Martin Shane Moon v. State of Iowa , 911 N.W.2d 137 ( 2018 )

IN THE SUPREME COURT OF IOWA
No. 15–1815
Filed April 20, 2018
MARTIN SHANE MOON,
Appellant,
vs.
STATE OF IOWA,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Clarke County, Gary G.
Kimes, Judge.
An applicant asks for further review of a court of appeals decision
dismissing his postconviction-relief action. DECISION OF COURT OF
APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.
Christine E. Branstad of Branstad Law, P.L.L.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Thomas E. Bakke, Assistant
Attorney General, and Michelle M. Rivera, County Attorney, for appellee.
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WIGGINS, Justice.
An applicant filed a postconviction-relief action alleging the State
committed a Brady1 violation by withholding potentially exculpatory
information regarding the statements made by a witness who ultimately
did not testify at the applicant’s criminal trial. The applicant further
alleged this information constituted newly discovered evidence. The
district court declined to reach the merits of the applicant’s substantive
claims. Rather, the court applied the newly-discovered-evidence test,
instead of the new-ground-of-fact test, to hold that the three-year statute
of limitations barred all claims.
The applicant appealed, and we transferred the case to our court of
appeals. The court of appeals affirmed, holding the applicant failed to
establish a nexus between the new ground of fact and the applicant’s
conviction. The applicant applied for further review, which we granted.
On further review, we hold the statute of limitations does not bar
the applicant’s substantive claims. However, the applicant fails to
establish a Brady violation and fails to demonstrate a viable newly-
discovered-evidence claim. Accordingly, we vacate the decision of the
court of appeals and affirm the judgment of the district court summarily
dismissing the applicant’s postconviction-relief application.
I. Background Facts and Proceedings.
In August 1990, Kevin Dickson was shot and killed. Nine years
later, the State charged Martin Moon and Casey Brodsack with first-
degree murder. Brodsack pled guilty to second-degree murder in
exchange for testifying truthfully at Moon’s trial.
1See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97 (1963) (“[T]he
suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”).
3
Brodsack testified he, Moon, and Dickson roomed together on the
second floor of a house in Winterset while their neighbor, Scott Aukes,
lived with his roommate on the first floor. Brodsack testified he, Moon,
Dickson, and Aukes went to an abandoned farmhouse to look for
marijuana left by Moon’s drug dealer. While Brodsack was checking for
drugs behind the water heater in the basement, he heard six or seven
gunshots. Brodsack went around and saw Dickson lying on the ground,
with Moon holding a gun in his hand. Aukes was not present in the
basement during this episode. Moon handed Brodsack the gun. With
another gun, Moon forced Brodsack at gunpoint to shoot Dickson
because Moon allegedly did not want to be the only one involved.
Brodsack shot Dickson three times.
Brodsack further testified he, Moon, and Aukes went back to
Winterset to retrieve a sledgehammer. They then returned to the
farmhouse and tried to knock in one of the basement walls to cover up
Dickson’s body. When that plan failed, they dragged Dickson’s body
outside and discarded it into a cistern.
According to Brodsack, sometime in 1996, he and his coworker
Brett Lovely were painting fire hydrants near the farmhouse. Brodsack
apparently told Lovely about the murder and showed him what was left
of Dickson—just bones—in the cistern. Lovely kept the secret for a few
years but eventually told law enforcement about it in 1999.
Before trial, the State included a man by the name of Brandon Lee
Boone as a witness in the minutes of testimony. The State anticipated
Boone to testify that law enforcement had conducted an interview of him
on or about May 8, 1999. Boone would also testify he and Moon were
inmates incarcerated at the same prison in 1995 or 1996. During this
time, while Boone and Moon were walking together in the yard, Moon
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allegedly stated he and Brodsack killed Dickson and threw the body into
a cistern.
Moon moved to exclude Boone from testifying at trial for a number
of reasons: the State advised Moon that Boone was unwilling to
cooperate, and Moon did not have an opportunity to depose Boone or
investigate Boone’s May 1999 interview. Moon also alleged the
admission of any statements made by Boone to law enforcement was
hearsay and a violation of his Sixth Amendment confrontation rights.
In response to Moon’s motion, the State alleged it had provided to
Moon the Iowa Division of Criminal Investigation (DCI) report containing
the interview. Moreover, the State informed Moon that Boone had
refused to cooperate since his arrest as a material witness, and the State
did not know whether Boone would cooperate at trial. Although the
record is unclear as to the district court’s ruling on the motion to
exclude, Boone ultimately did not testify at trial.
In June 2000, the jury found Moon guilty as charged, and the
district court sentenced him to a mandatory life term in prison. The
court of appeals affirmed Moon’s conviction. Following that appeal, the
clerk issued procedendo in July 2002.
On October 31, Moon filed his first pro se application for
postconviction relief. On August 19, 2004, Moon’s appointed
postconviction counsel filed an amended application alleging ineffective
assistance of counsel and trial court error. The district court denied the
application, and the court of appeals affirmed.
On January 12, 2012, Moon filed his second pro se postconviction-
relief application, almost a decade after the issuance of procedendo.
Moon made two allegations. First, pursuant to Iowa Code sections
5
822.2(1)(a) (2011),2 he claimed the sentence and judgment violated the
Due Process Clauses of the United States and Iowa Constitutions.
Second, pursuant to section 822.2(1)(g), he claimed the sentence and
judgment were subject to collateral attack because the trial information
was insufficient and unconstitutional.
