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Mayberry v. State

Court of Appeal of Iowa

May 30, 2013

JAMES MAYBERRY, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Johnson County, Patrick R. Grady, Judge.

         A postconviction relief applicant appeals a district court order denying him relief.

          Mark C. Meyer, of Kinnamon, Kinnamon, Russo, Meyer & Keegan, Cedar Rapids, for appellant.

          Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Janet M. Lyness, County Attorney, and Andrew Chappell, Assistant County Attorney, for appellee State.

          Heard by Vogel, P.J., and Vaitheswaran and Bower, JJ.

          VOGEL, P.J.

         James Mayberry appeals the district court's decision denying this second application for postconviction relief, stemming from his 1985 conviction for first-degree murder. Mayberry frames his claim in a creative manner—Iowa has an "actual innocence" exception to Iowa Code section 822.3 (2005), and he can therefore raise his constitutional claims over a decade beyond the normal statute of limitations period. Even if Mayberry's approach were to be an exception under Iowa law, he has failed to prove he is actually innocent, and all of his claims are without merit. We therefore affirm.

         I. Background Facts and Proceedings

         We adopt the district court's recitation of the facts and proceedings from its December 15, 2010 order:

The history of this case shows that on December 18, 1985, a judgment of guilt and sentence was entered on Applicant James L. Mayberry's conviction after jury trial of Murder in the First Degree. He was sentenced to a life term in prison and remains incarcerated. Mayberry was charged in the stabbing death of Julia Wise in her mobile home that allegedly occurred on or about July 2, 1985. Mayberry was convicted under the alternative theories of premeditated murder and/or murder while participating in the forcible felony of Assault with the Intent to Commit Sexual Abuse with Serious Injury. On appeal, Mayberry raised the following issues: (1) Sufficiency of the evidence as to his identity as the perpetrator; (2) Sufficiency of evidence of the elements of First Degree Murder; (3) Voluntariness of Statements made to police; (4) Failure to instruct on a favorable inference from failure to flee; (5) Admissibility of rebuttal evidence; (6) Failure to grant a mistrial due to a witness's reference to Mayberry refusing a polygraph examination; (7) Ineffective assistance of trial counsel with regard to failure to request certain jury instructions. On July 22, 1987, the Iowa Supreme Court affirmed Mayberry's conviction and rejected each of the above claims. [State v. Mayberry, 411 N.W.2d 677, 686 (Iowa 1987).]
Mayberry filed an application for postconviction relief on June 28, 1988. There, among others, he raised claims of ineffective assistance of trial counsel that included challenging trial counsel's failure to call two lay witnesses, a forensic pathologist and crime scene reconstruction expert or object to certain evidence. He also challenged counsel's failure to rebut the reference to the polygraph issue by showing that Mayberry has passed an examination while incarcerated. He also sought a new trial based on new evidence that trace blood had been found on a "rusty knife" located near the scene that was not detected by the State's investigation prior to trial and disclose that a witness that testified at trial was the confidential informant whose information was relied on in securing the search warrant. On May 6, 1992, the Honorable Larry Conmey overruled Mayberry's request for postconviction relief. Mayberry appealed that ruling and, on December 29, 1993, the Iowa Court of Appeals affirmed the ruling of Judge Conmey. [Mayberry v. Smith, No. 92-0847 (Iowa Ct. App. Dec. 29, 1993).] The Iowa Supreme Court denied further review.
Mayberry's current Application for Postconviction Relief, as amended and as developed by the record, seeks a new trial based on: (1) the retroactive application of State v. Heemstra, 721 N.W.2d 549 (Iowa 2006); (2) the State presenting false evidence as to the time of the victim's death especially in light of non-disclosure of evidence contradicting that false evidence; (3) use of false evidence involving the testimony of witness John Lee; (4) prosecutorial misconduct with regard to a statement made to Mayberry during cross-examination; (5) due process violation based on the police failing to seize a screwdriver found at the scene; (6) due process violation/prosecutorial misconduct based on admission of a buck knife at trial; (7) due process violation based on failure to grant a new trial because of new polygraph evidence; (8) use of false evidence as to the discovery of a towel and beer can under the victim's trailer.

         One of the main issues Mayberry argues is the State presented false evidence as to the time of the victim's death, particularly in light of the nondisclosure of evidence allegedly contradicting what Mayberry asserts to be false evidence. Wise's body was found on July 4, 1985, and the autopsy was performed by a pathologist, William J. Powers, M.D., between 4:00 and 5:00 p.m. that day. The autopsy report estimated death occurred "more than 24 hours and less than 48 hours before the time of the autopsy."

          V.G. Edwards, M.D., the acting medical examiner, estimated the time of death was in the late evening of July 2. At the first postconviction hearing, a third doctor retained as an expert for Mayberry, former Iowa State Medical Examiner and forensic pathologist Thomas Bennett, M.D., testified he concurred with Dr. Edwards's opinion the time of death was twenty-four to forty-eight hours before the autopsy. At this postconviction hearing, other pathology experts however, disagreed with Drs. Edwards, ...


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