and Darin J. Raymond, County Attorney, for

appellee.
                                      2

WIGGINS, Justice.

      A jury found the defendant guilty of second-degree burglary,

operating a motor vehicle without the owner’s consent, and operating a

motor vehicle while intoxicated, second offense.       The defendant only

appealed his burglary conviction. We transferred the case to the court of

appeals.   It affirmed the conviction.    The defendant now seeks further

review from the court of appeals decision.       On appeal, the defendant

contends there was insufficient evidence to support his conviction for

second-degree burglary. The defendant also argues his trial counsel was

ineffective for not objecting to (1) the prosecutor’s misstatements in his

rebuttal closing argument regarding the intent-to-deprive element of

theft, (2) four colloquies of hearsay testimony elicited by the prosecutor,

and (3) the prosecutor’s statements in his rebuttal closing argument

concerning nontestifying witnesses.

      Upon our review, we affirm the court of appeals decision regarding

the sufficiency of the evidence to support the second-degree burglary

conviction and let it stand as our final decision. However, we vacate the

court of appeals decision with respect to the effectiveness of counsel

claims.    We leave all three ineffective-assistance-of-counsel claims for

postconviction relief proceedings.       Finally, we affirm the defendant’s

convictions for operating a motor vehicle without the owner’s consent

and operating a motor vehicle while intoxicated, second offense.

      I. Background Facts and Proceedings.

      Allen Bradley Clay spent the afternoon of July 24, 2010, helping

his friend, Lucky Overman, change the tires on one of his vehicles. While

Overman was taking Clay home, Clay asked Overman to buy him

alcohol. Overman refused to do so. Clay did not react.
                                     3

      After taking Clay home, Overman made his regular run as a truck

driver for Blue Bunny. He got home around three o’clock in the morning

on July 25.     He parked his Blazer SUV alongside his mobile home in

Le Mars.      He entered the home from the front porch and put his

paperwork and keys on the kitchen counter. Overman checked on his

sleeping family and then went to bed.

      At approximately 4:30 a.m., Overman heard noises coming from

the kitchen.    He assumed the source of the noise was his large cat

lurking around at night. The noises continued for a few minutes.

      Then Overman saw his Blazer’s headlights come on.         Overman

jumped out of bed and saw someone backing his Blazer out of the drive

pretty fast, as if in a hurry.   He could see one person in the vehicle.

However, he was unable to distinguish the gender, height, or age of the

individual.

      Overman called 911, because he believed someone had stolen his

Blazer. He had no clue which direction the Blazer went.

      Shortly thereafter, Overman received a text message from Kayla

VanEs, Clay’s girlfriend. She allegedly texted that Clay was “three sheets

to the wind and he’s pretty much got your Blazer and he’s heading more

than likely out to his mother’s house . . . .”    Overman called 911 a

second time to report this information.

      Overman then began to investigate his property and noticed

several objects were out of place. He saw a trash can had been moved by

the window just outside the mobile home.         He also observed that

someone had removed a window screen from the home.

      Lieutenant Treloar from the Le Mars Police Department arrived at

Overman’s home around 5:15 a.m.           Overman showed Treloar the

misplaced window screen and trash can.       While walking outside with
                                       4

Treloar, Overman saw a bicycle lying in the yard, just a few feet from the

trailer.   Upon looking closer at the bicycle, Overman realized it was

Clay’s.

       Clay always rides a bicycle for transportation because he does not

have a driver’s license.    Overman had seen Clay ride that particular

bicycle many times. Overman stated the bicycle was not there when he

came home from work.

       After this discovery, Treloar called VanEs by phone to ask her

where Clay might be. He testified, “She indicated to me at that time that

[Clay] had been drinking all day and that possibly he was en route to his

mother’s residence in Hudson, South Dakota.” Treloar then had a state

broadcast sent out with a description of the vehicle, Clay as a possible

suspect, and Hudson, South Dakota, as Clay’s possible destination.

       As Overman and Treloar continued to investigate, Overman

realized his keys to the Blazer and storage shed were missing from the

kitchen counter. Treloar also noticed there was a putty knife stuck in

the wall beside the mobile home’s door handle. Treloar took the putty

knife, slid it between the door and the door jam, and depressed the door

plunger. By doing so, Treloar was able to open the home’s door. Treloar

concluded that was how the perpetrator entered the residence. Overman

reported that he normally kept the putty knife in his storage shed. The

latch on the shed’s screen door had been broken, and the door had been

pried open.

       After conducting this initial investigation, Treloar left. Ten to thirty

minutes later, Overman received a phone call from Ashley Clay (aka

Ashley Arens), Clay’s sister. Overman testified, “She stated that she was

going to be driving [Clay] back with my Blazer.”        Overman called 911

again to inform them of this phone call.
                                      5

      Within an hour of her phone call, Ashley arrived at Overman’s

mobile home with her brother in the Blazer. Ashley was driving. Clay

said nothing.    Ashley allegedly told Overman that “she had observed

Allen going down the lane at her place, . . . got him stopped, and was

bringing [Overman’s] Blazer back.” Overman never gave Clay permission

to drive his Blazer.

      Police arrested Clay after he attempted to escape through the back

door of the mobile home. When handcuffing Clay, Treloar observed the

strong odor of alcohol on his breath and person. Clay’s eyes were dilated

and bloodshot, his speech was slurred, and his balance was unsteady.

      Treloar spoke with Clay’s sister after placing him in the patrol car.

