TERNUS, Justice.
Terry
Harrington appeals a district court decision denying his application for
postconviction relief. He claims the
court erred in holding his claims were time barred. See Iowa Code §
822.3 (1999) (imposing a three-year statute of limitations on postconviction
relief actions). In addition, he faults
the district court for failing to vacate his first-degree murder conviction and
order a new trial on the basis of newly discovered evidence consisting of a
recantation by the State’s primary witness, police investigative reports
implicating another suspect in the crime, and “brain fingerprinting” test
results. See id. §
822.2(4) (providing postconviction remedy where material facts were not
presented at criminal trial).
Harrington also rests error on the court’s refusal to grant relief based
on a due process violation resulting from the prosecution’s failure to produce
the police reports at the time of Harrington’s criminal trial. See
id. § 822.2(1) (providing
postconviction remedy where conviction was in violation of United States
Constitution). The State disputes
Harrington’s allegations of error and affirmatively asserts that Harrington’s
appeal is untimely.
After
submission of the appeal, Harrington filed a conditional motion for limited
remand. In the event this court
believes that he is not entitled to a new trial on the basis of the present
record, Harrington seeks to have the case remanded for the purpose of taking
additional testimony in support of his application.
Upon
our review of the record and the arguments of the parties, we conclude (1)
Harrington’s appeal is timely; (2) this action is not time barred; (3)
Harrington is entitled to relief on the basis of a due process violation; and
(4) Harrington’s motion for conditional remand is moot. Accordingly, we reverse the district court
judgment, and remand for entry of an order vacating Harrington’s conviction and
sentence, and granting him a new trial.
We deny Harrington’s motion for remand on the basis of mootness.
I. Timeliness
of Appeal.
Before
we discuss the merits of Harrington’s appeal, we address the State’s contention
that this court lacks jurisdiction because Harrington’s notice of appeal was
not filed before the applicable deadline.
See In re Marriage of Mantz,
266 N.W.2d 758, 759 (Iowa 1978) (stating when an appellant files a late notice
of appeal, the appellate courts are without jurisdiction to hear the
appeal). The trial court entered its
decision on March 5, 2001. The
defendant then filed a motion under Iowa Rule of Civil Procedure 1.904(2)
asking the court to expand its findings of fact and conclusions of law. The court denied the motion on March 28 and
Harrington filed his notice of appeal on April 20. Thus, the notice of appeal was filed within thirty days of the
court’s ruling on the post trial motion, but more than thirty days from the court’s
initial decision.
Iowa
Rule of Appellate Procedure 6.5(1) requires that a notice of appeal be filed
within thirty days of the trial court’s decision or within thirty days of the
trial court’s ruling on any rule 1.904(2) motion that is filed. If the rule 1.904(2) motion is not timely
filed, however, it will not toll the thirty-day time period for filing a notice
of appeal. See State ex rel. Miller v. Santa Rosa Sales & Mktg., Inc.,
475 N.W.2d 210, 213-14 (Iowa 1991). A
rule 1.904(2) motion must be filed within the time allowed for filing a motion
for new trial, which is ten days after the filing of the district court’s
decision. See Iowa Rs. Civ. P. 1.904(2), .1007.
In
the present case, the rules of civil procedure required Harrington to file his
post trial motion by Thursday, March 15.
Harrington acknowledges that his motion was not date stamped by the
clerk of court on or before March 15, but claims he faxed a copy to the clerk
of court and the presiding judge on that date.
He also served a copy of the motion on opposing counsel by mail on the
same day.
The
trial court file contains two copies of Harrington’s motion, one file stamped
on Monday, March 19 and one filed stamped on Tuesday, March 20. In addition, when this issue was raised by
the State on appeal, the district court, at Harrington’s request, entered an
order “to clarify or correct the record.”
In this order, the court made a factual finding that Harrington had
faxed a motion under rule 1.904(2) to the clerk and to the court on March 15,
and had mailed a copy to the clerk on the same day. The court also noted that it had made a finding in its ruling on
the rule 1.904(2) motion that the “motion was timely filed.”
Although our rules contemplate that
pleadings will be filed with the clerk, rule 1.442(5) addresses the situation
where a pleading is filed with a judge.
That rule provides:
Filing with the clerk defined. The filing of pleadings and other papers
with the court as required by these rules shall be made by filing them with the
clerk of the court, except that a judge may
permit them to be filed with the judge, who shall note thereon the filing date
and forthwith transmit them to the office of the clerk.
Iowa R. Civ. P.
1.442(5) (emphasis added). We think the
exception to the rule applies here.
The trial judge apparently accepted
the defendant’s motion for filing when the judge received a copy on March
15. Although the judge did not note the
filing date on his copy as required by rule 1.442(5), it appears the judge did
transmit the motion to the clerk, as there are two copies in the clerk’s file,
each with a different date stamp. We
think the judge’s later ruling confirming his receipt and acceptance of the
motion on March 15 substantially complies with the rule’s requirement that the
filing date be noted on the motion.
