FLORES v. State of Iowa, 1-018 / 10-0020
| Decision Date | 13 April 2011 |
| Docket Number | No. 1-018 / 10-0020,1-018 / 10-0020 |
| Parties | DAVID FLORES, Applicant-Appellee, vs. STATE OF IOWA, Respondent-Appellant. |
| Court | Iowa Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from the Iowa District Court for Polk County, Don C. Nickerson, Judge.
The State appeals from the district court's postconviction-relief order granting a new trial. AFFIRMED.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, and Joe Weeg, Assistant County Attorney, for appellant.
Mary Kennedy, Waterloo, for appellee.
Heard by Sackett, C.J., and Vogel, Vaitheswaran, Eisenhauer, Potterfield, Doyle, and Danilson, JJ. Tabor, J., takes no part.
SACKETT C.J.
David Flores was convicted of first-degree murder and terrorism following the April 8, 1996 shooting death of Phyllis Davis. On December 22, 2009, the district court granted Flores's petition for postconviction relief and granted a new trial, finding there was undisclosed and newly-discovered evidence that could identify Rafael Robinson, now deceased, as the perpetrator of the crime. The State seeks reversal of the order granting a new trial. We affirm.
SCOPE OF REVIEW. Postconviction proceedings are law actions and are ordinarily reviewed for error at law. See Bugley v. State, 596 N.W.2d 893, 895 (Iowa 1999). When the basic claim for relief is an alleged due process violation, such as a failure to disclose exculpatory evidence to a defendant, we conduct a de novo review. See Benton v. State, 199 N.W.2d 56, 57 (Iowa 1972). We review a motion for new trial based on newly-discovered evidence for an abuse of discretion. State v. Overstreet, 243 N.W.2d 880, 886-87 (Iowa 1976).
BACKGROUND. Phyllis Davis was killed by a single bullet at the corner of University Avenue and Ninth Street in Des Moines while driving between two cars, a Blazer and an Oldsmobile, whose occupants were engaged in a gun battle. The incident appeared to be gang activity and the testimony detailing the events leading to and after Davis's death was conflicting.
Charges were filed against several persons, including three men alleged to have been in the Oldsmobile. Flores was charged with the murder of Davis by trial information filed on May 20, 1996. The State alleges that Flores was driving the Blazer and fired the bullet that accidentally killed Davis. Public Defender John Wellman was appointed as Flores's counsel. At Flores's arraignment Wellman waived the minutes of testimony "in return for the defendant receiving copies of any and all police reports of facts which have given rise to the above captioned case." On September 13, 1996, the State filed a notice of intent not to prosecute Flores because of an unavailable witness. The district court dismissed the case against Flores without prejudice on September 14, 1996.
On December 20, 1996, a second trial information was filed, charging Flores with the murder of Davis and with terrorism. Flores was again represented by Wellman.
At a pre-trial conference Wellman entered into a stipulation with the State that the State shall produce "to the defendant's counsel by January 21, 1997, all police reports which have been generated since September 1, 1996."
A jury trial was held and Flores was convicted as charged. He appealed to this court and we affirmed, noting there were conflicts in the evidence. State v. Flores, No. 97-733 (Iowa Ct. App. Sept. 30, 1998). He also filed a petition for habeas corpus, which was rejected by the federal district court that noted, Flores v. Lund, S.D. Iowa No. 4:99-cv-300685 (2002). The case was affirmed by the Eighth Circuit Court of Appeals, noting "this is a close case and the evidence against Flores is circumstantial." Flores v. Lund, 2002 WL 3184956 at **3 (8th Cir. 2002).
On December 14, 2001, Flores filed a petition for postconviction relief. The petition was amended several times and raised a number of claims for relief, including claims of ineffective assistance of counsel and allegations of new evidence and recanting witnesses.
On June 12, 2008, during the course of discovery the State requested the open murder investigation file on Rafael Robinson from the Des Moines Police Department. Robinson had been murdered several months after Davis. On June 13, 2008, in a written filing the State advised that in the Robinson file the Des Moines Police Department received information on August 1, 1996, about a May 22, 1996 interview of Calvin Tyrone Gaines by F.B.I. Special agent Terry Bohle. Gaines had suggested to the agent that Robinson killed Davis. The State acknowledged there was no evidence this information was given Wellman "prior to or during the 1997 trial" and noted "there is also no evidence that the prosecution team was aware of any of the attached documents at any pertinent time of the prosecution."