Moon attached affidavits to this application. Of importance are
Boone’s and Moon’s affidavits. In his January 4, 2011 affidavit, Moon
claimed he had never seen any police reports or investigative notes
concerning Boone’s alleged false statements to law enforcement.
In his April 7, 2011 affidavit, Boone declared he had given several
false statements to law enforcement at the behest of Brodsack. He
attested law enforcement contacted him multiple times between the years
1998 and 1999 regarding Dickson’s murder. Boone declared Brodsack
had prepared him to give false statements implicating Moon in the death
of Dickson. Moreover, Boone gave the false statements because he was
under the impression he would receive leniency from the State on the
pending charges against him if he provided information implicating Moon
in Dickson’s murder.
Boone further declared, “I tried in each of those statements, even
back then, to convey to authorities that they were in fact false” but law
enforcement “intentionally ignored my attempts.” Boone attested,
“[T]hese indications of falsehood can be found in each of my original
written and initialed statements taken by state law authorities from late
1998 to May of 1999.” Furthermore, Boone stated, “[The] Minutes of
Testimony . . . does not contain the exact words or statements that I gave
to law enforcement authorities.” In sum, Boone stated, “I had no
2Moon explicitly cited section 822.2(1) and (4). However, upon our examination
of the statute, we believe Moon meant to cite to section 822.2(1)(a).
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information of [Moon’s] involvement in [Dickson’s murder] other than
what Casey told me to say whenever any law enforcement authorities
approached me asking questions.”
On October 22, 2012, Moon submitted a supplemental petition of
pro se issues, claims, and grounds for relief. On March 16, 2015, Moon
filed a motion to amend his application. The amended application
alleged pursuant to Iowa Code section 822.2(1)(d) (2015), newly
discovered evidence requires vacation of his original sentence and
judgment.3 Specifically, this newly discovered evidence is the contents of
Boone’s 2011 affidavit. Additionally, Moon alleged the State’s
suppression of exculpatory evidence, such as police reports, recordings,
and interviews concerning Boone, amounts to a Brady violation.
The State moved for summary dismissal of Moon’s second
postconviction-relief application pursuant to section 822.6. The State
argued the application was untimely under the three-year statute of
limitations set out in section 822.3 because the clerk issued procedendo
in July 2002, and Moon filed the instant application in January 2012.
The State therefore claimed the district court lacked jurisdiction to hear
the case because the statute of limitations had run. The State also
argued Moon’s claims in his application and supplemental petition were
meritless.
Moon resisted the State’s motion, arguing the limitations period
did not apply to his claims because a new ground of fact exists. Moon
then applied the newly-discovered-evidence test to his substantive claim
based on section 822.2(1)(d). He also argued he provided sufficient
3Moon cited to section 822.2(4) but we believe he meant to cite to section
822.2(1)(d). Moon correctly cited to 822.2(1)(d) in his resistance to the State’s motion
for summary dismissal.
7
evidence to create factual questions regarding his due process claim
based on a Brady violation.
On October 16, the district court granted the State’s motion for
summary dismissal, concluding Moon’s application was untimely by
applying the newly-discovered-evidence test rather than the ground-of-
fact test. The court reasoned the evidence was not material but merely
impeaching. The court did not address the alleged Brady violation.
Moon appealed. The court of appeals affirmed the summary
dismissal, concluding the ground-of-fact exception did not apply. Moon
filed an application for further review, which we granted. We lay out
additional facts as necessary.
II. Issues.
The threshold issue is whether the three-year statute of limitations
bars Moon’s claims. The substantive issues are whether the State
suppressed Brady material by withholding potentially exculpatory
information regarding Boone’s statements to law enforcement and
whether this information constitutes newly discovered evidence.
III. Scope of Review.
We generally review postconviction proceedings, including
summary dismissals of postconviction-relief applications, for errors at
law. Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011). When the basis
for relief implicates a violation of a constitutional dimension, our review
is de novo. Everett v. State, 789 N.W.2d 151, 155 (Iowa 2010); Bugley v.
State, 596 N.W.2d 893, 895 (Iowa 1999), superseded by statute on other
grounds, 2004 Iowa Acts ch. 1017, § 2 (codified at Iowa Code § 814.7
(2005)), as recognized in State v. Johnson, 784 N.W.2d 192, 197 (Iowa
2010).
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However, the district court summarily disposed of this case under
section 822.6. We apply our summary judgment standards to summary
disposition of postconviction-relief applications. Schmidt v. State, ___
N.W.2d ___, ___ (Iowa 2018); Manning v. State, 654 N.W.2d 555, 559–60
(Iowa 2002). Therefore, on further review we will apply our summary
judgment/disposition standards. Summary disposition is appropriate
if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show . . . there is no genuine issue as to any material fact
and . . . the moving party is entitled to a judgment as a
matter of law.
Iowa R. Civ. P. 1.981(3). The moving party bears the burden of showing
the absence of a genuine issue of material facts. C & J Vantage Leasing
Co. v. Wolfe, 795 N.W.2d 65, 73 (Iowa 2011). We view the record in the
light most favorable to the nonmoving party. Eggiman v. Self-Insured
Servs. Co., 718 N.W.2d 754, 758 (Iowa 2006). We draw all legitimate
inferences from the record in favor of the nonmoving party. Vossoughi v.
Polaschek, 859 N.W.2d 643, 649 (Iowa 2015).
Additionally, we also apply summary judgment standards to the
statute-of-limitations issue. See Vossoughi, 859 N.W.2d at 649–55
(applying summary judgment standards to resolve the statute-of-
limitations issue).
