              IN THE SUPREME COURT OF IOWA
                              No. 14–1623

                          Filed May 20, 2016

                       Amended August 17, 2016


GLENDALE MORE JR.,

      Appellant,

vs.

STATE OF IOWA,

      Appellee.


      On review from the Iowa Court of Appeals.


      Appeal from the Iowa District Court for Scott County, Stuart P.

Werling, Judge.



      An applicant for postconviction relief requests further review of a

court of appeals ruling affirming a district court decision denying his

application for relief. AFFIRMED.


      Martha M. McMinn, Sioux City, for appellant.



      Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant

Attorney General, and Michael J. Walton, County Attorney, for appellee.
                                      2

APPEL, Justice.

      A jury convicted Glendale More Jr. of first-degree murder in

connection with the death of his girlfriend, Wauneita Townsend. In the

present action for postconviction relief, More asserts that he is entitled to

a new trial because at his trial the State introduced expert witness

testimony on Compositional Bullet Lead Analysis (CBLA). More asserts

that recent scientific developments have discredited CBLA and that as a

result of these new developments, he is entitled to a new trial. He also

alleges that the use of CBLA testimony violated due process under both

the State and Federal Constitutions by depriving him of a fair trial.

      The district court denied relief. The court of appeals affirmed. We

granted further review. For the reasons expressed below, we affirm.

      I. Factual and Procedural Background.

      A. Trial Proceedings.       The case against More came to trial in

February 1984.     The trial record shows that Wauneita Townsend was

found dead in her car in a Davenport auto dealership parking lot on

August 28, 1983, at 5:34 p.m. She had been shot twice, including one

fatal shot to her head. The car had been set on fire with paint thinner

used as an accelerant.      Fresh groceries and a shopping receipt time-

stamped 4:37 p.m. were found in the trunk of the car. Two bullets were

recovered from the crime scene—one from the victim’s head and one that

traveled through her body and became embedded in the roof of the car.

More’s fingerprints were found on the back hatch of the car and on a pop

can in a litter bag inside the car.

      Prior to her death, Townsend was in a relationship with More.

More did not have full-time regular employment but at trial indicated he

had been involved in a range of activities including contracting,
                                     3

carpentry, real estate, heavy equipment operation, and gem and jewelry

sales.

         In the mid-1970s, More was employed by a railroad company when

he suffered a work-related injury for which he received a financial

settlement.     He also received a lump sum insurance payment and

periodic disability payments arising from a hunting accident that led to

the amputation of his left leg.      In addition, he received a $19,000

insurance payment related to property damage caused by a fire.

         More and his first wife, Bernadette, divorced in 1974. More first

met Townsend while he was employed by the railroad around 1975 or

1976.     The two discussed marriage in 1976, but More left Townsend

abruptly. He married his second wife, Norma, in 1977, but the marriage

shortly ended in divorce.     He married Norma again in 1979, but his

second marriage to her also ended in divorce in 1983.           More and

Townsend rekindled their relationship beginning in 1983, after More had

separated from Norma and initiated divorce proceedings.

         In February 1983, More began living in Townsend’s residence in

Bettendorf on a semi-regular basis until her death.      While living with

Townsend, More traveled frequently for business and personal reasons;

he estimated that he actually was at home about fifty percent of the

time—the rest of the time he was usually in the Golconda area of Illinois,

where he stayed with family. While still in a relationship with Townsend,

More encountered his first wife, Bernadette, during a visit to Golconda.

More was surprised that Bernadette had changed her opinion of him

since their divorce but said that the encounter did not change his

feelings toward Townsend.

         More and Townsend began to discuss marriage again in 1983. In

May 1983, the two purchased life insurance policies with a $100,000
                                    4

death benefit. More was a fifty percent beneficiary of Townsend’s policy

with the remaining half to her daughters.       Townsend was the sole

beneficiary of More’s policy.   Townsend later told her two teenaged

daughters about the life insurance policies at a donut shop after

attending church on August 28, the day of the murder.

      In early 1983, a bank had requested More to sell certificates of

deposit that he owned to pay off certain promissory notes. More cashed

the certificates, but a loan balance remained. In July, More had loans

that were delinquent. On August 1, More borrowed $3500 against his

car to raise some of the needed funds.

      The relationship between More and Townsend was not entirely

smooth in 1983. Townsend told a close friend after Townsend and More

had returned from a trip to Missouri that her problems with More were

“insurmountable.” Townsend told her friend that she had decided that

the relationship was “not going to work.” Townsend told her friend that

she was “going to need some help in telling him.”

      On August 28, the night of the murder, police arrived at the crime

scene at about 5:25 p.m. and commenced their investigation.            At

9:40 p.m., authorities were preparing to notify Townsend’s family when

they received a call from More.      More said he had been watching

television with Townsend’s daughters when they saw a news flash about

the murder and recognized Townsend’s car. The police informed More

that Townsend was dead.

      The police asked More to come to the station and speak with them

that evening. At the station, More told the police that he arrived in the

Quad Cities and helped Townsend load groceries into the back of her car

earlier that day. More told police he then left because he had seen a sign

in Illinois advertising real estate for sale. He wished to write down the
                                    5

contact information because he was interested in purchasing the real

estate. More informed police that he told Townsend he would be back in

time for dinner. More received a traffic citation for driving at seventy-

three miles per hour at 5:45 p.m. that evening in Illinois driving away

from the Quad Cities.

      On his way back from Illinois, More explained, he experienced car

trouble and attempted to call Townsend to tell her that he was going to

be late getting back for dinner.    Townsend’s daughter answered the

phone, however, and told More that her mother had not as yet returned

home.     Townsend’s daughters were worried about their mother’s

absence, but More did not mention to them that he had seen Townsend

at the grocery store earlier that afternoon.   More gave police a receipt

from the gas station where he made the call.          More got home to

Bettendorf sometime between 8:00 p.m. and 9:00 p.m.

      At some point in the interview with police, More declared he

thought he was having a heart attack. Police called an ambulance, and

he was taken to the hospital.    In the ambulance, More said the chest

pain was gone. When he arrived at the hospital, he refused to speak to

anyone.   The doctors examined More and did not find any physical

abnormality.

      Early in the morning of August 29, a court ordered a psychiatric

evaluation of More.     As part of his intake to the psychiatric unit, a

psychiatric nurse searched More’s clothing and found a .38 caliber bullet

in his pocket. The bullet was turned over to the police. More spoke with

the psychiatrist.   The psychiatrist later reported that More was not

suffering from a psychotic disorder and that he appeared to be

voluntarily exaggerating symptoms.      More’s ex-wife, Bernadette, along

with More’s cousin, picked More up at the hospital.
                                      6

      After More went to the hospital, police, with More’s consent,

searched Townsend’s house.       In the house, police found an extensive

collection of firearms and ammunition in More’s room at the residence,

including a dozen long guns and two handguns.             In addition, trial

testimony indicated More had owned and had displayed other hand guns

not uncovered at the residence. Some of the ammunition found was the

same caliber as the bullets recovered from the crime scene.

      On August 30, police interviewed More again. Police asked More

whether he would receive any kind of monetary benefit from Townsend’s

death. Specifically, police asked if he would receive benefits from a life

insurance policy.   More generally denied that he would profit, and he

said specifically that he was not a beneficiary of a life insurance policy.

More would later describe this interview as “intense” and claim that

accusations were leveled against him.       More terminated the interview,

telling police if they wanted to find him he would “be in the Vet’s Hospital

in Illinois.” After the interview, More and Bernadette left the Quad Cities,

traveling first to Illinois and then to Kentucky.

      More did not attend Townsend’s funeral. He claimed that he did

not know the time of the funeral. He was further concerned about police

interest in him.    After he left the Quad Cities, he called Townsend’s

teenaged children from Illinois “to find out how they were doing.” As part

of their investigation, police attempted to locate the real estate sign that

More said he saw in Illinois, but they did not find it.

      Three days after the murder, More was still in the company of his

ex-wife, Bernadette. They stayed together in a motel in Kentucky. More

introduced Bernadette to motel staff as his wife. Following that, More

traveled through numerous other states, including Florida, Texas, and

Montana, among many others. More said he learned from a lawyer in
                                            7

Illinois that a warrant was issued for his arrest while he was traveling in

the west, probably Wyoming or Montana.                  He did not turn himself in

right away, however, because he wanted to visit a friend and one of his

sons. More was arrested in late September in Red Lodge, Montana. At

the time of his arrest, his car was completely full except for the driver’s

seat—the car was loaded down with items such as clothing, maps, newly

purchased camping equipment, and a bullet-proof vest.

