               IN THE SUPREME COURT OF IOWA
                               No. 16–1650

                            Filed May 11, 2018


DAVID M. POWERS,

      Appellant,

vs.

STATE OF IOWA,

      Appellee.



      Appeal from the Iowa District Court for Black Hawk County,

George L. Stigler, Judge.



      Applicant for postconviction relief filed an interlocutory appeal of the

district court ruling quashing his subpoena for discovery of police

investigative reports and the district court ruling excluding all evidence

and testimony related to the alleged false claims of his complaining witness

contained in the investigative reports. REVERSED AND REMANDED.



      Kent A. Simmons, Bettendorf, for appellant.



      Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney

General, Brian Williams, County Attorney, and Kimberly Griffith and

Elizabeth O’Donnell, Assistant County Attorneys, for appellee.



      Lance W. Lange and Mitch G. Nass of Faegre Baker Daniels, LLLP,

Des Moines, for amici curiae Innocence Network, Innocence Project of

Iowa, and Midwest Innocence Project.
                                     2

ZAGER, Justice.

      In 2011, a jury convicted David Powers on two counts of sexual

abuse based on allegations made by his granddaughter from several years

earlier. Throughout the trial, Powers denied all the claims made against

him. The jury heard testimony from the child victim and other various

family members, including the child’s parents and brother, that the child

was known to lie. Powers appealed his convictions arguing, among other

claims, that there was insufficient evidence to convict him. The court of

appeals affirmed his convictions.

      Powers subsequently filed this application for postconviction relief.

As part of his application, Powers alleges that between the time of his

convictions and his sentencing, the Waterloo Police Department was

investigating claims of sexual abuse that his victim was making against

local gang members. While the final investigative report had yet to be

completed prior to the time of sentencing, Powers alleges that the ongoing

investigation was concealed from his trial counsel. Powers maintains that

prior to sentencing, the police had determined the claims made against

the gang members were false.         As part of his discovery in these

postconviction-relief proceedings, Powers attempted to subpoena the

Waterloo police chief to produce the investigative reports related to those

claims. The district court conducted two hearings related to the requested

production of the investigative reports. After the second hearing, and after

the district court had reviewed all of the documents and reports in camera,

the district court granted the motion to quash filed by the City of Waterloo

and denied disclosure of the investigative reports to Powers. The district

court also ruled that all evidence and testimony related to the alleged false

claims of the victim would be excluded from the postconviction-relief trial.

Powers sought interlocutory appeal from these rulings, which we granted
                                             3

and retained. For the reasons set forth below, we reverse the rulings of

the district court and remand for further proceedings consistent with this

opinion.

       I. Background Facts and Proceedings.

       In February 2011, David Powers was tried before a jury for one count

of sexual abuse in the second degree 1 and one count of sexual abuse in

the third degree. 2 The charges were based on allegations made by his

granddaughter, K.P.          K.P. claimed that one instance of sexual abuse

occurred while she was under twelve years of age, and the other instance

of sexual abuse occurred when she was thirteen years old. Throughout

the proceedings, Powers maintained his innocence and argued to the jury

that his granddaughter had made up the allegations against him. K.P.

and several witnesses testified at trial. K.P. admitted that she had told lies

in the past, such as lying to her parents about her whereabouts or who

she was with, so she could “do things that they don’t let [her] do.” Other

witnesses, including a close friend of K.P., her mother, father, and brother,

all testified that K.P. was known to lie or be untruthful. Her younger


        1“A person commits sexual abuse in the second degree when the person commits

sexual abuse under any of the following circumstances: . . . 2. The other person is under
the age of twelve.” Iowa Code § 709.3(2) (2009). “Sexual abuse in the second degree is a
class ‘B’ felony.” Id. § 709.3.
       2Section   709.4(2)(b) provides,
              A person commits sexual abuse in the third degree when the
       person performs a sex act under any of the following circumstances:
               ....
              2. The act is between persons who are not at the time cohabiting
       as husband and wife and if any of the following are true: . . .
               ....
               (b.) The other person is twelve or thirteen years of age.
Iowa Code 709.4(2)(b). “Sexual abuse in the third degree is a class “C” felony. Id.
§ 709.4.
                                       4

brother testified that K.P. had asked him to lie to the abuse investigator

by claiming that Powers had also touched him, but the brother declined to

do so. Additionally, testimony was obtained from Powers’s physician that

it was “highly unlikely” Powers could achieve or sustain an erection

because of his health issues despite testimony from K.P. to the contrary.

