*1 HARRINGTON, Appellant, Terry J. Iowa, Appellee.
STATE 01-0653.
No. of Iowa.
Supreme Court
Feb. 18, 2003.
Rehearing April Denied
posing three-year statute of limitations actions). relief In addi- tion, he faults the failing district court for first-degree to vacate his murder convic- tion and order a new trial on the basis of newly discovered evidence consisting of a witness, recantation primary the State’s police investigative reports impheating an- crime, suspect other and “brain fingerprinting” test results. See id. *4 822.2(4) § (providing postconviction reme- dy where present- material facts were not trial). ed at criminal also rests error on the refusal grant court’s relief on process based a due violation resulting from the prosecution’s produce failure to police reports at the time of Harring- 822.2(1) § ton’s criminal trial. See id. (providing postconviction remedy where conviction was in violation of United States Constitution). disputes The State Har- rington’s allegations of error and affirma- tively Harrington’s asserts that appeal is untimely.
After appeal, submission of the Harring- ton filed a conditional motion for limited remand. In the event this court believes that he is not entitled to a new trial on the record, present basis of the seeks to have the case remanded for the Thomas P. Frerichs of Frerichs Law purpose taking additional Office,P.C., testimony in Waterloo, for appellant. support of his application. Miller, General, Attorney Thomas J. Chambers, Bridget A. Assistant Attorney Upon our review of the record and the General, Crowl, and Richard Pottawatta- arguments (1) parties, we conclude
mie County Attorney, appellee. for (2) Harrington’s appeal timely; this ac- (3) Thomas H. Makeig barred; of Thomas H. Mak- tion is not time Harrington is P.C., Fairfield, eig, for amicus curiae Dr. entitled to relief on the basis of a due Lawrence A. Farwell. violation; (4) Harrington’s motion for conditional remand is moot.
TERNUS, Justice. Accordingly, we reverse the district court Terry judgment, Harrington appeals entry and remand for district of an court decision order denying application vacating Harrington’s conviction and sentence, relief. He claims the court him granting a new trial. erred in holding his claims were time deny Harrington’s We motion for remand (1999) (im- § barred. See Iowa Code 822.3 on the basis of mootness. Harrington acknowledges that his mo- Appeal.
I. Timeliness of by tion was not stamped date clerk of Harring- the merits Before we discuss or but court on before March claims he con- ton’s we address State’s appeal, copy faxed a to the clerk of court and the jurisdiction lacks court tention that that date. He presiding judge on also notice of appeal because copy opposing served a of the motion on applicable deadline. not filed before n day.1 counsel mail on the same Mantz, In Marriage re See 1978) (stating ap- when an copies The trial two court file contains pellant appeal, files a late notice motion, stamped one file jurisdiction are without appellate courts Monday, 19 and one filed stamped March The trial court entered appeal). hear addition, Tuesday, March 20. when March 2001. The defen- its decision on ap- this issue was raised the State on a motion under Iowa Rule dant then filed court, peal, at Harrington’s district 1.904(2) asking of Civil Procedure request, clarify entered an order “to or findings its of fact and expand court order, correct In this record.” The court of law. denied conclusions made finding Harring- court a factual filed *5 Harrington motion March 28 and on 1.904(2) ton had faxed a motion under rule Thus, April 20. appeal his notice of on to the clerk court on and to the March thirty notice of was filed within appeal had the clerk copy mailed a on the days ruling post on trial the court’s day. noted same The court also it motion, thirty days more than from but ruling a on finding had made its the rule court’s initial decision. 1.904(2) “motion motion that the was time- Appellate Rule of Procedure Iowa ly filed.” 6.5(1) of appeal that a notice be requires Although contemplate rules our days of the thirty filed within trial court’s clerk, pleadings will be filed with rule days thirty of the trial decision or within 1.442(5) the situation addresses where 1.904(2) ruling any court’s on rule motion judge. pleading is filed with a That rule 1.904(2) If the rule is filed. motion provides: however, filed, not it will toll the timely Filing filing with the clerk period filing for a notice of thirty-day time defined. papers and other with the pleadings Miller appeal. ex rel. v. Santa See State Inc., court as these rules shall be required by Mktg., Rosa Sales & 1991). 1.904(2) filing made them with clerk A rule 213-14 mo court, judge may per- that a except tion filed within the time allowed must be judge, with the who trial, mit them to be for a motion for new which is filing filed filing days filing of shall note thereon the date and ten after the the district P. to the court’s See Iowa Rs. transmit them decision. Civ. office of forthwith 1.904(2),.1007. the clerk. 