Therefore, Harrington’s rule 1.904(2) motion was timely filed and,
consequently, his notice of appeal filed within thirty days of the court’s
ruling on his motion was likewise timely filed.
We
turn now to the substantive issues raised in this appeal. Our discussion begins with the factual
background and procedural history of this case.
II.
Background Facts and Proceedings.
A.
Original murder trial. On August 4, 1978, Terry Harrington was
convicted of first-degree murder in the shooting death of John Schweer. Because
most of the relevant facts in this postconviction relief action relate to the
underlying criminal proceeding in which Harrington was the defendant, we will
refer to Harrington as the defendant in the remainder of our opinion.
Sometime
after midnight on July 22, 1977, security guard John Schweer was murdered at a
car dealership in Council Bluffs, Iowa.
At the time, Schweer, a retired police captain, was a night watchman for
several car dealerships in the area.
Schweer had been shot, and a 12-gauge shotgun shell was found in the
vicinity of the crime. Footprints and dog prints were also
discovered near Schweer’s body.
Harrington,
who was seventeen at the time, was charged with Schweer’s murder and was
ultimately convicted, primarily on the testimony of a juvenile accomplice,
Kevin Hughes. Hughes gave the following account of July
22, 1977. Shortly after midnight,
Hughes, Harrington, and another juvenile, Curtis McGhee, went to the dealership
with the intent to steal a beige Toronado.
Hughes waited in Harrington’s car while Harrington and McGhee walked
around a building to find the desired automobile. Harrington had a shotgun.
Shortly after Harrington and McGhee left, Hughes heard a gun shot. Then Harrington and McGhee came running back. Harrington said he had just shot a cop.
Hughes
was impeached by the defense with prior statements he had made implicating
other persons in the crime. Hughes had
separately named three other men as the killer. Each man was ultimately discovered to have an alibi before Hughes
finally fingered Harrington. Hughes
admitted that he had also changed his testimony about the type of gun used,
first stating that Harrington had a pistol, then a 20-gauge shotgun, and finally
a 12-gauge shotgun. He conceded he was
“a confessed liar,” having lied “[a]bout five or six times talking about this
case.” Hughes acknowledged that he
visited the murder scene with the police and prosecutor and told them what he
thought they wanted to hear. At the
time, Hughes was being held on various theft and burglary charges and “he was
tired of [being in jail].” He admitted
that these charges were dropped after he agreed to testify against Harrington
and McGhee.
The
physical evidence linking Harrington to the crime was minimal. Hughes claimed Harrington wrapped the
shotgun in his—Harrington’s—jacket after the shooting. Chemical examination of the jacket by the
police several weeks after the murder revealed two flakes of smokeless
gunpowder consistent with the type used in shotgun shells. In addition, one of McGhee’s friends
testified that he saw part of a shotgun in the trunk of Harrington’s car a few
days before the murder.
Harrington
presented an alibi defense, but this defense was rebutted by the prosecution’s
witnesses who testified they saw Harrington with Hughes and McGhee late in the
evening of July 21. These witnesses
included Hughes’ girlfriend, Candice Pride, and two other juvenile friends of
Hughes, Roderick Jones and Clyde Jacobs.
They testified they saw Hughes get into Harrington’s car around eleven
o’clock on the evening of July 21 and drive off with Harrington and
McGhee. Another girlfriend of Hughes,
Linda Lee, testified that Hughes came to her home in the early morning hours
one night in July 1977. When she walked
Hughes to the door as he was leaving, she saw Harrington’s car. Lee stated she could not tell if Harrington
was in the vehicle, only that there were two other people in the car. She could not recall which night in July
this occurred.
Harrington
and McGhee were both convicted of first-degree murder in separate trials. Harrington’s appeal failed, see State v. Harrington, 284 N.W.2d 244
(Iowa 1979), as did a subsequent postconviction relief action in which he
claimed that Hughes’ testimony was perjured, Harrington
v. State, No. 88-1216 (Iowa Ct. App. Jan. 25, 1990). Harrington also unsuccessfully sought habeas
corpus relief in federal court. See Harrington v. Nix, 983 F.2d 872 (8th
Cir. 1993). He is currently serving a
life sentence without the possibility of parole.
B.
Second postconviction relief (PCR)
action. The present PCR action was filed in 2000, more than twenty years
after Harrington’s conviction. Based on
this timing, the State asserted the statute of limitations as an affirmative
defense. Harrington relied on an
exception to the statutory limitations period for “a ground of fact or law that
could not have been raised within the applicable time period.” Iowa Code §
822.3. Although the trial court
concluded the evidence upon which Harrington relied was newly discovered and
could not have been discovered earlier in the exercise of due diligence, the
court inexplicably concluded Harrington’s petition for postconviction relief
was time barred.
Notwithstanding
this determination, the court also addressed the merits of the defendant’s
claim for relief. Harrington requested
vacation of his conviction under Iowa Code section 822.2, which provides in
pertinent part:
Any person who has been convicted of,
or sentenced for, a public offense and who claims that:
1.