Shortly after this conversation, police escorted Clay to the Plymouth

County jail.

      Clay pled not guilty to the charges. The jury found Clay guilty of

all three charges. Clay appealed. He raised a sufficiency-of-the-evidence

argument regarding his burglary conviction and three ineffective-

assistance-of-counsel claims.      He did not appeal his convictions for

operating a motor vehicle without the owner’s consent and operating a

motor vehicle while intoxicated, second offense.       We transferred the

appeal to the court of appeals.        The court of appeals affirmed his

burglary conviction and resolved one of his ineffective-assistance-of-

counsel claims.        The court of appeals left the other two claims of

ineffective assistance of counsel for a postconviction relief action. Clay

filed his application for further review, which we granted.

      II. Issues.

      In this appeal, Clay raises numerous issues regarding his burglary

conviction. First, he makes a sufficiency-of-the-evidence argument. He

also raises three ineffective-assistance-of-counsel claims.    In his first
                                         6

claim, he argues his counsel was ineffective for failing to object to the

prosecutor’s rebuttal closing argument, when the prosecutor improperly

instructed the jury on the law.        Next, he alleges his trial counsel was

ineffective for failing to object to four out-of-court statements admitted

into evidence. Finally, he claims his counsel was ineffective for failing to

object    to    the   prosecutor’s   rebuttal   closing   argument,   when   the

prosecutor commented on nontestifying witnesses.

         On further review, we have the discretion to review all or some of

the issues raised on appeal or in the application for further review. In re

Marriage of Schenkelberg, 

824 N.W.2d 481, 483

 (2012). In exercising our

discretion, we choose only to review the ineffective-assistance-of-counsel

claims.        Therefore, we let the court of appeals’ affirmance on the

sufficiency of the evidence regarding the burglary conviction stand as the

final decision of this court. See Hills Bank & Trust Co. v. Converse, 

772 N.W.2d 764, 770

 (Iowa 2009).

         III. Standard of Review.

         We review claims of ineffective assistance of counsel de novo. State

v. Brubaker, 

805 N.W.2d 164, 171

 (Iowa 2011).              This is our standard

because such claims have their “basis in the Sixth Amendment to the

United States Constitution.” State v. Canal, 

773 N.W.2d 528, 530

 (Iowa

2009).      We ordinarily preserve such claims for postconviction relief

proceedings.       State v. Wills, 

696 N.W.2d 20, 22

 (Iowa 2005).      “That is

particularly true where the challenged actions of counsel implicate trial

tactics or strategy which might be explained in a record fully developed

to address those issues.” State v. Rubino, 

602 N.W.2d 558, 563

 (Iowa

1999). We will resolve the claims on direct appeal only when the record

is adequate. 

Id.

                                      7

      IV. Ineffective Assistance of Counsel.

      Ineffective   assistance   of       counsel   constitutes   “ ‘deficient

performance by counsel resulting in prejudice, with performance being

measured against an “objective standard of reasonableness,” “under

prevailing professional norms.” ’ ”   State v. Maxwell, 

743 N.W.2d 185, 195

 (Iowa 2008) (quoting Rompilla v. Beard, 

545 U.S. 374, 380

, 

125 S. Ct. 2456, 2462

, 

162 L. Ed. 2d 360, 371

 (2005) (citations omitted)).

“[N]ot every claim of ineffective assistance, even a meritorious one,

requires reversal of a criminal conviction.”        Simmons v. State Pub.

Defender, 

791 N.W.2d 69, 75

 (Iowa 2010) (emphasis omitted). To prevail

on a claim of ineffective assistance of counsel, a claimant must satisfy

the Strickland test by showing “(1) counsel failed to perform an essential

duty; and (2) prejudice resulted.”    Maxwell, 

743 N.W.2d at 195

 (citing

Strickland v. Washington, 

466 U.S. 668, 687

, 

104 S. Ct. 2052, 2064

, 

80 L. Ed. 2d 674, 693

 (1984)). “ ‘Unless a defendant makes both showings,

it cannot be said that the conviction . . . resulted from a breakdown in

the adversary process that renders the result unreliable.’ ” 

Id.

 (quoting

Strickland, 

466 U.S. at 687

, 

104 S. Ct. at 2064

, 

80 L. Ed. 2d at 693

).

      A. Counsel’s Failure to Perform an Essential Duty, Generally.

Under the first prong of Strickland, “we measure counsel’s performance

against the standard of a reasonably competent practitioner.” 

Id.

 at 195–

96.   There is a presumption the attorney performed his duties

competently.    Id. at 196.      The claimant successfully rebuts this

presumption by showing a preponderance of the evidence demonstrates

counsel failed to perform an essential duty. Id. A breach of an essential

duty occurs when counsel makes such serious errors that he or she

“ ‘was not functioning as the “counsel” guaranteed the defendant by the

Sixth Amendment.’ ” State v. Palmer, 

791 N.W.2d 840, 850

 (Iowa 2010)
                                      8

(quoting Strickland, 

466 U.S. at 687

, 

104 S. Ct. at 2064

, 

80 L. Ed. 2d at 693

).     We do not find such a breach by second-guessing or making

hindsight evaluations. Maxwell, 

743 N.W.2d at 196

.

        In deciding whether counsel failed to perform an essential duty, we

measure trial counsel’s performance “objectively by determining whether

[it] was reasonable, under prevailing professional norms, considering all

the circumstances.” State v. Lyman, 

776 N.W.2d 865, 878

 (Iowa 2010).