The jury convicted Powers on both counts of sexual abuse on February 5.

      Shortly after the jury issued its verdicts, but before Powers was

sentenced, K.P. ran away from home. She was located a few days later

and taken to a youth shelter.     K.P. subsequently reported to Waterloo

police that she had been sexually assaulted by area gang members when

she was at their residence while she was on runaway status. Officers

Naumann and Chopard of the Waterloo Police Department investigated the

case. Their investigation included interviews with K.P., her father, her

boyfriend at the time, and other minors who were with K.P. during the

night of the alleged sexual assault.

      By the time of the last interview with K.P. in mid-March, it was

apparent that police were receiving inconsistent stories from the witnesses

about the nature of the alleged sexual assault. The police met a final time

with K.P. and her father on March 14 after conducting the numerous

interviews. K.P.’s father, Phil Powers, claims the detective told him and

K.P. “that the stories weren’t matching up.” Phil contends the detective

also said there was nothing the police could do about K.P.’s rape allegation

because “they felt there were too many loopholes.” Phil also alleges the

detective told him “that they believed it was a false report.”       Officer

Chopard questioned K.P. about some of the inconsistencies in her story.

During this meeting, after being confronted about these inconsistencies,

K.P. stated she no longer wanted to pursue the charges “since no one
                                      5

believed her.” The final report regarding this incident was dated May 2,

closing the investigation.

      While this investigation was on-going, after his convictions but prior

to sentencing, Powers filed a motion for new trial based on the insufficiency

of the evidence to support the convictions. The motion for new trial was

denied, and Powers was sentenced on April 12.           Powers appealed his

convictions, which were affirmed by the court of appeals.

      In December 2013, Powers filed an application for postconviction

relief. Powers subsequently amended his application in October 2014 to

include claims of newly discovered evidence, concealment of exculpatory

evidence, and ineffective assistance of trial counsel. As the basis of his

claims, Powers argued the concealment of the investigation and resulting

reports from his trial attorney, specifically regarding K.P.’s claims of sexual

assault against the gang members, violated his due process rights under

the State and Federal Constitutions. Alternatively, Powers maintained his

trial counsel was ineffective in failing to investigate information regarding

the reports and to litigate them if counsel had knowledge about the other

false accusations.

      To support his argument that K.P. had made false accusations

against him, Powers subpoenaed K.P. to testify at his postconviction-relief

trial scheduled for June 22, 2016. On June 13, a public defender filed a

motion to quash the subpoena on behalf of K.P., explaining that K.P. had

a family vacation on the date of the scheduled appearance. Powers agreed

to reschedule his postconviction-relief trial. The district court continued

the trial and ordered a trial setting conference. The district court also

scheduled a one-hour hearing for July 25 regarding K.P.’s motion to

quash.
                                     6

      Prior to the July 25 hearing, Powers filed a motion for ruling on

admissibility of evidence and a response to the motion to quash. In this

motion, Powers explained that K.P.’s motion to quash only requested relief

from attending the June 22 hearing due to vacation plans, which Powers

did not resist. Further, Powers noted the State had failed to file any motion

arguing K.P.’s testimony would be barred by Iowa Rule of Evidence 5.412,

thereby rendering her motion to quash moot. Additionally, Powers detailed

what he knew about the events surrounding the allegations K.P. made

against the gang members. Powers reiterated his argument that the police

had determined the allegations were false.

      In response, K.P. filed an amended motion to quash which stated,

“[T]he testimony [of the allegations against the gang members] is irrelevant

and should be excluded as a subsequent act unrelated to the events of the

David Powers criminal trial.” Powers countered with a resistance to the

amended motion exclaiming, “Again, there is currently NO subpoena

pending for the Court to Quash. The witness, K.P., is NOT subpoenaed to

provide any testimony at this time because there is no trial scheduled.”

