                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-0354
                            Filed November 13, 2014


GLENN L. MCGHEE,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Des Moines County, Michael J.

Schilling, Judge.



       Glenn McGhee appeals the district court’s denial of his application for

postconviction relief. AFFIRMED.




       Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney

General, Michael J. Walton, County Attorney, and Jerald Feuerbach and

Kimberly K. Shepherd, Assistant County Attorney, for appellee State.




       Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
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DOYLE, J.

       In 1972, six men were involved in a robbery at the Shamrock Tavern in

Davenport. During the robbery, the bartender and two bar patrons were shot and

killed. Three other bar patrons—two who were shot and one who was beaten—

survived. Several witnesses implicated McGhee in the incident. McGhee and

four co-defendants were charged with three counts of murder, three counts of

aggravated robbery, and two counts of assault with intent to commit murder.

McGhee was tried separately from the other defendants and the primary theory

of his defense at trial was the witnesses’ mistaken identification of him as one of

the robbery perpetrators.

       The jury found McGhee guilty as charged. McGhee appealed, challenging

whether the court improperly denied his request for a psychiatric evaluation to

determine the feasibility of a not-guilty plea by reason of insanity. The Iowa

Supreme Court affirmed the judgment and sentence entered by the district court.

State v. McGhee, 220 N.W.2d 908, 914 (Iowa 1974).

       In 2003, McGhee filed an application for postconviction relief. Over nearly

a decade, McGhee was reappointed counsel and his application survived the

State’s motion for summary dismissal.1 Despite instruction by the district court,

an amended or “recast” application for postconviction relief (PCR) was not filed.




1
  Because McGhee’s claims were based in part on newly discovered evidence, the
district court determined his claim survived summary judgment as an exception to the
statutory limitations period. See Iowa Code § 822.3 (“[A]pplications must be filed within
three years from the date the conviction or decision is final or, in the event of an appeal,
from the date the writ of procedendo is issued. However, this limitation does not apply to
a ground of fact or law that could not have been raised within the applicable time
period.”).
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The district court honed McGhee’s claims to include an alleged Brady violation2

with regard to four police reports (Exhibits 2, 3, 4, and 5) which, according to

McGhee, were withheld from his trial counsel and were critical to his defense

because they related to whether the State’s witnesses could identify McGhee as

one of the robbery perpetrators.3 In 2013, following a hearing, the district court

entered an order denying postconviction relief to McGhee.

       McGhee appeals, contending the district court erred in denying his claim

of a Brady violation where the police reports at issue were withheld from the

defense during his criminal trial and could have been used to impeach the State’s

witnesses and show “the identification procedures resulting in McGhee’s

identification were flawed and unduly suggestive.” Because McGhee’s claims

are of a constitutional nature, we conduct a de novo review. See Aguilera v.

State, 807 N.W.2d 249, 252 (Iowa 2011).

       To establish a Brady violation has occurred, McGhee must prove by a

preponderance of the evidence “(1) the prosecution suppressed evidence; (2) the

evidence was favorable to the defendant; and (3) the evidence was material to

the issue of guilt.” DeSimone v. State, 803 N.W.2d 97, 103 (Iowa 2011) (citing

Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). At the outset, with regard to

Exhibits 2, 3, and 5, McGhee has not proved the first element of the Brady

analysis. McGhee’s trial counsel testified, unequivocally, that he had received

and reviewed Exhibits 2, 3, and 5 and had used those police reports in

preparation for trial.    In light of this testimony by trial counsel, we conclude

2
  A Brady violation is a due process violation that occurs when the State fails to turn over
exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 87 (1963).
3
  We observe Exhibits 2, 3, and 5 noted eyewitness identifications of McGhee.
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McGhee has failed to prove by a preponderance of the evidence Exhibits 2, 3,

and 5 were suppressed by the State.             Cf. Aguilera, 807 N.W.2d at 253

(concluding the defendant had shown suppression of evidence where “Aguilera’s

first attorney testified he never received the DCI file, an inspection of the public

defender’s file did not reveal any such DCI file, and the State could not offer any

document showing the DCI file had been delivered to Aguilera”).

       Turning to Exhibit 4, trial counsel testified “in all probability” he did review

that police report, but it was “not ringing a bell.” In any event, we conclude

McGhee did not prove the remaining two elements of the Brady analysis with

regard to Exhibit 4. Exhibit 4 is a police report dated March 21, 1972, detailing a

lineup held before several State witnesses. McGhee, however, was not present

at the lineup nor was his photo displayed. When asked if he would have used

Exhibit 4 at trial, McGhee’s trial counsel testified, “The document does not

mention Glenn McGhee. It doesn’t purport to be a record of a lineup or lineups

that involved him . . . .        It doesn’t involve any identification—purported

identification of Glenn McGhee . . . .” This testimony suggests trial counsel

would not have used Exhibit 4 at trial or in preparation for trial. And even if trial

counsel could have used Exhibit 4 for impeachment purposes during cross-

examination on the issue of which men some of the State’s witnesses believed

they saw enter the bar prior to the robbery, see DeSimone, 803 N.W.2d at 105

(“Impeachment evidence . . . as well as exculpatory evidence, falls within the

Brady rule.”), trial counsel raised similar concerns during other parts of trial.