The conviction or sentence was in violation of the Constitution of the
United States or the Constitution or laws of this state; [or]
. . . .
4.
There exists evidence of material facts, not previously presented and
heard, that requires vacation of the conviction or sentence in the interest of
justice;
. . . .
may
institute, without paying a filing fee, a proceeding under this chapter to
secure relief.
Id.
§ 822.2(1), (4). Harrington’s claim under section 822.2(1)
was based on an alleged due process violation arising from the prosecution’s
failure to turn over eight police reports to the defense during the criminal
trial. See
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L.
Ed. 2d 215, 218 (1963) (holding failure of prosecution to disclose evidence
that may be favorable to the accused is a violation of the Due Process Clause
of the Fourteenth Amendment). The same
police reports, in addition to recantation testimony and novel computer-based
brain testing, also
served as a basis for Harrington’s claim of newly discovered evidence under
section 822.2(4).
In order to establish a Brady violation, the defendant had to
prove “(1) the prosecution suppressed evidence; (2) the evidence was favorable
to the defendant; and (3) the evidence was material to the issue of
guilt.” State v. Veal, 564 N.W.2d 797, 810 (Iowa 1997), overruled in part on other grounds by State v. Hallum,
585 N.W.2d 249, 253 (Iowa 1998)). To
prevail on his newly discovered evidence claim, Harrington was required to
show:
(1)
that the evidence was discovered after the verdict; (2) that it could not have
been discovered earlier in the exercise of due diligence; (3) that the evidence
is material to the issues in the case and not merely cumulative or impeaching;
and (4) that the evidence probably would have changed the result of the trial.
Jones
v. State, 479 N.W.2d 265, 274
(Iowa 1991).
Because
we conclude the due process claim is dispositive of the present appeal, we do
not reach the question of whether the trial court erred in rejecting
Harrington’s request for a new trial on the basis of newly discovered
evidence. Nonetheless, we briefly
review the evidence introduced by the defendant at the PCR hearing with respect
to various witnesses’ recantation of their incriminating trial testimony, as it
gives context to our later discussion of the materiality of the police
reports. Because the scientific testing
evidence is not necessary to a resolution of this appeal, we give it no further
consideration.
1. Witness
recantation. Harrington
introduced testimony from three witnesses who had testified for the prosecution
at the criminal trial: accomplice Kevin Hughes, and two individuals who
rebutted Harrington’s alibi, Candice Pride and Clyde Jacobs. All three recanted their trial testimony.
Hughes
testified that he made up the story about he, Harrington and McGhee going to
the dealership to steal a car. He said
he lied to obtain a $5000 reward being offered for information about the murder
and to avoid being charged with the crime.
(It appears Hughes was being held in Omaha on car theft charges at the
time he came to the attention of the Council Bluffs police. Omaha authorities suspected that Hughes or
others involved in a car theft ring might have been involved in or might know
something about the Schweer homicide, and so contacted the Council Bluffs
investigators.)
Pride
testified that she knew nothing about Harrington’s involvement in the murder
and had no idea if her testimony at his criminal trial was true. She said she had simply testified to what
Hughes told her to say because she was dating Hughes at the time.
Finally,
Jacobs testified he lied when he said at the criminal trial that he saw
Harrington with Hughes the night of the murder. Jacobs said he never saw Harrington that night. He claims he gave a contrary story at trial
because he was pressured by the prosecutors and police. Jacobs stated he,
Hughes, and others
were stealing cars back then, and he implicated Harrington to avoid being
prosecuted for those offenses. He
asserted Harrington was never part of the car theft ring.
Joseph
Hrvol, the then assistant county attorney who prosecuted the case against
Harrington, testified for the State at the second PCR hearing. Hrvol emphatically denied that any “buy”
money was offered to Hughes or that Jacobs’ testimony was coerced. While there was no documentation in police
records that Hughes had been offered a reward, one of the previously
undisclosed police reports indicated that the police had “put the word out what
we had to offer and what we wanted in return.”
This same report, dated July 27, 1977, stated that “officers made
several other contacts this evening [July 25, 1977] putting out information
money,” and that the next day, “[s]ome of the contacts started to make contact
back to [the police].” This report
identified one individual by name who “was offered money if he could come up
with something,” and another potential witness “who was also offered
information money.”
The
PCR court determined the recantation evidence could not have been discovered
earlier in the exercise of due diligence.
The court also concluded, however, that the recantations were not
credible. The court considered the new
testimony cumulative and merely impeaching, and thought it would not affect the
outcome of the case in a new trial.
2. Police
investigative reports. As
indicated earlier, Harrington claims in the present action that eight police
reports were not made available to him during his criminal trial in 1978. Harrington’s original defense attorney, Paul
Watts, died after the appeal of the criminal case and therefore his file was
not available for review. Nonetheless,
James Cleary, who represented Harrington on his first PCR claim, testified at
the second PCR trial that he told the county attorney’s office in 1987 “that
[he] wanted to see everything,” “the DCI files, . . . the police department
files from Council Bluffs, and any and all related documents relative to their
investigation.” The materials disclosed
to him at that time did not contain the eight police reports. The evidence showed these reports were not
known to Harrington or his PCR attorneys until 1999 when a person who had
become interested in Harrington’s case asked the Council Bluffs police
department for a copy of the complete file pertaining to Schweer’s murder. The police reports were produced at that
time and eventually given to Harrington’s present counsel.