1.442(5) added). case, (emphasis Iowa R. Civ. P. present In the the rules of Harrington exception applies We think the rule procedure required civil to file post by Thursday, March here. trial motion 1.904(2) ciency proof of the defendant's rule mo- 1. motion did contain a 1.442(7) (re- tion, however, Civ. P. of service. See Iowa R. we do not consider the so quiring papers certificate of service all absence of a certificate of service determin- filed). required permitted to be served or or ing appeal. of this timeliness complain The State does not about the suffi- Bluffs, time, Schweer, apparently accepted Iowa. At judge The trial a re- filing police captain, night when the tired watchman defendant’s motion copy dealerships on March Al- for several car in the judge received a 15. area. shot, did not note the Schweer and a 12 though judge filing gauge had been required by shotgun vicinity shell copy date on his rule was found .442(5), appears judge Footprints dog prints it the crime.2 transmit clerk, as there near body. the motion to the are two also discovered Schweer’s file, copies in the clerk’s each with a differ- Harrington, who was seventeen at the We think the stamp. judge’s ent date time, charged with Schweer’s murder confirming his ruling receipt later and ac- convicted, ultimately primarily and was on March ceptance of the motion 15 sub- juvenile the testimony accomplice, of a with the rule’s stantially complies require- Hughes.3 gave Kevin Hughes follow- ment date be noted filing that the on the ing Shortly account of July after Therefore, Harrington’s motion. rule midnight, Hughes, Harrington, and anoth- 1.904(2) and, timely motion was filed con- McGhee, juvenile, er Curtis went to the sequently, appeal his notice filed within dealership with the intent to steal a beige thirty days ruling court’s on his Toronado. Hughes waited timely motion was likewise filed. car Harrington while and McGhee walked We turn now the substantive issues building around a find the desired auto- Our appeal. raised discussion be- mobile. shotgun. gins background with the factual and pro- Shortly left, after McGhee history cedural of this case. Hughes gun heard a shot. Then Harring- *6 ton and running McGhee came back. Har- II. Facts Background and Proceed- rington just cop. said he had shot a ings. Hughes impeached by was the defense Original A. murder trial. On August with prior he had made impli- statements 4, 1978, Harrington was Terry convicted of cating other in persons crime. in the first-degree shooting murder death Hughes separately named three other of John Schweer. Because most of the men as Each the killer. man was ulti- postconviction relevant facts in this relief mately discovered to have an alibi before underlying action relate to the criminal Hughes finally fingered Harrington. Harrington proceeding in which was the Hughes he changed admitted that had also defendant, Harrington we will refer to as testimony used, type gun about the remainder defendant in the of our stating Harrington first pistol, had a оpinion. then a and 20-gauge shotgun, finally a 12- midnight 22, on July gauge shotgun. Sometime after He conceded he was “a 1977, “[ajbout liar,” security guard John Schweer confessed having was lied five or dealership murdered at a car in six talking Hughes Council times about this case.” later, however, police The plice”). Harring- determined shell was manu- Years when prior factured years some twelve corpus ton's claim for habeas relief was heard before the crime. court, in light federal evidence had come Hughes charged had been with crime— 3. Hughes’ accomplice status an as was dis- conspiracy stemming to steal an puted automobile— at the time murder night from the events on the murder. Harrington, trial. See State v. 284 N.W.2d Nix, (8th (Iowa Harrington 1979) v. F.2d 875 983 (stating 248 court had "seri- Cir.1993). Hughes ous doubts whether was an accom-
515 vehicle, only murder in the there were he visited the was acknowledged that and prosecutor people and in the car.5 with the two other She could scene thought they wanted them what he night July told which this oc- not recall time, held Hughes being was At hear. curred. and burglary charges various theft Harrington were both con and McGhee jail].” He ad- [being in “he was tired of murder first-degree separate victed charges dropped mitted these failed, Harrington’s appeal trials. see Harring- testify against agreed after he (Iowa Harrington, 244 v. 284 N.W.2d State and McGhee. ton 1979), subsequent postconviction did a linking Harring- physical The action in which he claimed that relief Hughes was minimal. ton to crime Hughes’ testimony perjured, Harring wrapped shotgun Harrington claimed Ct.App. v. ton after Harrington’s—jacket his— 1990). unsuccessfully also Harrington examination of shooting. Chemical relief in sought corpus habeas federal several weeks after
jacket
Nix,
Harrington
court. See
983 F.2d
of smoke-
the murder revealed two flakes
(8th Cir.1993).
currently
He is
serv
type
consistent with the
gunpowder
less
life
ing
possibility
sentence without
addition,
one of
shotgun
shells.
used
parole.
part
testified that he saw
McGhee’s friends
trunk of
shotgun
of a
in the
(PCR)
B. Second
relief
days
car a few
before the murder.4
present
action
filed
action.
