Harrington v. State

• Decision Date: 26 February 2003
• Docket Number: No. 01-0653.,01-0653.
• Citation: 659 N.W.2d 509
• Parties: Terry J. HARRINGTON, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

659 N.W.2d 509

Terry J. HARRINGTON, Appellant, v. STATE of Iowa, Appellee.

No. 01-0653.

Supreme Court of Iowa.

February 26, 2003.

Rehearing Denied April 18, 2003.

Thomas P. Frerichs of Frerichs Law Office, P.C., Waterloo, for appellant.

Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, and Richard Crowl, Pottawattamie County Attorney, for appellee.

Thomas H. Makeig of Thomas H. Makeig, P.C., Fairfield, for amicus curiae Dr. Lawrence A. Farwell.

TERNUS, Justice.

Terry Harrington appeals a district court decision denying his application for postconviction relief. He claims the court erred in holding his claims were time barred. See Iowa Code § 822.3 (1999) (imposing a three-year statute of limitations on postconviction relief actions). In addition, he faults the district court for failing to vacate his first-degree murder conviction and order a new trial on the basis of newly discovered evidence consisting of a recantation by the State's primary witness, police investigative reports implicating another suspect in the crime, and "brain fingerprinting" test results. See id. § 822.2(4) (providing postconviction remedy where material facts were not presented at criminal trial). Harrington also rests error on the court's refusal to grant relief based on a due process violation resulting from the prosecution's failure to produce the police reports at the time of Harrington's criminal trial. See id. § 822.2(1) (providing postconviction remedy where conviction was in violation of United States Constitution). The State disputes Harrington's allegations of error and affirmatively asserts that Harrington's appeal is untimely.

After submission of the appeal, Harrington filed a conditional motion for limited remand. In the event this court believes that he is not entitled to a new trial on the basis of the present record, Harrington seeks to have the case remanded for the purpose of taking additional testimony in support of his application.

Upon our review of the record and the arguments of the parties, we conclude (1) Harrington's appeal is timely; (2) this action is not time barred; (3) Harrington is entitled to relief on the basis of a due process violation; and (4) Harrington's motion for conditional remand is moot. Accordingly, we reverse the district court judgment, and remand for entry of an order vacating Harrington's conviction and sentence, and granting him a new trial. We deny Harrington's motion for remand on the basis of mootness.

I. Timeliness of Appeal.

Before we discuss the merits of Harrington's appeal, we address the State's contention that this court lacks jurisdiction because Harrington's notice of appeal was not filed before the applicable deadline. See In re Marriage of Mantz, 266 N.W.2d 758, 759 (Iowa 1978) (stating when an appellant files a late notice of appeal, the appellate courts are without jurisdiction to hear the appeal). The trial court entered its decision on March 5, 2001. The defendant then filed a motion under Iowa Rule of Civil Procedure 1.904(2) asking the court to expand its findings of fact and conclusions of law. The court denied the motion on March 28 and Harrington filed his notice of appeal on April 20. Thus, the notice of appeal was filed within thirty days of the court's ruling on the post trial motion, but more than thirty days from the court's initial decision.

Iowa Rule of Appellate Procedure 6.5(1) requires that a notice of appeal be filed within thirty days of the trial court's decision or within thirty days of the trial court's ruling on any rule 1.904(2) motion that is filed. If the rule 1.904(2) motion is not timely filed, however, it will not toll the thirty-day time period for filing a notice of appeal. See State ex rel. Miller v. Santa Rosa Sales & Mktg., Inc., 475 N.W.2d 210, 213-14 (Iowa 1991). A rule 1.904(2) motion must be filed within the time allowed for filing a motion for new trial, which is ten days after the filing of the district court's decision. See Iowa Rs. Civ. P. 1.904(2), .1007.

In the present case, the rules of civil procedure required Harrington to file his post trial motion by Thursday, March 15. Harrington acknowledges that his motion was not date stamped by the clerk of court on or before March 15, but claims he faxed a copy to the clerk of court and the presiding judge on that date. He also served a copy of the motion on opposing counsel by mail on the same day.¹

The trial court file contains two copies of Harrington's motion, one file stamped on Monday, March 19 and one filed stamped on Tuesday, March 20. In addition, when this issue was raised by the State on appeal, the district court, at Harrington's request, entered an order "to clarify or correct the record." In this order, the court made a factual finding that Harrington had faxed a motion under rule 1.904(2) to the clerk and to the court on March 15, and had mailed a copy to the clerk on the same day. The court also noted that it had made a finding in its ruling on the rule 1.904(2) motion that the "motion was timely filed."