Harrington
argued this newly discovered evidence warranted vacation of his
conviction. He also asserted a Brady violation occurred in 1978 because
these reports contained potentially exculpatory evidence of an alternative
suspect and they had been withheld by the prosecution. All but one of the eight reports documented
the police department’s investigation of another suspect in the Schweer
homicide, forty-eight year old Charles Gates.
Of particular relevance here, these documents showed
that Schweer had made a written request for additional lighting in the car lot
just days before his murder. In a note
dated 12:30 a.m. July 20, 1977, Schweer stated he had observed a man trying to
get into one of the trucks “last night” and had chased him out of the parking
lot. Schweer wanted the dealership to
install floodlights in the car lot.
Police confirmed this incident through John Burke, a Northwestern Bell
employee who worked in the area of the car dealership and approached police
after the murder to provide the following information. Burke told police he saw a man running with
a dog in that vicinity shortly before midnight on July 19, 1977. At first Burke thought the man was carrying
a board, but then realized it was a shotgun.
Burke said that not long after he saw this man, another man in a vehicle
stopped to ask if Burke had seen the running man. Burke later identified the person in the vehicle as John Schweer.
Another
incident the following night was also documented in the police reports. This report, prepared by a Council Bluffs
police officer on the morning of July 23, 1977, revealed that the officer had
talked with Schweer in the early morning hours of July 21 concerning Schweer’s
observation of a man in the area of the dealership. Schweer told the officer that he had observed a man carrying what
Schweer thought was a rifle, although the item could have been a car jack. Schweer said he had lost sight of the man,
but he believed the man was still in the area, hiding in some nearby
weeds. The officer’s report also
documented there was a dog in the vicinity that Schweer thought belonged to the
man with the rifle.
The
investigative reports also revealed the police had talked to an individual who
worked at a service station near the car dealerships. This witness told the police he had seen a man walking a dog in
that area during the evening hours on various occasions. This witness was able to identify Charles
Gates as that person from a photograph.
Although
the undisclosed reports state the police subsequently located Gates and
questioned him at the police station, no summary or recording of that interview
has been discovered. One of the
reports also references a polygraph test administered to Gates by Confidential
Polygraph Service in Omaha. This test
was interpreted to show Gates was “not truthful in his denial of owning a
shotgun or having shot John Schweer.”
The actual polygraph results, which are stated in one of the newly
discovered reports to be contained in an addendum to that report, have never
been produced, even though, according to the police, polygraph reports are
usually put in the case file. The
reports that were found showed that Gates was a suspect in a fourteen-year-old
unsolved murder in Omaha. Police also
learned during interviews with Gates’ former neighbors and a former landlord
that Gates was “a ‘spooky type individual,’” was a loner, had “very strange
living habits,” and had three dogs that appeared to be “extremely mean.”
Several
Council Bluffs police officers involved in the investigation of Schweer’s
murder were also called to testify at the second PCR hearing. They basically confirmed the substance of
the written reports. These officers
agreed that several witnesses had seen Charles Gates in the vicinity of the car
lot in the days surrounding the murder.
An individual, whom the police thought was Gates, had been observed
walking a dog and carrying a gun in the area.
One officer, Larry Williams, stated the police thought Gates was the
person Schweer had chased off the car lot a few days before Schweer’s death. This same officer, who oversaw the
investigation in the Schweer murder case, believed the police eventually
excluded Gates as a suspect, but no one could now recall the reason for Gates’
elimination. Although Officer Williams
testified a report stating why Gates was no longer a suspect “should have been”
in the file, such a report has not been discovered.
The
district court found Harrington’s trial counsel did not have the police reports
in question and that the reports were material and not merely cumulative or
impeaching. Nonetheless, the court
concluded disclosure of the police reports probably would not have changed the
outcome of the trial. The court noted that other information admittedly
provided to Harrington’s original attorney revealed “[m]ore than a dozen
potential suspects, including Gates.”
The court noted one report known to defense counsel stated a person
living in the vicinity saw an individual matching Gates’ description walking
dogs in the area. Moreover, defense
counsel knew the police had taken casts of dog paw prints from the murder
scene. Concluding the evidence would
probably not have changed the outcome of the criminal trial, the district court
denied postconviction relief on the basis of the Brady violation and under the theory of newly discovered
evidence.
III.
Scope
of Review.
“Postconviction
proceedings are law actions ordinarily reviewed for errors of law.” Bugely v.
State, 596 N.W.2d 893, 895 (Iowa 1999). But when the basis for relief is a constitutional violation, our
review is de novo. Id. Because
the basis for relief here is a due process violation, we employ a de novo
review of the court’s ruling on the asserted Brady
violation. See State v. Romeo, 542 N.W.2d 543, 551 (Iowa 1996)
(conducting a de novo review of due process claim based on a Brady violation).