That same day, Powers filed a subpoena duces tecum, directing the

Waterloo police chief to produce the investigative reports on K.P.’s claims

against the gang members. The Waterloo City Attorney moved to quash

the subpoena duces tecum asserting the investigative reports were “wholly

unrelated to the underlying sexual abuse case.” The city attorney also

joined in K.P.’s motion to quash. In his resistance to these motions to

quash, Powers argued that neither K.P.’s public defender nor the city was

a party to his postconviction-relief action, and neither had standing to

object to the relevance of the investigative reports or his motion for ruling

on the admissibility of evidence.
                                     7

      On July 25, the district court held a hearing on the pending motions.

The district court heard testimony from Phil Powers who testified about

his interactions with the Waterloo police regarding the allegations K.P.

made against the gang members. Powers’s attorney asked Phil, “Did they

tell you, in fact, that they believed it was a false report?” Phil responded,

“He did.”

      The district court judge also questioned Phil after the attorneys

finished questioning him. The judge questioned Phil about the physical

description of the officer who had told Phil that he believed K.P. had made

a false report. Phil told the judge that the officer was a 6’1” middle-aged

male with dark hair who weighed “probably 200 or less.” The attorney for

K.P. volunteered the identity of the investigating officer to the judge,

informing him that it was Officer Chopard who talked to K.P. and her

father about the investigation. At the conclusion of the hearing, the court

requested the investigative reports. The judge also requested a photo of

Officer Chopard, as well as “specific information about Chopard, because

[his] recollection of his appearance, from having testified any number of

occasions, is different than Mr. Powers’s recollection of the person that he

talked to.”

      The city attorney provided the district court with the investigative

reports, which it was able to review in camera. On August 31, the district

court held further proceedings regarding the motion in which it was able

to hear the testimony of Officer Chopard. Chopard denied telling K.P. or

her father that he believed K.P. filed a false report. Chopard disputed

telling K.P. or her father that he did not believe the claims or that they

were false. Chopard testified, “I never would tell anybody I didn’t believe

them. I would tell them why there are factors in the case where I couldn’t

pursue charges.” Chopard explained that he did have doubts about the
                                     8

truthfulness of the claims K.P. made against the gang members due to the

inconsistencies in her story compared to those of her friends. However,

he also agreed that “there are a multitude of reasons” why K.P. would

decline to press charges, and he discussed the concern K.P. and her father

had about retribution from the gang members if she pursued the charges.

      Finally, Chopard explained, Phil and K.P. told him that they did not

want to pursue charges against the gang members. The district court also

read a portion of the investigative report that Chopard wrote, which stated,

      K.P. told me that since nobody believed her she did not want
      to press charges. I explained to KP that if something
      happened to her that she needed to tell the truth about what
      happened and not change her story. I explained to her that
      her story at this point did not match what both of her friends
      had told me about the night. K.P. told me again she did not
      want anything done and wanted to leave. While outside of the
      interview room Phil also explained to me that he did not think
      his daughter was being truthful about the incident. Phil also
      advised me he did not want anything further done with this
      case.

At no point did K.P. recant her sexual assault allegations against the gang

members.
      At the conclusion of this hearing, the district court issued its oral

rulings on the pending motions. The district court found that Phil Powers

was not a credible witness. After discussing the inaccuracies in Phil’s

description of Chopard, the district court stated, “And that leads me to the

point of view that Mr. Powers intentionally testified falsely.” The district

court explained that Phil “has identified with his father and has chosen to

do whatever and say whatever is necessary to get his father out of the

predicament that his father is in.” Additionally, the district court found

“that there is absolutely no credible reason to believe that [K.P.] made a

false accusation.” The district court granted the city’s motion to quash,
                                      9

ruling the police did not have to provide Powers with the investigative

reports.

