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State v. DeSimone

Supreme Court of Iowa

November 15, 2013

STATE of Iowa, Appellant,
David R. DeSIMONE, Appellee.

Modified on Denial of Rehearing Nov. 26, 2013.

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Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Deputy Attorney General, and Meghan L. Gavin and William A. Hill, Assistant Attorneys General, for appellant.

Michael J. McCarthy of McCarthy, Lammers & Hines, Davenport, for appellee.


This case presents several substantive and procedural issues under Iowa Code section 663A.1 (2011), our state's " wrongful imprisonment" law. In 2005, David DeSimone was tried before a jury on a charge of third-degree sexual abuse, found guilty, and sentenced to prison. Six years later, this court granted postconviction relief and overturned DeSimone's conviction and sentence, necessitating a new trial. See DeSimone v. State, 803 N.W.2d 97, 106 (Iowa 2011). The second trial resulted in DeSimone's acquittal.

Subsequently, DeSimone filed an application to be declared a wrongfully imprisoned individual under section 663A.1. The district court granted DeSimone's application, finding he had proved by clear and convincing evidence that he had not committed third-degree sexual abuse or any lesser included offense. See Iowa Code § 663A.1(2) ( a ) (2011).

The State now appeals the district court's ruling. First, it argues DeSimone's acquittal could not form the basis for a wrongful imprisonment claim because it was not " an order vacating, dismissing, or reversing the conviction and sentence in a case for which no further proceedings can be or will be held against an individual." Id. 663A.1(2). Second, the State argues the district court should have considered the testimony that had been presented at DeSimone's two criminal trials in making the wrongful imprisonment determination. Third, the State contends that even without the prior testimony, substantial evidence does not support the district court's finding that DeSimone was innocent.

We hold: (1) DeSimone was eligible to bring a wrongful imprisonment claim when he was acquitted on retrial following our order vacating his conviction; (2) the district court erred in not considering the prior criminal case testimony even though

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the State did not show the witnesses were no longer available; (3) substantial evidence supports the district court's finding of innocence on the existing record, so a remand is necessary for the district court to consider the full record, including the prior testimony. For these reasons, we reverse the district court's order and remand for further proceedings consistent with this opinion.

I. Facts and Procedural Background.

This case began with a party that DeSimone, then forty-five years old, hosted in October 2004. DeSimone lived in the upstairs apartment of a house owned by his uncle. One of the persons attending the party was Samantha, a seventeen-year-old. Based on testimony and exhibits presented at the first trial, the court of appeals set forth the facts as follows:

Defendant had been given money by others to purchase a keg of beer for the party. Samantha drank six to twelve glasses of beer and admitted blacking out or passing out twice. Following the second episode, Samantha found herself naked in defendant's bed. She noticed her tampon was missing. She said the defendant forced her to engage in sexual intercourse and fellatio. She left defendant's house after midnight, went to a nearby store, and called a friend and the police.
After talking briefly with Samantha, the police took her to the hospital, where she was examined for sexual assault. She told police she had vomited on the defendant's bed, the bedroom floor, and her hair. She also said the defendant had grabbed her neck and choked her. The hospital examination did not find any evidence of trauma to her neck or genital area. The laboratory examination of the sexual abuse protocol kit returned no evidence of semen.
The police obtained a search warrant and seized bedding from the defendant's home. The laboratory examination of the items seized from the defendant's home found evidence of the defendant's blood and dried semen. The tests did not reveal any blood, vomit, or other biological materials attributable to Samantha on the items seized.

See State v. DeSimone, No. 05-1740, 2007 WL 750649, at *1 (Iowa Ct.App.2007).

Notwithstanding a paucity of physical evidence to support the State's case, the jury at the first trial in 2005 found DeSimone guilty of third-degree sexual abuse. See Iowa Code § 709.4 (2003) (defining sexual abuse in the third degree). Samantha testified that DeSimone told her he was not going to ejaculate on her, so as not to leave any physical evidence. In addition, an eyewitness, Joe Baker, testified he had seen DeSimone and Samantha together in DeSimone's bedroom, with Samantha asleep— although clothed— on DeSimone's bed. Following DeSimone's conviction, the district court sentenced him to a term of incarceration not to exceed fifteen years. The court of appeals affirmed his conviction and sentence in 2007. See DeSimone, 2007 WL 750649, at *3.

Thereafter, DeSimone filed an application for postconviction relief. The application asserted, among other things, that the State had committed a Brady violation.[1] At the first trial, a high school

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senior who later became a friend of Samantha testified. She claimed that on the night of the alleged assault she saw a girl, presumably Samantha, run across the street in a direction heading away from DeSimone's house at the very time Samantha said she had fled. However, it turned out the time records for this witness's employer indicated she was still at work at that time. DeSimone alleged the State's failure to disclose the exculpatory information it had received from the witness's employer violated due process and required a new trial.