       At trial, the State offered the above circumstantial evidence. It also

offered the testimony of Jeffrey Elmore, who was thirteen at the time of

the crime. On the date of the murder, Elmore had run away from the

Quad City Children’s Center, where he was held under an order of the

juvenile court. Elmore testified that he was in the auto dealer parking lot

contemplating stealing a car. He testified that he heard “two big booms”

coming from a white car and saw a man with a limp appear to set fire to

the vehicle. He identified the clothing worn by More. He also said that

he slipped on some gravel which made a noise and that the person who

set fire to the car shined a flashlight under cars looking for him. Elmore

testified that the person then placed the flashlight in a ring-type holder

attached to his belt or waist.          At trial, Elmore identified More as the

person who set the fire. 1




       1The   validity of Elmore’s in-court identification is not at issue in this case. We
have noted, however, that such identification may be so suggestive as to be
impermissible. See State v. Folkerts, 703 N.W.2d 761, 765 (Iowa 2005); Gary L. Wells &
Deah S. Quinlivan, Suggestive Eyewitness Identification Procedures and the Supreme
Court’s Reliability Test in Light of Eyewitness Science: 30 Years Later, 33 Law & Hum.
Behav. 1, 8, 15 (2009); see also Evan J. Mandery, Due Process Considerations of In-
Court Identifications, 60 Alb. L. Rev. 389, 389 (1996). Even without the in-court
identification, however, Elmore provided significant evidence supporting the
prosecution, including his observation that the person at the crime scene walked with a
limp.
                                     8

      On cross-examination, Elmore admitted that he was a juvenile

offender on probation and that he failed to identify More in a pretrial

lineup and during interrogation at the Davenport police station.          He

admitted that he likes to give answers that he thinks people want to

hear. He also said that when he initially spoke with detectives, he did

not remember saying that the man he saw had a beard or that the man

wore glasses, both details which he later recounted.

      The psychiatrist and a nurse testified regarding More’s status after

he arrived at the hospital on August 28.      The psychiatrist declined to

testify as to the content of his conversation with More but did describe

the results of his physical and psychological assessment.                The

psychiatrist testified that he could find no pertinent physical problems or

any evidence of a serious nervous disorder and that “it appeared . . .

[More] was producing voluntarily some very exaggerated symptoms which

seemed . . . understandable in view of the circumstances.”       The nurse

testified that tests eliminated serious heart problems and that More

refused to respond to medical personnel.

      The trial also featured experts who testified about the relationship

between the bullets found at the crime scene and the cartridge found in

More’s pocket. These experts battled about whether the characteristics

of the bullets at the crime scene and the cartridge in More’s pocket at the

hospital could be linked in any meaningful manner.

      William Albright, an FBI specialist in firearm identification, told the

jury that he analyzed the two bullets recovered from the crime scene. He

could not determine whether they were fired from the same gun, but the

bullets had similar features.     Albright stated that a Ruger handgun

recovered from the Townsend residence that belonged to More was not

the gun that fired the shots that killed Townsend. He found no gunshot
                                     9

residue on various articles of clothing worn by More but indicated that

he did not regard that finding as significant.

      Special Agent Roger Asbury of the FBI testified about the FBI’s

CBLA tests on the bullets and cartridge. Asbury testified that the FBI

used neutron activation analysis to perform an elemental analysis which

measured the amount of antimony, copper, and arsenic mixed in with

the lead.   Asbury explained that within a box of cartridges, there are

usually between one to three different elemental composition groups. He

stated that if he tested bullets or fragments from a crime scene and

found that they had the same elemental compositions groups as the

unfired cartridges associated with a suspect, they “matched.”       If they

matched, he would expect that both the bullets and the cartridges came

from the same box.

      Asbury acknowledged that “a box of cartridges does not have a

unique composition that makes it different from every other box in the

world” but that it would be very unlikely to find a match in elemental

composition from one specific bullet and any box of cartridges that one

could randomly buy off the shelf. “It’s quite rare,” Asbury testified, “for

us to find a match in a case we’re working now with a case that we

worked six months ago or a year ago in composition.”

      With respect to the bullets in More’s case, Asbury testified that he

took three samples each from three bullets, one removed from Townsend,

one removed from the car in which she was found, and the third from the

cartridge that the nurse found in More’s pocket. He stated that he found

that the three bullets had matching compositions and that it was his

opinion that “because of this match, . . . these items certainly could have

originated from the same box of cartridges due to their composition. It
                                     10

would be what I would expect to find among bullets originating from the

same box of cartridges.”

      More’s       attorney   cross-examined   Asbury    on   the      bullet

manufacturing process, with the point that a great many bullets could

match one another in elemental composition.          For example, More’s

attorney asked,

      [I]f those boxes of cartridges have been loaded from a source
      of bullets that is random in the way the lead source is mixed,
      is it not just as likely that the same composition will be
      found in some other box of bullets anyplace in the U.S.A.?

Asbury replied, “Well, I simply say we don’t see that, sir. We simply don’t

see that.”   Id.   Asbury continued that bullets identical in composition

tend to be distributed in sequence and in the same geographic region,

even from a national supplier of bullets.

      More offered testimony from Steven Morris, a chemist at the

University of Missouri, to counter Asbury’s testimony.     Morris testified

that his lab would test metal from crime scenes in order to identify bullet

lead as opposed to some other type of metal, such as an iron compound

from a hatchet or knife, and that would be the way “that neutron

activation analysis can be used and it is useful.”      When asked if the
technique could identify whether three separate bullets came from a

common source, Morris declared, “[I]t would be my opinion that neutron

activation analysis as it’s applied today would not be a suitable

technique for that purpose.”      He testified that his lab had considered

whether neutron activation analysis could be a suitable forensic tool for

comparing bullets in 1973 and 1974 after hearing about it at a

conference but “reached the conclusion then that it was not practical to

compare bullet lead” and that his colleagues in forensic chemistry

agreed.
                                      11

      On cross-examination, the State’s attorney asked Morris about his

familiarity with the FBI’s forensic process with neutron activation

analysis. Morris replied, “I have no quarrel with the analysis . . . just

interpretation.” The State’s attorney then asked Morris whether he knew

if the FBI had databases that could aid the FBI in making bullet

comparisons, and Morris stated that he did not know or expect that they

did but that good scientists keep notes.

      More took the stand in his own defense. He denied committing the

murder.   He reiterated that on the day of the murder, he returned to

Illinois after helping Townsend load groceries to write down a phone

number from a real estate for-sale sign.     He asserted he was late in

returning to the Quad Cities as a result of car trouble.     When asked

where the cartridge found in his pocket by medical personnel came from,

More testified, “I have no idea.” He stated he did not attend Townsend’s

funeral because he did not know when it was and because he was

apprehensive in light of law enforcement’s interest in him as a suspect.

      In his closing argument, the State’s attorney strongly implied that

Morris was dismissing the FBI’s work with CBLA because of academic

elitism. The State’s attorney said,

      [Morris] decided, along with some other scientists, that the
      F.B.I. doesn’t know what they’re doing, so they quit exploring
      the area. . . . [The FBI has] been doing it a long time. . . .
      You saw Mr. Asbury is confident in his statement. He says
      the bullets match.

      The jury found More guilty of murder in the first degree on

March 2. More filed a posttrial motion in arrest of judgment and for a

new trial on March 14, claiming that his right to a fair trial and due

process was violated by the admission of doctor–patient privileged

communication and that More should have been allowed to impeach
                                    12

Elmore on his juvenile charges of burglary, theft, and arson, for which he

was in State custody at the time of trial, among other grounds. The trial

court denied the motion, stating that the motion only reiterated matters

already ruled upon at trial. After the denial of posttrial motions, More

was sentenced to life in prison on March 19, 1984.

      On August 1, More moved for a new trial on the basis of newly

discovered evidence, namely the sign advertising real estate in Illinois

which formed the basis of his alibi defense.      With his motion, More

presented an affidavit from a landowner near Peoria, Illinois, who stated

that he had displayed a sign advertising the sale of real estate in July

and August of 1983. More received permission for a limited remand to

the trial court to supplement the motion.       The district court heard

arguments in September and denied the motion in a ruling in November

1984. The trial court determined that the existence of the sign, while

marginally material since it went to More’s alibi, would have had very

little chance of changing the verdict considering all of the other evidence

against More. More appealed.

      B. Direct Appeal and Postconviction Proceedings.

      1. Direct appeal.   More asserted that the trial court erred in

admitting the testimony of the nurse and the psychiatrist, violating

doctor–patient privilege. State v. More, 382 N.W.2d 718, 720 (Iowa Ct.

App. 1985). More also argued that the trial court abused its discretion

when it denied his motion for a new trial based on newly discovered

evidence related to the alleged real estate sign in Illinois. Id. Finally,

More argued that he received ineffective assistance of counsel. Id.

      The court of appeals found the testimony from the health care

professionals violated the doctor–patient privilege in Iowa Code section

622.10 (1983).   Id. at 722–23.    The court found that although More
                                    13

remained silent throughout the examination, the physician’s knowledge

and information gained through his examination and observation of More

was information necessary and proper to treat him. Id. at 721. Further,

More was not admitted to the psychiatric ward for the purpose of

establishing a diminished capacity defense, but because medical staff

believed that he posed a danger to himself. Id. at 722. The court found,

therefore, that the sole purpose of the court order admitting More to the

psychiatric ward was for diagnosis and treatment.      Id.   As a result, it

ruled that the testimony of the doctors and the nurse should not have

been admitted. Id.

