Armento v. Baughman, 63270

• Decision Date: 19 March 1980
• Docket Number: No. 63270,63270
• Citation: 290 N.W.2d 11
• Parties: Billy Joe ARMENTO, Appellant, v. Jack BAUGHMAN, Warden of the Iowa State Penitentiary, and State of Iowa, Appellees.
• Court: Iowa Supreme Court

Page 11

290 N.W.2d 11

Billy Joe ARMENTO, Appellant, v. Jack BAUGHMAN, Warden of the Iowa State Penitentiary, and State of Iowa, Appellees.

No. 63270.

Supreme Court of Iowa.

March 19, 1980.

James P. Cleary, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., and Lona Hansen, Asst. Atty. Gen., for appellees.

Considered by REYNOLDSON, C. J., and HARRIS, McCORMICK, ALLBEE and McGIVERIN, JJ.

McCORMICK, Justice.

This is an appeal from denial of postconviction relief. The questions involve allegations of concealment of exculpatory evidence and denial of effective assistance of counsel. We affirm the postconviction court.

Petitioner Billy Joe Armento was convicted and sentenced to life in prison for first-degree murder as the alleged "hit man" in the slaying of Anne King in Des Moines on March 12, 1975. The State's evidence was that the victim's husband Marion Archer King hired Armento and Lawrence Kocher to do the killing. Armento and King were tried jointly, and Kocher testified against them as a State witness. Armento appealed his conviction, and it was affirmed in State v. Armento, 256 N.W.2d 228 (Iowa 1977). King was also convicted, and his conviction was affirmed in State v. King, 256 N.W.2d 1 (Iowa 1977).

In his postconviction application Armento contended he was denied due process of law in violation of U.S.Const. amend. XIV because of alleged perjury, subornation of perjury and misrepresentations regarding plea negotiations, all of which resulted in concealment from him of exculpatory evidence. He also asserted he was denied effective assistance of counsel in violation of U.S.Const. amend. VI and XIV because his trial attorney did not inform him of his right to a separate trial and consulted with him only once while he was confined before trial in the Story County jail. The State denied his allegations. In an oral motion made just before the application was heard, the State contended Armento's first claim was barred because it had been adjudicated on direct appeal. After hearing, the postconviction court held the first claim was barred on that ground and held the claim of ineffective trial counsel was unmeritorious. This appeal followed.

I. The concealment of exculpatory evidence claim. A person is barred from relitigating in a postconviction proceeding any ground which was finally adjudicated on direct appeal. § 663A.8, The Code; Snyder v. State, 262 N.W.2d 574, 578 (Iowa 1978). The State contends the postconviction court was right in rejecting Armento's first claim on this basis.

Analysis of the grounds urged in the prior appeal shows Armento's present claim was not urged there. In the direct appeal, he contended the trial court erred in overruling his motion for new trial because of the State's nondisclosure of an alleged offer of immunity to Kocher in exchange for his testimony. See 256 N.W.2d at 228-29. We said the contention was identical to one made in the King appeal, and we rejected it on the authority of King. Id.

The opinion in King shows the contention was based on a theory the State had an understanding with Kocher or had promised him leniency to obtain his testimony against Armento and King. Assistant County Attorney Donald Starr, who prosecuted the cases, had testified in a pretrial proceeding that no such bargain had been made. During cross-examination at trial, Kocher had denied any such agreement or promises had been made. When called as a defense witness, Robert H. Laden, Kocher's attorney, made a similar denial, but he said Starr had talked with him about possible leniency for Kocher if he cooperated with the prosecution. Starr did not testify during the trial. After the trial, the trial court dismissed on the State's motion all charges against Kocher, who had been preliminarily charged with murder but never indicted. Defendants filed a motion for new trial based in part on an allegation of the State's nondisclosure of an agreement with Kocher to obtain his testimony. They called Starr as a witness.

Starr again denied an agreement had been made but acknowledged the accuracy of Laden's testimony. This court held the evidence did not show the existence of an agreement or promises. On that basis, the court rejected the contention that evidence of an understanding or promises had been concealed. See 256 N.W.2d at 14-16.

The postconviction claim is different. Armento now relies on the alleged nondisclosure of the plea negotiations rather than nondisclosure of an understanding or promises. He alleges Starr denied in his pretrial testimony that plea discussions had occurred, Kocher denied in his testimony at trial that they had occurred, but Starr admitted in his testimony after trial that they had taken place. He asserts Kocher was guilty of perjury at trial, Starr suborned the perjury, and the effect was that exculpatory evidence was concealed from him. He says he wished to use the evidence to impugn Kocher's credibility. Because the present claim was not adjudicated in Armento's direct appeal, the postconviction court erred in holding it was barred on that ground.

