Kenneth Osborne Ary v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 19-1966
Filed December 16, 2020

KENNETH OSBORNE ARY,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Heather Lauber, Judge.

The applicant appeals the denial of his application for postconviction relief.

AFFIRMED.

Kevin Hobbs, West Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney

General, for appellee State.

Considered by Doyle, P.J., and Mullins and Greer, JJ.
2

GREER, Judge.

Kenneth Osborne Ary appeals the denial of his application for

postconviction relief (PCR). He claims he received ineffective assistance from trial

counsel in two ways: (1) trial counsel missed the deadline to submit discovery

requests and conduct depositions, which impaired his ability to impeach the State’s

star witness and (2) trial counsel was ineffective in handling jury voir dire, depriving

Ary of his right to a fair and impartial jury.

Facts and Earlier Proceedings.

In 2013, Ary was charged with three counts of delivery of a controlled

substance (crack cocaine). Following a jury trial in June 2014, he was found guilty

on all three counts and sentenced to three consecutive twenty-one-year prison

terms.1 He appealed seeking a new trial, alleging (1) trial counsel provided

ineffective assistance by missing the deadline for filing a discovery request; (2) the

jury pool was tainted by statements made by a prospective juror during voir dire,

violating his right to a fair and impartial jury; and (3) there was insufficient evidence

to support the convictions. This court found Ary’s right to an impartial jury was

violated, and we reversed and remanded for a new trial. See State v. Ary, No. 14-

1112, 2015 WL 4935612 at *9–10 (Iowa Ct. App. Aug. 19, 2015). After granting

the State’s application for further review, the Iowa Supreme Court reversed the

court of appeals, finding the prospective juror’s statements during voir dire did not

violate Ary’s right to a fair and impartial jury. State v. Ary, 877 N.W.2d 686, 703

(Iowa 2016). However, on the ineffective-assistance-of-counsel claim, the court

1 Ary stipulated to his status as a second or subsequent offender and habitual
offender; his sentence was enhanced accordingly.
3

found “Ary demonstrated his trial counsel failed to perform an essential duty” in

missing the deadline to file notice of intent to take depositions and seek discovery.

Id. at 705. But the court concluded “the record [was] inadequate to assess whether

prejudice resulted from trial counsel’s breach of an essential duty” and did not

reach the merits on the ineffective-assistance claim. Id.

In August 2016, Ary filed a PCR application pro se. Ary’s application was

amended in December 2016 after he obtained counsel. In his application, Ary

made essentially the same claims he now raises on appeal—that he was denied

effective assistance when trial counsel missed the deadline to file discovery

requests and take depositions and trial counsel’s failure to properly conduct voir

dire violated Ary’s right to a fair and impartial jury. The PCR court specifically

addressed and denied Ary’s ineffective-assistance claim as to trial counsel’s failure

to conduct discovery. In its November 2019 ruling, the PCR court detailed the

relevant facts and its thoughtful analysis as follows:

On March 11, 2014, [Ary’s] then counsel,[2] . . . filed a [m]otion to
[p]roduce and a motion for leave to take depositions after the
expiration of the established deadline. The court held a hearing on
counsel’s motions on April 22, 2014. Ary was represented by [trial
counsel] at the April 22nd hearing. [Trial counsel] would remain Ary’s
counsel at all times material to this postconviction relief action. The
court granted the pending motions and gave counsel until April 29,
2014, to file a notice of any additional depositions or discovery Ary
intended to complete prior to trial. [Trial counsel] did not file the
notice of additional discovery with the court until April 30, 2014. On
May 14, 2014, [trial counsel] filed a motion asking the court to clarify
the status of discovery and depositions. On May 23, 2014, the court
entered an order, refusing to extend any deadlines to allow additional
discovery, including depositions. The court’s order was premised
upon [trial counsel’s] failure to timely file the discovery notice prior to
the court’s imposed deadline.

