Bear v. State, 85-1301
Decision Date | 28 October 1987 |
Docket Number | No. 85-1301,85-1301 |
Citation | 417 N.W.2d 467 |
Parties | Gary Randall BEAR, Petitioner-Appellant, v. STATE of Iowa, Respondent-Appellee. |
Court | Iowa Court of Appeals |
Stephen J. Rapp, Waterloo, for petitioner-appellant.
Thomas J. Miller, Atty. Gen., Bruce Kempkes, Asst. Atty. Gen. and Scott Lemke, Asst. Co. Atty., for respondent-appellee.
Considered by OXBERGER, C.J., and DONIELSON and SCHLEGEL, JJ. SNELL, J., takes no part.
Petitioner, Gary Randall Bear, appeals from a denial of postconviction relief. We affirm.
In 1980 a man assaulted a woman after she left a Waterloo bar. The police investigation pointed to Bear. At trial, the victim identified Bear as the person who had abducted and raped her as she was returning home late one evening. Bear presented an alibi defense. He was convicted after a bench trial for first-degree kidnapping and sentenced to life imprisonment. The conviction was affirmed on direct appeal in a 1982 unpublished per curiam opinion. State v. Bear, 324 N.W.2d 727 (Iowa 1982). Bear brought an action for postconviction relief which was denied by the district court. He appeals from that decision, alleging his convictions were obtained in violation of various federal and state constitutional guarantees.
Postconviction relief actions pursuant to Iowa Code Chapter 663A are law actions and are ordinarily reviewed only on error. Schertz v. State, 380 N.W.2d 404, 408 (Iowa 1985). However, when there is an alleged violation of a constitutional safeguard, we will make an independent evaluation of the totality of the circumstances under which the postconviction ruling was made. Polly v. State, 355 N.W.2d 849, 854 (Iowa 1984); Thomas v. State, 316 N.W.2d 182, 183 (Iowa App.1981).
I. Exculpatory Evidence. Bear first argues that he is entitled to postconviction relief upon the grounds that the State withheld exculpatory evidence. Specifically, he contends the State (1) wrongfully withheld a statement made by a bar patron, a map of the bar prepared by the bartender, and photographs of tire tracks; and (2) failed to adequately test hair found on the victim's clothing and, in addition, tampered with the evidence consisting of the hair samples. The State argues that these alleged errors were not preserved for appeal because they were not raised on direct appeal.
Iowa Code section 663A.8 provides:
All grounds for relief available to an applicant under this chapter must be raised in his original, supplemental or amended application. Any ground finally adjudicated or not raised, or knowingly, voluntarily, and intelligently waived in the proceeding that resulted in the conviction or sentence, or in any other proceeding the applicant has taken to secure relief, may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application.
In accordance with this section, any claim not properly raised at trial or on direct appeal may not be litigated in postconviction proceedings unless the applicant has provided a sufficient reason for not properly raising it previously. Washington v Scurr, 304 N.W.2d 231, 234 (Iowa 1981). The applicant must additionally show that he or she has suffered actual prejudice resulting from the alleged trial court errors. Polly, 355 N.W.2d at 855. "It is not sufficient that the applicant demonstrate the errors created a possibility of prejudice, he or she must shoulder the burden of showing they worked to his or her actual and substantial disadvantage, infecting the entire trial with error of constitutional dimensions." Id. It is thus clearly the view under Iowa law that a postconviction proceeding is not an avenue for litigating issues that were not properly preserved for our review.
A review of the record discloses that the issues Bear now asserts were not raised on direct appeal. Consequently, we need to address (1) whether Bear had a sufficient reason for not properly raising these issues previously and (2) whether Bear suffered actual prejudice resulting from the alleged errors.
Bear alleges the State improperly withheld the statement of a bar patron who, upon seeing a composite picture of a suspect that was prepared from the victim's memory, "somewhat" recalled "a man fitting that general description sitting at the bar during that night but could never swear that this was the same person." Bear also alleges the State improperly withheld photographs of tire tracks where the assailant released the victim from a truck. He further asserts that no attempt was made to compare those tracks with the tires on Bear's truck.