An amendment to Flores's postconviction petition was filed on October 11, 2006, that raised for the first time the claim there was exculpatory evidence in the interview conducted on May 22, 1996 of Calvin Gaines by Terry J. Bohle, a special agent of the Federal Bureau of Investigation. The interview of Gaines, a federal prisoner, took place in the Polk County jail where Gaines was being held on pending federal charges.
As to the interview the agent had reported:
Gaines was shown a photograph of Rafael Robinson and Gaines stated he was the individual in the Blazer involved in the shooting in which the woman was accidentally killed. Gaines said that the Iowa 90 Crips have a contract out on Robinson because of an individual named Nicholas who was killed in a fight in the park. The Des Moines 90 Crips go by Chicago, Illinois, rules and are organized with certain ranks in the gang. When Nicholas was killed, Robinson did not stand up for the 90's like he should have. According to Jody Stokes, Robinson is still somewhere in Des Moines. Gaines was shown additional photographs of Des Moines gang members. He identified the photograph of Derrick Williams as the individual who goes by Squab. Williams is a nobody in the gang and does what he is told. Gaines also identified the photographs of Thomas Cornell as Nutt and the photograph of Donyea Williams as Low Key.
The State recognizes the FBI report had not been given to Flores's attorney John Wellman before trial. The State contends Flores was aware of the evidence because it claims Wellman had a copy of a report from Officer Trimble of the Des Moines Police Department that provided similar information.1
Trimble's' report stated:
On 6 June 1996 I went to the County Jail to interview subject by the name of Calvin Gaines. Mr. Gaines advised he had heard from a subject by the name of Jinx that the passenger in the Blazer involved in the Phyllis Davis shooting was Rafael Amand Robinson. The further information on Mr. Robinson is DOB 2/20/68. . . . According to Mr. Gaines this Jinx who was in jail with him (Gaines) had received information from some other source about Mr. Robinson being the passenger.
Mr. Calvin Gaines could give no further information on Jinx as far as name or information, however, he stated the story was that Mr. Robinson's brother had been beaten at some point in time by these other subjects involved in the shooting and this was an attempt to get even for that. Mr. Gaines had no other information at this point however he indicated he would recontact us should he hear any more information.
In December of 2007, Carla Harris, who from September of 1995 to March of 1996 had been in a relationship with Robinson, saw in the Des Moines Register a picture of Robinson and an article about Flores's conviction. She called the Des Moines Register and ultimately contacted Flores's postconviction attorney to report Robinson had told her on April 8, 1996, the day of Davis's murder, that he and one of his friends were having a shootout with boys whom he had been feuding with before and a woman was accidentally shot and he thought she was dead.
On March 18, 2008, an amended and substituted application for postconviction relief was filed, reiterating earlier claims for relief and included among others a claim of new evidence including Harris's statements.
The matter came on for hearing on March 23 and 24, 2009.2 The court heard a number of witnesses and dismissed all of Flores's claims except the claims related to the FBI report and Harris's statements. The court acknowledged that Wellman was entitled to all evidence as agreed, but Wellman did not have the FBI report before trial,3 and contrary to the State's argument, the Trimble report was not included in the discovery provided to Wellman. The court found the Trimble report that was unintentionally omitted from discovery was favorable to Flores's defense, there was a reasonable probability that the report would have assisted Wellman in preparation of a more adequate defense, and the suppression of the report undermined confidence in the outcome of the trial.
The district court found the testimony of Carla Harris credible and, while she testified to hearsay pursuant to Iowa Rule of Evidence 5.801(c), found her testimony fell within the exception of Iowa Rule of Evidence 5.804(4), and was newly-discovered evidence, which when considered with the Trimble report, could lead to a different result.
TRIMBLE REPORT. The State concedes the FBI report should have been disclosed to Wellman but argues the evidence supported a finding that Wellman had the Trimble report and consequently knew or should have known the facts contained in the FBI report. Flores disagrees, arguing there was information in the FBI report that could not be gleaned from the Trimble report.
The State argues the evidence shows Wellman had a file on the Flores case where the Trimble report was found a decade later by an assistant Polk county attorney. The report found by the assistant county attorney was designated I-619. The...
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