      Nevertheless, the court found that the admission was not so

prejudicial as to amount to reversible error. Id. at 723. Among other

evidence supporting the guilty verdict, the court cited the presence of

More’s fingerprints on the outside of the car in which the victim was

found, a bullet found on More that matched the bullet used to kill the

victim, the testimony of Elmore that he heard “two booms” and saw a

man he identified as More at trial limping along and dousing the auto

with something from a white container, the defendant’s actions at the

time of death, including his strange interaction with the victim’s

children, and his cross-country travels leading to his eventual arrest in

Montana.    Id.   All this evidence, according to the court of appeals,

amounted to “overwhelming evidence of the defendant’s guilt.” Id. As a

result, the court held that the error of the admission of privileged

material was harmless. Id.

      More also argued that the trial court erred in failing to grant a new

trial based on newly discovered evidence. Id. At trial, More had claimed

he drove to Peoria after helping Townsend load groceries to track down a

phone number advertising real estate for sale. Two officers testified they
                                     14

drove to Peoria and did not see such a sign. Id. The newly discovered

evidence was information received by counsel that a sign advertising real

estate did in fact exist. Id. On the motion for a new trial based on newly

discovered evidence, the court of appeals determined that the existence

of the sign made little difference to More’s alibi and the refusal of the

district court to grant a new trial was not an abuse of discretion. Id. at

723–24. The court further reserved any claims of ineffective assistance

of counsel for postconviction-relief proceedings. Id. at 724.

      2. First postconviction-relief action. More filed his first petition for

postconviction relief in 1996. He alleged that he was entitled to a new

trial based on newly discovered evidence related to witness Jeffrey

Elmore. More claimed that Elmore had recanted his testimony. Further,

More claimed that the State suppressed information regarding a reward

granted to Elmore in exchange for his testimony.

      After a hearing, the district court denied More relief. The district

court found Elmore’s recantation “completely incredible.”        The district

court noted that Elmore over the years had accumulated “three, four, or

five burglaries, and two or three felony convictions.” The district court

further noted that More had interactions with Elmore at the infirmary at

Fort Madison that were “an implicit threat.”       Additionally, the district

court noted that Elmore’s court testimony was completely consistent

with his audio interview recorded just a few days after the murder.

Finally, the district court found that Elmore’s testimony before the

postconviction court was internally inconsistent and that his testimony

had been “completely impeached.”

      On the question of whether the State suppressed evidence related

to an offer of a reward, the district court concluded that Elmore was

aware of the prospect of a reward at the time of his testimony and that
                                          15

he subsequently received the sum of $350.                Nonetheless, the district

court did not find that the weight of this impeachment evidence would be

very strong.      In addition, the district court noted there was other

substantial evidence supporting the verdict.

        Based on the evidence presented to the district court, the court of

appeals held that the State violated Brady 2 by withholding the potentially

exculpatory evidence that the State had suggested Elmore might receive

a reward in connection with his testimony. More v. State, No. 9-081/98-

74, slip op. at 2 (Iowa Ct. App. Apr. 30, 1999).             The court concluded,

however, that More could not show that but for the Brady violation there

was a substantial probability the result would have changed. Id. at 7.

        In denying relief, the court cited a host of evidence, including the

nature of the relationship between More and Townsend, More’s behavior

on the night of the murder, the discovery of the cartridge in his pocket,

his fingerprints on the outside of the car, his admission of meeting the

victim shortly before her death, and his interest in an insurance policy.

Id. at 6.    In addition, the court noted, “Using a neutron activation

analysis, the bullet was found to have been manufactured and packaged

in the same box and on the same day as the bullets found in the victim’s

body and in her car.” Id. In light of the evidence, the court held that the

Brady error did not pose a substantial probability that More would have

been found not guilty had the information been available to the jury. Id.

at 7.

        With respect to the recantation issue, the court of appeals noted

that the district court found Elmore’s recantation “completely incredible.”


        2Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97, 10 L. Ed. 2d 215,
218 (1963) (holding that prosecution’s suppression of evidence favorable to the accused
violates due process where the evidence is material either to guilt or punishment).
                                    16

Id.   The court stated that recantation is generally looked at with

suspicion. Id. at 8; see State v. Folck, 325 N.W.2d 368, 377 (Iowa 1982).

Further, the court relied on the district court’s finding on the recantation

issue. More, No. 9-081/98-74, slip op. at 8; see State v. Compiano, 261

Iowa 509, 516, 154 N.W.2d 845, 849 (Iowa 1967).

       3. Second postconviction-relief action.   In 2007, More filed this

current, second postconviction-relief action.    In his application, More

described Agent Asbury’s CBLA testimony and stated that CBLA

testimony of the kind given by Agent Asbury is now known to be false.

Compositionally indistinguishable bullets, More continued, does not

mean that the bullets came from the same source or were made on the

same day. Further, More said, the FBI did not have data to support the

likelihood of two matching bullets coming from the same source. More

alleged that these facts support several grounds for relief: that the State

has constructive knowledge of the FBI’s knowledge, and so it knowingly

used perjured testimony in violation of his due process; that the State

violated his due process rights by withholding exculpatory evidence; and

finally that the change in the scientific status of CBLA is newly

discovered evidence which could not have been discovered at the time of

his trial.

       More’s file languished until 2011. At that time, More obtained pro

bono counsel who filed a motion for summary judgment. More presented

two issues in his motion: (1) whether More was entitled to a new trial

based upon the introduction of evidence that appeared to link More to

the offense charged and is now known to be false or mistaken and

unsupportable by science, and (2) whether More was entitled to a new

trial because the state’s evidence was “so arbitrary that the adversary

system was not competent to recognize and take account of its
                                    17

shortcomings that its admission violated the Due Process clauses of the

United States and Iowa constitutions.”

      In his summary judgment motion, More cited extensively from the

transcript of his original trial. The transcript citations appear designed

to show that without the CBLA testimony, the question of More’s guilt

would be in doubt.       However, the motion contained only a brief

discussion of the scientific developments with respect to CBLA.      More

cited—but did not offer into the record—an FBI press release dated

September 1, 2005, which purportedly stated that “neither scientists nor

bullet manufacturers are able to definitively attest to the significance of

an association made between bullets in the course of a bullet lead

examination.”

      The only exhibit related to scientific developments provided to the

district court in support of the motion for summary judgment was a

letter from the FBI to the Scott County Attorney dated April 20, 2009.

The FBI letter stated that the FBI had conducted a review of the

compositional analysis of bullet lead in the transcript of More’s trial.

According to the letter, the goal of the review was to determine if there

was a suggestion by an FBI witness that a bullet fragment or shot pellet

was linked to a single box of ammunition without clarification that there

would be a large number of other bullets or boxes of ammunition that

could also match those fragments or shot pellets.

      The letter directly addressed the scientific basis for testimony

offered by FBI witnesses in More’s case. According to the letter, “Science

does not support the statement or inference that bullets, shot pellets, or

bullet fragments can be linked to a particular box of bullets.”         In

addition, the FBI letter emphasized the misleading character of even

minimal CBLA testimony.      According to the letter, even if an expert
                                       18

witness did not testify that the bullets came from the same box, “any

testimony stating bullets came from the same source of lead is

potentially    misleading    without    additional    information   regarding

approximate numbers of other ‘analytically indistinguishable’ bullets that

also originated from the same source.”

        Further, the letter noted that FBI testimony often exaggerated the

importance of geographic sales of bullets.           According to the letter,

“[T]estimony regarding the geographical distribution of analytically

indistinguishable bullets exceeds the data currently available.” Finally,

the letter drew some conclusions after examining the record in More’s

case:

        After reviewing the testimony of the FBI’s examiner, it is the
        opinion of the Federal Bureau of Investigation Laboratory
        that the examiner did state or implied that the evidentiary
        specimen(s) could be associated to a single box of
        ammunition. This type of testimony exceeds the limits of the
        science and cannot be supported by the FBI.

Aside from the 2009 FBI letter, More offered no expert affidavit or

additional evidence in support of his petition.

        The State resisted More’s motion for summary judgment.           The

State argued that there was a genuine issue of material fact as to

whether there was newly discovered evidence on CBLA and, if there were,

whether there was nevertheless ample evidence against More to support

the jury’s verdict.

        The postconviction-relief court denied summary judgment, finding

issues of material fact. In 2014, More requested that a judge be assigned

to try the case.      The parties then agreed to trial on the record.    The

postconviction-relief court ruled against More, characterizing CBLA as

“inadvertently inaccurate” and holding its inaccuracy did not rise to the
                                     19

level sufficient to deny More a fair trial in light of the totality of the

evidence against him.

      More appealed. The court of appeals affirmed in September 2015.

The court stated there was sufficient evidence that a reasonable juror

could have found that More murdered Townsend beyond a reasonable

doubt. The court observed that the

      [e]xclusion of Agent Asbury’s opinion, along with exclusion of
      the testimony of the doctors and nurse, and the addition of
      further impeachment of Elmore’s testimony concerning the
      fact he was receiving a $300 reward, does not paint the case
      in such a different light that our confidence in the verdict is
      undermined.

      We granted further review.

      II. Standard of Review.

      Applications for postconviction relief (PCR) are normally reviewed

for corrections of errors at law unless they raise constitutional issues.