      In reaching this decision, the district court explained,

      Had all of this evidence been known to the criminal defense
      attorney between the trial and the sentencing of Mr. Powers,
      the applicant, it would have made absolutely no difference
      because it has no more relevance to the case involving
      Mr. Powers, the applicant, than any other sexual assault
      other than the sexual assault involved the same victim. One
      has nothing to do with the other.

      The district court also granted K.P.’s motion to quash “in terms of

any testimony relating to the events that happened to [K.P.] in the gang-

related situation.” Nevertheless, the district court found K.P. would have

to testify about her claims against Powers if she was called to testify in his

postconviction-relief trial.   Powers requested a written ruling on the

motions, and the district court agreed to issue a written ruling. However,

the district court never filed a written ruling.      Powers filed a timely

interlocutory appeal of these rulings, which we granted and retained.

      II. Standard of Review.

      Our standard of review for constitutional challenges to discovery

rulings is de novo. State v. Kurth, 813 N.W.2d 270, 272 (Iowa 2012). We
review nonconstitutional challenges to a district court ruling on a

discovery matter for an abuse of discretion. Wells Dairy, Inc. v. Am. Indus.

Refrigeration, Inc., 690 N.W.2d 38, 43 (Iowa 2004). In doing so, “we afford

the district court wide latitude.” Id. (quoting Exotica Botanicals, Inc. v.

Terra Int’l, Inc., 612 N.W.2d 801, 804 (Iowa 2000)).        “A reversal of a

discovery ruling is warranted when the grounds underlying a district court

order are clearly unreasonable or untenable.”          Id. (quoting Exotica

Botanicals, Inc., 612 N.W.2d at 804).         A district court decision is

“unreasonable or untenable” when it “is not supported by substantial
                                     10

evidence or when it is based on an erroneous application of the law.” State

v. Brown, 856 N.W.2d 685, 688 (Iowa 2014) (quoting Graber v. City of

Ankeny, 616 N.W.2d 633, 638 (Iowa 2000)). We also review district court

rulings on evidentiary issues for an abuse of discretion. State v. Olutunde,

878 N.W.2d 264, 266 (Iowa 2016).

      III. Analysis.

      Powers raises three issues on interlocutory appeal. First, Powers

contends the district court abused its discretion by quashing his subpoena

duces tecum for the investigative reports documenting the police

investigation into the allegations of sexual abuse that K.P. made against

the gang members. Second, Powers argues the district court also abused

its discretion by overruling his motion for ruling on the admissibility of

evidence. Third, Powers argues the district court decision overruling his

motion for ruling on the admissibility of the evidence violated his

procedural due process rights, as it “denied [him] the opportunity to

conduct discovery to develop the evidence, failed to afford [him] a

fundamentally fair opportunity to be heard, failed to proceed in an

unbiased manner, and reached [its] conclusions on unreasonable and

untenable grounds.” We address these issues as necessary.

      Rule 1.503 of the Iowa Rules of Civil Procedure allows parties to

      obtain discovery regarding any matter, not privileged, which
      is relevant to the subject matter involved in the pending
      action, whether it relates to the claim or defense of the party
      seeking discovery or the claim or defense of any other party
      . . . . It is not ground for objection that the information sought
      will be inadmissible at the trial if the information sought
      appears reasonably calculated to lead to the discovery of
      admissible evidence.

Iowa R. Civ. P. 1.503(1). The party seeking the information “need only

advance some good-faith factual basis demonstrating how the [information
                                    11

is] reasonably calculated to lead to admissible evidence germane to an

element or factor of the claim or defense.” Fagen v. Grand View Univ., 861

N.W.2d 825, 835 (Iowa 2015). Similarly, to avoid compliance with a valid

subpoena, the party objecting to the subpoena must establish a

countervailing interest, such as privilege, confidentiality, undue burden,

or undue expenses. See Iowa R. Civ. P. 1.1701(4)(a), (b)(2), and (d).