IV. Statute of Limitations.
Our postconviction-relief statute contains a statute of limitations
for filing postconviction-relief applications. Iowa Code § 822.3. The Code
provides in relevant part that such applications “must 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.” Id.
Moon relies on an exception to this rule. The Code provides that “this
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limitation does not apply to a ground of fact or law that could not have
been raised within the applicable time period.” Id.
We examine an instructive case on applying the statute of
limitations under section 822.3. In Harrington v. State, the defendant
filed his second postconviction-relief application more than two decades
after his conviction. 659 N.W.2d 509, 515 (Iowa 2003). We first stated
the applicant must meet the “obvious requirement” that he or she could
not have raised the ground of fact within the limitations period. Id. at
520. The onus is on the applicant to make this showing. Additionally,
we stated “the applicant must . . . show a nexus between the asserted
ground of fact and the challenged conviction.” Id. (emphasis added).
Thus, the “applicant relying on the ground-of-fact exception must show
the ground of fact is relevant to the challenged conviction.” Id. at 521
(emphasis added). We defined “relevant” as follows: “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.” Id. (emphasis
added).
We explicitly and “specifically reject[ed] 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.” Id. The basic reasoning behind our rejection was
that “[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.” Id. After articulating the standard for the ground-of-fact
exception, we stated the district court rejected the defendant’s assertion
of this exception because it erroneously believed the defendant had to
prove the ground of fact met the elements of a newly-discovered-evidence
claim. Id.
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The district court in the instant case reached its holding through a
merits analysis of a newly-discovered-evidence claim rather than
applying the ground-of-fact standard we clarified in Harrington. We
again emphasize the ground-of-fact exception pursuant to section 822.3
is not the same as a substantive claim for postconviction relief based on
newly discovered evidence pursuant to section 822.2(1)(d). See id. at
520–21.
We now apply the ground-of-fact test to determine whether Moon’s
claims are time barred. First, a genuine issue of material fact exists as
to whether Moon could have known about the contents of the affidavit
before the end of the limitations period. In his January 2011 affidavit,
Moon declared he had never seen any police reports or investigative
notes concerning Boone’s alleged false statements to law enforcement or
had any knowledge of it prior to Boone’s affidavit. Additionally, Moon
could not have gleaned this information from Boone during their time
together as fellow inmates because they were in prison in 1995 or 1996,
and Boone made the alleged false statements to law enforcement from
1998 to 1999. Moreover, the record does not show there would be any
reason for Moon to seek out Boone postprison. In fact, the minutes of
testimony do not reveal even a smidgen of any intent on the part of
Boone to give false statements to law enforcement at the time he was in
prison with Moon.
Accordingly, viewing the record and drawing all legitimate
inferences therefrom in the light most favorable to Moon, we find a
genuine issue of material fact exists as to whether Moon could have
raised the ground of fact earlier. See Schmidt, ___ N.W.2d at ___ (holding
“[the victim’s] recantation was not available to [the defendant] within” the
limitations period); see also Harrington, 659 N.W.2d at 521 (holding
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substantial evidence clearly supported the district court’s findings that
the defendant could not have discovered the undisclosed police reports
and the recantation evidence “earlier than they were discovered in the
exercise of due diligence”); cf. Boss v. Ludwick, 863 F. Supp. 2d 845, 859
(N.D. Iowa 2012) (holding the defendant knew at the time of his trial that
the officer had recorded his conversation because he had seen the officer
turn on the recorder, and thus the defendant could have raised his claim
that the recording existed earlier).
Second, Moon established a nexus between Boone’s admissions
and his conviction. The court of appeals held the ground of fact lacked
the required nexus with the conviction, reasoning Boone’s affidavit only
impeached Brodsack’s credibility because Boone did not testify at trial
and, at most, the affidavit adversely affected the credibility of Brodsack’s
testimony. However, for purposes of determining whether the exception
to the limitations period applies, we do not reach the merits of whether
Boone’s admissions “would likely or probably have changed the outcome
of the underlying criminal case.” Harrington, 659 N.W.2d at 521 (holding
the police reports and the recantation evidence “are the type of facts
having the potential to qualify as material evidence that probably would
have changed the outcome of [the defendant’s] trial”); accord Schmidt, ___
N.W.2d at ___ (holding “the recantation has the potential to qualify as
material evidence that probably would have changed the outcome of [the
defendant’s] case”). We do not automatically exclude impeachment
evidence from the potentially material evidence category.4 See Aguilera v.
4Impeachment evidence may lack the potential to qualify as material evidence if,
for example, Moon brought only a newly-discovered-evidence claim because the newly-
discovered-evidence test requires “that the evidence is material to the issues in the case
and not merely cumulative or impeaching.” Jones v. State, 479 N.W.2d 265, 274 (Iowa
1991). However, Moon also brought a Brady claim. In the Brady context, impeachment
evidence alone may be material to the issue of guilt and thus has the potential to
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State, 807 N.W.2d 249, 254–258 (Iowa 2011) (holding the alleged
potentially exculpatory evidence impeaches the credibility of the
witnesses and is sufficiently material that had the evidence been
disclosed, it would have altered the dynamic of the trial). Accordingly,
the alleged exculpatory evidence has the potential to qualify as material
evidence.
Based on the foregoing, we conclude there is a genuine issue of
material fact concerning the statute-of-limitations issue because
reasonable minds could differ on the question of whether Moon could
have raised the ground of fact earlier. We now turn to the merits.
