from the Iowa District Court for Polk County, Robert B.
from the denial of application for postconviction relief
filed pursuant to Iowa Code chapter 822 (2009).
Anderson of Karmen Anderson Law, Des Moines, for appellant.
J. Miller, Attorney General, and Sharon K. Hall, Assistant
Attorney General, for appellee State.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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.
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.
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.
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)).
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.
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
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 ...