      In this case, the city objected to Powers’s subpoena duces tecum,

reasoning that the reports were “irrelevant” to his postconviction relief

proceedings because they were “wholly unrelated to the underlying sexual

abuse case.” Similarly, the State argues on appeal that the investigative

reports are irrelevant since the claims K.P. made in the reports are not

false. In contrast, Powers contends the reports are within the scope of

discovery because they “would be reasonably calculated to lead to

discovery of admissible evidence to show K.P. made a false complaint of

sexual abuse against other persons.” Moreover, Powers asserts the reports

refer to witnesses who have crucial information about the reputation K.P.

has for being dishonest and may also have information about her

accusations against him.

      Powers also points out in his appellate brief that the investigative

reports fall within the terms of the Iowa Open Records Act. Since the

investigation into the events that transpired between K.P. and the gang

members is no longer ongoing, and this is not an unusual circumstance

“where disclosure would plainly and seriously jeopardize an investigation

or pose a clear and present danger to the safety of an individual,” the

investigative reports at issue are not considered confidential records. Iowa

Code § 22.7(5) (2016). The city never argued before the district court that

the investigative reports were confidential under section 22.7(5) or fell

within an exception to the state open records laws. Nor did the State on
                                      12

appeal.   Nevertheless, Powers did not seek access to the investigative

reports through this legal avenue.

      In reaching our conclusion, it is important to emphasize that we

primarily need to decide whether the investigative reports are within the

scope of discovery, not whether they are admissible in the postconviction-

relief proceedings.    On appeal, Powers is not arguing whether the

documents are admissible in his postconviction-relief proceedings.

Indeed, the district court may rule that the reports are inadmissible. But

that is not before us at this time since “[i]t is not ground for objection that

the information sought will be inadmissible at the trial if the information

sought appears reasonably calculated to lead to the discovery of

admissible evidence.” Iowa R. Civ. P. 1.503(1). Rather, we must determine

whether the reports are relevant and whether Powers advances “some

good-faith factual basis demonstrating how the [information is] reasonably

calculated to lead to admissible evidence germane to an element or factor

of the claim or defense.” Fagen, 861 N.W.2d at 835. Our review of the

evidence before the district court shows that Powers has met this low

threshold.

      “In a case in which the evidence against the defendant is not

overwhelming, such evidence [of false claims] is imperative to an effective

defense.” Millam v. State, 745 N.W.2d 719, 723 (Iowa 2008). For example,

in Millam, the case against the defendant relied almost exclusively on the

complaining witness’s testimony, and there was no physical evidence or

any witnesses to the sexual abuse. We found the witness’s “credibility was

pivotal to the State’s case,” and “[a]ny evidence undermining that

credibility could only work in [the defendant’s] favor, particularly evidence

that [the complaining witness] had made, and later recanted, similar

claims of sexual abuse.” Id.
                                     13

      The Millam case is factually similar to the case here except for the

timing of the alleged false accusations. The State had no physical evidence

or witnesses to the alleged sexual abuse committed by Powers. The State

relied almost exclusively on testimony from K.P. and other witnesses that

K.P. had told about the sexual abuse to make the case against Powers.

Though the jury did hear evidence from K.P.’s family and a friend that she

had a reputation for lying, evidence that K.P. had also made false

allegations of sexual abuse against others would likely further undermine

her credibility in Powers’s favor. In a case like this, where the credibility

of the complaining witness is dispositive, “such evidence of [false claims]

is imperative to an effective defense.” Id.

      The State claims that evidence of another lie would not have made

a difference to Powers since the jury already heard evidence that K.P. had

a reputation for dishonesty, yet convicted Powers anyway. That very well

could be true. However, this argument is not dispositive as to whether

Powers is entitled to the investigative reports. Powers is not necessarily

arguing that the evidence of the allegations against the gang members

would have affected the jury in his criminal trial. Instead, a significant

argument could be made that evidence showing K.P. made false allegations

of sexual abuse against others, at or around the time that the motion for

new trial was pending, may have had an impact on the sentencing judge

when he or she was considering and deciding the motion for new trial.