Under these circumstances, we conclude McGhee has failed to prove by a

preponderance of the evidence Exhibit 4 was exculpatory and material.              For
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these reasons, we affirm the decision of the district court denying postconviction

relief to McGhee on an alleged Brady violation.4

       McGhee alternatively contends his postconviction counsel was ineffective

in failing to better develop the facts relating to his claim of an alleged Brady

violation. We review this claim de novo. See Lado v. State, 804 N.W.2d 248,

250 (Iowa 2011) (observing a postconviction applicant “has a statutory, not

constitutional right to effective assistance of counsel on postconviction relief,” but

the court still applies a de novo review). To prevail, McGhee must show (1) a

deficiency in counsel’s performance, and (2) that the deficient performance

prejudiced his defense. State v. Ross, 845 N.W.2d 692, 697-98 (Iowa 2014)

(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). “Even though these

claims are generally preserved for postconviction relief, when presented with a

sufficient record this court will address such a claim.” State v. Maxwell, 743

N.W.2d 185, 195 (Iowa 2008). If we determine the claim cannot be addressed

on appeal, however, we must preserve it for a postconviction-relief proceeding,

4
   In light of McGhee’s heavy reliance on the Eighth Circuit Court of Appeals decision in
White v. Helling, 194 F.3d 937, 939 (8th Cir. 1999) (granting a new trial to one of
McGhee’s co-defendants upon holding material exculpatory evidence was withheld from
the defense) to support his claim in this case, we feel compelled to note the reasons why
McGhee’s reliance on White is misplaced. First, in White, the court determined Exhibits
2, 3, 4, and 5 were withheld from the defense, see 194 F.3d at 943 (describing the police
reports as “[n]ew evidence, never before revealed”), whereas McGhee’s trial counsel
testified he had received and reviewed Exhibits 2, 3, and 5, and likely had reviewed
Exhibit 4 even though it did not contain any information about McGhee. Second, White
relied on a coercion defense at trial, which this court described as “credible,” see White
v. State, 380 N.W.2d 1, 5 (Iowa Ct. App. 1985), whereas McGhee’s defense theory was
misidentification even though a handful of witnesses identified him as being one of the
robbery perpetrators. Third, White was present for the lineup referenced in Exhibit 4 and
was mentioned in the police notes, see White, 194 F.3d at 945 (noting Exhibit 4 was “the
first time [eyewitness] Stouffer had identified [White]”), whereas McGhee was not
present at the lineup nor was his photo displayed and the police report did not reference
McGhee. In sum, the court’s decision in White is neither persuasive nor binding on this
court.
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regardless of our view of the potential viability of the claim. State v. Johnson,

784 N.W.2d 192, 198 (Iowa 2010).

      To support his claim, McGhee points to the following list of questions

included in the district court’s PCR ruling, described by the court as “legitimate

questions that could be asked of trial counsel concerning the reports”:

          1. If you had the reports, why did you not mention them directly
             in cross-examination? Why did you ask [Detective] Hoeper
             for his notes?;
          2. If you had the reports, why did you not cross-examine
             officers or identification witnesses about these items:
                 a. Exhibit 3 – police refer to [eyewitness] Abbott as the
                     best of the witnesses yet he could not identify
                     McGhee;
                 b. Exhibit 3 – police note if [eyewitness] Stouffer is
                     “coached properly” he could remember much more.
                     To the Court it seems very important that the officers
                     used the term “coached.” This certainly raises the
                     possibility    that    improper   suggestiveness    of
                     eyewitnesses occurred;
                 c. Exhibit 5 – police note [eyewitness] Stouffer went over
                     the five mug shots including one of McGhee, and
                     picked out [co-defendant] Sherman White as the man
                     he gave the billfold to. There is no mention made of
                     McGhee. Also, there is a clear indication Stouffer had
                     now identified both [co-defendants] Cunningham and
                     White as the person who took his wallet. Arguably,
                     this shows both confusion and the possibility of
                     suggestiveness by law enforcement.

McGhee claims to the extent we conclude trial counsel’s “responses on the

above matters are necessary to the question of whether a Brady violation was

established,” then his postconviction counsel was ineffective “in failing to enter

those matters into the record.”

      We have addressed McGhee’s claim on an alleged Brady violation under

this record and found it to be without merit. Accordingly, we need not reach

McGhee’s ineffective-assistance-of-counsel claim on this issue.      Although the
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district court raises insightful questions, those questions are beyond the scope of

our analysis of McGhee’s Brady violation claim on appeal.5             Trial counsel

testified, under oath, that he received and reviewed Exhibits 2, 3, and 5;

accordingly, McGhee has failed to show the prosecution suppressed that

evidence. And McGhee has not shown Exhibit 4 was exculpatory and material to

his defense.

       We affirm the district court’s ruling denying McGhee’s application for

postconviction relief.

       AFFIRMED.




5
  McGhee did not claim his trial counsel was ineffective in failing to assert claims
regarding the police lineup or suggestiveness of the photo identifications. And McGhee
did not appeal the district court’s denial of his PCR claim regarding trial counsel’s
performance during cross-examination of witnesses or pre-trial investigation—which,
arguably, could entail discussion of the questions above.