The Supreme Court recognizes the American Bar Association standards

and similar documents reflect the prevailing norms of the legal

profession. Strickland, 

466 U.S. at 688

, 

104 S. Ct. at 2065

, 

80 L. Ed. 2d at 694

.

        Regarding an essential duty, the ABA Standards for Criminal

Justice require:

               (e) Defense counsel, in common with all members of
        the bar, is subject to standards of conduct stated in statutes,
        rules, decisions of courts, and codes, canons, or other
        standards of professional conduct. Defense counsel has no
        duty to execute any directive of the accused which does not
        comport with law or such standards. Defense counsel is the
        professional representative of the accused, not the accused’s
        alter ego.

ABA Standards for Criminal Justice: Prosecution Function and Defense

Function 4-1.2(e), at 120–21 (3d ed. 1993). Moreover, the comments to

the ABA standards provide:

              Advocacy is not for the timid, the meek, or the retiring.
        Our system of justice is inherently contentious, albeit
        bounded by the rules of professional ethics and decorum,
        and it demands that the lawyer be inclined toward vigorous
        advocacy.     Nor can a lawyer be half-hearted in the
        application of his or her energies to a case. Once a case has
        been undertaken, a lawyer is obliged not to omit any
        essential lawful and ethical step in the defense, without
        regard    to   compensation      or   the    nature   of    the
        appointment. . . .
                                      9
            Because the law is a learned profession, lawyers must
      take pains to guarantee that their training is adequate and
      their knowledge up-to-date in order to fulfill their duty as
      advocates.

Id.

 cmt., at 122–23 (footnote omitted). We also rely on our ethical rules

for lawyers to measure counsel’s performance. State v. Schoelerman, 

315 N.W.2d 67

, 71–72 (Iowa 1982).

      At the time of trial, our ethical rules stated, “A lawyer shall provide

competent representation to a client. Competent representation requires

the legal knowledge, skill, thoroughness, and preparation reasonably

necessary for the representation.”        Iowa R. of Prof’l Conduct 32:1.1.

Competent representation requires counsel to be familiar with the

current state of the law. State v. Hopkins, 

576 N.W.2d 374

, 379–80 (Iowa

1998).

      B.   Prejudice from Counsel’s Failure to Perform an Essential

Duty, Generally. The second prong of Strickland requires prejudice to

result from counsel’s failure to perform an essential duty. Maxwell, 

743 N.W.2d at 195

 (citing Strickland, 

466 U.S. at 687

, 

104 S. Ct. at 2064

, 

80 L. Ed. 2d at 693

).   “Prejudice exists where the claimant proves by ‘a

reasonable probability that, but for the counsel’s unprofessional errors,

the result of the proceeding would have been different.’ ” Maxwell, 

743 N.W.2d at 196

 (quoting Bowman v. State, 

710 N.W.2d 200, 203

 (Iowa

2006)). Specifically, we recognize:

      [T]he prejudice prong of the Strickland test does not mean a
      defendant must establish that counsel’s deficient conduct
      more likely than not altered the outcome in the case. A
      defendant need only show that the probability of a different
      result is sufficient to undermine confidence in the outcome.

Id. at 196 (citation and internal quotation marks omitted).

      The plaintiff in a postconviction relief action must prove prejudice

by a preponderance of the evidence. Id. “In determining whether this
                                       10

standard has been met, we must consider the totality of the evidence,

what factual findings would have been affected by counsel’s errors, and

whether the effect was pervasive or isolated and trivial.” State v. Graves,

668 N.W.2d 860

, 882–83 (Iowa 2003) (citing Strickland, 466 U.S. at 695–

96,   

104 S. Ct. at 2069

,   80   L. Ed. 2d   at   698–99).   Counsel’s

unprofessional errors resulting in the mere impairment of presenting the

defense is not sufficiently prejudicial.    Ledezma v. State, 

626 N.W.2d 134, 143

 (Iowa 2001) (citing Strickland, 

466 U.S. at 693

, 104 S. Ct. at

2067–68, 

80 L. Ed. 2d at 697

).

      C.    Analysis.     We first address Clay’s argument that his trial

counsel was ineffective for failing to object during the State’s rebuttal

closing argument when the prosecutor commented on the intent-to-

deprive element of theft. The court instructed the jury on the elements of

burglary as follows:

      1. That on or about the 25th day of July, 2010, the
         defendant entered or broke into a residence of Lucky
         Overman at 23 Orchard, Armel Acres, Le Mars, Plymouth
         County, Iowa.

      2. The residence was an occupied structure as defined in
         Instruction No. 17.

      3. The defendant did not have permission or authority to
         enter the residence.

      4. One or more persons were present at the time the
         defendant entered the residence.

      5. The residence was not open to the public.

      6. The defendant did so with the specific intent to commit a
         theft.

(Emphasis added.)

      The court instructed the jury on the elements of theft as follows:

      1. An individual takes possession or control of property
         belonging to another.
                                     11
      2. An individual has the intent to deprive the owner of the
         property.