      In assessing a motion for new trial, the judge examines the weight

of the evidence offered in the criminal trial, which includes a weighing of

the credibility of the complaining witness. See Iowa R. Crim. P. 2.24(2)(b);

State v. Ellis, 578 N.W.2d 655, 658–59 (Iowa 1998). In claims involving

evidence discovered since the verdict, this necessarily includes evidence

discovered between the verdict and sentencing that speaks to the
                                          14

credibility of the complaining witness.           Iowa R. Crim. P. 2.24(2)(b)(8). 3

Thus, the investigative reports are clearly relevant if they tend to show K.P.

made false claims of sexual abuse against others. It was an abuse of

discretion for the district court to rule that the investigative reports are not

discoverable by Powers.

       Despite the deference we give the district court in its discovery

rulings, we cannot find that the district court decision to deny Powers

access to the investigative reports was supported by substantial evidence.

Likewise, the district court finding that Powers could not “make a colorable

claim there was a false report because nothing except Phil Powers[,] and

Phil lacks any knowledge, lacks any credibility,” ignores the fact that

Chopard’s testimony tends to corroborate Phil.

       As Chopard wrote in one of the reports,

       I explained to K.P. that if something happened to her that she
       needed to tell the truth. I explained to her that her story at
       this point did not match what both her friends had told me
       about the night.

Further, Chopard testified, “I wouldn’t tell [Phil] directly that I didn’t

believe [K.P.]. I would tell him why there’s different aspects of the case

that make it hard for me to pursue charges at that time.” When asked if
he had “an opinion as to whether or not [he] believed K.P. on this complaint

[against gang members],” Chopard answered, “It was hard for me to believe

because of the evidence and the amount of time and what the other

witnesses [were] saying.” Moreover, Chopard acknowledged that it may

have come across to Phil that Chopard did not believe K.P., explaining, “[I]t



        3Under the Iowa Rules of Criminal Procedure, a “court may grant a new trial . . .

[w]hen the defendant has discovered important and material evidence in the defendant’s
favor since the verdict, which the defendant could not with reasonable diligence have
discovered and produced at the trial.” Iowa R. Crim. P. 2.24(2)(b)(8).
                                     15

may have come across because of all of the concerns that I had with the

lack of corroboration.”

      It is evident from the investigative reports, and the testimony of

Chopard, that there were serious concerns about K.P.’s claim of a sexual

assault based on the statements provided by other witnesses who were in

the residence when the alleged sexual assaults occurred. Based on the

evidence before the district court, but not available to Powers, the

investigative reports could potentially contain false claims relevant to his

own claim or defense. Likewise, Powers advanced a “good-faith factual

basis demonstrating how the [information is] reasonably calculated to lead

to admissible evidence germane to an element or factor of the claim or

defense.”   Fagen, 861 N.W.2d at 835.      Specifically, he noted that the

witnesses discussed in the investigative reports have “vital information

about K.P.’s untruthfulness,” and they also “may have heard K.P. make

statements about her accusations against her grandfather.” Therefore, the

district court abused its discretion in refusing to allow discovery of the

investigative reports in this case. On remand, the district court will need

to determine the parameters of the disclosure of the investigative reports

to Powers, whether through a protective order or under seal.

      Similarly, the district court abused its discretion in ruling on the

admissibility of evidence regarding the investigative reports. Such a ruling

was premature. Once the district court determines how the investigative

reports will be provided to Powers, each party must then be allowed the

opportunity to develop the record and argue its position as to the

admissibility of the investigative reports and potential witness testimony

regarding the investigative reports in the postconviction-relief proceedings.

      By ordering the disclosure of these investigative reports under these

unique circumstances, we are not retreating from our position that defense
                                     16

counsel is not free to proceed on a “fishing expedition.” State v. Thompson,

836 N.W.2d 470, 487 (Iowa 2013).          Rather, we hold that Powers has

demonstrated the relevance of the investigative reports, and he has met

the threshold requirement needed to obtain the reports by showing “the

information sought appears reasonably calculated to lead to the discovery

of admissible evidence.” Iowa R. Civ. P. 1.503(1). Consequently, Powers

should be able to develop the record in these proceedings. Given our ruling

ordering the disclosure of the investigative reports to Powers, we need not

address the constitutional challenge. See Thompson, 836 N.W.2d at 484

(noting “our mandate” to avoid considering constitutional issues on appeal

when other issues presented are decisive).

