                IN THE SUPREME COURT OF IOWA
                              No. 15–1815

                          Filed April 20, 2018


MARTIN SHANE MOON,

      Appellant,

vs.

STATE OF IOWA,

      Appellee.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Clarke County, Gary G.

Kimes, Judge.



      An applicant asks for further review of a court of appeals decision

dismissing his postconviction-relief action.   DECISION OF COURT OF

APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.



      Christine E. Branstad of Branstad Law, P.L.L.C., Des Moines, for

appellant.



      Thomas J. Miller, Attorney General, Thomas E. Bakke, Assistant

Attorney General, and Michelle M. Rivera, County Attorney, for appellee.
                                          2

WIGGINS, Justice.

       An applicant filed a postconviction-relief action alleging the State

committed a Brady1 violation by withholding potentially exculpatory

information regarding the statements made by a witness who ultimately

did not testify at the applicant’s criminal trial.          The applicant further

alleged this information constituted newly discovered evidence.                   The

district court declined to reach the merits of the applicant’s substantive

claims.    Rather, the court applied the newly-discovered-evidence test,

instead of the new-ground-of-fact test, to hold that the three-year statute
of limitations barred all claims.

       The applicant appealed, and we transferred the case to our court of

appeals. The court of appeals affirmed, holding the applicant failed to

establish a nexus between the new ground of fact and the applicant’s

conviction. The applicant applied for further review, which we granted.

       On further review, we hold the statute of limitations does not bar

the applicant’s substantive claims.            However, the applicant fails to

establish a Brady violation and fails to demonstrate a viable newly-

discovered-evidence claim.        Accordingly, we vacate the decision of the

court of appeals and affirm the judgment of the district court summarily

dismissing the applicant’s postconviction-relief application.

       I. Background Facts and Proceedings.

       In August 1990, Kevin Dickson was shot and killed. Nine years

later, the State charged Martin Moon and Casey Brodsack with first-

degree murder.        Brodsack pled guilty to second-degree murder in

exchange for testifying truthfully at Moon’s trial.

        1See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97 (1963) (“[T]he

suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”).
                                     3

      Brodsack testified he, Moon, and Dickson roomed together on the

second floor of a house in Winterset while their neighbor, Scott Aukes,

lived with his roommate on the first floor. Brodsack testified he, Moon,

Dickson, and Aukes went to an abandoned farmhouse to look for

marijuana left by Moon’s drug dealer. While Brodsack was checking for

drugs behind the water heater in the basement, he heard six or seven

gunshots. Brodsack went around and saw Dickson lying on the ground,

with Moon holding a gun in his hand.       Aukes was not present in the

basement during this episode. Moon handed Brodsack the gun. With
another gun, Moon forced Brodsack at gunpoint to shoot Dickson

because Moon allegedly did not want to be the only one involved.

Brodsack shot Dickson three times.

      Brodsack further testified he, Moon, and Aukes went back to

Winterset to retrieve a sledgehammer.       They then returned to the

farmhouse and tried to knock in one of the basement walls to cover up

Dickson’s body.    When that plan failed, they dragged Dickson’s body

outside and discarded it into a cistern.

      According to Brodsack, sometime in 1996, he and his coworker

Brett Lovely were painting fire hydrants near the farmhouse. Brodsack

apparently told Lovely about the murder and showed him what was left

of Dickson—just bones—in the cistern. Lovely kept the secret for a few

years but eventually told law enforcement about it in 1999.

      Before trial, the State included a man by the name of Brandon Lee

Boone as a witness in the minutes of testimony. The State anticipated

Boone to testify that law enforcement had conducted an interview of him

on or about May 8, 1999. Boone would also testify he and Moon were
inmates incarcerated at the same prison in 1995 or 1996. During this

time, while Boone and Moon were walking together in the yard, Moon
                                      4

allegedly stated he and Brodsack killed Dickson and threw the body into

a cistern.