2 Ary’s then counsel took other employment and withdrew. Trial counsel appeared
in Ary’s defense for the first time on April 22.
4

....
Ary claims his trial counsel was ineffective by failing to depose
the confidential informant [(CI)] . . . .
....
Ary’s defense at trial, in his direct appeal, and in this
postconviction relief action centers on [CI’s] credibility. Relevant to
this postconviction relief action, Ary claims that counsel failed to
adequately challenge [CI’s] credibility. If counsel had deposed [CI]
prior to trial, Ary asserts counsel’s cross-examination would have
been more effective, and the trial result different. Here, the Iowa
Supreme Court has already concluded that counsel breached an
essential duty by failing to give timely notice of his intent to take
depositions. The only remaining inquiry for this court is whether
counsel’s failure to notice and take depositions resulted in prejudice
to Ary.
Ary, as the party making a claim of ineffective assistance of
counsel, must show prejudice resulting from counsel’s conduct. . . .
Ary cannot show prejudice. The evidence presented to the
court was sufficient to support a finding of guilt beyond a reasonable
doubt; there is nothing to suggest a jury would have found differently
if [CI] had been deposed pre-trial. The State offered the testimony
of the officers involved in the three controlled buys. These officers
testified consistently, and in detail, about their training, education and
experience with drug transactions, including the three at issue in
Ary’s case. [CI] also testified about the circumstances surrounding
the three controlled buys. Although [CI] had a slightly different
recollection than the officers about some of those circumstances,
including the amount of money he was paid for his work as a
confidential informant, and exactly where the officers’ searches of his
car occurred, [CI’s] testimony was consistent with the officers’
testimony on the salient points.
Additionally, [trial counsel’s] cross-examination of [CI] was
effective. He was not a credible witness. [Trial counsel] testified that
[CI] appeared to be high, was combative, slurred his words, and
provided inconsistent testimony during cross-examination. [Trial
counsel] zealously cross-examined [CI], capitalizing on each of [CI’s]
inconsistent statements. During cross-examination and closing
arguments, [trial counsel] highlighted those inconsistencies and
evasive behaviors. Despite this, Ary contends that had [trial counsel]
confronted [CI] with a 1995 Johnson County forgery conviction and
a 2013 Polk County theft conviction, the jury would have rejected
[CI’s] entire testimony. The record does not support this conclusion.
[Trial counsel] pointed out multiple times [CI] had been charged and
convicted of crimes of dishonesty. It was for the jury to determine if
[CI’s] denials that those convictions were legitimate or that they
belonged to him were credible. The jury either rejected those denials
or found his prior convictions were not relevant to his actions in the
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pending case. [Trial counsel] also cross-examined [CI] and the
officers about the thoroughness of the officers’ searches and their
surveillance techniques. Bringing to the jury’s attention that officers
were working [CI] even though he had a pending theft case would
have added little to [trial counsel’s] argument the police were not
thorough.
Finally, in addition to the officers’ testimony, and the portions
of [CI’s] testimony that was corroborated by officers, the State also
produced Ary’s own admissions. The jury heard that Ary himself
admitted he was selling crack cocaine during the time period at issue
in this case. Deposing [CI] would have done nothing to mitigate or
prevent these admissions from becoming evidence. In sum, Ary
simply cannot meet his burden to show prejudice.

As to Ary’s second claim, that trial counsel was ineffective in conducting voir

dire, the PCR court considered this claim withdrawn. “Trial counsel did not raise

this ground during trial, and other than a passing assertion that [trial counsel’s]

failure to conduct discovery combined with [trial counsel’s] performance during jury

selection warrants a new trial, it was not discussed in Ary’s post-trial briefing.”

Error Preservation.

Ary failed to mention how he preserved error on the two issues he raises.

The State does not dispute that error was preserved on Ary’s first ground for

ineffective assistance of counsel, relating to trial counsel’s failure to conduct

discovery. Error was preserved on this issue.