PCR
defense,
an
presented
alibi
twenty years
more than
after Har-
pros-
rebutted
but this defense was
rington’s
timing,
conviction. Based on this
they saw
ecution’s witnesses who testified
limita-
asserted the statute of
the State
late
Hughes
McGhee
Harring-
an affirmative defense.
tions as
July 21. These witnesses
evening
statutory
exception
ton relied on an
Hughes’ girlfriend,
included
Candice
period
ground
“a
fact or
limitations
Pride,
juvenile friends of
other
two
could
have been
within
law that
raised
Hughes,
Clyde
Jones
Jacobs.
Roderick
period.” Iowa Code
applicable
time
*7
into
They
they
Hughes get
saw
testified
§
the trial court concluded
Although
822.3.
Harrington’s car around eleven o’clock
relied
upon
Harrington
evidence
which
the
with
evening
July 21 and drive off
the
have
newly
and could not
discovered
girl-
Hаrrington and McGhee. Another
in the exercise
been discovered earlier
Lee,
friend of
Linda
testified
Hughes,
inexplicably con-
diligence, the court
due
early
her home in the
Hughes came to
Harrington’s petition
postcon-
cluded
night
July
1977.
morning hours one
barred.
relief was time
viction
Hughes
the door
When she walked
to
determination, the
Notwithstanding this
car.
leaving,
he was
she saw
also addressed
merits of
could not tell if
court
Lee stated she
Hughes to the
Hughes”
walked
weapon itself
found.
when she
4. The murder
was never
Additionally,
though plaster
midnight
July
even
casts
sometime “after
door
scene,
footprints
at murder
made of
found
A
Harrington,
defendant’s “(1) violation, requested prove of his conviction under vacation the defendant had 822.2, provides (2) evidence; Iowa section which in the prosecution suppressed Code pertinent part: evidence was favorable to the defen (3) dant; and was material evidence who been Any has convicted person Veal, guilt.” v. issue of State 564 of, for, public offense and or sentenced (Iowa 797, 1997), N.W.2d 810 overruled in that: who claims grounds Hallum, part on other v. State 1. The conviction or sentence was in 1998). 249, (Iowa 585 253 pre To of the violation the Constitution Unit- newly vail on his discovered evidence or the or ed Constitution laws of States claim, Harrington required to show: state; [or] this (1) that the evidence was discovered af (2) verdict; ter the it could have exists 4. There evidence material been discovered earlier in the exercise of facts, previously presented (3) diligence; due that the evidence is heard, requires vacation of the con- material to the issues in the case and not sentence in the viction or interest of merely cumulative impeaching; or justice; (4) that probably the evidence changed of the result trial. institute, may without paying filing 265, Jones v. 479 N.W.2d 274 fee, chapter proceeding under 1991). secure relief. process Because we conclude due (4). 822.2(1), § Id. claim un- claim dispositive present appeal, 822.2(1) der on an section was based al- we do not the question reach of whether leged arising due violation from the trial court erred in rejecting Harring- turn prosecution’s eight failure to over request ton’s for a new trial on basis of during to the reports defense newly Nonetheless, discovered evidence. Brady Maryland, criminal trial. See briefly we review the evidence introduced 1196-97, 83 S.Ct. U.S. by the hearing defendant the PCR (1963) (holding L.Ed.2d failure of respect tо various witnesses’ recantation of prosecution to disclose that may evidence their incriminating testimony, trial as it be to the is a favorable accused violation of gives context our later discussion of the the Due Process Clause Fourteenth materiality reports. Because Amendment). The police reports, same testing scientific is not neces- testimony addition to recantation and nov- *8 sary ato resolution of we appeal, give this el testing,6 brain computer-based also it no further consideration. Harrington’s served as a basis for claim of newly discovered under evidence section 1. Harrington Witness recantation. 822.2(4). testimony introduced from three witnesses testing 6. This evidence was person introduced information about what has the stored Farwell, through testimony the Lawrence According Dr. Far- in his brain.” to Dr. his well, specializes cognitive psychophy- testing Harrington who that established Har- siology. pat- rington's Dr. Farwell сertain measures brain did not contain information (the wave) hand, activity terns of brain P300 about Schweer’s murder. On the other testified, person being determine testing whether the Dr. tested Farwell confirm that recognizes recognize Harrington’s or does not offered in- brain contained information analysis basically "provide[s] formation. This his consistent with alibi. at the Harrington, testified for State prosecution at for the had testified who Hrvol Hughes, hearing. emphatically accomplice Kevin second PCR trial: criminal Harring- money who rebutted any “buy” individuals that was offered and two denied alibi, Clyde Pride and Ja- Candice testimony ton’s was Hughes or that Jacobs’ testi- All recanted their trial three cobs. there was no documenta- coerced. While mony.7 that had Hughes records tion reward, previous- offered one been up that he made