      Moon moved to exclude Boone from testifying at trial for a number

of reasons: the State advised Moon that Boone was unwilling to

cooperate, and Moon did not have an opportunity to depose Boone or

investigate Boone’s May 1999 interview.               Moon also alleged the

admission of any statements made by Boone to law enforcement was

hearsay and a violation of his Sixth Amendment confrontation rights.

      In response to Moon’s motion, the State alleged it had provided to
Moon the Iowa Division of Criminal Investigation (DCI) report containing

the interview.    Moreover, the State informed Moon that Boone had

refused to cooperate since his arrest as a material witness, and the State

did not know whether Boone would cooperate at trial.           Although the

record is unclear as to the district court’s ruling on the motion to

exclude, Boone ultimately did not testify at trial.

      In June 2000, the jury found Moon guilty as charged, and the

district court sentenced him to a mandatory life term in prison.         The

court of appeals affirmed Moon’s conviction. Following that appeal, the

clerk issued procedendo in July 2002.

      On October 31, Moon filed his first pro se application for

postconviction   relief.    On   August    19,    2004,    Moon’s   appointed

postconviction counsel filed an amended application alleging ineffective

assistance of counsel and trial court error. The district court denied the

application, and the court of appeals affirmed.

      On January 12, 2012, Moon filed his second pro se postconviction-

relief application, almost a decade after the issuance of procedendo.
Moon made two allegations.        First, pursuant to Iowa Code sections
                                           5

822.2(1)(a) (2011),2 he claimed the sentence and judgment violated the

Due Process Clauses of the United States and Iowa Constitutions.

Second, pursuant to section 822.2(1)(g), he claimed the sentence and

judgment were subject to collateral attack because the trial information

was insufficient and unconstitutional.

       Moon attached affidavits to this application.             Of importance are

Boone’s and Moon’s affidavits. In his January 4, 2011 affidavit, Moon

claimed he had never seen any police reports or investigative notes

concerning Boone’s alleged false statements to law enforcement.
       In his April 7, 2011 affidavit, Boone declared he had given several

false statements to law enforcement at the behest of Brodsack.                      He

attested law enforcement contacted him multiple times between the years

1998 and 1999 regarding Dickson’s murder. Boone declared Brodsack

had prepared him to give false statements implicating Moon in the death

of Dickson. Moreover, Boone gave the false statements because he was

under the impression he would receive leniency from the State on the

pending charges against him if he provided information implicating Moon

in Dickson’s murder.

       Boone further declared, “I tried in each of those statements, even

back then, to convey to authorities that they were in fact false” but law

enforcement “intentionally ignored my attempts.”                    Boone attested,

“[T]hese indications of falsehood can be found in each of my original

written and initialed statements taken by state law authorities from late

1998 to May of 1999.”          Furthermore, Boone stated, “[The] Minutes of

Testimony . . . does not contain the exact words or statements that I gave

to law enforcement authorities.”            In sum, Boone stated, “I had no

       2Moon    explicitly cited section 822.2(1) and (4). However, upon our examination
of the statute, we believe Moon meant to cite to section 822.2(1)(a).
                                           6

information of [Moon’s] involvement in [Dickson’s murder] other than

what Casey told me to say whenever any law enforcement authorities

approached me asking questions.”

       On October 22, 2012, Moon submitted a supplemental petition of

pro se issues, claims, and grounds for relief. On March 16, 2015, Moon

filed a motion to amend his application.                The amended application

alleged pursuant to Iowa Code section 822.2(1)(d) (2015), newly

discovered evidence requires vacation of his original sentence and

judgment.3 Specifically, this newly discovered evidence is the contents of
Boone’s      2011   affidavit.      Additionally,    Moon     alleged    the    State’s

suppression of exculpatory evidence, such as police reports, recordings,

and interviews concerning Boone, amounts to a Brady violation.