V. Due Process Claim: Brady Violation.
Moon’s claim under section 822.2(1)(a) is based on an alleged
Brady violation arising from the State’s failure to turn over exculpatory
evidence, such as notes, statements, and interview reports of Boone.
Section 822.2(1)(a) provides a postconviction-relief applicant a right of
action when his or her “conviction or sentence was in violation of the
Constitution of the United States or the Constitution or laws of this
state.” Iowa Code § 822.2(1)(a).
To show a Brady violation, Moon “must prove by a preponderance
of the evidence ‘(1) the prosecution suppressed evidence; (2) the evidence
was favorable to the defendant; and (3) the evidence was material to the
issue of guilt.’ ” DeSimone v. State, 803 N.W.2d 97, 103 (Iowa 2011)
(quoting Harrington, 659 N.W.2d at 516).
A. Suppression of the Evidence. For purposes of this appeal, we
assume without deciding a genuine issue of material fact exists as to
________________________
qualify as material evidence. See DeSimone v. State, 803 N.W.2d 97, 105 (Iowa 2011)
(stating the Brady rule encompasses impeachment evidence).
13
whether the State suppressed the evidence. Thus, Moon would be
entitled to a hearing on this element of his Brady claim.
B. Favorable Nature of the Evidence. The suppressed evidence
must have been favorable to the defense. Harrington, 659 N.W.2d at 523.
Favorability in the context of Brady means that had the prosecution
disclosed the suppressed evidence and had the defense used such
evidence effectively, “it [might have made] the difference between
conviction and acquittal.” United States v. Bagley, 473 U.S. 667, 676,
105 S. Ct. 3375, 3380 (1985). The Brady rule encompasses both
impeachment and exculpatory evidence. DeSimone, 803 N.W.2d at 105.
Boone’s admissions, specifically that he gave false statements to
law enforcement at Brodsack’s behest, favor the defense. Brodsack was
also a suspect in Dickson’s murder and the primary witness who testified
against Moon at trial. The suppressed evidence raises suspicion as to
Brodsack’s motive in allegedly preparing Boone to lie to law enforcement.
See Aguilera, 807 N.W.2d at 254 (holding the statements contained in
the withheld DCI file could impeach a witness and thus were
exculpatory). Accordingly, we conclude a genuine issue of material fact
exists as to the favorable nature of the suppressed evidence. Thus, Moon
would be entitled to a hearing on this element of his Brady claim.
C. Material to the Issue of Guilt. In addition to the State’s
suppression of favorable evidence, the evidence must be “material to the
issue of guilt.” DeSimone, 803 N.W.2d at 105. The United States
Supreme Court has rejected a distinction between impeachment evidence
and exculpatory evidence in the Brady context. Bagley, 473 U.S. at 676,
683–84, 105 S. Ct. at 3380, 3384. In fact, impeachment evidence can
very well be exculpatory. See Aguilera, 807 N.W.2d at 254 (“Since all of
the statements contained in the file could be used to either impeach a
14
witness or support alternate interpretations of events, these statements
were all clearly exculpatory.”).
Materiality depends on whether “there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Cornell v. State, 430 N.W.2d 384,
386 (quoting Bagley, 473 U.S. at 682, 105 S. Ct. at 3383) (noting we
adopted the Bagley standard in State v. Anderson, 410 N.W.2d 231, 232–
34 (Iowa 1987)). Reasonable probability does not require the defendant
to demonstrate that the disclosure of the evidence “would have resulted
in his [or her] acquittal.” State v. Romeo, 542 N.W.2d 543, 551 (Iowa
1996). Rather, the defendant establishes reasonable probability when
“the favorable evidence could reasonably be taken to put the whole case
in such a different light as to undermine confidence in the verdict.”
Harrington, 659 N.W.2d at 523 (quoting Strickler v. Greene, 527 U.S. 263,
290, 119 S. Ct. 1936, 1952 (1999)). We emphasize “reasonable
possibility” of a different outcome is not sufficient to require reversal.
DeSimone, 803 N.W.2d at 105 (emphasis added).
When determining materiality, we consider “the totality of
circumstances, including the possible effects of nondisclosure on defense
counsel’s trial preparation.” Cornell, 430 N.W.2d at 386.
1. Pending murder charge against Boone. Boone admitted in his
affidavit that he gave false statements to law enforcement because of a
pending murder warrant and that the State dismissed the charges
against him after he gave his first false statement. However, this
admission could not have had any effect, let alone a reasonably probable
effect, on the outcome because Boone ultimately did not testify against
Moon at trial.
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2. Brodsack’s preparation of Boone to give false statements. The
prickly issue is whether disclosure to the jury of Boone’s admission that
Brodsack prepared him to give false statements creates a reasonable
probability that the outcome would have been different had the State
disclosed this alleged fact. We examine the trial record to resolve this
issue.
Even with the alleged potentially exculpatory evidence, a
reasonable fact finder could nevertheless find Moon guilty of first-degree
murder. Schmidt, ___ N.W.2d at ___ (Cady, C.J., concurring) (stating a
jury could still convict the defendant based on the remaining undisputed
evidence).
We first examine Brodsack’s testimony about a 1990 burglary that
occurred days before the murder. Specifically, Brodsack testified he,
Moon, Dickson, and Aukes burglarized a building owned by Russell
Kerns, and stole two rifles and two pistols in the summer of 1990. Moon
allegedly told Brodsack one of the guns came from a pickup truck.
Brodsack further testified Moon had the guns in his possession at the
house the night before the murder. According to Brodsack, he and Moon
used two guns—a revolver and a semiautomatic—to shoot Dickson, and
Brodsack recognized the guns as the ones they had stolen from Kerns.