      3. The property, at the time of the taking, belonged to or was
         in the possession of the owner.

The court did not elaborate on the intent-to-deprive element of theft. In

his rebuttal closing argument, the prosecutor argued:

      As to the discussion about the theft element, the intent to
      deprive is an element of every theft and implicitly part of the
      burden. There’s no hiding the ball here, Folks. But there’s a
      difference. Mrs. Gries’ argument would absolutely be true
      and I would agree with her if the element of the offense said
      to permanently deprive, meaning, “I took it. I pawned it.
      You ain’t never getting it back.”            That’s permanent
      deprivation of property. “I buried it. I burned it. I sold it. I
      hid it from you so you would never get it back.” That’s
      permanently depriving. That is not the definition in this
      instruction. It’s not the definition of the burglary instruction.
      Just an intent to deprive. And that can be temporary that he
      took it.    It was outside of Mr. Overman’s control and
      knowledge and that is a temporary deprivation of the use of
      that property. Very technical. Sounds like a damn lawyer
      argument. But I’m sorry. That’s what it is. If Mr. Overman
      woke up with a sick child and needed to go to the hospital
      and he needed to use that vehicle in the two to three hours it
      was missing, he was deprived of the use of that vehicle for
      that two to three hours until he got it back. That’s the type
      of deprivation. Again, if the instruction and other areas of the
      law did require me to prove a permanent deprivation, then
      Ms. Gries’ argument would be true. In this case it fails.
      Borrowing a vehicle is enough.            Borrowing it without
      somebody’s permission, knowledge, express consent is a
      temporary deprivation to the owner of the use of that property.

(Emphasis added.)

      Our well-settled law clearly establishes the intent required for

committing theft of an automobile is the “intent to permanently deprive

the owner” of the property. State v. Schminkey, 

597 N.W.2d 785, 789

(Iowa 1999) (emphasis added).       We reaffirmed Schminkey in State v.

Morris, 

677 N.W.2d 787, 788

 (Iowa 2004).

      Here, the jury instruction for burglary only indicates the defendant

had to act with the “specific intent to commit a theft.”           The theft
                                    12

instruction used in Clay’s trial describes the intent-to-deprive element as

follows: “An individual has the intent to deprive the owner of the

property.”   Thus, the jury’s only source of information as to whether

theft, an element of burglary, requires temporary or permanent intent to

deprive was the prosecutor’s statement in his rebuttal closing argument.

      Therefore, the prosecutor’s statement as to the law was clearly

erroneous and outside the jury instructions. A prosecutor can argue the

law, but cannot instruct the jury on the law. State v. Mayes, 

286 N.W.2d 387, 392

 (Iowa 1979). When the prosecutor erroneously instructed the

jury on the law, competent counsel should have been aware of the well-

settled legal principles establishing it is the province of the court to

instruct the jury on the law. Moreover, the prosecutor’s instruction that

theft can be committed without the intent to permanently deprive the

owner of the vehicle was erroneous. At that point, competent counsel

should have lodged an objection to the prosecutor’s statements. We find

no strategic reason for trial counsel not to object. Therefore, we conclude

trial counsel was ineffective for failing to object to the prosecutor’s

statement on the law in the rebuttal closing argument.

      As to the prejudice prong regarding this claim, the only evidence in

the record regarding Clay’s intent to permanently deprive Overman of his

vehicle are out-of-court statements made by third parties introduced into

evidence without objection.      These statements entered the record

through the testimony of Overman and Treloar.        Overman testified as

follows concerning a text message he received from Clay’s girlfriend,

VanEs:

           Q. All right. Now, how did you learn that, that Allen
      Clay had your Blazer and he may be headed to Alcester,
      South Dakota, or Hudson, South Dakota? A. From the
      phone call I had gotten from Kayla VanEs.
                                   13
           Q. To be clear, was it a phone call or text or message
      or some other communication? A. I believe it was a text
      message.

              Q. All right. Who was Kayla VanEs? A. Allen Clay’s
      girl friend or fiancé. Not real sure which.

            Q. But you know Kayla? A. Yes, yes.

             Q. And how long have you known Miss VanEs?
      A. Four or five years, give or take. Not as long as I’ve known
      Allen.

            Q. And what did you learn from Miss VanEs in this
      communication? A. That he was three sheets to the wind
      and he’s pretty much got your Blazer and he’s heading more
      than likely out to his mother’s house is what she told me.

Overman also relayed a phone call he received from Clay’s sister, Ashley:

            Q. Okay. About how long after law enforcement left
      did you get a call? A. Oh, I would say ten, ten minutes,
      twenty, thirty minutes, right in that area.

            Q. And what did you learn from Ms. Clay—or
      Ms. Arens? A. That Allen was out there and she was driving
      him back.

            ....

            Q. All right. So law enforcement leaves and you said
      about ten or ten or fifteen minutes you get a call from
      Ashley. You learn that Allen is out there. Did you learn
      anything else? A. Not at the time. She stated that she was
      going to be driving him back with my Blazer.

           Q. So they’ve got your Blazer and they’re bringing it
      back? A. Yes.

            ....

            Q. Does Ashley come in the house? A. Yes.

            Q. Do you talk to her? A. Yes.

            Q. Does she explain the circumstances? A. Just that
      she had observed Allen going down the lane at her place and
      got him stopped and was bringing my Blazer back.

           Q. Anything else—go ahead. A.          She was just as
      shocked as I was over the whole thing.
                                    14

      The third piece of evidence regarding Clay’s intent came in

during the State’s questioning of Treloar:

             Q. We will get back to how you learned that Mr. Clay
      took the vehicle in a minute. Let’s go back to when you
      arrived at the trailer and met with Mr. Overman.         He
      described his vehicle being taken. What happened next?
      A. At that time he indicated that he had received a text
      message from Kayla VanEs. She informed him that her
      boyfriend, Allen Clay, was intoxicated and possibly en route
      to his residence.