       The State moved for summary dismissal of Moon’s second

postconviction-relief application pursuant to section 822.6.                The State

argued the application was untimely under the three-year statute of

limitations set out in section 822.3 because the clerk issued procedendo

in July 2002, and Moon filed the instant application in January 2012.

The State therefore claimed the district court lacked jurisdiction to hear

the case because the statute of limitations had run.                 The State also

argued Moon’s claims in his application and supplemental petition were

meritless.

       Moon resisted the State’s motion, arguing the limitations period

did not apply to his claims because a new ground of fact exists. Moon

then applied the newly-discovered-evidence test to his substantive claim

based on section 822.2(1)(d).          He also argued he provided sufficient


       3Moon  cited to section 822.2(4) but we believe he meant to cite to section
822.2(1)(d). Moon correctly cited to 822.2(1)(d) in his resistance to the State’s motion
for summary dismissal.
                                    7

evidence to create factual questions regarding his due process claim

based on a Brady violation.

      On October 16, the district court granted the State’s motion for

summary dismissal, concluding Moon’s application was untimely by

applying the newly-discovered-evidence test rather than the ground-of-

fact test. The court reasoned the evidence was not material but merely

impeaching. The court did not address the alleged Brady violation.

      Moon appealed.      The court of appeals affirmed the summary

dismissal, concluding the ground-of-fact exception did not apply. Moon
filed an application for further review, which we granted.       We lay out

additional facts as necessary.

      II. Issues.

      The threshold issue is whether the three-year statute of limitations

bars Moon’s claims.     The substantive issues are whether the State

suppressed Brady material by withholding potentially exculpatory

information regarding Boone’s statements to law enforcement and

whether this information constitutes newly discovered evidence.

      III. Scope of Review.

      We   generally   review    postconviction   proceedings,    including

summary dismissals of postconviction-relief applications, for errors at

law. Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011). When the basis

for relief implicates a violation of a constitutional dimension, our review

is de novo. Everett v. State, 789 N.W.2d 151, 155 (Iowa 2010); Bugley v.

State, 596 N.W.2d 893, 895 (Iowa 1999), superseded by statute on other

grounds, 2004 Iowa Acts ch. 1017, § 2 (codified at Iowa Code § 814.7

(2005)), as recognized in State v. Johnson, 784 N.W.2d 192, 197 (Iowa
2010).
                                    8

      However, the district court summarily disposed of this case under

section 822.6. We apply our summary judgment standards to summary

disposition of postconviction-relief applications.     Schmidt v. State, ___

N.W.2d ___, ___ (Iowa 2018); Manning v. State, 654 N.W.2d 555, 559–60

(Iowa 2002).   Therefore, on further review we will apply our summary

judgment/disposition standards. Summary disposition is appropriate

      if the pleadings, depositions, answers to interrogatories, and
      admissions on file, together with the affidavits, if any,
      show . . . there is no genuine issue as to any material fact
      and . . . the moving party is entitled to a judgment as a
      matter of law.

Iowa R. Civ. P. 1.981(3). The moving party bears the burden of showing

the absence of a genuine issue of material facts. C & J Vantage Leasing

Co. v. Wolfe, 795 N.W.2d 65, 73 (Iowa 2011). We view the record in the

light most favorable to the nonmoving party.         Eggiman v. Self-Insured

Servs. Co., 718 N.W.2d 754, 758 (Iowa 2006).         We draw all legitimate

inferences from the record in favor of the nonmoving party. Vossoughi v.

Polaschek, 859 N.W.2d 643, 649 (Iowa 2015).

      Additionally, we also apply summary judgment standards to the

statute-of-limitations issue.   See Vossoughi, 859 N.W.2d at 649–55

(applying summary judgment standards to resolve the statute-of-
limitations issue).

      IV. Statute of Limitations.

      Our postconviction-relief statute contains a statute of limitations

for filing postconviction-relief applications. Iowa Code § 822.3. The Code

provides in relevant part that such applications “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.” Id.
Moon relies on an exception to this rule. The Code provides that “this
                                     9

limitation does not apply to a ground of fact or law that could not have

been raised within the applicable time period.” Id.