Perez v. State, 816 N.W.2d 354, 356 (Iowa 2012); Daughenbaugh v. State,

805 N.W.2d 591, 593 (Iowa 2011).          A postconviction action based on

newly discovered evidence is reviewed for corrections of errors at law.

See Webb v. State, 555 N.W.2d 824, 825 (Iowa 1996) (reviewing

postconviction actions for corrections of errors at law when they are

raised on statutory but not constitutional grounds); see also, e.g., James

v. State, No. 08–0021, 2009 WL 1492701 at *1 (Iowa Ct. App. May 29,

2009); Neill v. State, No. 04–0492, 2004 WL 2677457, at *1 (Iowa Ct.

App. Nov. 24, 2004).    A postconviction action based on a due process

violation is reviewed de novo “in light of the totality of the circumstances

and the record upon which the postconviction court’s ruling[] was made.”

Goosman v. State, 764 N.W.2d 539, 541 (Iowa 2009) (quoting Giles v.

State, 511 N.W.2d 622, 627 (Iowa 1994)); accord Perez, 816 N.W.2d at

356; Harrington v. State, 659 N.W.2d 509, 519 (Iowa 2003).
                                     20

      III. New Trial Issue Based upon State of CBLA.

      A. Introduction. More raises two claims in this appeal. First, he

asserts that the postconviction-relief court erred when it failed to grant

him a new trial based upon newly discovered evidence.            Second, he

asserts that the introduction of the flawed CBLA evidence at trial

deprived him of due process of law under the United States and Iowa

Constitutions. We first consider the newly discovered evidence claim.

      B. Applicable Legal Standards.

      1. Newly discovered evidence.       The Iowa Code provides that a

person may apply for postconviction relief if “[t]here exists evidence of

material facts, not previously presented and heard, that requires

vacation of the conviction or sentence in the interest of justice,” among

other grounds. Iowa Code § 822.2(d) (2007). In order to prevail in a PCR

action because of newly discovered evidence, the defendant must show

      (1) that the evidence was discovered after the verdict; (2) that
      it could not have been discovered earlier in the exercise of
      due diligence; (3) that the evidence is material to the issues
      in the case and not merely cumulative or impeaching; and
      (4) that the evidence probably would have changed the result
      of the trial.

Jones v. State, 479 N.W.2d 265, 274 (Iowa 1991); accord Harrington, 659

N.W.2d at 516; State v. Smith, 573 N.W.2d 14, 21 (Iowa 1997).             The

standard for whether the evidence probably would have changed the

result of the trial is a high one because of the interest in bringing finality

to criminal litigation.   See Jones v. Scurr, 316 N.W.2d 905, 910 (Iowa

1982) (explaining that courts look with disfavor on motions for new trials

based on newly discovered evidence because they “upset an end to

litigation”); State v. Jackson, 223 N.W.2d 229, 233 (Iowa 1974) (holding

motions for a new trial based on newly discovered evidence “are not
                                         21

favored in the law and should be closely scrutinized and sparingly

granted”).

       2. Due process.        The Fifth Amendment to the United States

Constitution states that no person shall “be deprived of life, liberty, or

property, without due process of law,” and the Fourteenth Amendment

also states that no state shall “deprive any person of life, liberty, or

property, without due process of law.” Article I, section 9 of the Iowa

Constitution states that “no person shall be deprived of life, liberty, or

property, without       due process of law.”             “Due process requires

fundamental fairness in a judicial proceeding,” so a trial that is

fundamentally unfair violates the guarantees of due process in the

United States and Iowa Constitutions. State v. Becker, 818 N.W.2d 135,

148 (Iowa 2012) (quoting In re Det. of Morrow, 616 N.W.2d 544, 549 (Iowa

2000)); see also United States v. Mendoza-Lopez, 481 U.S. 828, 839–40,

107 S. Ct. 2148, 2156, 95 L. Ed. 2d 772, 783 (1987). 3

       Due process requires that evidence be reliable, and some evidence

may be so unreliable that its admission violates due process. Foster v.

California, 394 U.S. 440, 449, 89 S. Ct. 1127, 1131, 22 L. Ed. 2d 402,

410 (1969); see also Manson v. Brathwaite, 432 U.S. 98, 117, 97 S. Ct.
2243, 2254, 53 L. Ed. 2d 140, 155 (1977) (suggesting that for evidence to

be excluded as unreliable, it must reach a certain level of unreliability);

Keith A. Findley, Judicial Gatekeeping of Suspect Evidence: Due Process

and Evidentiary Rules in the Age of Innocence, 47 Ga. L. Rev. 723, 725

        3While More cites the due process clauses of both the United States and Iowa

Constitutions, he does not suggest that a different standard should be applied under
the Iowa Constitution. As a result, for the purposes of this case, we apply the federal
due process standard but reserve the right to apply that general standard differently
under the Iowa Constitution. See, e.g., State v. Cox, 781 N.W.2d 757, 768–69 (Iowa
2010) (departing from federal precedent and finding a due process violation under
article I, section 9 of the Iowa Constitution by rejecting a federal balancing test for
admission of prior bad acts evidence).
                                       22

(2013)   (“[T]he   various   rights   protected   by   the   Fifth   and   Sixth

Amendments in particular can be understood as largely focused on

establishing mechanisms for ensuring reliability of the trial evidence and

the trial process.”). For the admission of evidence to violate due process,

it is not sufficient that the evidence is “merely untrustworthy,” but the

evidence must be “so inherently unreliable that to even allow a jury to

consider it is a denial of due process.” State v. Bruns, 304 N.W.2d 217,

219 (Iowa 1981) (citing Manson, 432 U.S. at 113, 97 S. Ct. at 2252; 53 L.

Ed. 2d at 153); accord State v. Walton, 424 N.W.2d 444, 446–47 (Iowa

1988). In other words, to find that the introduction of evidence violates

due process, the evidence must be so inherently unreliable that it

renders the trial fundamentally unfair. See Romano v. Oklahoma, 512

U.S. 1, 12, 114 S. Ct. 2004, 2012, 129 L. Ed. 2d 1, 13 (1994); accord

Dowling v. United States, 493 U.S. 342, 353, 110 S. Ct. 668, 674, 107 L.

Ed. 2d 708, 720 (1990); Becker, 818 N.W.2d at 148.

      C. Caselaw Considering the Discrediting of CBLA as Grounds

for New Trial.        We have yet to consider a postconviction-relief

application relying on the discovery of new evidence on CBLA. However,

there have been numerous cases in other jurisdictions on the issue. See

Fern L. Kletter, Annotation, Use and Effect of Comparative Bullet Lead

Analysis (CBLA) in Criminal Cases, 92 A.L.R.6th 549, § 1 (2014). A few

cases have provided a measure of relief, but most have denied relief,

many on the ground that the outcome of the trial would not be changed

by the new evidence.

      A leading CBLA case where the defendant was granted a new trial

based on newly discovered evidence is State v. Behn, 868 A.2d 329 (N.J.

Super. Ct. App. Div. 2005).      In Behn, the defendant was convicted of
                                     23

murder and armed robbery in 1997.         Id. at 332.   The victim, a coin

dealer, was shot four times at his place of business in the evening. Id.

      At Behn’s 1997 trial, the state presented the testimony of FBI

expert Charles Peters. Id. at 334. Peters testified that lead fragments

recovered from the decedent’s body and from the defendant’s bullets were

analytically indistinguishable, came from the same source of lead, came

from the same box or boxes, and were packaged on the same date by the

manufacturer.    Id. at 335.    On direct appeal, Behn’s conviction was

affirmed.   Id. at 332.   The appellate court stated that “the evidence,

though circumstantial and subject to differing views by reasonable

jurors, was sufficient to prove guilt beyond a reasonable doubt if the jury

drew all the available inferences in favor of the prosecution.” Id.

      In 2002, Behn filed a petition for postconviction relief based on the

developments in CBLA science. Id. at 336. In his verified petition, Behn

summarized the findings of Erik Randich, a metallurgist at the Lawrence

Livermore National Laboratories who concluded that Peters’s testimony

that bullets from each lot of lead were homogenous was false and that

his testimony that bullets possessed by Behn and those found in the

deceased came from the same source was also false. Id. at 336. Behn

supported his allegations with a letter from Randich which described his

work. Id. at 337. According to the letter, Randich was contacted by a

retired chief metallurgist for the FBI, William Tobin, because of concerns

Tobin had about the “misinterpretation and/or misuse of the metallurgic

data obtained in the bullet lead analysis procedure.”           Id. at 337.

Randich described his efforts from December 1999 through March 2001

to investigate the science. Id. at 338. Randich contacted the originator

of CBLA, Vincent Guinn, to talk about the problems with the

assumptions of CBLA that his investigation revealed.            Id.   Guinn
                                     24

admitted that “no one to his knowledge had ever checked with the lead

smelters to see if the ‘sources’ were unique and homogenous” and that

“the FBI [analysts] who use the method just assumed that there could

never be non-unique melts of lead alloy.” Id. Randich concluded that

his data showed that this was not a valid assumption. Id. He further

concluded that the information he developed on CBLA was not generally

available in the forensic community until recently. Id.