Our
review of the court’s ruling on the State’s statute-of-limitations defense is
for correction of errors of law. See Dible v. State, 557 N.W.2d 881, 883
(Iowa 1996) (reviewing trial court’s dismissal of PCR action as time barred “to
correct errors of law”). Thus, we will
affirm if the trial court’s findings of fact are supported by substantial
evidence and the law was correctly applied.
Benton v. State, 199
N.W.2d 56, 57 (Iowa 1972). We start
with that issue.
IV. Statute
of Limitations.
Iowa Code section 822.3 contains a statute of
limitations for postconviction relief actions.
At the time Harrington filed the present action, this provision required
that PCR applications “be filed within three years from the date the conviction
or decision is final or, in the event of an appeal, from the date the writ of
procedendo is issued.” Iowa Code § 822.3.
This statute was enacted in 1984, several years after Harrington’s conviction
and appeal became final. See 1984 Iowa Acts ch. 1193, § 1
(codified at Iowa Code section 663A.3 (1985)).
In Brewer v. Iowa District Court,
395 N.W.2d 841 (Iowa 1986), we held “that all potential postconviction
applicants whose convictions became final prior to July 1, 1984, must file
their applications for postconviction relief on or before June 30, 1987, or be
barred from relief.” 395 N.W.2d at 844
(holding Harrington’s first PCR application was timely filed). Thus, Harrington’s present action is time
barred unless an exception applies.
To avoid this problem, Harrington relies on that part
of Iowa Code section 822.3 providing that the three-year statute of limitations
“does not apply to a ground of fact or law that could not have been raised
within the applicable time period.” The
district court apparently concluded this exception did not apply because it
ruled that Harrington’s PCR action was “time barred by section 822.3.”
In
addition to the obvious requirement that an applicant relying on section 822.3
must show the alleged ground of fact could not have been raised earlier, the
applicant must also show a nexus between the asserted ground of fact and the
challenged conviction. See Dible, 557 N.W.2d at 884; Hogan v. State, 454 N.W.2d 360, 361 (Iowa
1990). This additional requirement is
based on the common sense conclusion that it would be absurd to toll the
statute of limitations pending the discovery of a trivial fact that could not
possibly affect the challenged conviction.
See generally State v. Anderson,
636 N.W.2d 26, 35 (Iowa 2001) (stating court interprets statutes to avoid an
absurd result). Accordingly, we have
held that an “exonerating ground of fact must . . . be ‘relevant and . . .
likely [to] change the result of the case.’”
Hogan, 454 N.W.2d at 361; accord Dible, 557 N.W.2d at 884 (“a
satisfactory nexus exists when the exonerating ground would likely have changed
the result of the original criminal case”).
The
State contends and the trial court apparently believed that the nexus test
mirrors the requirements for a substantive claim for postconviction relief
based on newly discovered evidence. See Iowa Code §
822.2(4). To succeed on such a claim an
applicant must establish, among other things, that the newly discovered
evidence is material, not merely cumulative or impeaching, and would probably
have changed the outcome of the trial. See Jones v. State, 479 N.W.2d 265, 274
(Iowa 1991). Although our prior cases
have never equated the requirements for the ground-of-fact exception with a
newly-discovered-evidence claim for relief, the language used in our cases
dealing with both concepts is similar. Compare Dible, 557 N.W.2d at 884 (holding
section 822.3 requires likelihood
that result would be different), with Jones,
479 N.W.2d at 274 (holding section 663A.2(4) (now found at section 822.2(4))
requires probability of different
result). Since this similarity has
generated confusion in the present case, it is appropriate at this time to
clarify the differences between these two concepts.
Initially,
we confirm our statement in Hogan
that a postconviction-relief applicant relying on the ground-of-fact exception
must show the ground of fact is relevant to the challenged conviction. 454
N.W.2d at 361. By “relevant” we mean
the ground of fact must be of the type that has the potential to qualify as
material evidence for purposes of a substantive claim under section 822.2. We specifically reject any requirement that
an applicant must show the ground of fact would likely or probably have changed
the outcome of the underlying criminal case in order to avoid a limitations
defense. A determination of that issue
must await an adjudication, whether in a summary proceeding or after trial, on
the applicant’s substantive claim for relief.
We disavow our prior cases to the extent they are inconsistent with the
standard we set forth today.
Turning
to the case at hand, we note the trial court did not discuss whether the
ground-of-fact exception asserted by Harrington applied. Notwithstanding the lack of express findings
on this matter, we can safely assume the court’s rejection of this exception
was not based on Harrington’s failure to show that he could not have raised the
asserted matters earlier. With respect
to both the undisclosed police reports and the recantation evidence, the court
held, in ruling on Harrington’s substantive claims, that he had proved they
were discovered after the verdict in his criminal trial and that they could not
have been discovered earlier than they were discovered in the exercise of due
diligence. These findings are clearly
supported by substantial evidence, which we have reviewed above, and so are
binding under the standard of review applicable to the statute-of-limitations
issue.