      We examine an instructive case on applying the statute of

limitations under section 822.3.    In Harrington v. State, the defendant

filed his second postconviction-relief application more than two decades

after his conviction. 659 N.W.2d 509, 515 (Iowa 2003). We first stated

the applicant must meet the “obvious requirement” that he or she could

not have raised the ground of fact within the limitations period. Id. at

520. The onus is on the applicant to make this showing. Additionally,
we stated “the applicant must . . . show a nexus between the asserted

ground of fact and the challenged conviction.”        Id. (emphasis added).

Thus, the “applicant relying on the ground-of-fact exception must show

the ground of fact is relevant to the challenged conviction.” Id. at 521

(emphasis added). We defined “relevant” as follows: “the ground of fact

must be of the type that has the potential to qualify as material evidence

for purposes of a substantive claim under section 822.2.” Id. (emphasis

added).

      We explicitly and “specifically reject[ed] any requirement that an

applicant must show the ground of fact would likely or probably have

changed the outcome of the underlying criminal case in order to avoid a

limitations defense.” Id. The basic reasoning behind our rejection was

that “[a] determination of that issue must await an adjudication, whether

in a summary proceeding or after trial, on the applicant’s substantive

claim for relief.” Id. After articulating the standard for the ground-of-fact

exception, we stated the district court rejected the defendant’s assertion

of this exception because it erroneously believed the defendant had to
prove the ground of fact met the elements of a newly-discovered-evidence

claim. Id.
                                    10

      The district court in the instant case reached its holding through a

merits analysis of a newly-discovered-evidence claim rather than

applying the ground-of-fact standard we clarified in Harrington.        We

again emphasize the ground-of-fact exception pursuant to section 822.3

is not the same as a substantive claim for postconviction relief based on

newly discovered evidence pursuant to section 822.2(1)(d).       See id. at

520–21.

      We now apply the ground-of-fact test to determine whether Moon’s

claims are time barred. First, a genuine issue of material fact exists as
to whether Moon could have known about the contents of the affidavit

before the end of the limitations period. In his January 2011 affidavit,

Moon declared he had never seen any police reports or investigative

notes concerning Boone’s alleged false statements to law enforcement or

had any knowledge of it prior to Boone’s affidavit.     Additionally, Moon

could not have gleaned this information from Boone during their time

together as fellow inmates because they were in prison in 1995 or 1996,

and Boone made the alleged false statements to law enforcement from

1998 to 1999. Moreover, the record does not show there would be any

reason for Moon to seek out Boone postprison. In fact, the minutes of

testimony do not reveal even a smidgen of any intent on the part of

Boone to give false statements to law enforcement at the time he was in

prison with Moon.

      Accordingly,   viewing the record and drawing all legitimate

inferences therefrom in the light most favorable to Moon, we find a

genuine issue of material fact exists as to whether Moon could have

raised the ground of fact earlier. See Schmidt, ___ N.W.2d at ___ (holding
“[the victim’s] recantation was not available to [the defendant] within” the

limitations period); see also Harrington, 659 N.W.2d at 521 (holding
                                           11

substantial evidence clearly supported the district court’s findings that

the defendant could not have discovered the undisclosed police reports

and the recantation evidence “earlier than they were discovered in the

exercise of due diligence”); cf. Boss v. Ludwick, 863 F. Supp. 2d 845, 859

(N.D. Iowa 2012) (holding the defendant knew at the time of his trial that

the officer had recorded his conversation because he had seen the officer

turn on the recorder, and thus the defendant could have raised his claim

that the recording existed earlier).