      Behn also submitted to the postconviction-relief court an affidavit

from his sister, Jacqueline Behn, a sociology and criminology professor

who assisted Behn’s attorneys in his defense.      Id. at 342.   She stated

that despite her best efforts, she was not able to find an expert witness

with the capacity to testify on the issue of CBLA prior to Behn’s trial

notwithstanding spending between 150 and 200 hours researching the

issue. Id.

      The postconviction-relief court denied relief. Id. at 332. According

to the court, the record established a “newly assembled argument as

opposed to newly discovered evidence.”         Id. at 339.   Further, the

postconviction court determined that a retrial would not probably result

in a different outcome. Id.

      The day the postconviction-relief court denied relief, Behn filed an

affidavit by William Tobin, the retired FBI chief metallurgist. Id. Tobin

stated he retired in 1998, one year after Behn’s criminal trial, and began

collaborative research efforts on CBLA. Id. at 340. According to Tobin,

in 1997, independent practitioners of CBLA outside the FBI laboratory

were “nonexistent.”   Id.     Tobin stated that it took him approximately

three years, even with collaboration, to assess the validity of CBLA

inferences.   Id. at 340–41.    Tobin stated, “It was not known until late

2002 that there existed no valid and relevant database of bullet
                                    25

compositions, nor any meaningful or comprehensive studies, to permit

interpretation of the forensic significance of an alleged ‘match’ of bullet

compositions.” Id. at 341. The postconviction court was unmoved by the

Tobin affidavit and denied reconsideration of its ruling adverse to Behn.

Id. at 342.

      The appellate panel in Behn reversed the district court.         The

appellate court concluded,

      There is no doubt that the information at issue, the results
      of the studies by Randich, Tobin and others, was newly
      discovered since it was not developed until after defendant’s
      trial. Clearly, such new scientific evidence may constitute
      newly discovered evidence. . . .

            . . . Whatever any other experts, including those
      mentioned [in other CBLA cases], might have been able to
      say on the subject, none could have refuted Peters’
      testimony in the way that Randich and his colleagues could,
      since the basis for the impeachment did not exist in April
      1995 when defendant’s trial was conducted.

Id. at 343 (footnote omitted).

      In considering whether the new evidence was merely cumulative or

impeaching, the court held that it was clearly not cumulative “since no

comparable evidence was offered at trial.”       Id. at 344.    The court

determined that the standard for whether evidence is merely cumulative

or impeaching is the Brady standard: whether the evidence “impeaches a

witness where the issue of the witness’ reliability and credibility is

crucial.” Id. at 344–45. Under this standard, the new CBLA evidence

was not merely cumulative or impeaching. Id. at 345.

      Finally, the court concluded that because this newly discovered

evidence “would have effectively neutralized the testimony” of the FBI

agent, in the specific context of Behn’s trial and given the highly

circumstantial nature of the other evidence, there was a probability that
                                        26

this new evidence could have changed the jury’s verdict. Id. The court

noted as important the fact that the prosecutor stressed the FBI agent’s

testimony in his summation and held that “[h]aving offered these proofs

and argued their significance, the State should not be permitted to now

‘walk away’ from its evidence and demean its importance.” Id. at 346. 4

       The Massachusetts Supreme Court came to a different result in a

case    involving     a    claim   of   newly   discovered     CBLA     evidence,

Commonwealth v. Lykus, 885 N.E.2d 769 (Mass. 2008).                   In a 1973

murder trial, an FBI expert testified that the bullets recovered from the

victim and those from Lykus were similar in chemical composition and

“could have originated from the same source of lead.” Id. at 776. The

FBI expert stated, although he could not say for certain, a remote

possibility existed that the bullets came from different boxes of

ammunition. Id. The FBI expert on cross-examination did not say that

the bullets definitely came from the same batch and stated that up to

100,000 bullets could have been manufactured from a single batch and

have the same chemical composition. Id.

       Lykus sought a new trial based on newly discovered evidence

contained in a 2004 report by the National Research Council (NRC). Id.

at 779–80; see National Research Council of the National Academies,

Forensic Analysis:        Weighing Bullet Lead Evidence (2004) [hereinafter

NRC Report].        That report indicated that there could be as many as

thirty-five million bullets manufactured from the same batch rather than




       4After the verdict was vacated, a new trial occurred where Behn was again
convicted. State v. Behn, No. A-5554-05T1, 2009 WL 160918, at *1 (N.J. Super. Ct.
App. Div. Jan. 26, 2009) (per curiam). Behn again applied for PCR which was denied.
State v. Behn, No. A-1560-12T3, 2014 WL 7883579, at *1 (N.J. Super. Ct. App. Div.
Feb. 18, 2015) (per curiam).
                                         27

the 100,000 figure offered by the FBI expert.             Id. at 779, 784. 5     The

Massachusetts Supreme Court noted, however, that the FBI witness was

“impeached sufficiently” at trial on the issue. Id. at 784. Further, the

court observed that the prosecutor did not give the FBI expert’s

testimony “any special weight” in his closing argument. Id. Finally, the

defendant had admitted that he was present when the victim was killed

in the back seat of his car by his gun and his bullets. Id.

       The Pennsylvania Supreme Court also denied relief to a defendant

seeking a new trial based on newly discovered CBLA evidence in

Commonwealth v. Fisher, 870 A.2d 864 (Pa. 2005). Fisher was convicted

of murder in connection with the death of his girlfriend. Id. at 865–66.

At the 1988 trial, an FBI expert testified that bullets from the victim and

those associated with Fisher were analytically indistinguishable and that

such bullets typically come from the same ammunition box. Id. at 866–

67. The FBI agent, however, also said that the bullets could have come

from a different box but that such a box most likely had to have been

manufactured and packaged on the same date.                  Id. at 867.    Defense

counsel cross-examined the expert, suggesting that other bullets sold by

the same manufacturer in the area had the same composition so that

anyone who purchased those bullets could be equally associated with the

bullets used to kill the victim. Id.

       In 2004, Fisher filed a claim for postconviction relief. Id. at 868.

In that action, Fisher claimed that the soon-to-be-released NRC report

criticizing the FBI’s use of CBLA amounted to newly discovered evidence.




       5The  Lykus court later asserted that the report indicated nine billion bullets
could be made from the same batch of lead. Lykus, 885 N.E.2d at 784. However, the
report as quoted said that nine billion bullets are made each year. Id. at 779.
                                          28

Id. Fisher also submitted an expert opinion from Tobin, who asserted

that the CBLA evidence in Fisher’s case was not scientifically valid. Id.

       The Pennsylvania Supreme Court rejected the claim. Id. at 872.

In addition to a dispositive procedural error, the court noted that Fisher’s

trial lawyer effectively cross-examined the agent and that even in light of

CBLA criticism, a jury could reasonably infer that the bullets came from

the same source when they are “analytically indistinguishable.”                 Id. at

866, 871–72.         The court also suggested overwhelming evidence

supporting the conviction. Id. at 872.

       In considering questions surrounding the validity of CBLA

evidence, it is necessary to recognize the importance of the procedural

posture of the case. Specifically, there is a significant difference between

considering the question of whether CBLA is admissible at trial on direct

appeal and the question of whether the admission of faulty or misleading

CBLA evidence is the basis for vacation of a conviction based on newly

discovered evidence. Two cases from Kentucky illustrate the distinction.

       In Ragland v. Commonwealth, a student at the University of

Kentucky was killed by gunfire in 1994 while he celebrated his twenty-

first birthday on the porch of a residence.           191 S.W.3d 569, 573 (Ky.

2006).    In 2000, Ragland’s girlfriend told police he had confessed the

crime to her. Id. Ragland was ultimately charged with the murder. Id.

at 572. The case was brought to trial in March 2002. Id. at 578.

       In a pretrial Daubert hearing, 6 Ragland sought to suppress the

testimony of an expert witness for the prosecution, Kathleen Lundy, an

FBI metallurgist.     Id. at 574.     Lundy claimed that the bullet fragment

       6Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589, 113 S. Ct. 2786, 2795,

125 L. Ed. 2d 469, 480 (1993) (holding trial courts must act as a gatekeeper in the
admission of “purportedly scientific evidence” by ensuring “that any and all scientific
testimony or evidence admitted is not only relevant, but reliable”).
                                     29

removed from the victim’s body was analytically indistinguishable from

one of the bullets found in a rifle belonging to Ragland and nine of

seventeen bullets in an ammunition box found at his mother’s residence.

Id.

         Ragland supported his position with Tobin’s opinion. Id. at 577.

Tobin stated he disagreed with Lundy’s opinion that a finding that two

bullets were analytically indistinguishable was consistent with their

having come from the same source. Id. The trial court denied Ragland’s

motion to exclude at the Daubert hearing. Id. Ragland was subsequently

convicted. Id. at 572. In his direct appeal, Ragland, among other things,

challenged the ruling of the district court failing to exclude Lundy’s

testimony at his trial. Id. at 572–73.

