Nebinger v. Ault, 99-2495SI
| Decision Date | 13 January 2000 |
| Docket Number | No. 99-2495SI,99-2495SI |
| Citation | 208 F.3d 695 |
| Parties | (8th Cir. 2000) Rick Dwayne Nebinger, Sr., Appellant, v. John Ault, Warden, and Thomas Miller, Attorney General for the State of Iowa, Appellees. Submitted: |
| Court | U.S. Court of Appeals — Eighth Circuit |
On Appeal from the United States District Court for the Southern District of Iowa.
Before RICHARD S. ARNOLD, BRIGHT, and HANSEN, Circuit Judges.
This is a petition for habeas corpus brought by Rick Dwayne Nebinger, Sr., a prisoner in the custody of the State of Iowa. Mr. Nebinger is serving a life sentence for first-degree murder and a twenty-five-year sentence for first-degree robbery, the sentences to run concurrently. He argues that he is in custody in violation of the federal Constitution on two grounds: (1) that the State unfairly surprised him with footprint evidence after his counsel had stated, in his opening statement to the jury, that there would be no physical evidence to link Mr. Nebinger with the inside of the house in which the murder was committed; and (2) that the trial court's decision to exclude evidence about the possible violent propensities of another person, a person Mr. Nebinger claimed in fact committed the crimes, was a violation of the Due Process Clause of the Fourteenth Amendment.
The District Court1 denied the petition, but granted a certificate of appealability on the issues that we have listed. We affirm, substantially for the reasons given in the opinion of the District Court. We have only a few comments to add.
1. During his opening statement, counsel for the petitioner said that no physical evidence would be introduced to show that his client had ever been in the house in which the murder victim was killed. Shortly thereafter, the State produced evidence of a footprint that was said to be consistent with the print of the shoes that Mr. Nebinger was wearing on the night of the crime. The outline of this footprint had been found inside the house. Counsel moved for a mistrial, or for exclusion of the evidence. Counsel did not want a continuance, for good reasons that need not be detailed here. The trial court denied the mistrial and also declined to exclude the evidence, but did rule that the State would be restricted to presenting the evidence on rebuttal. Counsel for petitioner elected, for tactical reasons, which again need not be detailed, to allow the State, in view of this ruling, to use the evidence during its case in chief. It is now argued that trial counsel was unfairly surprised by the State's belated revelation of this physical evidence.
No misconduct or bad faith on the part of the State is suggested. The footprint had been sent to a laboratory for physical examination and testing. The testing had not been completed when the trial began. Defense counsel knew this. The State had told him that no test results had been received, and this was true. He was not told that there would be no further testing. In fact, the trial court found as a fact that counsel had been aware that tests were being run, and...
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