      IV. Conclusion.

      For the aforementioned reasons, we reverse the ruling of the district

court denying discovery of the investigative reports and order the reports

disclosed to Powers under appropriate conditions determined by the

district court. We also reverse the ruling of the district court regarding the

admissibility and use of the investigative files in the postconviction-relief

proceedings. We remand the case for further proceedings consistent with

this opinion.

      REVERSED AND REMANDED.

      All justices concur except Mansfield and Waterman, JJ., who

dissent, and Hecht, J., who takes no part.
                                            17

                                                           #16–1650, Powers v. State
MANSFIELD, Justice (dissenting).

       I respectfully dissent. K.P. allegedly made a false claim she was

sexually assaulted after the trial. The majority assumes this posttrial event

could constitute newly discovered material evidence under Iowa Rule of

Criminal Procedure 2.24(2)(b)(8) and Iowa Code section 822.2(1)(d)

(2016). 4    Thus, the majority moves on to whether the defendant was

entitled to discovery.        However, because the event occurred after the

defendant’s trial and would at most have been used to impeach K.P.’s

testimony at trial, it is not newly discovered material evidence. Therefore,

in my view, the entire discovery dispute may be sidestepped. As the State

puts it, “[t]his unrelated, subsequent report of sexual abuse is not newly

discovered evidence in Powers’s case.”

       Our courts have made this point in the past.                   “Since TeKippe’s

conviction occurred after Aguilera’s trial, it cannot be considered newly

discovered evidence.” Aguilera v. State, 807 N.W.2d 249, 251 n.3 (Iowa

2011).      “ ‘[N]ewly discovered evidence’ sufficient to support a new trial

must be evidence that existed at the time of trial.” Grissom v. State, 572

N.W.2d 183, 184 (Iowa Ct. App. 1997).                     Witness recantations and

       4According to rule 2.24(2)(b)(8), the trial court “may grant a new trial . . . [w]hen
the defendant has discovered important and material evidence in the defendant’s favor
since the verdict, which the defendant could not with reasonable diligence have
discovered and produced at the trial.” Iowa R. Crim. P. 2.24(2)(b)(8).
       According to Iowa Code section 822.2,
       Any person who has been convicted of, or sentenced for, a public offense
       and who claims any of the following may institute, without paying a filing
       fee, a proceeding under this chapter to secure relief:
               ....
               d. There exists evidence of material facts, not previously presented
       and heard, that requires vacation of the conviction or sentence in the
       interest of justice.
Iowa Code § 822.2(1)(d).
                                      18

reanalysis of physical evidence can be distinguished. See, e.g., More v.

State, 880 N.W.2d 487, 508, 510 (Iowa 2016); Harrington v. State, 659

N.W.2d 509, 521 (Iowa 2003). In those instances, the events occurred

before trial, even though new evidence may have surfaced after the trial

about those events.

        Other courts agree with us. Criminal trials have an endpoint, and

events that occur after trial—as opposed to new evidence about pretrial

events—aren’t a basis for reopening the proceedings.

        For example, a New Jersey appellate court recently rejected a

defendant’s claim of newly discovered material evidence on this ground.

State v. Brunson, No. 88–06–1035, 2015 WL 10913392, at *8 (N.J. Super.

Ct. App. Div. May 26, 2016) (per curiam).         The defendant had been

convicted of murder in 1990. Id. at *1. He later claimed he was entitled

to a new trial based on newly discovered evidence of misconduct in 1991

and the late 2000s by the judge presiding over his trial and a 1991

conviction of the defendant’s arresting officer for raping a woman while on

duty.    Id. at *2.   The court ruled otherwise because the “misconduct

occurred after the defendant’s conviction” and was ultimately “irrelevant

to his conviction.” Id. at *8.

        Likewise, in State v. Everett, the Louisiana Court of Appeal affirmed

the denial of the defendant’s motion for a new trial on the basis of newly

discovered evidence. 156 So. 3d 705, 711, 713 (La. Ct. App. 2014). The

defendant had claimed that the subsequent convictions of his arresting

officers for malfeasance in office warranted a new trial.        Id. at 711.