       Second, Moon established a nexus between Boone’s admissions
and his conviction. The court of appeals held the ground of fact lacked

the required nexus with the conviction, reasoning Boone’s affidavit only

impeached Brodsack’s credibility because Boone did not testify at trial

and, at most, the affidavit adversely affected the credibility of Brodsack’s

testimony. However, for purposes of determining whether the exception

to the limitations period applies, we do not reach the merits of whether

Boone’s admissions “would likely or probably have changed the outcome

of the underlying criminal case.” Harrington, 659 N.W.2d at 521 (holding

the police reports and the recantation evidence “are the type of facts

having the potential to qualify as material evidence that probably would

have changed the outcome of [the defendant’s] trial”); accord Schmidt, ___

N.W.2d at ___ (holding “the recantation has the potential to qualify as

material evidence that probably would have changed the outcome of [the

defendant’s] case”).        We do not automatically exclude impeachment

evidence from the potentially material evidence category.4 See Aguilera v.

       4Impeachment evidence may lack the potential to qualify as material evidence if,

for example, Moon brought only a newly-discovered-evidence claim because the newly-
discovered-evidence test requires “that the evidence is material to the issues in the case
and not merely cumulative or impeaching.” Jones v. State, 479 N.W.2d 265, 274 (Iowa
1991). However, Moon also brought a Brady claim. In the Brady context, impeachment
evidence alone may be material to the issue of guilt and thus has the potential to
                                        12

State, 807 N.W.2d 249, 254–258 (Iowa 2011) (holding the alleged

potentially exculpatory evidence impeaches the credibility of the

witnesses and is sufficiently material that had the evidence been

disclosed, it would have altered the dynamic of the trial). Accordingly,

the alleged exculpatory evidence has the potential to qualify as material

evidence.

      Based on the foregoing, we conclude there is a genuine issue of

material    fact   concerning    the   statute-of-limitations    issue   because

reasonable minds could differ on the question of whether Moon could
have raised the ground of fact earlier. We now turn to the merits.

      V. Due Process Claim: Brady Violation.

      Moon’s claim under section 822.2(1)(a) is based on an alleged

Brady violation arising from the State’s failure to turn over exculpatory

evidence, such as notes, statements, and interview reports of Boone.

Section 822.2(1)(a) provides a postconviction-relief applicant a right of

action when his or her “conviction or sentence was in violation of the

Constitution of the United States or the Constitution or laws of this

state.” Iowa Code § 822.2(1)(a).

      To show a Brady violation, Moon “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)

(quoting Harrington, 659 N.W.2d at 516).

      A. Suppression of the Evidence. For purposes of this appeal, we

assume without deciding a genuine issue of material fact exists as to


________________________
qualify as material evidence. See DeSimone v. State, 803 N.W.2d 97, 105 (Iowa 2011)
(stating the Brady rule encompasses impeachment evidence).
                                    13

whether the State suppressed the evidence.        Thus, Moon would be

entitled to a hearing on this element of his Brady claim.

      B. Favorable Nature of the Evidence. The suppressed evidence

must have been favorable to the defense. Harrington, 659 N.W.2d at 523.

Favorability in the context of Brady means that had the prosecution

disclosed the suppressed evidence and had the defense used such

evidence effectively, “it [might have made] the difference between

conviction and acquittal.” United States v. Bagley, 473 U.S. 667, 676,

105 S. Ct. 3375, 3380 (1985).       The Brady rule encompasses both
impeachment and exculpatory evidence. DeSimone, 803 N.W.2d at 105.

      Boone’s admissions, specifically that he gave false statements to

law enforcement at Brodsack’s behest, favor the defense. Brodsack was

also a suspect in Dickson’s murder and the primary witness who testified

against Moon at trial. The suppressed evidence raises suspicion as to

Brodsack’s motive in allegedly preparing Boone to lie to law enforcement.

See Aguilera, 807 N.W.2d at 254 (holding the statements contained in

the withheld DCI file could impeach a witness and thus were

exculpatory). Accordingly, we conclude a genuine issue of material fact

exists as to the favorable nature of the suppressed evidence. Thus, Moon

would be entitled to a hearing on this element of his Brady claim.