The fact Armento's claim was not previously adjudicated does not necessarily mean he is entitled to urge it in his postconviction action. Under section 663A.8, he is still foreclosed from making the claim unless he met his burden to show a sufficient reason for not asserting it in his appeal. Bledsoe v. State, 257 N.W.2d 32 (Iowa 1977). The only evidence bearing on this issue is his testimony that he wanted the question raised in his direct appeal but his attorney failed to do so. The contest in the postconviction hearing was on the State's assertion the claim had been adjudicated in the appeal rather than whether Armento established sufficient reason for not having urged it then. Therefore the issue of sufficient reason was not addressed in the postconviction court's ruling. Rather than decide on this record whether Armento established sufficient reason, we elect in this case to assume, without deciding, that he did so. Thus we reach the merits of his first claim.

The record shows that in his pretrial testimony Starr denied any promises had been made to Kocher. He also testified:

Q. Did you ever tell his lawyer that if Mr. Kocher was helpful you folks would be helpful to him? A. No.

Q. No words like that at all to his lawyer, either Tom Hyland or Bob Laden? A. I think the only thing I have said to Mr. Hyland and Mr. Laden, or I think it was Tim Pearson who is also in that office, on Mr. Kocher is that the county attorney's office has not decided what we are going to do with him.

Q. Have you conveyed any message to the attorneys or to Mr. Kocher's family with respect to this matter, what will happen to Mr. Kocher? A. No.

Q. Have you given him any understanding with respect to what will happen to Mr. Kocher? A. The only conversation I have had with anybody is to the effect we don't know at this point what will happen to Mr. Kocher.

Q. Just one last question. There has been no mention in exchange for Mr. Kocher's testimony you may only charge him with conspiracy to rob or conspiracy itself which carries a maximum penalty of 3 years? A. There has been no conversation that I am aware of to anybody along those lines.

Kocher testified at trial that no deal had been made for his testimony, and he also testified:

Q. You don't expect it, I take it, is that correct? A. I don't know.

Q. And in exchange for what you have to say today, it is my understanding there has been no promises, no threats, no deals whatsoever, is that correct? A. Yes it is.

Attorney Laden's testimony as a defense witness included the following:

Q. After you initially represented Mr. Kocher, were there any plea negotiations, plea bargaining, that existed between you and the county attorney's office? A. Yes.

Q. And what was the nature of the plea negotiation? A. The first conversation I had was with Mr. Don Starr, assistant county attorney.

Q. What was the nature of any negotiation at that time? A. . . . My partner, Mr. Hyland, was originally contacted to represent Mr. Kocher. Mr. Hyland was out of town and Judge Glanton requested I come down and talk to Mr. Kocher, which I did, and at that time Mr. Starr discussed the relevant evidence that they had in the case and advised me that we would certainly discuss possible plea bargaining arrangements for Mr. Kocher in the light of his testimony at that time.

Q. Was there any specific mentioning of terms of years or anything of that nature? A. At that time I wasn't aware of what particular crime he was referring to since there are a number of them that would carry that, and we just indicated we would discuss it further at a later date.

Q. Was that fact communicated to your client? A. Yes.

Q. Were there any further negotiations relative to plea bargaining? A. Yes.

Q. What was the nature of those negotiations? A. Mr. Starr had, as I recall, approached my partner and had discussed the possibility of a conspiracy sentence, which carries 3 years, and I had also discussed that with Mr. Starr.

Q. Was there any further discussion relative to possible probation? A. As I recall, I think Tom Hyland and I both mentioned that to Mr. Starr, that we would be in hopes that could be worked out for Mr. Kocher although no definite arrangements were made.

Q. . . . (Y)ou did communicate that fact to Mr. Kocher, is that correct? A. Yes.

Q. Now with respect to waiver (of speedy trial) that was signed apparently by your client, what was the purpose behind that? A. Well, the purpose was mainly this, that the 60-day period for indictment in Iowa was soon to expire, and we had some negotiations with respect to plea bargaining and, it was thought best Mr. Kocher not be formally indicted for the crime.

Q. And this is, of course, coming from the county attorney's staff? A. Yes. We were approached by Mr. Starr, who notified us in fact the time was rapidly approaching and something needed to be done on that.

Q....