            Q. So did that give you some valuable information
      about what you needed to do? A. Yes, it did.

             Q. And what did you do? Did you ask other officers to
      try to round this vehicle up? A. While I was there, we
      observed that bicycle in the yard and Mr. Overman indicated
      that that bike belonged to Mr. Clay. I then contacted Kayla
      VanEs by phone, asked her if she had any idea where
      Mr. Clay may be. She indicated to me at that time that he
      had been drinking all day and that possibly he was en route
      to his mother’s residence in Hudson, South Dakota.

      The fourth line of evidence regarding Clay’s intent came from

Treloar’s testimony regarding his contact with Clay’s sister:

            Q. You get a second [911] call then? A. Yes, I do.

             Q. What happens? A. Sometime a little after 6, 6:30,
      Plymouth County Communications had received another
      phone call from Mr. Overman on the 911. He indicated that
      he had been contacted by Ashley Arens, who is Mr. Clay’s
      sister. She lives rural route Akron, lowa. She indicated that
      she had his vehicle and that her brother, Allen, was with her
      and they were en route back to Le Mars to bring his vehicle
      back.

            ....

            Q. After taking him into custody, anything else
      happen in the home? A. After I placed him in the patrol car,
      I had an opportunity to speak with his sister.

            Q. And why did you do that? A. Because I wanted to
      know what information she could offer me in regards to her
      brother and him having the vehicle.
                                    15
             Q. What did you learn? A. She indicated to me in the
      early morning hours she observed headlights coming down
      her driveway. She got up. She first thought it was her
      sister. The vehicle turned around at a high rate of speed.
      She got in her own personal car and she chased after the
      vehicle. After about six miles, he finally pulled over. At this
      time she observed her brother, Allen, get out of the driver’s
      seat and walk up to her. He informed her that he had stolen
      Mr. Overman’s vehicle. It was her opinion that he was
      intoxicated. She also advised me that he had a cut to the
      back of his head and his right elbow was bleeding and she
      had no idea how that happened. She also requested that I
      do not file criminal charges on him and that was about the
      end of our conversation.

      Trial counsel failed to object to this testimony. Hearsay evidence

may establish a material fact at issue in a trial, if the court admits the

evidence without objection. Reid v. Automatic Elec. Washer Co., 

189 Iowa 964, 976

, 

179 N.W. 323

, 328 (1920).          Thus, we can consider this

evidence when examining the prejudice prong.

      With this testimony in the record, we cannot say trial counsel’s

conduct in not objecting to the prosecutor’s statement of law regarding
the crime of theft is sufficient to undermine our confidence in the verdict.

We say this because the only evidence in the record was the out-of-court

statements regarding Clay’s intent that he stole the vehicle and had the

intent to take it to South Dakota. This evidence could lead a reasonable

jury to conclude that Clay took the car for more than a joyride and is

sufficient for the jury to find Clay had the intent to permanently deprive

Overman of his vehicle. Therefore, this evidence does not undermine our

confidence in the verdict, even if the court had properly instructed the

jury that Clay had to have the intent to permanently deprive Overman of

his vehicle in order to commit a theft.

      However, our inquiry does not end here, because Clay also argues

trial counsel was ineffective for failing to object to the admissibility of

these out-of-court statements on the grounds of hearsay and the
                                    16

Confrontation Clause. See Crawford v. Washington, 

541 U.S. 36, 68

, 

124 S. Ct. 1354, 1374

, 

158 L. Ed. 2d 177, 203

 (2004) (holding the

Confrontation Clause of the United States Constitution prohibits the use

of testimonial hearsay evidence, unless the declarant testifies at trial or

the right to confrontation is otherwise sufficiently honored).

      Under Iowa law, we should look to the cumulative effect of

counsel’s errors to determine whether the defendant satisfied the

prejudice prong of the Strickland test. We adopted this rule in Schrier v.

State, 

347 N.W.2d 657, 668

 (Iowa 1984). See also Bowman v. State, 

710 N.W.2d 200, 207

 (Iowa 2006) (holding the prosecutor’s persuasive

misconduct throughout the trial and the defense attorney’s failure to

object was prejudicial under the Strickland prong of prejudice); State v.

Graves, 

668 N.W.2d 860, 883

 (Iowa 2003) (same).          In Schrier, a jury

convicted Schrier of first-degree sexual assault and first-degree murder

in the abuse and death of his two-year-old son. Schrier, 

347 N.W.2d at 660

. Schrier appealed the denial of his postconviction relief application

in which he raised twelve claims of ineffective assistance of counsel. 

Id.

at 660–61.   We analyzed six of those claims under the essential duty

prong. 

Id.

 at 661–67 (contending counsel neglected to call defendant as

a witness and failed to object to jury instructions).     We assessed the

remaining claims under the prejudice prong.         

Id.

 (alleging failure of

counsel to object to evidence, witness testimony, and jury instructions,

in addition to failing to call several witnesses for the defense and

claiming ineffective appellate counsel).     We considered some claims,

however, for both breach of an essential duty and prejudice. 

Id. at 665

(finding “[c]ounsel’s failure to object to the evidence was not a breach of

an essential duty or prejudicial”). Nonetheless, we analyzed all claims
                                          17

“individually      and   cumulatively,”    concluding      defense    counsel     was

effective, and Schrier received a fair trial. 

Id.

 at 667–68.