      C.   Material to the Issue of Guilt.      In addition to the State’s

suppression of favorable evidence, the evidence must be “material to the

issue of guilt.”   DeSimone, 803 N.W.2d at 105.        The United States

Supreme Court has rejected a distinction between impeachment evidence

and exculpatory evidence in the Brady context. Bagley, 473 U.S. at 676,

683–84, 105 S. Ct. at 3380, 3384. In fact, impeachment evidence can
very well be exculpatory. See Aguilera, 807 N.W.2d at 254 (“Since all of

the statements contained in the file could be used to either impeach a
                                      14

witness or support alternate interpretations of events, these statements

were all clearly exculpatory.”).

      Materiality depends on whether “there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.” Cornell v. State, 430 N.W.2d 384,

386 (quoting Bagley, 473 U.S. at 682, 105 S. Ct. at 3383) (noting we

adopted the Bagley standard in State v. Anderson, 410 N.W.2d 231, 232–

34 (Iowa 1987)). Reasonable probability does not require the defendant

to demonstrate that the disclosure of the evidence “would have resulted
in his [or her] acquittal.”    State v. Romeo, 542 N.W.2d 543, 551 (Iowa

1996).   Rather, the defendant establishes reasonable probability when

“the favorable evidence could reasonably be taken to put the whole case

in such a different light as to undermine confidence in the verdict.”

Harrington, 659 N.W.2d at 523 (quoting Strickler v. Greene, 527 U.S. 263,

290, 119 S. Ct. 1936, 1952 (1999)).             We emphasize “reasonable

possibility” of a different outcome is not sufficient to require reversal.

DeSimone, 803 N.W.2d at 105 (emphasis added).

      When       determining   materiality,   we consider   “the   totality   of

circumstances, including the possible effects of nondisclosure on defense

counsel’s trial preparation.” Cornell, 430 N.W.2d at 386.

      1. Pending murder charge against Boone. Boone admitted in his

affidavit that he gave false statements to law enforcement because of a

pending murder warrant and that the State dismissed the charges

against him after he gave his first false statement.          However, this

admission could not have had any effect, let alone a reasonably probable

effect, on the outcome because Boone ultimately did not testify against
Moon at trial.
                                        15

         2. Brodsack’s preparation of Boone to give false statements. The

prickly issue is whether disclosure to the jury of Boone’s admission that

Brodsack prepared him to give false statements creates a reasonable

probability that the outcome would have been different had the State

disclosed this alleged fact. We examine the trial record to resolve this

issue.

         Even   with   the   alleged   potentially   exculpatory   evidence,   a

reasonable fact finder could nevertheless find Moon guilty of first-degree

murder. Schmidt, ___ N.W.2d at ___ (Cady, C.J., concurring) (stating a
jury could still convict the defendant based on the remaining undisputed

evidence).

         We first examine Brodsack’s testimony about a 1990 burglary that

occurred days before the murder.          Specifically, Brodsack testified he,

Moon, Dickson, and Aukes burglarized a building owned by Russell

Kerns, and stole two rifles and two pistols in the summer of 1990. Moon

allegedly told Brodsack one of the guns came from a pickup truck.

Brodsack further testified Moon had the guns in his possession at the

house the night before the murder. According to Brodsack, he and Moon

used two guns—a revolver and a semiautomatic—to shoot Dickson, and

Brodsack recognized the guns as the ones they had stolen from Kerns.

Brodsack testified these guns were a .38 and .45.