The district court and the court of appeals rejected DeSimone's contentions, but in 2011, on further review, we found that a Brady violation had occurred. See DeSimone, 803 N.W.2d at 106. We vacated DeSimone's conviction and sentence, and ordered a new trial. Id.

The second trial took place from March 26 through 29, 2012. Although DeSimone did not take the stand in his original trial, he testified during his second criminal trial. At the conclusion of this trial, the jury found him not guilty of all charges.

Following his acquittal, on April 3, DeSimone filed an application to be determined a wrongfully imprisoned person under Iowa Code section 663A.1. A hearing took place in district court on November 13. Prior to the hearing, DeSimone had served a series of requests for admissions on the State, attempting to get the State to admit certain facts elicited at the first trial that were favorable to him.[2] In response, the State, " subject to any further testimony in the transcript," admitted the following: (1) the law enforcement officer who responded to Samantha's 911 call from the grocery store found no evidence of vomit on Samantha or at DeSimone's home; (2) the officer observed no " visible signs of injury on Samantha" and Samantha did not complain to him of any injuries caused by DeSimone; (3) Samantha was intoxicated when the officer questioned her; (4) an investigating officer from the Clinton Police Department found " no evidence of manipulation of physical objects by anyone and ... no evidence of anyone trying to hide evidence" at DeSimone's home; (5) a Division of Criminal Investigation criminalist found no blood, vomit, or DNA on the samples he analyzed, except for a small amount of blood inside the knee of Samantha's jeans— Samantha was menstruating at the time of the alleged assault; (6) the criminalist found no sperm on a vaginal swab of Samantha; (7) the nurse who performed the rape protocol on Samantha shortly after she made the allegation against DeSimone observed no physical injuries of any kind; (8) Samantha did not claim she had been raped during her 911 call from the grocery store; (9) the physician in the emergency room found no evidence of physical injury or sexual assault when he examined Samantha; and (10) in the emergency room, Samantha did not claim she had passed out, blacked out, or become delusional on the night of the party.

DeSimone put these admissions into evidence at the wrongful imprisonment hearing. In addition, he was the only witness to testify at the hearing. In his testimony, DeSimone stated he had brought a keg of beer to the October 2004 party and knew the guests, including the underage guests, were consuming alcohol throughout the night. DeSimone testified he drank whiskey during the party but was not drunk.

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DeSimone testified that Samantha became very intoxicated during the party. Around 9:00 p.m., according to DeSimone's account, he saw her in the hallway and believed she was going to vomit. He took her to the downstairs bathroom after he realized the upstairs bathroom was occupied by several other guests. While Samantha was in the downstairs bathroom, DeSimone waited in the downstairs kitchen. After DeSimone went back upstairs, an altercation occurred, after which DeSimone told all of the guests he wanted them to leave.

DeSimone testified that after he asked everyone to leave, Samantha and a few others stayed behind and attempted to get the other guests to depart. According to DeSimone, Samantha then sat down, put her head on the upstairs kitchen table, and passed out. DeSimone testified he went downstairs for a while, and when he returned he saw Samantha and Joe Baker engaged in sexual activity in the kitchen. DeSimone said he went to bed at that time and did not see or hear anything until around six or seven the following morning when Baker woke him up and requested to use his cell phone. DeSimone testified he did not know where Samantha was at that time and did not know when or how Samantha left the apartment. He denied ever engaging in sexual activity with her.

The State did not present any new evidence at the wrongful imprisonment hearing. Instead, it simply asked the district court to take judicial notice of the prior criminal case file. DeSimone, however, objected to the State's request to the extent it included the trial transcripts. DeSimone argued this prior testimony could be received only if the witnesses were unavailable, something the State had not demonstrated. See Iowa R. Evid. 5.804( b ) (1) (describing the hearsay exception for former testimony when the declarant is unavailable).

On November 21, 2012, the district court entered a detailed order finding DeSimone was a wrongfully imprisoned person under section 663A.1. The court reasoned as follows. First, the court accepted DeSimone's position that the prior criminal trial transcripts could not be considered because the State had failed to show the witnesses were unavailable. Second, the court concluded that DeSimone met the criteria set forth in Iowa Code section 663A.1(1) for wrongful imprisonment, because his conviction had been vacated and his acquittal on retrial meant that " no further proceedings can be or will be held." See Iowa Code § 663A.1(1)( e ). Third, the court concluded that DeSimone also met the criteria set forth in section 663A.1(2) for wrongful imprisonment because he had shown by clear and convincing evidence that he was factually innocent. See id. § 663A.1(2). ...

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