       In regards to Clay’s claim that his counsel was ineffective for failing

to object to these out-of-court statements, the first prong of the

Strickland test requires us to decide if trial counsel failed to perform an

essential duty by not objecting.          If the challenged actions of counsel

implicate trial tactics or strategy, we will not address the issue until the

record is fully developed. Rubino, 

602 N.W.2d at 563

.

       We know from the prosecutor’s closing argument that VanEs was

under subpoena, but did not show for trial. We also know Ashley was in

the courthouse, and the prosecutor made a conscious decision not to call

her because she was Clay’s sister. What we do not know is whether trial

counsel’s failure to object to these statements was a trial tactic or

strategy.    Did trial counsel think the defense would be stronger if the

testimony came in as hearsay, rather than live? 1              Until the record is

developed as to trial counsel’s state of mind, we cannot say whether trial

counsel’s failure to object implicated trial tactics or strategy.

       Additionally, even if trial counsel’s failure to object was a conscious

trial tactic or strategy, the present record does not allow us to decide if
such tactic or strategy was reasonable, under prevailing professional

norms.      VanEs’s statement indicated Clay was taking the vehicle to

South Dakota.        Ashley’s statement specified that Clay had stolen the

vehicle. What we do not know is the source of these statements. Did

VanEs and Ashley get their information from talking to Clay or did their

statements include their opinions as to what transpired?                 We need to

       1Although  VanEs did not appear, the prosecutor had the option of asking the
court to continue the matter and compel the witness to testify. See generally 

Iowa Code §§ 622

.76–.77, .79 (2011).
                                          18

know the source of the statements to determine if they would have been

admissible had VanEs or Ashley actually testified. Consequently, at this

time, we are not in the position to render an opinion on this or any of

Clay’s claims for ineffective assistance of counsel on direct appeal.

       Finally, Clay also claims his trial counsel was ineffective when his

lawyer failed to object to the prosecutor’s rebuttal closing argument in

which the prosecutor commented on nontestifying witnesses. The court

of appeals decided this claim had no merit under the prejudice prong of

Strickland.     We vacate that finding, because Iowa recognizes the

cumulative effect of ineffective assistance of counsel claims when

analyzing prejudice under Strickland.          Schrier, 

347 N.W.2d at 668

. In

other words, if a claimant raises multiple claims of ineffective assistance

of counsel, the cumulative prejudice from those individual claims should

be properly assessed under the prejudice prong of Strickland. The court

should look at the cumulative effect of the prejudice arising from all the

claims. Thus, the proper practice when dealing with multiple ineffective

assistance claims is as follows:

             1. If the defendant raises only one claim of ineffective
       assistance of counsel, and the court finds trial counsel failed
       to perform an essential duty, but no prejudice arose from
       that breach, the court should dismiss that claim.

             2. If the defendant raises only one claim of ineffective
       assistance of counsel, the court does not analyze the
       essential duty prong of Strickland, 2 and the court finds that
       even if counsel failed to perform an essential duty but no
       prejudice existed, the court should dismiss that claim.

              3. If the defendant raises one or more claims of
       ineffective assistance of counsel, and the court finds trial


       2The  court always has the option to decide the claim on the prejudice prong of
the Strickland test, without deciding whether the attorney performed deficiently. State
v. Maxwell, 

743 N.W.2d 185, 196

 (Iowa 2008).
                                    19
      counsel performed an essential duty in an individual claim,
      the court should dismiss that claim.

             4. If the defendant raises one or more claims of
      ineffective assistance of counsel, and the court finds trial
      counsel failed to perform an essential duty in any of the
      claims and that single failure to perform an essential duty
      meets the Strickland prejudice prong, the court should find
      for the defendant on that claim and deem counsel ineffective.

             5. If the defendant raises one or more claims of
      ineffective assistance of counsel, and the court analyzes the
      prejudice prong of Strickland without considering trial
      counsel’s failure to perform an essential duty, the court can
      only dismiss the postconviction claim if the alleged errors,
      cumulatively, do not amount to Strickland prejudice.

Therefore, Clay will have to bring all his ineffective-assistance-of-counsel

claims in a postconviction relief action, because he raises multiple

claims, some of which require further development of the record.

      V. Summary and Disposition.

      We affirm Clay’s convictions for operating a motor vehicle without

the owner’s consent and operating a motor vehicle while intoxicated,

second offense, because he did not appeal those convictions.       We also

affirm the court of appeals decision on the sufficiency of the evidence to

support Clay’s conviction for second-degree burglary.         However, we

vacate the court of appeals decision reaching the merits of Clay’s
ineffective-assistance-of-counsel claims. Accordingly, Clay may bring all

three ineffective-assistance-of-counsel claims in a postconviction relief

action.

      COURT OF APPEALS DECISION VACATED IN PART AND

AFFIRMED IN PART; DISTRICT COURT AFFIRMED.

      All justices concur except Appel, J., who concurs specially, and

Mansfield and Waterman, JJ., who separately concur specially.
                                    20

                                                   #11–0927, State v. Clay

APPEL, Justice (concurring specially).

      I concur with the opinion of the court in all respects.       I write

separately to emphasize two points.

      First, the court’s opinion properly recognizes the relationship

between ethical rules and ineffective-assistance-of-counsel claims under

the Sixth Amendment of the United States Constitution and the

independent provision of article I, section 10 of the Iowa Constitution.