Although our rules contemplate that pleadings will be filed with the clerk, rule 1.442(5) addresses the situation where a pleading is filed with a judge. That rule provides:

Filing with the clerk defined. The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that a judge may permit them to be filed with the judge, who shall note thereon the filing date and forthwith transmit them to the office of the clerk.

Iowa R. Civ. P. 1.442(5) (emphasis added). We think the exception to the rule applies here. The trial judge apparently accepted the defendant's motion for filing when the judge received a copy on March 15. Although the judge did not note the filing date on his copy as required by rule 1.442(5), it appears the judge did transmit the motion to the clerk, as there are two copies in the clerk's file, each with a different date stamp. We think the judge's later ruling confirming his receipt and acceptance of the motion on March 15 substantially complies with the rule's requirement that the filing date be noted on the motion. Therefore, Harrington's rule 1.904(2) motion was timely filed and, consequently, his notice of appeal filed within thirty days of the court's ruling on his motion was likewise timely filed.

We turn now to the substantive issues raised in this appeal. Our discussion begins with the factual background and procedural history of this case.

II. Background Facts and Proceedings.

A. Original murder trial. On August 4, 1978, Terry Harrington was convicted of first-degree murder in the shooting death of John Schweer. Because most of the relevant facts in this postconviction relief action relate to the underlying criminal proceeding in which Harrington was the defendant, we will refer to Harrington as the defendant in the remainder of our opinion.

Sometime after midnight on July 22, 1977, security guard John Schweer was murdered at a car dealership in Council Bluffs, Iowa. At the time, Schweer, a retired police captain, was a night watchman for several car dealerships in the area. Schweer had been shot, and a 12 gauge shotgun shell was found in the vicinity of the crime.² Footprints and dog prints were also discovered near Schweer's body.

Harrington, who was seventeen at the time, was charged with Schweer's murder and was ultimately convicted, primarily on the testimony of a juvenile accomplice, Kevin Hughes.³ Hughes gave the following account of July 22, 1977. Shortly after midnight, Hughes, Harrington, and another juvenile, Curtis McGhee, went to the dealership with the intent to steal a beige Toronado. Hughes waited in Harrington's car while Harrington and McGhee walked around a building to find the desired automobile. Harrington had a shotgun. Shortly after Harrington and McGhee left, Hughes heard a gun shot. Then Harrington and McGhee came running back. Harrington said he had just shot a cop.

Hughes was impeached by the defense with prior statements he had made implicating other persons in the crime. Hughes had separately named three other men as the killer. Each man was ultimately discovered to have an alibi before Hughes finally fingered Harrington. Hughes admitted that he had also changed his testimony about the type of gun used, first stating that Harrington had a pistol, then a 20-gauge shotgun, and finally a 12-gauge shotgun. He conceded he was "a confessed liar," having lied "[a]bout five or six times talking about this case." Hughes acknowledged that he visited the murder scene with the police and prosecutor and told them what he thought they wanted to hear. At the time, Hughes was being held on various theft and burglary charges and "he was tired of [being in jail]." He admitted that these charges were dropped after he agreed to testify against Harrington and McGhee.

The physical evidence linking Harrington to the crime was minimal. Hughes claimed Harrington wrapped the shotgun in his — Harrington's — jacket after the shooting. Chemical examination of the jacket by the police several weeks after the murder revealed two flakes of smokeless gunpowder consistent with the type used in shotgun shells. In addition, one of McGhee's friends testified that he saw part of a shotgun in the trunk of Harrington's car a few days before the murder.⁴

Harrington presented an alibi defense, but this defense was rebutted by the prosecution's witnesses who testified they saw Harrington with Hughes and McGhee late in the evening of July 21. These witnesses included Hughes' girlfriend, Candice Pride, and two other juvenile friends of Hughes, Roderick Jones and Clyde Jacobs. They testified they saw Hughes get into Harrington's car around eleven o'clock on the evening of July 21 and drive off with Harrington and McGhee. Another girlfriend of Hughes, Linda Lee, testified that Hughes came to her home in the...