         The Kentucky Supreme Court agreed with Ragland on the Daubert

issue.     Id. at 580.   In addition to citing Tobin’s opinion, the court

reviewed the literature relating to CBLA.    Id. at 578–80.   It cited the

academic work of Tobin and Randich.       Id. at 578.   Further, the court

cited the 2004 NRC Report. Id. at 578–79. The NRC study was highly

critical of the FBI’s CBLA analysis. Id. Among other things, the NRC

study concluded,

         The available data do not support any statement that a
         crime bullet came from, or is likely to have come from, a
         particular box of ammunition, and references to “boxes” of
         ammunition in any form are seriously misleading . . . .
         Testimony that the crime bullet came from the defendant’s
         box or from a box manufactured at the same time, is also
         objectionable because it may be understood as implying a
         substantial probability that the bullet came from the
         defendant’s box.
                                           30

Id. at 579 (quoting NRC Report at 113).                   The court also cited the

September 1, 2005 press release that stated that the FBI would no longer

be conducting CBLA testing. 7 Id. at 579–80.

       The Kentucky Supreme Court determined the trial court erred in

failing to suppress Lundy’s testimony. Id. at 580. The court stressed

that the trial court failed to properly consider the scientific conclusions

drawn by Lundy in her analysis. Id. The court determined that it was

not necessary to remand for a new Daubert hearing, however, because

the FBI itself now considered CBLA testimony to be insufficiently reliable

and it therefore would have been an abuse of discretion for the trial court

to come to any conclusion other than to suppress the evidence. 8 Id.

       Although the Kentucky Supreme Court found CBLA evidence in

Ragland inadmissible under Daubert on direct appeal and ordered a new

trial, it came to a different conclusion in a CBLA case where the

defendant sought a new trial based upon newly discovered CBLA

evidence in a collateral attack on a previously affirmed conviction.

St. Clair v. Commonwealth, 451 S.W.3d 597, 609 (Ky. 2014). In St. Clair,



         is unclear from the opinion in Ragland whether the literature surrounding
       7It

CBLA was offered into the record.
       8A different result occurred in the context of a direct appeal in State v. Noel, 723
A.2d 602 (N.J. 1999). In that case, the FBI expert testified that “bullets that come from
the same box have the same composition of lead and bullets that come from different
boxes . . . will have different compositions.” Id. at 604. The New Jersey trial court
admitted the testimony over the defendant’s objection. Id. On appeal, the appellate
division reversed, concluding that evidence was inadmissible absent foundational
evidence regarding the statistical probability of two sets of bullets having the same
composition. Id. The New Jersey Supreme Court reversed the intermediate appellate
decision and reinstated the conviction, holding the testimony “merely showed that some
of the bullets from the crime scene, defendant’s bag, and the victim’s body contained
the same trace elements” and “constituted a link in the chain of evidence connecting
defendant to the murder.” Id. at 607. A dissent suggested, however, that the testimony
was significantly misleading and required a new trial. Id. at 607–10 (O’Hern, J.,
dissenting). Notably, Noel was decided prior to the NRC report in 2004 and the FBI’s
admission in 2009 that certain conclusions of its experts were no longer supportable.
                                     31

the defendant was convicted of murder in 1998. Id. In 2010, he moved

for a new trial on the ground of newly discovered CBLA evidence. Id. at

610.   At his criminal trial in 1998, an FBI expert had testified that

bullets from the victim and those found in the possession of St. Clair

were “very close in composition” and that “[i]t would make sense that all

of these [compared bullets] are from the same box.” Id. at 616. Further,

the FBI expert stated that “if you’re looking at any two pieces of lead and

you find that they have the same composition, that is [what] you would

expect if they were in the same box” or at least packaged “on or about the

same date.” Id. On cross-examination, the FBI expert admitted that he

could not rule out the possibility that the bullets were from different

boxes. Id. As in this case, St. Clair received a letter in 2009 from the

FBI stating that the testimony from the FBI expert was inappropriate

because “the examiner failed to provide sufficient information to the jury

to allow them to understand the number of bullets produced from a

single melt of lead.” Id. at 615.

       The Kentucky Supreme Court denied relief. Id. at 618. The court

noted that “[t]here is no question that the CBLA evidence would not be

permitted today.” Id. at 616. But in order to grant a new trial based

upon newly discovered evidence, the new evidence must be of such

weight that the results of the trial probably would have been different.

Id. at 617. The court proceeded to canvass the record in the case and

concluded that because of the other evidence presented against St. Clair,

including   witness   identifications,   a   jailhouse   informant,   ballistics

evidence, and St. Clair’s fingerprints on items at the scene of the crime, it

was not probable that the results of the trial would have changed had the

CBLA evidence been excluded. Id. at 617–18.
                                        32

         As in St. Clair, our review of the caselaw indicates that CBLA cases

involving collateral attacks on final convictions are often decided based

upon whether the defendant has demonstrated that the outcome of the

trial would have been different had the CBLA evidence been excluded.

See, e.g., Bowling v. Commonwealth, No. 2006-SC-000034-MR, 2008 WL

4291670,       at   *3   (Ky.   Sept.   18,   2008)   (upholding   conviction

notwithstanding flaws in CBLA testimony based on strength of other

evidence); Slaughter v. State, 108 P.3d 1052, 1055 (Okla. Crim. App.

2005) (holding in the alternative that even if CBLA evidence offered at

trial was flawed, bullets found at the crime scene and in possession of

defendant were particularly distinctive bullets that presented “strong

evidence of guilt”); In re Pers. Restraint of Trapp, No. 65393–8–I, 2011 WL

5966266, at *1, *3, *6 (Wash. Ct. App. Nov. 28, 2011) (per curiam)

(holding that although defendant received 2009 FBI letter stating

evidence in case was “misleading” and “not supported by science,”

defendant was not entitled to a new trial based on newly discovered

evidence where defendant failed to show that absence of recanted

testimony would probably have changed the result at trial, “an exacting

standard”).

         There is one last case that, though unreported, illustrates the

nature of CBLA challenges under facts that at least approach those in

this case and demonstrates the important distinction between the

admissibility of evidence and whether the admission of false or

misleading evidence forms the basis for a successful motion for a new

trial.   An unreported case from another jurisdiction falls far short, of

course, of binding authority, but the discussion in such a case can be a

teaching tool to inform the court’s resolution of contested issues.
                                     33

      In Commonwealth v. Daye, three defendants moved for a new trial

on grounds of newly discovered CBLA evidence. No. 11238–11246, 2005

WL 1971027, at *1 (Mass. Super. Ct. Aug. 3, 2005).          At their trial in

1987, an FBI agent stated that bullets from the victim and bullets found

at the home of one of the defendant’s came “from the same box of

ammunition, or from another box of ammunition that was produced at

the same place on or about the same date.” Id.

      The defense cross-examined the FBI expert but also offered the

testimony of Stephen Morris, the same expert employed by More in his

original trial in 1984. Id. Morris relied on a report known as the Lukens

Report that opined there was not a sufficient scientific basis to support

the FBI’s bullet-matching science. Id. He also attacked the underlying

CBLA technique, stating that there were not sufficient points of

comparison to justify a common origin of the bullets. Id. at *4. Morris

testified that there could be too many similar bullets, or false positives,

to link any specific bullet to a specific manufacturer or date of

manufacture. Id.

      In the motion for a new trial, the defendants relied on a draft

version of the NRC report as newly discovered evidence. Id. at *2. The

defendants also offered the expert testimony of Tobin. Id. at *4. Tobin

testified he agreed with all of Morris’s testimony at trial. Id. In addition,

Tobin characterized the CBLA as having no value and being nothing

more than “junk science.” Id.

      The district court rejected the motion for a new trial. Id. at *7. The

district court noted that much of the attack on CBLA was developed by

Morris at the original trial. Id. at *6. Further, the district court noted

that the NRC draft report did not throw out CBLA in its entirety, but only

certain conclusions—namely, that CBLA can support a finding that
                                      34

bullets from the crime scene came from the same melt as bullets in the

possession of the defendant. Id. at *5. The trial court cited the following

passage in the NRC report:

      A conclusion that two bullets came from the same melt
      [batch of lead] does not justify an expert in further testifying
      that this fact increases the odds that the crime bullet came
      from the defendant. The large number of bullets from a
      single melt and the absence of information on the geographic
      distribution of such bullets precludes the testimony as a
      matter of expertise. Such an inference is a matter for the
      jury.

Id. at *3 (quoting NRC Report, at 102).

      Following the NRC report, the court stated that the FBI agent could

“not now testify, given the state of the science as explained in the NRC

report, that the bullet in the [defendant’s mother’s residence] came from

the same box or batch as the bullet that was found in [the victim].” Id.

The trial court further observed, however, that under the NRC report, the

prosecutor could make such an argument to the jury. Id. The trial court

rejected testimony from Tobin, however, that CBLA in its entirety was

“junk science.” Id. at *4–5.

      While the district court recognized that the NRC report buttressed

Morris’s criticism of the FBI approach, it did not “discredit [CBLA] as a

scientific tool.” Id. at *5. The district court found that the NRC report

tracked Morris’s criticism concerning the possibility of false positives,

which would preclude an expert from linking a bullet to the same box or

batch. Id. at *6. Thus, according to the district court, the evidence was

not only available at the time of trial, but it was actually utilized. Id.