Hughes testified ly police reports undisclosed indicated he, Harrington McGhee about and story had the word out what we “рut He to steal a car. dealership to the going what we in re- had to offer and wanted being reward he lied obtain $5000 said report, July This dated about the murder turn.” same for information offered charged with the crime. stated that “officers made several being to avoid and (It being held Hughes evening [July 1977] contacts appears other he charges at the time on car theft Omaha money,” out information and that putting Bluffs Council came to attention day, of the contacts start- the next “[s]ome suspected Omaha authorities police. police].” to make contact back to [the ed in a car theft or others involved Hughes report This identified one individual might involved in or might have been ring if he could money name who “was offered homi- about Schweer something know something,” po- with and another up come cide, Bluffs so Council and contacted also infor- witness “who was offered tential investigators.) money.” mation nothing she Pride testified thаt knew determined the recanta- The PCR court in the involvement about been discover- tion could testimony if her and no idea murder had diligence. of due ed earlier the exercise true. said she criminal trial was She his however, concluded, The court also told Hughes to what simply testified were not credible. the recantations dating Hughes say because she her testimony new cumu- court considered time. at the thought merely impeaching, and lative he testified he lied when Finally, Jacobs the outcome of the case it would not affect trial that Har- at the criminal he saw said in a new trial. night the mur- Hughes rington he never saw der. Jacobs said reports. As in- investigative Police gave contrary he night. claims He earlier, Harrington claims dicated pressured trial he was story at because eight police reports action that present police. Jacobs stated prosecutors during to him were not made available he, cars Hughes, stealing others were origi- trial in 1978. criminal then, implicated Harrington back he Watts, died af- attorney, Paul nal defense prosecuted for those offenses. being avoid the criminal case and appeal ter part was never He asserted his file was available therefore ring. car theft Nonetheless, Cleary, who James review. PCR Harrington on his first Hrvol, county represented
Joseph then assistant *9 claim, trial the second PCR testified at against who the case attorney prosecuted alibi, Jones. He Linda Lee and Roderick his for limited his asserts in motion remanded, their these witnesses will also recant if were he claims remand that this matter Harrington with remaining testimony placing testimony of trial present the night the murder. Hughes on the prosecution had rebutted two witnesses who attorney’s in ee who worked in the area of the car county office that he told everything,” dealership approached police wanted to see and after the 1987 “that [hе] files, police department ... provide following “the DCI murder to informa- Bluffs, any and and all police files from Council tion. Burke told he saw a man relative to their investi- related documents shortly in running dog vicinity with a disclosed to him at gation.” The materials midnight July before 1977. At first eight police not contain the that time did thought carrying Burke the man was a showed re- reports. The evidence these board, shotgun. it but then realized was a Harrington or ports were not known to long Burke said that not after he saw this a attorneys person until 1999 when PCR man, in stopped another man a vehicle to in Harring- who become interested if running ask Burke had seen the man. police Bluffs ton’s case asked Council person Burke later identified the in the department copy complete of the file vehicle as John Schweer. po- murder.8 The pertaining Schweer’s following night Another incident the produced time reports lice police reports. also documented in the eventually given Harrington’s pres- report, prepared by This a Council Bluffs ent counsel. police July officer morning on the argued newly discover- 1977, revealed that the officer had talked ed warranted vacation of his with in early morning Schweer hours a Brady He also asserted vio- conviction. July 21 concerning Schweer’s observa- in lation occurred 1978 because these re- in dealership. tion of a man the area of the potentially ports exculpatory contained Schweer told the officer that he had ob- suspect evidence of an alternative served a man carrying what Schweer they withheld the prosecu- had been rifle, thought although was a the item eight reports tion. All but one of the could jack. have been a car said Schweer police department’s documented the inves- man, sight he had lost of the he but be- tigation another suspect Schweer area, lieved man in hiding was still homicide, forty-eight year old Charles in nearby some weeds. The officer’s re- Gates. port also documented in dog there was a here, docu- particular Of relevance these vicinity thought belonged that Schweer made a ments showed that Schweer had to the man with the rifle. lighting
written request for additional investigative reports also revealed just days the car lot before his murder. had talked an 20, 1977, individual who July In a a.m. note dated 12:30 worked at a service near car station Schweer stated he had observed a man dealerships. This witness told into trying get one trucks “last he had night” walking dog him seen man in that and had chased out of the area during evening hours on parking lot. Schweer wanted the dealer- various ship occasions. floodlights to install the car lot. This witness was able to identi- fy Police through person confirmed this incident Charles Gates as that from a Burke, John employ- a Northwestern Bell photograph. Danaher,