Brodsack testified these guns were a .38 and .45.
The testimonies of the Kerns and the police lend credence to
Brodsack’s testimony on how Moon obtained the murder weapons. Ken
Burk, sheriff at the time of the burglary, testified he investigated a
burglary at the Kerns property in late July 1990. Burk had tracked
down the serial number of one of the stolen guns. That gun was a .38
revolver with the serial number 570-01772.
16
Madelyn Kerns testified several guns, including a gun inside a
pickup truck, and a couple of saddles had been stolen from an outhouse
building on their property in July 1990, the same time frame Brodsack
testified he and his cohorts committed the burglary. Madelyn further
testified her late husband, Russell, had invited the Moon family for a
cookout, and Russell showed Moon and Moon’s father his gun collection
stored in the outhouse building. Madelyn testified Russell was not in the
habit of displaying his gun collection, but he showed it to Moon and
Moon’s father because Russell had known Moon’s father for a long time.
The cookout occurred at some point in time prior to the burglary.
Madelyn admitted she could not recall the exact day of the cookout.
Additionally, before his death, Russell told law enforcement on the
telephone that he had shown the guns to Moon.
The testimonies of the DCI Agents Michael Motsinger and Victor
Murillo corroborate Brodsack’s testimony that the .45 caliber gun stolen
from the Kerns was one of the guns used in Dickson’s shooting death.
While executing a search warrant on the abandoned farmhouse property,
Motsinger testified he and his team found two .38 caliber shells and one
.45 shell inside the cistern. Motsinger further testified they found three
.45 shells in the basement. According to Motsinger, he and another
agent went to the former Kerns property to search for any type of firearm
components. They found two .45 caliber shells on the property.
Motsinger testified they transported these shells to the DCI lab for
comparison to the shells found at the basement of the farmhouse.
Murillo testified the three .45-caliber shells found in the basement
and the two .45-caliber shells found on the Kerns property all came from
the same gun. He also testified the shells recovered from the cistern
were too damaged to make a positive identification of them.
17
Aukes corroborated crucial aspects of Brodsack’s testimony
regarding the details of the murder. Aukes testified that on the morning
of the murder, Moon or Brodsack told him they were going to get some
drugs. Aukes, Moon, Brodsack, and Dickson went on this morning trip
in Moon’s car. Aukes testified they all entered the abandoned farmhouse
on the main level. Aukes eventually went outside to smoke a cigarette.
While retrieving his cigarettes and lighter from the car, Aukes testified
that he heard around ten gunshots. Based on his military training, he
could tell the gunshots came from two different guns. Around two to
three minutes later, Moon and Brodsack rushed out of the house. Aukes
testified Moon said they needed to do something about Dickson’s body.
Aukes, Moon, and Brodsack drove back to Winterset, and Moon retrieved
a sledgehammer. They then went back to the farmhouse and attempted
to use the sledgehammer to collapse one of the basement walls to cover
up Dickson’s body.
Aukes testified their efforts with the sledgehammer failed, so the
three of them went back outside to come up with another plan. At this
time, Brodsack stepped into a large hole located in the center of a lid
covering a cistern. They went back to the basement, hauled Dickson’s
body outside, and dumped the body into the cistern. All these aspects of
Aukes’s testimony corroborate Brodsack’s testimony.
Duane McPhillips’s testimony also corroborates Brodsack’s
testimony concerning how the murder unfolded. McPhillips, an
acquaintance of Moon, testified Moon had told him that he, Brodsack,
and Aukes lured Dickson out into the country under the guise of a drug
buy and then shot Dickson. During direct examination, McPhillips
testified Moon did not tell him who actually shot Dickson. During cross-
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examination, McPhillips testified Moon told him that he (Moon) had killed
Dickson.
The jury took into account some inconsistences in Brodsack’s
testimony and the testimony of others. For example, Brodsack testified
he and Moon sold the revolver while Aukes testified Brodsack told him to
throw the revolver in the river. We note based on Aukes’s testimony,
Motsinger testified he and his team attempted to locate the revolver in
the river but did not succeed. However, in June 1999, Motsinger flew to
Arizona, where the Kerns were living at the time, and obtained a revolver
bearing the serial number 570-01772 from them. Yet another example,
Brodsack testified he threw Dickson’s wallet in the back seat of Moon’s
car after dumping Dickson’s body into the cistern. However, Motsinger
testified that he and his team recovered Dickson’s wallet from the
cistern. Yet another example, Brodsack testified the night before the
murder, Moon, Aukes, and Dickson argued over Aukes’s girlfriend named
Cindy because Dickson wanted to move away with Cindy. However,
Aukes testified he was not involved in this argument and the argument
was among Moon, Brodsack, and Dickson, although Cindy was present.
The jury knew Brodsack’s testimony was certainly not wholly credible
and was fully aware of these inconsistencies before returning a guilty
verdict against Moon.
The physical evidence does not contradict, although it does not
affirmatively corroborate, Brodsack’s and Aukes’s respective testimonies
regarding the number of times Dickson was shot. Dr. Francis Garrity, a
forensic pathologist, testified the skeletal remains recovered from the
cistern were of Dickson. He further testified Dickson had died of
multiple gunshot wounds. Dr. Dawnie Steadman, a physical
anthropologist, testified she had found perimortem wounds on the
19
skeleton, finding nine unambiguous gunshot wounds. She testified this
finding did not dictate a finding that nine bullets had passed through
Dickson’s body because bullets could pass through the body without
hitting bones. According to Dr. Steadman, a conservative estimate of the
minimum number of bullets producing gunshot wounds was three.
