Desimone v. State

• Decision Date: 09 September 2011
• Docket Number: No. 09–0844.,09–0844.
• Parties: David R. DESIMONE, Appellant,v.STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

803 N.W.2d 97

David R. DESIMONE, Appellant,
v.
STATE of Iowa, Appellee.

No. 09–0844.

Supreme Court of Iowa.

Sept. 9, 2011.

[803 N.W.2d 98]

Mark R. Lawson, Maquoketa, for appellant.Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Matthew Remissong, Student Legal Intern, Michael L. Wolf, County Attorney, and Ross J. Barlow, Assistant County Attorney, for appellee.

[803 N.W.2d 99]

WIGGINS, Justice.

In this appeal, we must decide if the State's failure to turn over a witness's timecard showing that the witness could not possibly have seen the events to which she testified constitutes a Brady violation.¹ In the postconviction relief action, the district court found no violation occurred. On appeal, the court of appeals affirmed the judgment of the district court. On further review, we find a Brady violation occurred. Therefore, we reverse the judgment of the district court and remand the case for the district court to enter an order vacating the defendant's conviction for sexual abuse and ordering a new trial on the sexual abuse charge.

I. Background Facts and Proceedings.

A jury convicted David R. DeSimone of sexual abuse in the third degree in violation of Iowa Code sections 709.1 and 709.4(1) (2003). DeSimone stipulated he committed prior felonies, and the district court determined the habitual offender sentencing provisions under Iowa Code sections 902.8 and 902.9(3) applied. The district court sentenced DeSimone to a term of imprisonment not to exceed fifteen years.²

DeSimone's sexual abuse conviction stems from events that took place in his home on October 16–17, 2004, when DeSimone hosted a birthday party for his eighteen-year-old cousin. One of the attendees was Samantha, a seventeen-year-old. Samantha consumed between six and twelve glasses of beer during the party and was heavily intoxicated. Her memory of the party was spotty. She remembered events early in the night, including using DeSimone's cell phone to call a friend. She did not remember an incident with DeSimone in a downstairs bathroom that resulted in a fight between DeSimone and other males at the party.

At trial, Samantha testified to the following. She recalled placing her head down on the kitchen table while the party was still well attended. Her next memory was sitting naked in DeSimone's bed. She was confused and did not know why her clothes were off. It was then she discovered her tampon had been removed. She observed DeSimone standing near the bedroom light switch with a blanket around him. DeSimone then turned off the light and “came over and got on top of me.” She attempted to push him off and screamed loudly for a period of five minutes. DeSimone grabbed her by the throat and threatened her. Then, DeSimone forced her to engage in vaginal intercourse. She became sick to her stomach and vomited on DeSimone's bed, sheets, and in her hair. After vomiting, she claims DeSimone forced her to have oral sex and then, for a second time, vaginal intercourse. She also claims that DeSimone told her during intercourse that he was not going to ejaculate on her so he would not leave any evidence.

After intercourse, Samantha put on her clothes and quickly ran out of the house. She said she was unable to find her glasses, purse, or underwear so she left without them. She stated a car almost hit her when she ran across Camanche Avenue, the street outside of DeSimone's home. She eventually ran to a nearby Hy-Vee grocery store.

[803 N.W.2d 100]

Joseph Baker, a party attendee, went into DeSimone's bedroom to find his coat after the party had ended. He saw Samantha sleeping in DeSimone's bed. Fearing he was too intoxicated to drive, Baker sat down on the couch in the living room adjacent to DeSimone's bedroom. He fell asleep with the television on and slept until around 6 a.m. Baker did not hear any screaming that evening.

Jeffery Hereid, the grocery store attendant, confirmed that Samantha entered the store early on the morning of October 17 with her clothes disheveled, hair messed up, and crying. Samantha asked to use the phone and called a friend. She then called 911 at the urging of the grocery store attendant. Samantha made the dispatch call from the Hy-Vee at 3:06 a.m. on October 17.

Brad Nolan, a special agent with the Iowa Division of Criminal Investigation, responded to the call. Upon arrival, Nolan discovered Samantha and described her as distraught and visibly upset. Nolan had difficulty eliciting information from Samantha, but eventually she informed him DeSimone had sexually assaulted her. Samantha was taken to a local hospital where a rape protocol was followed and a rape kit was used to collect evidence.