8. Ann years gathering who worked as а barber at Danaher worked for five in- Penitentiary talking persons the Iowa State became connected formation acquainted investigation case after strik- with the Schweer murder ing up Harrington's prosecution a conversation with fami- in an effort to assist ly parking penitentiary. Harrington’s family proving lot of the Ms. his innocence. *10 longer was a why suspect state Gates no “should reports the undisclosed Although file, and located Gates been” such a has subsequently report have police station, police him no at the questioned discovered. been summary recording or interview The district court found reports One of the been discovered. has counsel not have the re- police trial polygraph a test adminis- also references that the ports question reports Polygraph Confidential tered to Gates im- merely material and not cumulative or test inter- in Omaha. This was Service Nonetheless, the conclud- peaching. court “not truthful preted to show Gates police reports proba- ed disclosure of the shotgun having a or owning denial of bly changed have the outcome of The poly- actual shot John Schweer.” trial. The court noted in- that other results, which are stated in one graph admittedly Harring- provided formation reports to con- newly discovered be “[mjore attorney original ton’s revealed report, tained in an addendum that suspects, including a dozen potential than produced, though, been even accord- never report The noted Gates.” court one are police, reports ing polygraph person known to defense counsel stated a reports file. usually the case put in the living vicinity saw an individual a found that were showed Gates matching description walking dogs Gates’ fourteen-year-old in a unsolved suspect Moreover, in the area. defense counsel Police also leаrned murder Omaha. police dog paw knew the had taken casts of former during interviews with Gates’ Concluding from the murder scene. prints and a former landlord neighbors probably not have the evidence would individual,’” type “a ‘spooky Gates was trial, changed the outcome of criminal loner, strange “very living had hab- was a re- court the district denied its,” dogs appeared three Brady lief on basis of violation “extremely be mean.” newly evi- theory under the discovered in- Council Bluffs officers Several dence. investigation in the Schweer’s volved testify at the murder were also called Scope III. Review. They basically con- hearing. second PCR re- of the written firmed substance proceedings are “Postconviction agreed These that several ports. officers errors ordinarily actions reviewed for law in the witnesses had seen Charles Gates v. 596 N.W.2d Bugley of law.” days in the surround- vicinity of car lot (Iowa 1999). But when the basis for individual, An whom the the murder. ing violаtion, our re is a constitutional relief Gates, ob- police thought was had been the basis for is de novo. Id. Because view walking carrying gun a dog a served violation, we process here is a due relief Williams, officer, Larry in the area. One court’s a de review of the employ novo police thought Gates was stated ruling Brady asserted violation. off lot person had chased the car Schweer Romeo, 542 N.W.2d See State This days a before Schweer’s death. few 1996) (conducting a de novo review officer, investiga- oversaw the same who Brady due claim based on case, murder believed tion Schweer violation). eventually excluded Gates ruling the court’s Our review of but no could now recall suspect, one defense Although statute-of-limitations elimination. the State’s reason for Gates’ Dible of law. See stating correction of errors report testified Officer Williams *11 520 (Iowa 1996) 881, State,
v.
883
addition
require
557 N.W.2d
to the obvious
relying
court’s
.that an
оn
applicant
dismissal
PCR ment
(reviewing trial
section
ground
“to
822.3 must show
alleged
action
time
correct errors of
of fact
barred
law”).
earlier,
Thus, we will affirm if the
could
have been raised
trial
applicant must
of fact are
also show nexus
findings
supported
court’s
between
ground
the asserted
fact and
and the
was cor-
the chal
substantial evidence
law
Dible,
State,
lenged conviction. See
557
rectly
Benton v.
N.W.2d
applied.
199
884;
State,
(Iowa 1972).
Hogan
360,
at
v.
454
56,
N.W.2d
N.W.2d
57
We start with
1990).
(Iowa
361
require
This additional
that issue.
ment is based on the common sense con
clusion that it would be absurd to toll the
IV. Statute Limitations.
statute
pending
discovery
limitations
section
contains' a
Code
822.3
Iowa
of a trivial fact that
not possibly
could
statute
for postconviction
of limitations
re
challenged
affect the
gen
conviction. See
lief
actions. At
time
filed
Anderson,
erally
26,
State v.
636 N.W.2d
action,
present
provision required
(Iowa 2001)
35
court
(stating
interprets
within
applications
PCR
“be filed
result).
statutes to avoid an absurd
Ac
years
three
from
date the conviction or
cordingly, we have
an
held that
“exonerat
or, in
decision is final
the event of an ing ground of fact
... be
must
‘relevant
date the writ
appeal,
proceden-
from the
likely
and ...
change
[to]
the result of the
”
§
do is
Iowa Code
issued.”
822.3. This
Hogan,
361;
case.’