Had the defense known that Brodsack prepared Boone to implicate
Moon in the murder, it might have prepared for trial a bit differently.
The defense would have probably deposed Brodsack with questions as to
why he told Boone to lie to law enforcement. However, from viewing the
record, we are unsure whether the defense would have had the
opportunity to depose Boone because Boone had absconded. The record
does not show when Boone absconded.
Despite some uncertainties as to how the defense would have
prepared for trial differently, we find the defense already thoroughly
attempted to subvert Brodsack’s credibility at trial. The alleged
preparation of Boone goes to the question of Brodsack’s motive behind
downplaying his involvement in the murder or shifting police focus away
from himself. The trial record clearly shows the defense vetted this
motive.
Regarding the Kerns burglary, the defense challenged Brodsack’s
testimony that he and his cohorts had stolen two rifles and two pistols
when in fact the Kerns had reported two saddles, nine guns, and a Bowie
knife as stolen. The defense also cross-examined Aukes concerning
inconsistencies between some aspects of Aukes’s testimony and
Brodsack’s testimony.
More importantly, the defense fully cross-examined Brodsack
concerning the “pack of lies” he told the DCI concerning the murder. In
an April 29, 1999 interview, Brodsack told the DCI that Dickson was in
20
Colorado when, in reality, Dickson was already dead. Brodsack admitted
at trial he had told an elaborate story and had persisted for about an
hour telling the DCI “absolute nothing but lies.”
The defense highlighted that Brodsack changed his story during
the second half of the April 29 interview when the DCI told him it would
be in his best interest to start telling the truth. Instead of telling the
truth, Brodsack lied yet again. This time, Brodsack lied that Moon and
McPhillips took him out to the farmhouse to show him Dickson’s body.
Brodsack further lied that his fingerprints were on some of the debris in
the cistern because he had thrown some trash down there when he was
at the farmhouse property with Lovely. During this same April 29
interview, Brodsack changed his story yet again after the DCI disclosed
to him they knew he was present at the farmhouse when Dickson was
murdered. Brodsack lied he was in the car at the time of the murder and
stated he did not know if Moon was the person who pulled the trigger.
During a continuation of the April 29 interview the following day,
Brodsack told the DCI he was waiting in the car when he heard
gunshots, and Moon and McPhillips came rushing out of the farmhouse.
Brodsack then went down to the basement, with one hand on the railing
and the other on the wall and, upon seeing Dickson lying on the ground,
kicked him to see if he was dead. Brodsack admitted at trial this
retelling of the events was a lie.
The defense again emphasized Brodsack’s “pack of lies” and the
different versions of the events he had told the DCI. The defense also
prodded Brodsack’s motive for going to the authorities on April 29,
pointing out Lovely had shown up at Brodsack’s house in the evening of
that day to talk about the murder. The defense portrayed Brodsack as a
liar who purposefully agreed to the April 29 interview to shift police focus
21
away from himself and to Moon and other individuals, such as
McPhillips.
The defense’s theory of the case focused on Brodsack’s presumed
history of blaming other individuals for his crimes and his penchant for
lying. In fact, the defense impeached, or at least attempted to impeach,
Brodsack’s credibility by delving into his past forgery and fraudulent
practice charges. Forgery and fraudulent practice go to the very heart of
veracity, thus casting doubt on Brodsack’s testimony. The defense also
brought up the plea deal between Brodsack and the State in which the
State agreed to reduce the charge against him from first-degree murder
to second-degree murder in exchange for truthful testimony at trial. We
conclude the record shows the defense thoroughly impeached Brodsack’s
credibility at trial.
In addition to the defense’s persistent attempts to poke holes at
Brodsack’s credibility and portrayal of Brodsack as a suspect attempting
to shift police focus away from himself, the State laid out its cards,
although for strategic reasons, for the jury and the defense. The State
admitted in its opening statement that Brodsack had originally lied to the
DCI, denying his involvement in the murder. The State further admitted
Brodsack changed his story a number of times in the face of additional
evidence and continued to lie. Furthermore, the State disclosed to the
jury that it had originally charged Brodsack with first-degree murder, but
made a plea deal with him to reduce the charge to second-degree murder
if Brodsack testified truthfully about Dickson’s murder. Thus, Brodsack
had motive to testify against Moon. Cf. Bagley, 473 U.S. at 683–84,
105 S. Ct. at 3384 (reasoning the prosecutor’s failure to disclose any
monetary inducements, as well as its disclosure of affidavits stating the
witnesses received no promises of a reward, misled the defendant to
22
believe that the witnesses could not be impeached when, in actuality,
“the possibility of a reward gave [the witnesses] a direct, personal stake
in [the defendant’s] conviction”).
The de minimis effect of the allegation that Brodsack prepared
Boone would not have changed the outcome at trial. We have stated
“[w]ithholding impeachment evidence can [amount to] a Brady violation,
but when a witness’s testimony has been otherwise impeached with prior
inconsistent statements, we are less likely to find the impeaching
statements would have impacted the outcome of the trial.” Aguilera,
807 N.W.2d at 254 (emphasis added). In other words, the impeachment
value of Brodsack’s alleged preparation of Boone to give false statements
is incremental. See Rowe v. Grizzard, 591 F. Supp. 389, 397 (E.D. Va.
1984) (stating if suppressed impeachment evidence would have had no
significant effect on the witness’s credibility, there is no due process
violation); accord Romeo, 542 N.W.2d at 552.