         The testimonies of the Kerns and the police lend credence to

Brodsack’s testimony on how Moon obtained the murder weapons. Ken

Burk, sheriff at the time of the burglary, testified he investigated a

burglary at the Kerns property in late July 1990.           Burk had tracked

down the serial number of one of the stolen guns. That gun was a .38
revolver with the serial number 570-01772.
                                   16

      Madelyn Kerns testified several guns, including a gun inside a

pickup truck, and a couple of saddles had been stolen from an outhouse

building on their property in July 1990, the same time frame Brodsack

testified he and his cohorts committed the burglary.     Madelyn further

testified her late husband, Russell, had invited the Moon family for a

cookout, and Russell showed Moon and Moon’s father his gun collection

stored in the outhouse building. Madelyn testified Russell was not in the

habit of displaying his gun collection, but he showed it to Moon and

Moon’s father because Russell had known Moon’s father for a long time.
The cookout occurred at some point in time prior to the burglary.

Madelyn admitted she could not recall the exact day of the cookout.

Additionally, before his death, Russell told law enforcement on the

telephone that he had shown the guns to Moon.

      The testimonies of the DCI Agents Michael Motsinger and Victor

Murillo corroborate Brodsack’s testimony that the .45 caliber gun stolen

from the Kerns was one of the guns used in Dickson’s shooting death.

While executing a search warrant on the abandoned farmhouse property,

Motsinger testified he and his team found two .38 caliber shells and one

.45 shell inside the cistern. Motsinger further testified they found three

.45 shells in the basement.    According to Motsinger, he and another

agent went to the former Kerns property to search for any type of firearm

components.     They found two .45 caliber shells on the property.

Motsinger testified they transported these shells to the DCI lab for

comparison to the shells found at the basement of the farmhouse.

      Murillo testified the three .45-caliber shells found in the basement

and the two .45-caliber shells found on the Kerns property all came from
the same gun.    He also testified the shells recovered from the cistern

were too damaged to make a positive identification of them.
                                   17

      Aukes corroborated crucial aspects of Brodsack’s testimony

regarding the details of the murder. Aukes testified that on the morning

of the murder, Moon or Brodsack told him they were going to get some

drugs. Aukes, Moon, Brodsack, and Dickson went on this morning trip

in Moon’s car. Aukes testified they all entered the abandoned farmhouse

on the main level. Aukes eventually went outside to smoke a cigarette.

While retrieving his cigarettes and lighter from the car, Aukes testified

that he heard around ten gunshots. Based on his military training, he

could tell the gunshots came from two different guns.     Around two to
three minutes later, Moon and Brodsack rushed out of the house. Aukes

testified Moon said they needed to do something about Dickson’s body.

Aukes, Moon, and Brodsack drove back to Winterset, and Moon retrieved

a sledgehammer. They then went back to the farmhouse and attempted

to use the sledgehammer to collapse one of the basement walls to cover

up Dickson’s body.

      Aukes testified their efforts with the sledgehammer failed, so the

three of them went back outside to come up with another plan. At this

time, Brodsack stepped into a large hole located in the center of a lid

covering a cistern. They went back to the basement, hauled Dickson’s

body outside, and dumped the body into the cistern. All these aspects of

Aukes’s testimony corroborate Brodsack’s testimony.

      Duane   McPhillips’s   testimony   also   corroborates   Brodsack’s

testimony concerning how the murder unfolded.            McPhillips, an

acquaintance of Moon, testified Moon had told him that he, Brodsack,

and Aukes lured Dickson out into the country under the guise of a drug

buy and then shot Dickson.       During direct examination, McPhillips
testified Moon did not tell him who actually shot Dickson. During cross-
                                    18

examination, McPhillips testified Moon told him that he (Moon) had killed

Dickson.

      The jury took into account some inconsistences in Brodsack’s

testimony and the testimony of others. For example, Brodsack testified

he and Moon sold the revolver while Aukes testified Brodsack told him to

throw the revolver in the river.   We note based on Aukes’s testimony,

Motsinger testified he and his team attempted to locate the revolver in

the river but did not succeed. However, in June 1999, Motsinger flew to

Arizona, where the Kerns were living at the time, and obtained a revolver
bearing the serial number 570-01772 from them. Yet another example,

Brodsack testified he threw Dickson’s wallet in the back seat of Moon’s

car after dumping Dickson’s body into the cistern. However, Motsinger

testified that he and his team recovered Dickson’s wallet from the

cistern.   Yet another example, Brodsack testified the night before the

murder, Moon, Aukes, and Dickson argued over Aukes’s girlfriend named

Cindy because Dickson wanted to move away with Cindy.             However,

Aukes testified he was not involved in this argument and the argument

was among Moon, Brodsack, and Dickson, although Cindy was present.