454
at
ac
1984,
years
Dible,
(“a
statute was enacted
several
cord
has
Having
determined
could
of a
purposes
for
substantive
evidence
earlier,
have
not
raised these matters
specifically
under section 822.2. We
claim
remaining
only
task for
trial court
requirement
that an
reject any
applicant
there is
be-
to decide whether
a nexus
likely
of fact
ground
must show
would
police reports
tween the undisclosed
changed
or
have
outcome
probably
recantation
on one hand and
case in order to
underlying criminal
conviction on the other.
the defendant’s
A
a
defense.
determina
avoid limitations
Clearly there
Both classes of evidence
is.
adjudica
await an
tion of that issue must
having
type
potential
are the
of facts
tion,
summary proceeding
or
whether
proba-
as
evidence that
qualify
material
trial,
applicant’s
on the
substantive
after
changed
the outcome of
bly
have
prior
our
claim for relief. We disavow
therefore,
are,
Harrington’s
They
trial.
they
are inconsistent
extent
cases
and,
such,
re-
relevant
meet the nexus
forth today.
the standard we set
quirement.
hand,
at
we note
Turning
the case
Because
asserted
relevant
discuss whether
trial court
not
fact
“that
have
or law
could not
ground
Har-
ground-of-fact exception
asserted
pe-
applicable
raised
time
been
within
the lack
applied. Notwithstanding
rington
riod,”
time
The
this
is not
barred.
action
matter,,
this
we can
express findings
contrary
making
court erred
district
rejection
court’s
safely assume the
Thаt
us to the merits
ruling.
brings
based on
exception
for
Harrington’s application
have
show
he could not
failure to
relief.
matters earlier.
raised the asserted
With
re-
to both the undisclosed
respect
V. Due Process Claim.
evidence, the
ports
recantation
held,
briefly
restate two earlier observa-
ruling
sub- We
court
claims,
analysis.
they
stage
to set the
our
proved
that he
tions
stantive
Romeo,
First, our
is de novo. See
after the verdict
in his
review
were discovered
Second,
a due
at
to show
they
criminal trial
could not
542 N.W.2d
violation,
prove
Harrington must
they
than
been discovered earlier
evidence;
“(1)
prosecution suppressed
diligence.
of due
discovered
the exercise
(2)
to the de-
the evidence was favorable
findings
clearly supported
are
These
fendant;
(3)
evidence,
evidence was material
have re-
substantial
which we
Veal,
guilt.”
dispute
564 N.W.2d
State does
to the issue of
Brady
in question
for a
vio-
the evidence
was known to the
(stating requirements
lation).
sepa-
prosecution
police during
each element
at least the
We address
—or
—
Nor
rately.
trial.
does the State challenge
finding
trial court’s factual
that the police
*13
Suppression
A.
the evi
of
reports were not
to the
at
known
defense
“when in
suppressed
Evidence is
dence.
review,
Upon
trial.
our de novo
we agree
formation is discovered after trial ‘which
Harring
find
with the trial court and
that
prosecution
had been known to the
but
reports
ton
not discover the
until more
did
”
unknown to the defense.’
Cornell
twenty years
than
after his conviction
1988).
384,
430
385
N.W.2d
a person assisting Harrington’s fami
when
mean, however,
This test does not
ly
complete
obtained the
file on Schweer’s
prose
to
evidence unknown
the individual
murder.
suppressed.
cutor is not
See
considered
419, 437,
Kyles v.
514
Whitley,
reports
“sup-
U.S.
115
also think the
We
1567,
1555,
490,
131
pressed”
meaning
Brady
S.Ct.
L.Ed.2d
508
within the
of the
(1995).
duty
It
prosecutor
apparent
The
“has a
to rule.
is
from some
the
any
questions
by
learn of
favorable evidence known to
asked
Harrington’s defense
government’s
...
on the
be
at
acting
counsel
trial that he had some informa-
others
case,
in
including
half
the
Id.
a man
walking
dog
tion about
seen
pqlice.”
Regardless
prosecutor
of whether the
ac
near
carrying
shotgun
the railroad
evidence,
tually
by
learns of the favorable
the car dealership.
tracks
Gates is
name, however,
prosecution
responsibility
by
bears the
for its
mentioned
never
1567-68,
438,
disclosure.
Id. at
115 S.Ct. at
first postconviction relief
Thus,
508.
the fact
L.Ed.2d at
it is
counsel testified that there were no police
131
important;
of nondisclosure
is
reports referring to Gates
the materials
“[t]he
good faith or
faith of
prosecution
provided
by
prosecutor
bad
to him
addition,
failing
is not.
