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Stone v. State

Court of Appeals of Iowa

July 19, 2017

DEWANN MARQUISE STONE SR., Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.

         Appeal from the denial of application for postconviction relief filed pursuant to Iowa Code chapter 822 (2009).

          Karmen Anderson of Karmen Anderson Law, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney General, for appellee State.

          Considered by Vogel, P.J., and Doyle and McDonald, JJ.

          MCDONALD, JUDGE.

         Dewann Stone Sr. was convicted of murder in the first degree, in violation of Iowa Code section 707.2 (2005), for the shooting of Anthony Galvan. This court affirmed his conviction on direct appeal. See State v. Stone, No. 07-1009, 2008 WL 4724865, at *1 (Iowa Ct. App. Oct. 29, 2008). The facts and circumstances of the case are set forth in our prior opinion and need not be repeated in full herein. In this appeal, Stone contends the district court erred in denying his application for postconviction relief.

         I.

         Stone's primary claim is the State suppressed certain evidence in violation of Stone's right to due process as set forth in Brady v. Maryland, 373 U.S. 83, 87 (1963). See Aguilera v. State, 807 N.W.2d 249, 252 (Iowa 2011) (discussing Brady violations). "To establish a Brady violation has occurred, [the defendant] must prove by a preponderance of the evidence (1) the prosecution suppressed evidence; (2) the evidence was favorable to the defendant; and (3) the evidence was material to the issue of guilt." Id. (quoting DeSimone v. State, 803 N.W.2d 97, 103 (Iowa 2011)) (alteration in original). The district court denied the claim. Our review is de novo. Id.

         The factual predicate for Stone's primary claim arises out of and relates to the statements of a jailhouse informant, Derek Thompson. The Galvan shooting occurred in August of 2006. In early April 2007, Thompson sent a letter to the county attorney stating he had information about the shooting. At the time Thompson sent the letter he was being held in the Polk County Jail awaiting transfer to federal prison. The prosecutor did not provide Thompson's letter to the defendant, but the prosecutor did notify the case agent, Detective David Seybert, of the letter. Seybert made arrangements with federal authorities to interview Thompson. The interview occurred on April 17, 2007. Thompson stated he happened upon Kyron Moore, a long-time friend and former roommate of Thompson's, in the visitor area of the jail in September or October of 2006. Thompson stated he and Moore spoke. During the conversation, according to Thompson, Moore admitted he "popped [Galvan], " meaning he shot Galvan. Seybert asked whether Moore provided any detail, and Thompson said no. Thompson told Seybert he knew Moore to "wolf, " meaning Moore might make something up or exaggerate something to impress others. Seybert prepared a transcript and summary of his interview with Thompson. The prosecutor faxed a copy of the transcript and summary to Stone's trial attorneys the same day or the next day, April 17 or 18. Trial was scheduled to and did commence on April 23, 2007.

         Stone contends the prosecutor suppressed the transcript and summary of the interview with Thompson. Evidence is suppressed when it is known by the prosecution, including all persons acting on behalf of the State, but unknown by the defense. Harrington v. State, 659 N.W.2d 509, 522 (Iowa 2003). Stone's claim is directly contradicted by the record. The record reflects the documents were faxed to Stone's lawyers immediately after the interview. The transmission of the information was acknowledged by the prosecutor and defense counsel on the morning of Stone's trial while making record on pending motions in limine. In addition, Stone had personal knowledge of Moore's purported confession long before Thompson contacted the prosecutor. Stone was arrested in the fall of 2006 and held at the Polk County Jail. Thompson and Stone were being held on the same floor of the jail. Thompson and Stone knew each other prior to being jailed-Thompson was friends with Stone's younger brother-and they spoke with each other while in the jail. In his deposition for the postconviction trial, Thompson testified he told Stone what Moore said immediately after Moore said it. Stone admitted during the postconviction trial that Thompson told him what Moore said at some point before his trial. Stone testified he never told his attorneys this information prior to trial. It is well settled "'[i]f the defendant either knew or should have known of the essential facts permitting him to take advantage of the evidence, ' the evidence is not considered 'suppressed.'" Id. (quoting Cornell v. State, 430 N.W.2d 384, 385 (Iowa 1988)).

         Stone contends the information should nonetheless be considered suppressed, within the meaning of our case law, because the information was disclosed only on the eve of trial. As a general rule, if the prosecution delays the disclosure of Brady material so significantly it prejudices the defendant's ability to use the information, then the material may be considered suppressed. See State v. Clark, 814 N.W.2d 551, 563 (Iowa 2012). Here, the prosecutor did not delay the disclosure of the information. Thompson notified the prosecutor he had information in early April of 2007. Detective Seybert made arrangements to interview Thompson expeditiously. Upon completion of the interview, the prosecutor immediately provided the information to defense counsel. In addition, as discussed above, according to Thompson, Stone knew this information in September or October of 2006.

         The timing of the disclosure did not prejudice the defendant's ability to use the information. See id. The interview and report were short and did not require significant investigation. Even if did require some investigation, Moore could not confirm the purported confession. He had been murdered by the time Thompson disclosed the information. In addition, getting Thompson's testimony into evidence was difficult because of hearsay issues. Thompson's testimony lacked credibility. Jailhouse records showed Thompson and Moore were not ever held in the jail together. It seems improbable that Thompson would by happenstance bump into Moore in the visitor's area of the jail, Moore would confess to the murder, Thompson would immediately tell Stone, and Stone would do nothing with the information. Nonetheless, despite the evidentiary concerns, defense counsel tried to get the testimony into evidence, not to establish the truth of the matter asserted, but to establish the police failed to investigate a potential suspect. The district court would not allow the evidence for that purpose. There was no prejudice here.

         Finally, Stone claims the prosecution's failure to disclose Thompson's letter to the defense independently constitutes a Brady violation because it triggered a duty to investigate and ...


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