The
court’s rejection of the ground-of-fact exception was apparently based on its
erroneous belief that Harrington had to prove the exonerating ground met the
requirements for a claim of newly discovered evidence, a claim expressly
rejected by the trial court. This error
is significant because application of the correct principles of law requires a
conclusion contrary to that reached by the trial court.
Having
determined Harrington could not have raised these matters earlier, the only
remaining task for the trial court was to decide whether there is a nexus
between the undisclosed police reports and the recantation evidence on one hand
and the defendant’s conviction on the other.
Clearly there is. Both classes
of evidence are the type of facts having the potential
to qualify as material evidence that probably would have changed the outcome of
Harrington’s trial. They are,
therefore, relevant and, as such, meet the nexus requirement.
Because
Harrington asserted a relevant ground of fact or law “that could not have been
raised within the applicable time period,” this action is not time barred. The district court erred in making a
contrary ruling. That brings us to the
merits of Harrington’s application for postconviction relief.
V. Due
Process Claim.
We
briefly restate two earlier observations to set the stage for our
analysis. First, our review is de novo.
See
Romeo, 542 N.W.2d at 551.
Second, to show a due process violation, Harrington must prove “(1) the
prosecution suppressed evidence; (2) the evidence was favorable to the
defendant; and (3) the evidence was material to the issue of guilt.” Veal,
564 N.W.2d at 810 (stating requirements for a Brady
violation). We address each element
separately.
A. Suppression
of the evidence. Evidence is
suppressed “when information is discovered after trial ‘which had been known to
the prosecution but unknown to the defense.’”
Cornell v. State, 430
N.W.2d 384, 385 (Iowa 1988). This test
does not mean, however, that evidence unknown to the individual prosecutor is
not considered suppressed. See Kyles v. Whitley, 514 U.S. 419, 437,
115 S. Ct. 1555, 1567, 131 L. Ed. 2d 490, 508 (1995). The prosecutor “has a duty to learn of any favorable evidence
known to . . . others acting on the government’s behalf in the case, including
the police.” Id. Regardless of
whether the prosecutor actually learns of the favorable evidence, the
prosecution bears the responsibility for its disclosure. Id.
at 438, 115 S. Ct. at 1567-68, 131 L. Ed. 2d at 508. Thus, it is the fact of nondisclosure that is important; “[t]he
good faith or bad faith of the prosecution in failing to produce the evidence”
is not. Romeo, 542 N.W.2d at 551; accord
Kyles, 514 U.S. at 437-38, 115 S. Ct. at 1567-68, 131 L. Ed. 2d at
508.
It
is also now well established that the prosecution’s duty to disclose “is
applicable even if there has been no request by the accused” for the
information. Strickler v. Greene, 527 U.S. 263, 280, 119 S. Ct. 1936,
1948, 144 L. Ed. 2d 286, 301 (1999).
Nonetheless, “if the defendant either knew or should have known of the
essential facts permitting him to take advantage of the evidence,” the evidence
is not considered “suppressed.” Cornell, 430 N.W.2d at 385.
The State does not dispute that the evidence in
question was known to the prosecution—or at least the police—during trial. Nor does the State challenge the trial
court’s factual finding that the police reports were not known to the defense
at trial. Upon our de novo review, we
agree with the trial court and find that Harrington did not discover the
reports until more than twenty years after his conviction when a person assisting
Harrington’s family obtained the complete file on Schweer’s murder.
We also think the reports were “suppressed” within the
meaning of the Brady rule. It is apparent from some of the questions
asked by Harrington’s defense counsel at trial that he had some information
about a man seen walking a dog and carrying a shotgun near the railroad tracks
by the car dealership. Gates is never
mentioned by name, however, and Harrington’s first postconviction relief counsel
testified that there were no police reports referring to Gates in the materials
provided to him by the prosecutor in 1987.
In addition, one of the lead investigators testified without impeachment
at Harrington’s 1988 PCR hearing that the police had no immediate suspects in
the Schweer homicide. We think it probable that original trial
counsel did not know that Gates was the suspicious person seen by witnesses in
the area. Clearly, counsel did not know
of Schweer’s contact with a person fitting Gates’ description in the nights
preceding Schweer’s murder, including the fact that Schweer caught this
individual trying to break into a truck.
We conclude Harrington did not have the “essential
facts” of the police reports so as to allow the defense to wholly take
advantage of this evidence. As the
Nevada Supreme Court stated under similar circumstances, “[O]nly access to the
documents themselves would have provided the range and detail of information
necessary to fully understand the implications of the police investigation.” Mazzan v.
Warden, 993 P.2d 25, 37 (Nev. 2000) (holding oral disclosure of
identity of another suspect was not sufficient to avoid Brady violation for failing to produce
police investigatory reports); see also
Wilson v. State, ___ So. 2d ___, ___ (Ala. Crim. App. 2002) (finding
Brady violation despite
defendant’s knowledge of witnesses’ identities, where withheld police report
gave details of their testimony in the absence of which the defendant would
have had “no reason to expend the time or resources to locate them”). Because
Harrington did not have the essential details contained in the withheld police
reports, we hold the evidence was suppressed.