produce
evidence”
one of the lead investigators
Romeo,
551;
Kyles,
542
at
impeachment Harring-
accord
testified withоut
437-38,
1567-68,
523 proved has perpetrator. Harrington Neva advantage of evidence. As the Brady stated under similar second element of a violation. Supreme Court da circumstances, access the docu “[0]nly Materiality. suppres would C. provided
ments themselves necessary and detail of information favorable evidence is not a range sion of denial fully implications understand the evidence “materi due unless is Warden, Mazzan v. police investigation.” the issue Id. guilt.” al to Evidence “ (2000) (hold 25, 37 Nev. P.2d material when ‘there is reasonable identity of another ing oral disclosure that, had the evidence been probability Brady sufficient avoid suspect disclosed, the proceeding result of ” inves failing produce police violation for Cornell, have been different.’ *14 reports); see also Wilson v. tigatory at 386 (citing N.W.2d United States - -, -, 2002 732110 So.2d WL 667, 682, 3375, 105 Bagley, 473 U.S. S.Ct. (finding Brady viola (Ala.Crim.App.2002) (1985)). 3383, 481, 87 L.Ed.2d 494 This knowledge of wit despite tion defendant’s does not the dеfendant to require test identities, where withheld nesses’ the prove disclosure of evidence “would in testimony of their report gave details Romeo, acquittal.” have resulted in his the would the absence of which defendant N.W.2d at As the United 542 551. States time or expend have had “no to the reason explained: recently Court has Supreme them”). Har resources locate Because inquiry just is a materiality not [T]he have the essential details rington whether, determining after matter in police reports, the withheld contained discounting inculpatory the evidence the was suppressed. we hold evidence evidence, the light of the undisclosed B. the ev Exculpatory nature of remaining sup- is evidence sufficient violation, Brady To a prove idence. Rather, jury’s port conclusions. evi defendant must show undisclosed “the evi- question whether favorable to his See was favorable defense. dence reasonably put be taken to dеnce could Romeo, Here, Har 542 at 551. N.W.2d light a the whole case such different rington steadfastly claimed he did confidence in the ver- as to undermine Obviously, the murder.10 commit dict.” be that someone else killed Schweer would Strickler, 290, at 527 at 119 S.Ct. U.S. re favorable to this defense. The (quoting Kyles, 144 at 307 L.Ed.2d documenting an individual with ports, at at 115 S.Ct. 131 514 U.S. shotgun dog caught trying and a to break 506); Tangie, at State v. L.Ed.2d accord night just days a truck before into late (Iowa 2000). In de shooting, ma provide would abundant in the ver ciding whether our confidence argue terial for defense counsel to undermined, we consider “the total dict is opportunity and motive Gates circumstances, including crime, thereby ity of creating rea commit de- effects of nondisclosure on possible sonable doubt by sentencing judged .... I feel like I was the color Harrington's At he stated: my my charac- skin and not the content of just you I to know that no matter want ter, innocent, get, always way I happens, as and I'll feеl until what I know I’m as, know, inside, know, long you testimony then I feel that you kind of verdict the going keep fighting shows, I I’m because guilty as innocent or not that’s myself up know I see locked can’t they say in the courtroom. my something didn't do. rest of life for I (1) trial preparation.” points fense counsel’s Cor reports: revealed these Gates’ nell, at 386. 430 N.W.2d identification -as the suspicious person seen (2) gun the area with a dog; and a
Upon our de novo review of the Gates, Schweer’s contact with which for of the totality record and consideration the first provided time link concrete circumstances, our collective confi between an suspect alternative and the dence the soundness defendant’s victim. significantly conviction is weakened. Hughes, primary against witness Har The State is hard pressed argue all rington, accounts a liar defendant’s trial preparation and trial perjurer. police offering With the a $5000 strategy would not have bеen altered information, Hughes reward for named this additional information. Officers testi- three other individuals as the murderer fying at the hearing second PCR admitted finally identifying before Harrington as the police considered Gates to be “the the perpetrator, only and then after the prime suspect” based on their investiga- other produced three men alibis. tion, an investigation unknown to Harring- questionable Hughes’ is, As veracity ton at the time of his criminal trial. It is *15 it is not prosecution’s the character of the fair to conclude that had Harrington’s principal witness that undermines our con- counsel been provided with this informa- trial; fidence the defendant’s Hughes’ tion, he would have zeroed in on Gates in ability and propensity to lie were well trial, his trial preparation just and known in unreliability 1978. The of this police had zeroed during Gates is, however, important groundwork
witness
their investigation. Harrington’s attorney
analysis
for our
because this circumstance
cоuld have used Gates as the centerpiece
makes it even more
probable
jury
of a consistent theme that the State was
disregarded
would have
or at least doubt-
prosecuting the wrong person.
Hughes’
ed
account of the murder had
there been a
suspect.
true alternative
Independent
placed
witnesses
Gates at
Gates was that
Kyles,
alternative. See
514 the scene of the
days
crime
before
U.S. at
At original trial Gates was one of was identified by as the murderer more a con- than a dozen individuals who were liar, fessed testimony whose considered corrobo- police potential as the only by rated particles two culprit. Certainly gunpowder defense counsel would found Harrington’s not have coat several had the time and weeks resources to after the track down murder and the investigate each of now-recanted these testimony individuals. if But the defendant the witness’s teenage cohorts. known the weapon additional murder information con- was never found and tained in no investigatory the withheld one has ever re- connected with ports, the surely dog prints scene, defense would fo- found at the murder Gates, cused its efforts on not even only though from the beginning trial, preparing for but at trial as well. had focused their investigation on finding Our important conclusion is based on two “a man with dog.” a evidence, very entry vacating Harrington’s of an order jury might a Given granting him a new trial. conviction Harring- have a reasonable doubt well that is re- That is all ton shot Schweer. AND REMANDED. REVERSED materiality to еstablish quired J., CADY, justices All concur except Lay evidence.