      The district court recognized that the NRC report, had it been

available at the time of the defendant’s trial, would certainly have helped

the defense. Id. But according to the district court, this did not meet the

requirements for granting a motion for a new trial.          Id.   Citing prior
                                    35

Massachusetts precedent, the district court noted that science is

constantly evolving and that mere advancement in learning that provides

more support to an expert that was or could have been presented at trial

is insufficient.   Id. at *7 (citing Commonwealth v. LaFave, 714 N.E.2d

805, 813 (Mass. 1999)).

      D. Caselaw      Considering   Admission    of   Discredited   CBLA

Testimony as Violation of Due Process. There have been a handful of

cases considering whether the introduction of CBLA evidence violates

due process of law under the United States Constitution.        In United

States v. Berry, the United States Ninth Circuit Court of Appeals

considered whether the introduction of CBLA evidence regarding

buckshot in a pipe bomb violated due process. 624 F.3d 1031, 1039–42

(9th Cir. 2010).

      The Ninth Circuit found no due process violation.      Id. at 1042.

Though it acknowledged that CBLA is flawed, the court said, “[W]e do not

find it so arbitrary as to render [the defendant’s] trial ‘fundamentally

unfair.’ ” Id. at 1040. Regarding the NRC report, the court found that

the criticisms it contained could easily have been exposed through

vigorous cross-examination of the State’s expert. Id. Moreover, the NRC

report and other criticisms of CBLA do not establish that the technique is

“almost entirely unreliable,” but rather that CBLA’s assumptions are not

generally accepted by the scientific community and that there is a risk of

false positives. Id. at 1041.

      Additionally, the Ninth Circuit noted that even if CBLA were

generally unreliable, in that particular case the expert focused her

testimony on the specific lead manufacturing process of the buckshot

maker and the shipping distribution of its buckshot.        Id. at 1042.

Moreover, she did not overstate her conclusions, testifying that the
                                     36

buckshot from the bomb and in the possession of the defendant had

identical chemical profiles but that she could not determine that they

came from the same source.         Id. at 1041–42.     Therefore, the court

concluded that the evidence was not fundamentally unreliable and that

the adversary system was competent to determine the proper weight to

give the evidence by uncovering, recognizing, and taking into account its

shortcomings. Id. at 1042.

      In United States v. Chalan, the Tenth Circuit Court of Appeals held

that the defendant could not get a certificate of appealability on his CBLA

due process claim because the merits of his claim were not subject to

reasonable debate.    438 F. App’x 710, 712–13 (10th Cir. 2011).          The

court said “[t]he CBLA evidence presented at trial merely implied that

some bullet fragments found at the crime scene likely came from the

same box of bullets” but did not outright claim that they came from the

same source.     Id. at 713.     Additionally, the court noted that this

evidence, even if it was inaccurate, did not create actual prejudice

sufficient to sustain a federal habeas claim. Id.

      Finally, the Superior Court of Pennsylvania considered a due

process challenge to a conviction based upon CBLA evidence in

Commonwealth v. Kretchmar, 971 A.2d 1249 (Pa. Super. Ct. 2009). In

that case, Kretchmar was convicted of first-degree murder after a jury

trial in 1988. Id. at 1250. At his trial, an FBI expert testified that bullets

extracted from the victim’s body matched in elemental composition those

found in a half empty box discovered in an apartment. Id. at 1252. The

court noted that the FBI expert did not testify that the bullet fragments

were from the same box of ammunition and certainly left open the

possibility of random matches. Id. at 1257. The court thus declined to

find a due process violation. Id. at 1257–58.
                                          37

      E. Analysis of Newly Discovered Evidence.

      1. Discovery of new evidence after verdict. It is certainly true that

the 2009 FBI letter declaring that the type of testimony offered in More’s

case was not scientifically supportable—to the extent it suggested that

the bullet in the cartridge in More’s possession came from the same box

of ammunition—is evidence that could not have been discovered earlier

by due diligence of More’s counsel. The evidence that the FBI no longer

believed that the testimony offered by its CBLA experts—to the extent it

suggested that CBLA demonstrated that the bullets came from a common

ammunition box—simply did not exist at the time of More’s 1984 trial,

but was only available twenty-five years later.

      Further, the contents of the letter are not merely cumulative or

impeaching.        It is true that, in More’s case, he had expert testimony

attacking the validity of CBLA science offered by the FBI expert

witnesses. If it had been available at trial, the letter would not simply

have reinforced the testimony of More’s expert, but it would have either

prevented the FBI expert from testifying at all or would have required

that the testimony be significantly altered to avoid the implication of the

likelihood of a match from the same box based solely on CBLA. If one

applies the Brady-type test used in Behn, 868 A.2d at 344–45, to

determine     if    the   evidence   is   more   than   merely   cumulative   or

impeaching—i.e., whether failure to turn over the letter, if in the hands of

the prosecution at the time of trial, would amount to a Brady violation—

the answer is clearly yes.

      Yet the letter does not suggest that FBI experts may no longer

credibly testify on CBLA. There is nothing in the letter that states that

FBI witnesses may not testify in criminal trials that the metals in the

bullets found at the crime scene have the same trace elements as the
                                    38

bullets in the possession of the defendant. What such witnesses could

not do, however, consistent with the available science, is (1) draw or

imply the conclusion that the bullets must have come from the same box

of ammunition based on CBLA analysis; (2) fail to present testimony

about a very large number of potentially analytically indistinct bullets

that could exist; or (3) offer testimony about the effect of geographic

distribution of bullets based on knowledge available to the FBI at the

time of the 2009 FBI letter.

      Beyond the specific contents of the letter disowning interpretation

of the significance of CBLA, More offered no other newly discovered

evidence at his second postconviction-relief proceeding. Unlike in Behn

and Ragland, More did not, for instance, submit the 2004 NRC report to

the district court or the 2005 FBI press release announcing that it would

no longer conduct CBLA analysis. Nor did More provide an affidavit or

statement from any expert outlining how the science of CBLA had

advanced since 1984.

      The question of whether there is newly discovered “evidence,” and

the question of due diligence seem to pose questions of adjudicative facts

for which evidence must ordinarily be offered into the record. See United

States v. Boyd, 289 F.3d 1254, 1259 (10th Cir. 2002) (finding it an error

to take judicial notice of scientific fact where application of that fact to

case was in dispute); United States v. Bonds, 12 F.3d 540, 551–52 (6th

Cir. 1993) (striking an NRC report on DNA from appellate brief as it was

not available to lower court).

      On the other hand, there is authority for the proposition that the

state of the art in science may be subject to judicial notice. See People v.

Luna, 989 N.E.2d 655, 667 (Ill. App. Ct. 2013) (taking judicial notice of

unequivocal and undisputed prior judicial decisions or technical writings
                                       39

on the subject); Johnson v. Commonwealth, 12 S.W.3d 258, 263 (Ky.

1999) (taking judicial notice of overwhelming acceptance of a scientific

principle); Reed v. State, 391 A.2d 364, 367 (Md. 1978) (finding the

validity and reliability of a scientific technique may be so broadly and

generally accepted in the scientific community that a trial court may take

judicial notice of its reliability); see also Iowa R. Evid. 5.201(b). Where

issues are subject to controversy, however, judicial notice is not

appropriate. See Rhoades v. State, 848 N.W.2d 22, 31 (Iowa 2014). For

the purpose of this appeal, however, we assume without deciding that

the science reflected in the NRC report is properly before the court as in

Behn.

        Unlike in Behn, however, More did offer evidence at trial from his

expert, Morris, that frontally attacked the validity of the CBLA science

espoused by the FBI witnesses.         Through Morris, More challenged the

reliability of CBLA on the ground that the FBI’s interpretations of the

results were scientifically unsupportable because they did not take into

account a sufficient number of variables. Morris, however, did not take

issue with the underlying analysis of the bullets—namely, that they had

similar trace metal characteristics.

        It might be argued that the NRC report, unlike the 2009 FBI letter,

is merely cumulative of the testimony offered by Morris.        Science is

constantly evolving. A new trial cannot automatically be triggered based

upon the latest scientific report advancing the state of the art, for if it

could, there would be no finality for any convictions based on scientific

evidence.

        Yet the NRC report is not just another article destined to be piled

high on researchers’ desks before being discarded in academic dustbins.

The NRC is a blockbuster report on CBLA with new statistical data
                                    40

previously unavailable to scientists. Among other things, the NRC report

suggested that there could be thirty-five million bullets with the same

CBLA characteristics, thus indicating a large potential risk of false

positives. While each marginal advance in science cannot form the basis

of a new trial, watershed developments are a different story.

      In Lykus, the court concluded that the NRC report was not a basis

for a new trial, in part because the FBI agent testified that there could be

as many as 100,000 matching bullets. 885 N.E.2d at 776. The Lykus

court found that the defendant did successfully impeach the FBI

testimony, although the NRC report would indicate that there could be as

many as thirty-five million similar bullets. Id. at 776, 779. Further, the

Lykus court noted that the prosecutor did not suggest that the FBI

agent’s testimony should be given any weight in closing. Id. at 784.

      Here, although Morris’s testimony was useful, he did not offer

testimony to the effect that there could be thousands or millions of

matches.   Further, the FBI agent was adamant on cross-examination

that the FBI did not see matching bullets from different ammunition

boxes bought at different places and times throughout the United States.

