Jones v. Scurr

• Decision Date: 17 March 1982
• Docket Number: No. 65593,65593
• Court: Iowa Supreme Court
• Parties: Rubin E. JONES, Appellant, v. David SCURR, Warden, Iowa State Men's Penitentiary, Fort Madison, Iowa; Iowa Division of Adult Corrections, Department of Social Services, the State of Iowa, Appellee.

Page 905

316 N.W.2d 905

Rubin E. JONES, Appellant, v. David SCURR, Warden, Iowa State Men's Penitentiary, Fort Madison, Iowa; Iowa Division of Adult Corrections, Department of Social Services, the State of Iowa, Appellee.

No. 65593.

Supreme Court of Iowa.

March 17, 1982.

Patrick R. Grady, Asst. Appellate Defender, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Thomas N. Martin and Steven M. Foritano, Asst. Attys. Gen., for appellee.

Considered by REYNOLDSON, C. J., and LeGRAND, UHLENHOPP, McCORMICK, and McGIVERIN, JJ.

McGIVERIN, Justice.

Applicant Rubin E. Jones appeals from the district court's dismissal of his application for postconviction relief under chapter 663A, The Code. He raises four issues based on the 1976 trial resulting in his conviction of first-degree murder in violation of sections 690.1 and .2, The Code 1975. He contends that: 1) the postconviction court erred in denying a new trial on the basis of newly discovered evidence; 2) the postconviction court erred in finding that collateral estoppel did not prevent him from being convicted of first-degree murder as an aider and abetter when the principal was only convicted of second-degree murder; 3) there was insufficient evidence for a rational jury to find his guilt beyond a reasonable doubt; and 4) a claim of ineffective assistance of counsel can properly be raised in a future postconviction proceeding. We find no merit in applicant's first three assignments of error, agree with the fourth, and, therefore, affirm the dismissal of the present application for postconviction relief without prejudice to his filing a second application to raise the ineffective assistance of counsel issue.

Jones was found guilty of first-degree murder and was sentenced in 1976. The facts surrounding the offense are stated in our opinion affirming the conviction on direct appeal. State v. Jones, 271 N.W.2d 761 (Iowa 1978) (Jones I ). The victim was cornered, shot and killed after he ran from a friend's house into an alley. Jones' application for postconviction relief was filed on November 21, 1979. After its denial, he again appealed.

I. New trial on the basis of new discovered evidence. At the hearing on the application for postconviction relief, Jones presented two items of potentially exculpatory evidence. The first was the testimony of a codefendant, Johnney White, Jr., that he shot and killed Jimmy Wayne Wright even though Jones had tried to talk him out of it. This testimony was not presented at Jones' trial. It also was not presented in support of his motion for a new trial because White exercised his fifth-amendment privilege against self-incrimination. The second item of potentially exculpatory evidence was a deposition of a second codefendant, Archie Daniels. Daniels stated that he had chased the victim and struck him with his cane, and that Jones had done neither of these things. The Daniels evidence was not presented at Jones' trial or at the hearing on the motion for new trial because Daniels was then a fugitive. Jones claimed the White and Daniels evidence was newly discovered and that a new trial, therefore, should be granted. The postconviction court found the evidence was not newly discovered, and even if it was, the evidence would not likely change the result if admitted. Accordingly, relief was denied the applicant as to this contention. We find no error.

Section 663A.2, The Code, establishes the situations where postconviction relief procedure is available. It provides, in pertinent part: "Any person who has been convicted of, or sentenced for, a public offense and who claims that: * * * (4) There exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice [is entitled to seek relief]...." We have interpreted this subsection to require the postconviction relief applicant to establish four elements before a new trial will be granted pursuant to section 663A.2(4). The applicant must show: 1) the evidence was discovered after judgment. He may not rely on evidence discovered after trial but before judgment unless he establishes an excuse for not having raised the issue in a motion for new trial; 2) the evidence could not have been discovered earlier in the exercise of due diligence; 3) it is material to the issue, not merely cumulative or impeaching; and 4) it would probably change the result if a new trial is granted. Stanford v. Iowa State Reformatory, 279 N.W.2d 28, 32-33 (Iowa 1979); State v. Sims, 239 N.W.2d 550, 554-55 (Iowa 1976).

"[O]ne seeking post-conviction relief is required to establish the facts asserted by a preponderance of the evidence." Stanford, 279 N.W.2d at 31. We agree with the postconviction court that Jones has failed to establish the first element, that the evidence was newly discovered, and the fourth element, that it would probably change the result if a new trial was granted.