undisclosed See dissents, LARSON, J., who takes who (2000) P.3d 116 Nev. part. no the existence “specific evidence of (stating materi- potentially another shooter” was CADY, Justice, (dissenting). develop rea- “might the defense
al because respectfully I dissent. due as to defen- [the doubt whether sonable claim is not on his pretrial based killer”). actual We do was the dant] knowledge suspect of a potential lack of show, Harrington had to as the State think dog seen a walking who had been would have police reports that the argues, carrying shotgun near the railroad that someone else commit- “led to evidence days the car a few dealership tracks It on the crime.” was incumbent [the] ted Furthermore, the murder. Har- prior to Harrington’s guilt beyond prove State rington’s claim is not that he did not have doubt; it was not reasonable prints knowledge dog were observed else prove that someone responsibility murder scene. If were his at the these Therefore, if the murdered Schweer. claims, disagreement I would have no create such withheld evidence would Instead, majority. his claim is that the doubt, if it is material even it would failed to turn re- over the written jury beyond investigation poten- a reasonable of their ports convince into *16 Although by the suspect. suppression tial that Gates was the killer. doubt informa- police potentially exculpatory of by presented the circumstances Under trial, in justify a new it tion can does us, be confi- the record before we cannot clearly knew Harrington this case because mur- that result of dent the the enough independent about information have trial would been the same der police of the suppressed the contents of made exculpatory information been investigation to conduct own reports therefore, hold, that to him. We available valuе its a defense. and determine a fair process right due outraged police, apparent- that the I am failure to trial was violated the State’s questioned over re- ly, failed to turn documenting police reports produce Brady. a clear of This was violation ports. of investigation their an alternative sus- However, require a due does not Mazzan, pect Schweer’s murder. See suppressed reports new trial unless (finding Brady P.2d at 74-75 violation 993 reasonably the outcome altered would “police reports provided where withheld time, Although of passage the trial. of defense support [the defendant’s] attor- the death of the defense as well as victim); else murdered” someone cloud over vagueness has cast a ney, Commonwealth, Va.App. Davis v. is undis- proceedings, much of the trial it (1997) (holding prose- 491 S.E.2d attorney and his puted failure to information cution’s disclose con- enough about the information knew vicinity оther African-American females suppressed reports police tained violation). Brady drug sale constituted a the mat- witnesses trial about examine Moreover, Accordingly, we the trial court’s this was so reverse ter. information Har- exculpatory matter and so contrary ruling, and this sensational remand years gave twenty-five in the case it surely would have ear- volved rington’s counsel own defense independent ago, including Harrington’s matter nestly pursued counsel, competency ques- was not and then formulated a whose any police reports majority proceeding. tioned in this The if it had been warranted. it defense around twenty-five year jury old unable to conclude now sets aside I am Consequently, in the difficult any- places have altered verdict and State would reports that the retrying this case after the position trial. original thing at be- of two and one-half decades passage sup two decisions to majority cites which, cause of a misdeed suppression that the conclusion port its preju- result in disconcerting, while did not Harrington the essen reports denied I conclude the Harrington. dice to a defense around the tial facts to structure Brady cognizable violation is not this Mazzan, 993 reports. See suppressed I would proceeding. relief — Wilson, 37; 2002 WL P.2d at ruling. affirm the district court otherwise However, in Mazzan the at -. So.2d un reports essential to actual appreciating implica
derstanding and Similarly, in Wil
tions of the information. would have had no
son defense counsel the time or resources” “expend
reason to unless he would have
to locate the witness testimony details of their
known about the Iowa, Appellee, STATE suppressed reports. contained case, however, dispute there is no and his counsel had been made WATKINS, Appellant. Heidi Louise eerie, suspicious circum aware of the suppressed re mentioned No. 01-0139. stances Moreover, police provide de ports. Supreme Court of Iowa. report identifying with a fense counsel name, with a suspect by together potential April *17 neighbors and addresses of host of names suspicious person. The
who had seen the
suppressed police reports not neces
sary significance of this to understand prod any compe
known information or to attorney investigate every aspect
tent
the information. majority
I has attached too believe significance suppression
much to the
reports, and has the circum- elevated implicating
stances Gates as the murderer seemingly
into a claim sensationalized today, yet
vindicates rejected
known by police Harring- twenty-five
ton’s own defense counsel
years ago. majority exalts the claim
far in- beyond significance anyone