B. Exculpatory nature of the evidence. To prove a Brady
violation, the defendant must show the undisclosed evidence was
favorable to his defense. See Romeo, 542 N.W.2d at 551. Here, Harrington steadfastly claimed he did
not commit the murder. Obviously, evidence that someone
else killed Schweer would be favorable to this defense. The police reports, documenting an
individual with a shotgun and a dog caught trying to break into a truck late at
night just days before the shooting, would provide abundant material for
defense counsel to argue that Gates had the opportunity and motive to commit
the crime, thereby creating reasonable doubt that Harrington was the
perpetrator. Harrington has proved the
second element of a Brady
violation.
C. Materiality. The suppression of favorable evidence is not
a denial of due process unless the evidence is “material to the issue of
guilt.” Id. Evidence is
material when “‘there is a reasonable probability that, had the evidence been
disclosed, the result of the proceeding would have been different.’” Cornell,
430 N.W.2d at 386 (citing United States v.
Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481,
494 (1985)). This test does not require
the defendant to prove disclosure of the evidence “would have resulted in his
acquittal.” Romeo, 542 N.W.2d at 551.
As the United States Supreme Court has recently explained:
[T]he materiality inquiry is not just a matter of
determining whether, after discounting the inculpatory evidence in light of the
undisclosed evidence, the remaining evidence is sufficient to support the
jury’s conclusions. Rather, the
question is whether “the favorable evidence could reasonably be taken to put
the whole case in such a different light as to undermine confidence in the
verdict.”
Strickler,
527 U.S. at 290, 119 S. Ct. at 1952, 144 L. Ed. 2d at 307 (quoting Kyles, 514 U.S. at 435, 115 S. Ct. at
1566, 131 L. Ed. 2d at 506); accord State v.
Tangie, 616 N.W.2d 564, 572 (Iowa 2000). In deciding whether our confidence in the verdict is undermined,
we consider “the totality of the circumstances, including the possible effects
of nondisclosure on defense counsel’s trial preparation.” Cornell,
430 N.W.2d at 386.
Upon our de novo review of the record and
consideration of the totality of the circumstances, our collective confidence
in the soundness of the defendant’s conviction is significantly weakened. Hughes, the primary witness against
Harrington, was by all accounts a liar and a perjurer. With the police offering a $5000 reward for
information, Hughes named three other individuals as the murderer before
finally identifying Harrington as the perpetrator, and then only after the
other three men produced alibis.
As questionable as Hughes’ veracity is, it is not the
character of the prosecution’s principal witness that undermines our confidence
in the defendant’s trial; Hughes’ ability and propensity to lie were well known
in 1978. The unreliability of this
witness is, however, important groundwork for our analysis because this
circumstance makes it even more probable that the jury would have disregarded
or at least doubted Hughes’ account of the murder had there been a true
alternative suspect. Gates was that
alternative. See Kyles, 514 U.S. at 439, 115 S. Ct. at 1568, 131 L. Ed.
2d at 509 (“[T]he character of a piece of evidence as favorable will often turn
on the context of the existing or potential evidentiary record.”).
At the original trial Gates was one of more than a
dozen individuals who were considered by the police as the potential
culprit. Certainly defense counsel
would not have had the time and resources to track down and investigate each of
these individuals. But if the defendant
had known the additional information contained in the withheld investigatory
reports, the defense would surely have focused its efforts on Gates, not only
in preparing for trial, but at trial as well.
Our conclusion is based on two important points revealed in these
reports: (1) Gates' identification as
the suspicious person seen in the area with a gun and a dog; and (2) Schweer's
contact with Gates, which for the first time provided a concrete link between
an alternative suspect and the victim.
The State is hard pressed to argue the defendant's
trial preparation and trial strategy would not have been altered by this
additional information. Officers
testifying at the second PCR hearing admitted the police considered Gates to be
“the prime suspect” based on their investigation, an investigation unknown to
Harrington at the time of his criminal trial.
It is fair to conclude that had Harrington’s counsel been provided with
this information, he would have zeroed in on Gates in his trial preparation and
at trial, just as the police had zeroed in on Gates during their
investigation. Harrington’s attorney
could have used Gates as the centerpiece of a consistent theme that the State
was prosecuting the wrong person.
Independent witnesses placed Gates at the scene of the
crime in the days before the murder.
Independent witnesses saw him with a shotgun and a dog. The victim himself interrupted a person
resembling Gates breaking into a truck only two nights before the victim was
shot to death in the car lot. In
contrast, Harrington was identified as the murderer by a confessed liar, whose
testimony was corroborated only by two particles of gunpowder found on
Harrington’s coat several weeks after the murder and the now-recanted testimony
of the witness’s teenage cohorts. The
murder weapon was never found and no one has ever connected Harrington with the
dog prints found at the murder scene, even though the police from the beginning
had focused their investigation on finding “a man with a dog.”