At the end of trial, the jury could fully appreciate the fact that
Brodsack may not be a truthful person and could be lying on the witness
stand about how Dickson’s murder unfolded. The trial record indicates
the jury knew Brodsack mostly lied to the authorities before he finally
told them the presumed complete story in December 1999 when he
signed the plea agreement. Despite Brodsack’s previous lies to the
authorities, the jury found Brodsack’s trial testimony presumably
truthful or at least worthy of some degree of credence. Given this
premise, we find the jury could reasonably lump the alleged fact that
Brodsack prepared Boone to give false statements as just another one of
Brodsack’s attempts to shift police focus away from himself before he
finally decided to tell the authorities the truth in December 1999. Thus,
23
we do not think the alleged potentially exculpatory evidence would have
“le[d] to a new dynamic at trial.” Aguilera, 807 N.W.2d at 257.
We realize the only two individuals towering over Dickson’s body in
the basement on that fateful day were Moon and Brodsack. Moon did
not testify at his own trial. Thus, Brodsack was the only witness who
gave a firsthand account of what unfolded in the basement. However,
Boone’s allegation that Brodsack prepared him to give false statements to
law enforcement, at best, casts another shadow of doubt on the
credibility of Brodsack’s testimony, which already loomed with clouds of
doubt even without the alleged newly discovered evidence. Cf. Cornell,
430 N.W.2d at 386 (holding the stepbrother’s “testimony was otherwise
impeached because of several inconsistent statements” and further
impeachment with the first alleged exculpatory statement would not
undermine confidence in the defendant’s conviction).
Admittedly, there are similarities between Harrington and the case
at hand. In Harrington, the jury knew the primary witness was a liar: he
had named three other individuals before finally pointing the finger at
the defendant. 659 N.W.2d at 524. Moreover, the jury knew the state
agreed to drop various theft and burglary charges in exchange for his
testimony against the defendant. Id. at 515. Yet, in Harrington, we
found the questionable veracity of the primary witness was not what
“undermine[d] our confidence in the defendant’s trial” because “[the
primary witness’s] ability and propensity to lie were well known” at the
time of the trial. Id. at 524. Rather, we reasoned the primary witness’s
unreliability was “important groundwork . . . because this circumstance
makes it even more probable that the jury would have disregarded or at
least doubted [the primary witness’s] account of the murder had there
been a true alternative suspect.” Id. Had the defense known about the
24
information contained in the police reports, the defense would have
zeroed in on the alternative suspect and would have used the suspect “as
the centerpiece of a consistent theme that the State was prosecuting the
wrong person.” Id. Here, unlike in Harrington, the defense knew about
all potential alternative suspects. Moreover, as we have already
established, the defense zeroed in on Brodsack.
We conclude even if the State had disclosed to Moon the alleged
interference on the part of Brodsack and the defense had used the
information to impeach Brodsack’s testimony, there is no reasonable
probability that the outcome of trial would have been different. Moon
fails to undermine our confidence in the outcome at trial and ultimately
fails to establish a valid Brady violation. Because Brodsack’s
preparation of Boone is not material to the issue of guilt, Moon’s
conviction does not violate his due process right to a fair trial.
Accordingly, we find there is no genuine issue of material fact on the
materiality of the suppressed evidence because the suppressed evidence
has no reasonable probability of changing the outcome of trial. Thus,
Moon fails to fulfill this element of his Brady claim.
Because no genuine issue of material fact exists on the third
element that is required to prove a Brady violation, the State is entitled
to a judgment as a matter of law on Moon’s Brady claim.
VI. Newly-Discovered-Evidence Claim.
Moon next alleges Boone’s affidavit, specifically Boone’s admissions
that he gave false statements to law enforcement at Brodsack’s behest
and because of a pending murder warrant, constitutes newly discovered
evidence pursuant to Iowa Code section 822.2(1)(d). Section 822.2(1)(d)
gives a postconviction-relief applicant a right of action when “[t]here
exists evidence of material facts, not previously presented and heard,
25
that requires vacation of the conviction or sentence in the interest of
justice.” Iowa Code § 822.2(1)(d).
To prevail on his newly discovered evidence claim, Moon must
show by a preponderance of the evidence
(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); Jones v. Scurr,
316 N.W.2d 905, 907 (Iowa 1982).
A. Discovered After the Running of the Three-Year Statute of
Limitations. The obvious fact is that Boone’s 2011 affidavit came after
Moon’s 2000 trial. The question is whether Moon discovered the
contents of Boone’s affidavit after the verdict. In Jones, a defendant
alleged the postjudgment testimonies of his two codefendants constituted
newly discovered exculpatory evidence. 316 N.W.2d at 906–07. The first
codefendant had invoked his privilege against self-incrimination at the
defendant’s hearing on a motion for new trial and had allegedly refused
to testify at defendant’s trial. Id. at 907–08. The second codefendant
was a fugitive at the time and therefore did not testify at the defendant’s
trial or hearing. Id. at 908. We held the testimonies did not constitute
newly discovered evidence because the defendant knew about the
evidence even though it was unavailable at the time of trial. Id. at 910.
Unlike the defendant in Jones, the record shows Moon did not
know at the time of trial or within the applicable limitations period that
Boone gave false statements to law enforcement for whatever Boone’s
reasons. Because the potentially exculpatory evidence was unavailable
26
and unknown to Moon within the appropriate limitations period, we find
a genuine issue of material fact exists as to whether Moon discovered the
evidence in question after the verdict. Thus, he would be entitled to a
hearing on this element of his newly-discovered-evidence claim.