However, the State argues that error was not preserved on Ary’s second

ground for ineffective assistance—the jury-selection claim. The court noted it

considered the claim withdrawn, but it also ruled on the issue in the alternative,

concluding Ary’s ineffective-assistance claim on the jury-selection ground failed.

“If the court’s ruling indicates that the court considered the issue and necessarily

ruled on it, even if the court’s reasoning is ‘incomplete or sparse,’ the issue has

been preserved.” Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012) (citing
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Meier v. Senecaut, 641 N.W.2d 532, 540 (Iowa 2002)). This is not a case where

the issue was “not considered by” the PCR court. See id. Because the PCR court

addressed the issue and ruled on it, we consider the issue preserved for appeal.

Standard of Review.

We review claims of ineffective assistance of counsel de novo. Ledzema v.

State, 626 N.W.2d 134, 141 (Iowa 2001).

Analysis.

“In order to succeed on a claim of ineffective assistance of counsel, [an

applicant] must prove: (1) counsel failed to perform an essential duty; and (2)

prejudice resulted.” State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008) (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)). To show prejudice, “the

applicant must demonstrate ‘that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” Ledzema, 626 N.W.2d at 143 (quoting Strickland, 466 U.S. at 694). “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694. We address Ary’s PCR claims in reverse

order.

Jury-Selection Failures.

In the PCR trial, Ary failed to offer any evidence or argument as to how his

trial counsel was ineffective in handling the juror bias concerns during jury

selection. The PCR court noted this omission from both Ary’s PCR presentation

and his post-trial brief, then stated, “[T]he court considers Ary’s ineffective

assistance of counsel claims with respect to voir dire to be withdrawn.” The district

court also referenced the Iowa Supreme Court’s finding that additional record was
7

required to determine whether counsel was ineffective in jury selection. See Ary,

877 N.W.2d at 701–02. Without that record, the PCR court determined the jury-

selection claim must be denied. With no testimony on the subject developed at

the PCR hearing, we cannot resolve the question. Ary did not meet his burden to

prove ineffective assistance of counsel related to the jury-selection allegations.

Discovery Failure.

As we noted above, the supreme court established that trial counsel failed

to perform an essential duty by missing the discovery deadline. Id. at 705. Thus,

our inquiry addresses whether Ary was prejudiced by this failure. Because we

agree with the PCR court’s thoughtful analysis, we affirm the denial of PCR. After

reviewing the record, we find Ary failed to prove by a preponderance of the

evidence that there was a reasonable probability the result would have been

different but for trial counsel’s failures. See Strickland, 466 U.S. at 694. While

failing to conduct a deposition of the CI may have hampered a full cross-

examination of this witness, trial counsel did capitalize on the CI’s general lack of

credibility and raised some of his prior convictions during cross-examination. Trial

counsel described the CI as appearing “high” and “slurring words” during the

testimony. Pushing the CI during cross-examination, trial counsel believed the

testimony came across as inconsistent, evasive, and combative. While Ary

maintains a deposition of the CI might have offered more evidence to impeach the

CI, trial counsel used portions of the CI’s criminal record to attack his creditability.

But even with a poor trial appearance by the CI, the jury also heard detailed

testimony from several police officers who directed and oversaw the CI in his role

as a confidential informant buying crack cocaine from Ary. Lastly, there was
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testimony confirming admissions Ary made that he had been selling crack cocaine

around the time he was charged with selling to the CI. All of these facts provided

significant evidence pointing to Ary’s guilt, regardless of [CI’s] testimony. See

State v. Graves, 668 N.W.2d 860, 882–83 (Iowa 2003) (providing that when

determining if the prejudice standard has been met, the court considers “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.”).

Thus, considering all the evidence presented against Ary at trial, we cannot

say that the outcome would have been different but for trial counsel’s failure. As

such, we affirm the denial of Ary’s PCR application.

AFFIRMED.