However, the court determined that “the officers’ arrests, the internal

investigations of their conduct and their convictions occurred after the

defendant’s trial. Thus, evidence of the convictions did not exist and the
                                     19

time of trial and could not have been introduced at trial.” Id. at 713.

Therefore, the court affirmed the defendant’s conviction. Id. at 714.

       In State v. Bonillas, a defendant who had been convicted of murder

sought a new trial on the ground that a deputy sheriff who testified against

him at trial was later found to have provided false information in a different

matter. No. 2 CA–CR 2011–0299–PR, 2012 WL 252141, at *1 (Ariz. Ct.

App. Jan. 27, 2012). The Arizona Court of Appeals rejected the claim:

“[B]ecause the complaint against [the deputy sheriff] was initiated in

October 2009, well after the trial in this matter took place in May 2009,

the evidence in the report could not have been newly discovered.” Id.; see

also State v. Bilke, 781 P.2d 28, 29 (Ariz. 1989) (en banc) (“[To present a]

colorable claim in a newly-discovered evidence case . . . the evidence must

appear on its face to have existed at the time of trial but be discovered

after trial.”).

       In the same manner, a New York appellate court affirmed the denial

of defendant’s motion to vacate his conviction based on newly discovered

evidence. See People v. Quan Hong Ye, 92 A.D.3d 407, 407 (N.Y. App. Div.

2012). A detective who had been a principal witness against the defendant

was later convicted of “serious charges” as a result of “corrupt conduct.”

Id. at 407. The New York court found that this could not be a basis for a

new trial because the conduct “occurred after defendant’s trial, and none

of it was connected in any way with defendant’s case.” Id. Furthermore,

“[t]he newly discovered evidence would have merely impeached the

detective as to his general credibility,” so the defendant could not show

that the evidence would have caused a different verdict. Id.

       Further, in Commonwealth v. Burke, the Massachusetts Appeals

Court affirmed the denial of the defendant’s motion for a new trial based

on newly discovered evidence of posttrial events. No. 05-P-1694, 2006 WL
                                     20

3422202, at *1 (Mass. App. Ct. Nov. 28, 2006). The defendant’s conviction

stemmed from assaults on and threats to his former girlfriend.

Commonwealth v. Burke, No. 05-P-275, 2005 WL 3357959, at *1 (Mass.

App. Ct. Dec. 9, 2005) (detailing the circumstances of the defendant’s

conviction on direct appeal). Subsequently, the defendant claimed that an

allegedly false claim made by the victim against the defendant and his

father for violating a restraining order constituted newly discovered

evidence. Burke, 2006 WL 3422202, at *3. However, the court rejected

this assertion, stating, “Because the report related to an incident that

occurred four months after the trial had concluded, the evidence could not

have materially aided the defense against the pending charges.” Id.

      Two more examples. In State v. Martinez, the Idaho Supreme Court

affirmed the district court’s denial of the defendant’s motion for a new trial

after he had been convicted of murder. 872 P.2d 708, 716 (Idaho 1994).

The defendant had uncovered evidence that “raise[d] questions regarding

[a key prosecution witness’s] alleged drug and alcohol abuse, or lack

thereof, and her motives for testifying against defendant, along with minor

inconsistencies regarding the alleged murder plot.” Id. The court found

the evidence “involved minor testimonial inconsistencies and involved

occurrences that took place after the trial and which would not have

enabled the defense to change its approach toward a witness other than

reputable.” Id. Therefore, a new trial was not warranted. Id. Lastly, in

Harris v. United States, the court rejected the defendant’s motion for new

trial and stated, “It is important to note that because the allegations on

the part of Special Agent McKenna did not exist at the time of his testimony

at Harris’ trial, it would have been impossible for the Government to

disclose such allegations of misconduct to Harris at that time.” 999 F.

Supp. 578, 581 & n.3 (S.D.N.Y. 1998).
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      For these reasons, I would affirm the district court’s order denying

discovery.

      Waterman, J., joins this dissent.