The relationship between ethical rules and ineffective assistance has

been long recognized by caselaw.      The Supreme Court of the United

States recognized this in Strickland, and we recognized it in Vance. See

Strickland v. Washington, 

466 U.S. 668, 688

, 

104 S. Ct. 2052

, 2064–65,

80 L. Ed. 2d 674

, 693–94 (1984); State v. Vance, 

790 N.W.2d 775

, 785–

86 (Iowa 2010); see also Wheat v. United States, 

486 U.S. 153, 160

, 

108 S. Ct. 1692

, 1697–98, 

100 L. Ed. 2d 140, 149

 (1988) (citing provisions of

the ABA Model Code of Professional Responsibility and the Rules of

Professional Conduct of the State Bar of California regarding multiple

representation in analyzing an ineffective assistance claim); People v.

Cropper, 

152 Cal. Rptr. 555

, 556–57 (Ct. App. 1979) (citing ABA ethical

considerations and disciplinary rules related to zealous representation in

an ineffectiveness case); People v. DeFreitas, 

630 N.Y.S.2d 755, 759

 (App.

Div. 1995) (“In weighing constitutional claims of ineffective assistance of

counsel in criminal cases, the courts have considered and have invoked

ethical standards, recognizing that fidelity to those standards implicates

not only the interests of the defendants, but the credibility of the system,

its integrity, and the institutional interests in the rendition of just

verdicts.”). Thus, the use of ethical standards to illuminate whether a
                                    21

lawyer has provided ineffective assistance is not novel or overreaching,

but well established.

      No one, of course, argues that a violation of an ethical rule always

means that a lawyer has provided ineffective assistance. Nor does lack of

an ethical violation always mean that ineffective assistance has not

occurred.     The point is, however, that professional norms may well

illuminate the question of whether a lawyer has provided ineffective

assistance.    See Roe v. Flores-Ortega, 

528 U.S. 470, 479

, 

120 S. Ct. 1029

, 1035–36, 

145 L. Ed. 2d 985, 996

 (2000); see also Jenny Roberts,

Ignorance is Effectively Bliss: Collateral Consequences, Silence, and

Misinformation in the Guilty-Plea Process, 

95 Iowa L. Rev. 119

, 161 (2009)

(“Although professional standards on their own may not adequately affect

defense-counsel behavior, such standards are also woven into the

constitutional landscape.”); Erin N. Rieger, Note, The Role of Professional

Responsibility in the Ineffective Assistance of Counsel Claim in Roe v.

Flores-Ortega, 

29 N. Ky. L. Rev. 397

, 405 (2002) (arguing for the

incorporation of the ABA’s professional responsibility standards in

judging the reasonableness of counsel’s conduct).

      Second, as noted in the comments to section 4-1.2 of the ABA

Standards for Criminal Justice: Prosecution Function and Defense

Function, a lawyer’s knowledge must be “up-to-date.” ABA Standards for

Criminal Justice: Prosecution Function and Defense Function 4-1.2 cmt.,

at 123 (3d ed. 1993). While we give substantial deference to a lawyer’s

reasoned legal strategy, ignorance of important legal developments is not

legal strategy entitled to deference but may be a precursor of ineffective

assistance. It is not too much, for instance, to expect that a lawyer be

aware of legal developments that dramatically undermine existing case

law. We, of course, do not expect lawyers to be clairvoyant with respect
                                     22

to how each and every case pending before the United States Supreme

Court, or before this court, will be decided, but we do expect them to be

informed   of   important   legal   developments   and   make   reasonable

judgments based on that knowledge.

      In Vance, a few clicks of the mouse would have revealed that the

holding in New York v. Belton, 

453 U.S. 454

, 

101 S. Ct. 2860

, 

69 L. Ed. 2d 768

 (1981), was discredited, that the United States Supreme

Court had granted certiorari to review its ongoing vitality, and that its

validity was in substantial doubt.     See Vance, 790 N.W.2d at 787–89.

Yet, we properly could not find on the existing record that counsel was

ineffective because we did not know whether counsel’s failure to object

was based upon a reasonable judgment that the evidence could have

been admitted on another theory. Id. at 790.

      I recognize that a criminal defense lawyer has a challenging

assignment. Clients are as difficult as the situations in which they find

themselves. The law can be complex. As in all human endeavors, no

court can demand perfection.        But we must require what the Iowa

Constitution as well as the United States Constitution demands, namely,

that a defendant be represented by a zealous, well-informed advocate

who makes reasoned arguments and judgments based on up-to-date

knowledge on behalf of his client. In this case, however, we cannot make

the proper determination on the existing record, and as a result, I concur

with the majority’s disposition of the case.
                                    23
                                                   #11–0927, State v. Clay
MANSFIELD, J. (concurring specially).

      I agree that Clay’s convictions should be affirmed and that his

ineffective-assistance-of-counsel claims should be preserved. However, I

specially concur to express two concerns with the majority opinion. One

relates to the interplay between ethical rules and ineffective assistance of

counsel; the other to whether the prejudicial effect of separate errors by

counsel can be accumulated for ineffective-assistance purposes.

      In State v. Vance, this court seemingly linked the test for whether

an attorney has provided ineffective assistance, thereby allowing the

court to forgive a failure to preserve error, to the ethical standard for

competence set forth in the Iowa Rules of Professional Conduct.         

790 N.W.2d 775

, 785–86 (Iowa 2010). The court quoted rule 32:1.1 as well

as an official comment and a commentary on that rule before stating,

“We will use these principles to determine if Vance’s trial counsel failed

to perform an essential duty.” 