Bear admits in his brief that the bar patron's statement and the tire-track investigation were referenced in police reports available during the trial. He has provided no reason as to why he did not properly raise these issues before now. Furthermore, we find Bear has not met his burden to prove he was prejudiced. The bar patron's statement was equivocal; the photographs taken were of such poor quality they were considered worthless. The statement and photographs do not appear to be favorable to Bear as they were inconclusive.
Bear also alleges the State withheld a map of the bar, prepared by the bartender, showing the location of various persons in the bar with an "X" placed on the map. Bear contends that the "X" marked the location of the assailant and that no attempt was made to find Mr. "X." Bear states that the reason this issue was not raised on direct appeal was because the existence of the map was not known until the postconviction trial.
We find that the map with an "X" on it was inconclusive and immaterial as to Bear's defense. It was a part of the State's investigation which supported neither the State's nor Bear's positions.
Evidence is material "only if there is a reasonable probability that, had [it] been disclosed to the defense, the result of the proceedings would have been different." U.S. v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3384, 87 L.Ed.2d 481, 494 (1985). We find the map was merely potentially helpful to the defense and was therefore immaterial. State v. Hall, 249 N.W.2d 843, 846 (Iowa 1977), cert. denied, 434 U.S. 822, 98 S.Ct. 66, 54 L.Ed.2d 79 (1977).
The State is not required "to make a complete and detailed accounting to the defense of all police investigatory work on a case." Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 2568, 33 L.Ed. 706, 713 (1972); see Bagley, 473 U.S. at 675, 105 S.Ct. at 3380, 87 L.Ed.2d at 489; see also United States v. Jackson, 579 F.2d 553, 560 (10th Cir.1978), cert. denied, 439 U.S. 981, 99 S.Ct. 569, 58 L.Ed.2d 652 (1978) (). We find no error occurred in withholding the map; no prejudice was suffered by Bear.
A Department of Criminal Investigation test compared known samples of Bear's pubic hair with hairs alleged to be his. Results were inconclusive. Bear was not informed of a second test conducted after the conviction or provided with the results, which the postconviction court later characterized as cumulative and inconclusive at best in the order denying postconviction relief. Bear contends "no effort was made to develop evidence that the hairs of a third person were on the victim's clothing" and that he was "denied the aid of the full and accurate testing which could have been exculpatory" (emphasis added). Bear states that the reason this issue was not raised on direct appeal was because the existence of a second test was not known by Bear until one year after the direct appeal.
The State argues, and we agree, that the State is not required "to create exculpatory evidence that does not exist." United States v. Sukumolachan, 610 F.2d 685, 687 (9th Cir.1980). We note the second testing occurred a year after trial; the State did not have the results at the time of trial. The State's decision to further test the hair samples did not amount to withholding evidence. We do not find that such inconclusive evidence was exculpatory.
Bear also alleges the police tampered with the evidence (hair samples). From Bear's brief, we can find no support for this contention. The chemist's report on the hair comparison points out that "evidence strongly suggests that the hairs on both slides have also been obtained from one person, with the possible exception of one hair ..." (emphasis added). This statement does not bear out that the police tampered with the evidence nor provide support for Bear's alleged factual premise that the report "clearly shows that one of the hairs" was not Bear's.
Bear concedes further testing "could have been exculpatory" (emphasis added). We find this language equivalent to saying further testing was "merely potentially helpful to the defense," and, as such, is not material, with no error having occurred. In State v. Bear, No. 67133, slip op. at 5 (Iowa, filed August 25, 1982) [324 N.W.2d 727 (table) ], Bear alleged on direct appeal that he had been denied a fair trial because the State failed to produce a copy of the victim's statement prior to trial. The supreme court found no error and stated:
The principles controlling this issue also are well established. Where exculpatory material is provided during the trial, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), ordinarily are not involved. State v. Epperson, 264 N.W.2d 753, 757 (Iowa), cert. denied, 439 U.S. 913, 99 S.Ct. 285-86, 58 L.Ed.2d 260 (1978). Not all material in an investigative file is Brady material that must be disclosed upon request. State v. Hall, 297 N.W.2d 80, 92 (Iowa 1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359...
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