Moreover, and perhaps most tellingly, the prosecutor did ask the jury to

give the FBI agent’s testimony special weight in his closing arguments,

saying that the FBI had been doing CBLA for a long time and that the

agent was confident and “[h]e says the bullets match.”

      Based on the above, we conclude, consistent with Behn, that there

is newly discovered evidence that could not have been discovered

through due diligence at the time of trial and that is not cumulative. We

now proceed to the final question: whether More has shown a reasonable

probability that the result would have been different.
                                   41

       2. Would the verdict have been different?    We now turn to the

question of whether the verdict would have been different had the newly

discovered evidence been available to More. We note that this is not a

harmless error standard, or even the kind of prejudice associated in

federal courts with ineffective assistance of counsel.   See Strickland v.

Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674,

692–93 (1984).     Instead, the inquiry is whether, based upon all the

evidence, the verdict probably would have been different in the case

before us. Jones, 316 N.W.2d at 910; State v. Hicks, 277 N.W.2d 889,

896 (Iowa 1979).     The question, of course, is case specific and fact

intensive.

       Based on our review of the entire record, we conclude that More

has not met the high standard of showing that the verdict probably

would have been different based on newly discovered CBLA evidence.

The case against More, of course, was largely circumstantial.     Yet, we

simply cannot say that there probably would have been a different result

if the new science discrediting the FBI’s CBLA interpretation was

available.

       Among other things, the record shows the following facts which

support More’s guilt: he and Townsend had a relationship in 1976 that

included discussions of marriage but ended when More left abruptly.

The two rekindled their relationship in 1983. More lived about half-time

at her residence in Bettendorf and was otherwise away, often in southern

Illinois.

       More and Townsend again discussed marriage in 1983.           They

purchased life insurance policies. More was a fifty percent beneficiary of

a term policy on Townsend with a $100,000 death benefit. Among other

things, More had previously received insurance benefits from injuries
                                     42

arising from a work accident, from a hunting accident, and from property

loss. More owned many guns and had a high degree of interest in them.

He frequently carried a handgun in a shoulder holster and displayed his

guns to interested persons.

      Shortly before the murder, More had financial troubles. He sold

certificates of deposit to pay off some of his debt and borrowed money

against his automobile.       Townsend told a close friend that she had

decided not to marry More, that their problems were “insurmountable,”

and that she was going “to need some help telling him.” More met his ex-

wife, Bernadette, in southern Illinois.      While they had a contentious

relationship in the past, Bernadette seemed to have a different attitude

toward More.

      More testified he was returning from Illinois when he saw

Townsend immediately prior to her death. Shortly after she purchased

groceries at 4:37 p.m., as shown on the receipt, More helped Townsend

put the groceries into the back of the vehicle. Rather than follow her to

the residence, More testified that he decided to drive back toward Peoria,

Illinois, to look for the phone number written on a real estate sign he had

seen. More’s fingerprints were found on the vehicle and on a pop can

inside the vehicle after Townsend’s death.

      The murder itself occurred in an auto dealer parking lot about ten

minutes away from the grocery store.      Jeffrey Elmore testified that he

was in the dealership parking lot at the time. He heard two loud pops

and saw a man with a limp set the vehicle afire. He also described the

clothing of the man and recognized a distinctive flashlight holder or hook

on the person. Elmore’s later recantation of his testimony was rejected

by the first PCR court as “completely incredible.”
                                      43

      More received a traffic ticket for driving seventy-three miles per

hour away from the Quad Cities, where the murder occurred, at 5:45

p.m., which would be consistent with him having committed the murder

and leaving immediately. More claimed he had car trouble in Illinois. He

called the victim’s residence and told one of Townsend’s daughters that

he would be late. When he arrived at the house at about 9:00 p.m., he

did not mention to the victim’s daughters that he had seen their mother

at the grocery store earlier in the evening. He did not check to see if the

groceries had been refrigerated.

      More was interrogated by police twice after the murder. He was

asked specifically if he was the beneficiary of any life insurance policies

on the victim. He said he was not. On the evening of the first police

interview, More appeared to become suddenly ill during questioning. He

was taken to the hospital.         While at the hospital, a cartridge was

recovered from the pocket of More’s jeans with a bullet the make and size

of that used in the murder. When asked how the bullet got in his pocket,

More testified, “I have no idea.” He was held for two days. Upon release,

he was picked up by his ex-wife Bernadette.

      After   his   release   from   the   hospital,   police   recommenced

interrogating More. He walked out of the interrogation session. He drove

to Kentucky, where he and his ex-wife Bernadette stayed for two nights

in a local motel. More did not attend Townsend’s funeral. He said he did

not know when it was being held. He claimed to have been concerned

about police interest in him.

      More traveled across the United States, down through Florida,

Texas, Colorado, and eventually into Wyoming. More was aware that a

warrant was issued for his arrest during his cross-country trip after

speaking with his lawyer. At the time of his arrest, his car was loaded
                                    44

down with many items, including clothing, maps, a bullet-proof vest, and

newly purchased camping equipment.

      After reviewing the evidence, we simply do not come to the

conclusion that a different verdict would probably have occurred had

More had access to the newly discovered scientific evidence. The case, of

course, is circumstantial, but that is often so in murder cases.    More

certainly had motive, he had the means, he was at the right place at the

right time, and his behavior generally and repeatedly points in the

direction of guilt.   Any singular piece of evidence in isolation may not

have been convincing, but it was the combination of facts and

circumstances that strongly point toward More’s guilt.

      F. Analysis of Due Process.         For the introduction of CBLA

evidence to have violated More’s right to due process under the United

States Constitution, the evidence must have been so inherently

unreliable that that even allowing the jury to consider the evidence

rendered the trial fundamentally unfair. Manson, 432 U.S. at 113, 97 S.

Ct. at 2252, 53 L. Ed. 2d at 153; Walton, 424 N.W.2d at 446; Bruns, 304

N.W.2d at 219. If CBLA is merely unreliable, but its introduction does

not rise to the level of fundamental unfairness, then the admission of the

CBLA evidence did not violate More’s due process rights. Manson, 432

U.S. at 117, 97 S. Ct. at 2254, 53 L. Ed. 2d at 155; Becker, 818 N.W.2d

at 148.

      Fewer courts in other states or in the federal system have

considered the issue of CBLA and due process than have considered

CBLA’s change of scientific status as newly discovered evidence, but of

those courts that have reached the issue, all have rejected the claim that

CBLA evidence violates defendants’ due process rights. In the cases that

occurred after the FBI sent letters to individual defendants in 2009—
                                     45

Berry, Bowling, Chalan, and Kretchmar—the defendants undoubtedly

received an FBI letter similar to the one that More received which

announced that even implying that analytically indistinguishable bullets

can be associated with a single box of ammunition “exceeds the limits of

the science and cannot be supported by the FBI.”          Nevertheless, the

courts in those cases concluded that implying association with a box of

ammunition was either not misleading—see Kretchmar, 971 A.2d at

1256—not overstated—see Berry, 624 F.3d at 1042—or not so erroneous

as to render the trial fundamentally unfair—see Bowling, 2012 WL

2415167, at *57–58.

      Fundamental unfairness is a high standard and one that was not

met here.    In addition to the teachings of the non-Iowa courts, the

particular circumstances here also suggest that the CBLA evidence did

not render More’s trial fundamentally unfair.      There was ample other

evidence of guilt, as described above. Further, it is entirely possible that

the jury assigned relatively low credibility to Asbury’s conclusions in light

of Morris’s testimony. Although the CBLA testimony was inaccurate and

has been expressly disavowed by the FBI, it was not so pervasively

unreliable as to have rendered the trial fundamentally unfair given that

More cross-examined the FBI agent thoroughly and presented his own

expert witness who questioned the forensic basis of CBLA generally and

its interpretation in More’s case and in light of the other, substantial

evidence of More’s guilt. We thus conclude that there is no violation of

due process under the Fifth and Fourteenth Amendments of the United

States Constitution. We reach the same result under article I, section 9

of the Iowa Constitution.

      We are, of course, troubled by the errors that infect this case. The

violation of doctor–patient privilege, the Brady violation, and the offering
                                        46

of scientifically invalid testimony undermine confidence in our system of

justice. The entire CBLA episode, which nationally included instances of

perjury 9 as well as exaggerations and misrepresentations in this case,

demonstrates the dangers of a win-at-all-costs philosophy of prosecution.

Valid     criminal   convictions   have    been    jeopardized,    and    innocent

defendants may have been put at indefensible risk.

        We certainly recognize that one of the roles of this court is to

protect    defendants    from   wrongful     convictions    when    subsequently

discovered evidence shows that an error has probably occurred. Yet after

examination of the record in this case, we cannot conclude that More’s

trial, though flawed, was fundamentally unfair in light of the entire

record, which points in the direction of More’s guilt.

        IV. Conclusion.

        For the above reasons, we affirm the decision of the district court

denying postconviction relief.

        AFFIRMED.




        9See,e.g., United States v. Chanthadara, 377 F. App’x 766, 768–69 (10th Cir.
2010) (describing how an FBI scientist admitted to providing false CBLA testimony in
two cases).