Id. at 786

. The court then embarked on a

lengthy but ultimately inconclusive discussion of whether it would be

ineffective assistance for counsel to fail to advance an argument under

the Iowa Constitution that was foreclosed by a binding precedent of this

court. 

Id.

 at 789–90.

      In the present opinion, my colleagues reiterate some of the court’s

language from Vance.

      I think a fair assessment of our recent precedents is that they

recognize a rather broad concept of what constitutes a failure to perform

an essential duty for ineffective-assistance-of-counsel purposes.      See,

e.g., Ennenga v. State, 

812 N.W.2d 696

, 702 n.5 (Iowa 2012); Everett v.

State, 

789 N.W.2d 151, 159

 (Iowa 2010).       It seems to me unwise and

unfair, therefore, to suggest that a criminal defense attorney who “fails to
                                            24

perform an essential duty” under one of our precedents has committed a

violation of rule 32:1:1.

       My second area of concern has to do with the majority’s imposition

of a requirement that cumulative prejudice be considered. The majority

says, “We adopted this rule in Schrier v. State, 

347 N.W.2d 657, 668

(Iowa 1984).” I think this is an overstatement. Schrier did raise multiple

claims of ineffective assistance, which we analyzed one by one.                      

Id.

 at

660–67. We then said at the end of our opinion:

               We have considered all issues and claims presented on
       appeal and can find no basis for reversing the judgment of
       the postconviction court denying relief to petitioner. In
       making this determination, we have reviewed the effect of the
       various claims both individually and cumulatively and find
       that it has not been established that petitioner was denied a
       fair trial. The judgment of the district court is affirmed.

Id.

 at 667–68. Respectfully, I believe it reads far too much into the brief

statement—“we         have    reviewed      the   effect    of   the   various     claims

individually and cumulatively”—to conclude it announces a “rule” that

such claims should be analyzed cumulatively. There is no indication the

issue was even raised in Schrier. 3
       Although my colleagues appear to be following the majority rule,

the question has divided other courts. See Evans v. Sec’y, Fla. Dep’t of

Corr., 

699 F.3d 1249, 1269

 (11th Cir. 2012) (stating that the prejudice

inquiry “should be a cumulative one”); Hooks v. Workman, 

689 F.3d 1148, 1188

 (10th Cir. 2012) (applying a cumulative prejudice approach);



        3The majority’s two “see also” citations do not establish or even discuss such a

“rule,” either. Bowman v. State was based on one ineffective-assistance-of-counsel-
claim—i.e., “failure of . . . defense counsel to object to the prosecutor’s questions asking
Bowman whether the State’s witnesses fabricated their testimony at trial.” 

710 N.W.2d 200, 203

 (Iowa 2006). We similarly analyzed State v. Graves as involving a single
ineffective-assistance claim. 

668 N.W.2d 860, 881

 (Iowa 2003).
                                    25

Moore v. Sec’y Pa. Dep’t of Corr., 

457 F. App’x 170, 181

 (3d Cir. 2012)

(“Under Strickland’s clear mandate, the prejudice of these errors is

assessed cumulatively.”); Dugas v. Coplan, 

428 F.3d 317, 335

 (1st Cir.

2005) (stating that Strickland “clearly allows the court to consider the

cumulative effect of counsel’s errors in determining whether a defendant

was prejudiced” (quoting Kubat v. Thieret, 

867 F.2d 351, 370

 (7th Cir.

1989))); Gersten v. Senkowski, 

426 F.3d 588, 611

 (2d Cir. 2005) (“In

evaluating prejudice, we look to the cumulative effect of all of counsel’s

unprofessional errors.”); Mackey v. Russell, 

148 F. App’x 355, 365

 (6th

Cir. 2005) (“[T]he Strickland test requires that prejudice be evaluated in

light of the cumulative effect of all constitutionally infirm actions by

counsel.”); Pizzuto v. Arave, 

385 F.3d 1247, 1260

 (9th Cir. 2004)

(“[I]ndividual deficiencies in representation which may not by themselves

meet the Strickland standard may, when considered cumulatively,

constitute sufficient prejudice to justify issuing the writ.”); Hough v.

Anderson, 

272 F.3d 878

, 891 n.3 (7th Cir. 2001) (stating that “prejudice

may be based on the cumulative effect of multiple errors”).       But see

Kennedy v. Kemna, 

666 F.3d 472, 485

 (8th Cir. 2012) (stating that there

is no cumulation of prejudice in the Eighth Circuit); Fisher v. Angelone,

163 F.3d 835, 852

 (4th Cir. 1998) (“[I]t has long been the practice of this

Court individually to assess claims under [Strickland].”); Westley v.

Johnson, 

83 F.3d 714, 726

 (5th Cir. 1996) (noting that “[m]eritless claims

or claims that are not prejudicial cannot be cumulated, regardless of the

total number raised”).

      I would defer resolution of this question to a case where it has

actually been briefed and argued to us.      In any event, as I read the

majority opinion, it does not decide the question whether Strickland

prejudice can be tallied across proceedings. For example, if a defendant
                                     26

files an application for postconviction relief alleging ineffective assistance

of counsel, we are not deciding that the prejudicial effect of any errors

alleged therein must be added to the prejudicial effect of any errors that

were rejected in an earlier proceeding, such as a direct appeal, on the

ground that their cumulative effect was insufficiently prejudicial.

      Waterman, J., joins this special concurrence.