B. Could Not Have Been Raised Earlier in the Exercise of Due
Diligence. The burden is on Moon to demonstrate he could not have
raised the newly discovered evidence earlier in the exercise of due
diligence. Moon has met this burden. Specifically, he exhausted the
probable sources of information related to this case. The record shows
on January 27, 2000, Moon filed a motion to produce evidence
concerning Boone’s proposed testimony. Moon further requested to
depose Boone. However, Moon did not have the opportunity to depose
Boone or investigate Boone’s May 1999 statements to the DCI because
Boone had absconded. The State had to issue a warrant to arrest him as
a material witness. By the time the State informed Moon that Boone was
in custody, it was already June 9, 2000, and the trial was set for
June 12. Moreover, following his arrest, Boone refused to participate in
any interviews by the State or the DCI. At this point, it appears Boone
did not want to cooperate with any parties involved in the case.
Additionally, in his January 2011 affidavit, Moon declared he had
never seen any police reports or investigative notes concerning Boone’s
alleged false statements to law enforcement or knew of this information
prior to obtaining the affidavit. Furthermore, as mentioned before, Moon
could not have obtained this information from Boone during their time
together in prison in 1995 or 1996 because Boone made the alleged false
statements to law enforcement from 1998 to 1999.
We acknowledge Moon did not call Boone to testify at trial. See id.
at 910 n.1 (noting it was “questionable whether [the first codefendant]
27
was unavailable at trial” when the defendant failed to call the
codefendant to testify at trial despite the codefendant’s alleged refusal to
so testify). However, we have stated, “The showing of diligence required
is that a reasonable effort was made. The applicant is not called upon to
prove he sought evidence where he had no reason to apprehend any
existed.” State v. Compiano, 261 Iowa 509, 519, 154 N.W.2d 845, 850
(1967) (emphasis added) (quoting Westergard v. Des Moines Ry.,
243 Iowa 495, 503, 52 N.W.2d 39, 44 (1952)). Moon filed a motion to
exclude Boone’s testimony because it appears Moon believed Boone’s
proposed testimony, as memorialized in the minutes of testimony, would
harm Moon’s defense.
Moreover, according to Boone’s affidavit, had Boone testified at
trial, he would have given the same story that Brodsack allegedly
prepared him to give to law enforcement. Thus, even if Moon had called
Boone to testify on the witness stand, Moon could not have discovered
the alleged false statements before the verdict.
Lastly, nothing in the trial record shows the defense became aware
of the possibility that Brodsack had prepared Boone to implicate Moon in
the murder. Cf. id. at 519, 154 N.W.2d at 851 (holding the defendant
failed to exercise due diligence when he knew of the possibility of the
officer’s mistake during the officer’s testimony at trial yet did not ask for
a continuance after failing to locate the officer during the noon recess).
Accordingly, we find a genuine issue of material fact exists as to whether
Moon exercised due diligence in attempting to depose Boone and
investigate the May 1999 interview, and could not have raised the alleged
potentially exculpatory evidence earlier. Thus, he would be entitled to a
hearing on this element of his newly-discovered-evidence claim.
28
C. Material and Not Merely Cumulative or Impeaching. At
most, the alleged exculpatory evidence is merely impeaching of
Brodsack’s testimony and therefore not considered material in the
context of a newly-discovered-evidence claim. Accordingly, because
Moon fails to establish by a preponderance of the evidence that the
evidence is material, there is no genuine issue of material fact concerning
materiality. Thus, he fails to fulfill this element of his newly-discovered-
evidence claim.
D. Probably Would Have Changed the Result. Moon’s alleged
exculpatory evidence probably would not have changed the result. First,
Boone did not testify at trial. Had Boone testified, the State’s case would
have been stronger because, according to the affidavit, Boone would have
stuck to the same story Brodsack had prepared him to tell law
enforcement.
Second, the State proved Moon committed first-degree murder
beyond a reasonable doubt “independent of the retracted testimony”
Boone originally gave to law enforcement in May 1999. See id. at 518,
154 N.W.2d at 850 (“Mere recantation of a witness on any material
matter should not necessitate a new trial if, eliminating such evidence,
there is still substantial evidence to support the jury’s verdict.”).
Third, as we discussed in the Brady context, Moon fails to show
that the newly discovered evidence would have probably changed the
outcome. See Cornell, 430 N.W.2d at 386–87 (applying the Brady
materiality test requiring a reasonable probability to the probability
prong of a newly-discovered-evidence claim); see also Compiano,
261 Iowa at 520, 154 N.W.2d at 851 (stating the test is whether “there is
a reasonable probability of a different result upon another trial” (quoting
Westergard, 243 Iowa at 500, 52 N.W.2d at 43)). Even if Brodsack did in
29
fact prepare Boone and the defense utilized this evidence efficiently at
trial, the jury could still find Moon guilty based solely on the evidence
that was available at trial.
We find there is no genuine issue of material fact as to Moon’s
failure to carry his burden that the newly discovered evidence probably
would have changed the result. Thus, he fails to fulfill this element of
his newly-discovered-evidence claim.
In sum, because no genuine issue of material fact exists on two of
the elements needed for a successful newly-discovered-evidence claim,
the State is entitled to a judgment as a matter of law on Moon’s newly-
discovered-evidence claim.
VII. Disposition.
We vacate the decision of the court of appeals. However, we affirm
the judgment of the district court summarily dismissing Moon’s
postconviction-relief application.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED.
All justices concur except Hecht, J., who takes no part.