At the hospital, Samantha was tearful and nauseous. A nurse took Samantha's medical history and her description of the assault. The assault history Samantha provided differed in some respects from her trial testimony. She told the nurse she had consumed six or seven glasses of beer. She did not report that she had passed out before the assault. Samantha stated DeSimone first forced her to perform oral intercourse before he forced her to perform vaginal intercourse. She also told the nurse she did not discover that her tampon was out until she was at the hospital. The hospital discharged Samantha at 6:45 a.m. on October 17.

Nolan obtained a search warrant for DeSimone's home. He and several other officers executed the warrant in the late morning of October 17. The officers collected DeSimone's bedding and sheets. They also seized a blanket found in DeSimone's basement where the washer and dryer were located. One officer involved in the search opined he saw no signs that DeSimone had destroyed evidence in the house.

The department sent the seized evidence to the Iowa Division of Criminal Investigation for deoxyribonucleic acid (DNA) testing. The DNA testing revealed small amounts of DeSimone's blood on his pillowcase. Additionally, there were two semen stains containing DeSimone's DNA on the blanket found in the basement by the washer and dryer. No semen, blood, or vomit was detected on the seized sheets and bedding. DeSimone's DNA was not found on Samantha.

Officers and medical personnel found no evidence of physical abrasion or redness on Samantha, nor did they observe any vomit on Samantha. The treating physician found no physical evidence of injury or trauma, but also stated that this was not unusual in sexual assaults. The physician noted Samantha was at the end of her menstrual period, and it was not unusual for women to go several hours without any discharge of blood.

Before trial, the court granted DeSimone's motion in limine to exclude evidence of his prior bad acts, specifically his two jury-trial acquittals involving allegations that he sexually abused his stepdaughter and his wife's niece. DeSimone's trial counsel, William Vilmont, however, affirmatively informed the jury about these two prior sexual abuse allegations during his cross-examination of Samantha.

[803 N.W.2d 101]

While not returning to DeSimone's previous sexual abuse charges, Vilmont, on numerous occasions, engaged in a line of questioning that showed Samantha had contacts with people familiar with DeSimone and who had reasons to dislike him. Vilmont elicited a response from Samantha that she previously lived with S.R.—the niece of DeSimone's estranged wife. S.R. had previously made sexual abuse allegations against DeSimone. Vilmont also elicited a statement from Samantha that the friend she called from the Hy-Vee store, before calling the police, was at S.R.'s house at the time of the call. Vilmont also questioned Samantha about whether she knew her son's grandmother did not like DeSimone and that the grandmother had been romantically involved with DeSimone's roommate. Vilmont elicited testimony from Nolan that he used S.R.'s testimony to corroborate Samantha's testimony in order to obtain a search warrant for DeSimone's home. In addition, Vilmont asked Nolan whether he knew of S.R.'s connection to DeSimone. This testimony indicates Vilmont was trying to establish that Samantha was collaborating with the persons who disliked DeSimone in order to convict him.

The State called several witnesses to corroborate Samantha's testimony. It called Baker to testify he saw Samantha sleeping in DeSimone's bed, fully clothed, as the party wound down. The State also called Hereid, the grocery store attendant, to testify about Samantha's appearance and actions at the Hy-Vee store she ran to for help. The State also called Nicole as a witness.

Nicole was an eighteen-year-old high school student who met Samantha about two months prior to trial through a mutual friend. Nicole testified that one evening she and Samantha were driving on Camanche Avenue, the road DeSimone's home is on, and Samantha told her about the sexual assault. According to Nicole, Samantha's story triggered her memory of an incident that occurred after leaving work early one morning in October 2004. Nicole testified she got off work from Burger King at 2:30 a.m. and, while driving on Camanche Avenue, a girl “ran right in front of my vehicle to try to get me to stop, but I almost hit her, so I swerved.” She stated she did not stop because she was scared and did not call the police because she was not sure what was going on.

Twice during her testimony, Nicole stated this incident occurred on October 13, not October 17. The prosecutor questioned Nicole as to whether the incident occurred on October 13 or 17. She responded, “It was somewhere around there. I can't—I thought it was the 13th, but it might not have been. It was a long time ago.” The prosecutor used Nicole's testimony to corroborate Samantha's testimony that a car almost hit Samantha as she ran out of DeSimone's house and across Camanche Avenue.

DeSimone's counsel minimally engaged Nicole on cross-examination. His sole line of questioning was to elicit from Nicole that she was driving to a bar/pool hall on the night...