A. Newly discovered evidence. Jones makes two claims: 1) that testimony of a codefendant who has previously invoked his privilege against self-incrimination and refused to testify at a defendant's trial, is newly discovered evidence when the codefendant finally agrees to testify; and 2) that the testimony of an unavailable fugitive codefendant is also newly discovered evidence when the fugitive is finally apprehended and is ready to come forward with potentially exculpatory evidence. The first claim applies to White, the second to Daniels. Both claims present an issue of first impression for this court.

1. Testimony of White. Jones was found guilty of first-degree murder by a jury on November 17, 1976. His codefendant, Johnney White, Jr., was tried in a separate trial that resulted in a conviction of second-degree murder. Jones did not call White as a witness in his trial. He did, however, call him as a witness at the hearing on his motion for new trial on December 17, 1976. Because the period for White to appeal his conviction had not expired, he asserted the privilege against self-incrimination. Jones' motion for new trial was denied. On May 11, 1977, White wrote a letter to Jones' counsel expressing a willingness to testify concerning Jones' participation in the slaying of Jimmy Wright. The essence of the proffered testimony was that White shot Wright and that Jones had attempted to dissuade him from doing so. On March 27, 1980, White related this testimony to the court in a hearing on Jones' application for postconviction relief. The court found the evidence was not newly discovered.

2. Testimony of Daniels. Codefendant Archie Daniels was not called to testify at Jones' trial or at the hearing on his motion for a new trial. He was a fugitive from justice for about eighteen months after the homicide. Subsequently, he was apprehended by the Federal Bureau of Investigation, pled guilty to manslaughter in the slaying of Wright, and was incarcerated in Kansas on another offense. Jones' attorney took the deposition of Daniels which was introduced at the hearing on Jones' application for postconviction relief. The deposition essentially stated that Jones had not struck or chased the victim before his death. The postconviction court found this evidence was not newly discovered.

At his trial, Jones had testified that he had not chased or struck the victim and that he had attempted to dissuade the codefendants, his half-brothers, from harming the victim. There was other trial evidence to the contrary.

Jones presents the issue of whether evidence that is unavailable at trial, in this case due to the exercise by one codefendant of his fifth-amendment privilege against self-incrimination and due to the fugitive status of the other codefendant, is newly discovered when it becomes available after judgment. Other jurisdictions are in disagreement on the resolution of this issue as presented in similar or related factual contexts.

Some jurisdictions find such evidence is newly discovered. For example, in Whitmore v. State, 570 S.W.2d 889, 895 (Tex.Crim.App.1977), a codefendant made exculpatory statements concerning defendant's guilt at his own murder trial. He had refused to testify at defendant's prior trial on self-incrimination grounds. Id. The court said, "[we have] long recognized that newly available evidence is the same as newly discovered evidence.... It is well settled that if, after defendant is tried and convicted, his codefendant is tried and acquitted, the testimony of the latter is held to be newly discovered." Id. at 896. Accord, United States v. Guillette, 404 F.Supp. 1360, 1372-74 (D.Conn.1975) (exculpatory testimony of codefendant who originally refused to testify at defendant's trial found to be newly discovered evidence); People v. Hairgrove, 18 Cal.App.3d 606, 609-11, 96 Cal.Rptr. 142, 144-46 (1971) (error for trial court to rule on motion for new trial on basis of newly discovered evidence without examining, under oath, witness who, after defendant's trial, signed an affidavit confessing to acts for which defendant convicted); People v. Hughes, 11 Ill.App.3d 224, 229-30, 296 N.E.2d 643, 646-47 (1973) (exculpatory testimony of accomplice found to be newly discovered evidence where prosecution led defendant to believe accomplice was a fugitive, although prosecution witness knew of accomplice's location); State v. Williams, 258 La. 251, 257-58, 246 So.2d 4, 6 (1971) (defendant entitled to new trial on basis of "new evidence," an exculpatory statement of witness who exercised fifth-amendment privilege at trial); Rustin v. State, 338 So.2d 1006, 1008 (Miss.1976) (exculpatory statement by defendant's pre-trial cell-mate who refused to make statement at defendant's trial found to be newly discovered evidence); People v. Daniels, 48 A.D.2d 905, 906, 369 N.Y.S.2d 771, 773 (1975), judgment vacated and new trial granted, 50 A.D.2d 934, 378 N.Y.S.2d 642 (1975) (trial court erred in denial of motion for new trial on basis of newly...