Given this evidence, a jury might very well have a
reasonable doubt that Harrington shot Schweer.
That is all that is required to establish the materiality of the
undisclosed evidence. See Lay v. State, 14 P.3d 1256, 1263 (Nev.
2000) (stating “specific evidence of the existence of another shooter” was
potentially material because the defense “might develop reasonable doubt as to
whether [the defendant] was the actual killer”). We do not think Harrington had to show, as the State argues, that
the police reports would have “led to evidence that someone else committed
[the] crime.” It was incumbent on the
State to prove Harrington’s guilt beyond a reasonable doubt; it was not
Harrington’s responsibility to prove that someone else murdered Schweer. Therefore, if the withheld evidence would
create such a doubt, it is material even if it would not convince the jury
beyond a reasonable doubt that Gates was the killer.
Under the circumstances presented by the record before
us, we cannot be confident that the result of Harrington’s murder trial would
have been the same had the exculpatory information been made available to
him. We hold, therefore, that
Harrington’s due process right to a fair trial was violated by the State’s
failure to produce the police reports documenting their investigation of an
alternative suspect in Schweer’s murder.
See Mazzan, 993 P.2d at
74-75(finding Brady violation where withheld “police
reports provided support for [the defendant’s] defense that someone else
murdered” the victim); Davis v. Commonwealth,
491 S.E.2d 288, 293 (Va. Ct. App. 1997) (holding prosecution’s failure to
disclose information of other African-American females in vicinity of drug sale
constituted a Brady
violation). Accordingly, we reverse the
trial court’s contrary ruling, and remand this matter for entry of an order
vacating Harrington’s conviction and granting him a new trial.
REVERSED AND REMANDED.
All
justices concur except Cady, J., who dissents, and Larson, J., who takes no
part.
#122/01-0653,
Harrington v. State
CADY, Justice (dissenting).
I
respectfully dissent. Harrington’s due
process claim is not based on his pretrial lack of knowledge of a potential
suspect who had been seen walking a dog and carrying a shotgun near the railroad
tracks by the car dealership a few days prior to the murder. Furthermore, Harrington’s claim is not that
he did not have knowledge that dog prints were observed at the murder scene. If these were his claims, I would have no
disagreement with the majority.
Instead, his claim is that the police failed to turn over the written
reports of their investigation into the potential suspect. Although suppression by the police of
potentially exculpatory information can justify a new trial, it does not in this
case because Harrington clearly knew enough about the information independent
of the contents of the suppressed police reports to conduct his own
investigation and determine its value as a defense.
I
am outraged that the police, apparently, failed to turn over the questioned
reports. This was a clear violation of Brady.
However, due process does not require a new trial unless the suppressed
reports would have reasonably altered the outcome of the trial. Although the passage of time, as well as the
death of the defense attorney, has cast a cloud of vagueness over much of the
trial proceedings, it is undisputed that Harrington and his attorney knew
enough about the information contained in the suppressed police reports to
examine witnesses at trial about the matter.
Moreover, this information was so sensational and so exculpatory that
Harrington’s counsel surely would have earnestly pursued the matter independent
of any police reports and then formulated a defense around it if it had been
warranted. Consequently, I am unable to
conclude that the reports would have altered anything at the original trial.
The
majority cites two decisions to support its conclusion that the suppression of
the reports denied Harrington the essential facts to structure a defense around
the suppressed reports. See Mazzan, 993 P.2d at 37; Wilson, ___ So. 2d at ___. However, in Mazzan
the actual police reports were essential to understanding and appreciating the
implications of the information.
Similarly, in Wilson
defense counsel would have had no reason to “expend the time or resources” to
locate the witness unless he would have known about the details of their
testimony contained in the suppressed reports.
In this case, however, there is no dispute that Harrington and his
counsel had been made aware of the eerie, suspicious circumstances mentioned in
the suppressed reports. Moreover,
police did provide defense counsel with a report identifying the potential
suspect by name, together with a host of names and addresses of neighbors who
had seen the suspicious person. The
suppressed police reports were not necessary to understand the significance of
this known information or to prod any competent attorney to investigate every
aspect of the information.
I
believe the majority has attached too much significance to the suppression of
the reports, and has elevated the circumstances implicating Gates as the
murderer into a sensationalized claim that seemingly vindicates Harrington
today, yet was known and rejected by police and Harrington’s own defense
counsel twenty-five years ago. The
majority exalts the claim far beyond the significance anyone involved in the
case gave it twenty-five years ago, including Harrington’s own defense counsel,
whose competency was not questioned in this proceeding. The majority now sets aside a twenty-five
year old jury verdict and places the State in the difficult position of
retrying this case after the passage of two and one-half decades because of a
misdeed by the police which, while disconcerting, did not result in prejudice
to Harrington. I would conclude the Brady violation is not cognizable in this
postconviction relief proceeding. I
would otherwise affirm the district court ruling.