The jury knew Brodsack’s testimony was certainly not wholly credible

and was fully aware of these inconsistencies before returning a guilty

verdict against Moon.

      The physical evidence does not contradict, although it does not

affirmatively corroborate, Brodsack’s and Aukes’s respective testimonies

regarding the number of times Dickson was shot. Dr. Francis Garrity, a

forensic pathologist, testified the skeletal remains recovered from the

cistern were of Dickson.     He further testified Dickson had died of
multiple   gunshot   wounds.       Dr.   Dawnie   Steadman,   a   physical

anthropologist, testified she had found perimortem wounds on the
                                    19

skeleton, finding nine unambiguous gunshot wounds. She testified this

finding did not dictate a finding that nine bullets had passed through

Dickson’s body because bullets could pass through the body without

hitting bones. According to Dr. Steadman, a conservative estimate of the

minimum number of bullets producing gunshot wounds was three.

      Had the defense known that Brodsack prepared Boone to implicate

Moon in the murder, it might have prepared for trial a bit differently.

The defense would have probably deposed Brodsack with questions as to

why he told Boone to lie to law enforcement. However, from viewing the
record, we are unsure whether the defense would have had the

opportunity to depose Boone because Boone had absconded. The record

does not show when Boone absconded.

      Despite some uncertainties as to how the defense would have

prepared for trial differently, we find the defense already thoroughly

attempted to subvert Brodsack’s credibility at trial.          The alleged

preparation of Boone goes to the question of Brodsack’s motive behind

downplaying his involvement in the murder or shifting police focus away

from himself.     The trial record clearly shows the defense vetted this

motive.

      Regarding the Kerns burglary, the defense challenged Brodsack’s

testimony that he and his cohorts had stolen two rifles and two pistols

when in fact the Kerns had reported two saddles, nine guns, and a Bowie

knife as stolen.    The defense also cross-examined Aukes concerning

inconsistencies    between   some   aspects   of   Aukes’s   testimony   and

Brodsack’s testimony.

      More importantly, the defense fully cross-examined Brodsack
concerning the “pack of lies” he told the DCI concerning the murder. In

an April 29, 1999 interview, Brodsack told the DCI that Dickson was in
                                     20

Colorado when, in reality, Dickson was already dead. Brodsack admitted

at trial he had told an elaborate story and had persisted for about an

hour telling the DCI “absolute nothing but lies.”

      The defense highlighted that Brodsack changed his story during

the second half of the April 29 interview when the DCI told him it would

be in his best interest to start telling the truth. Instead of telling the

truth, Brodsack lied yet again. This time, Brodsack lied that Moon and

McPhillips took him out to the farmhouse to show him Dickson’s body.

Brodsack further lied that his fingerprints were on some of the debris in
the cistern because he had thrown some trash down there when he was

at the farmhouse property with Lovely.        During this same April 29

interview, Brodsack changed his story yet again after the DCI disclosed

to him they knew he was present at the farmhouse when Dickson was

murdered. Brodsack lied he was in the car at the time of the murder and

stated he did not know if Moon was the person who pulled the trigger.

      During a continuation of the April 29 interview the following day,

Brodsack told the DCI he was waiting in the car when he heard

gunshots, and Moon and McPhillips came rushing out of the farmhouse.

Brodsack then went down to the basement, with one hand on the railing

and the other on the wall and, upon seeing Dickson lying on the ground,

kicked him to see if he was dead.         Brodsack admitted at trial this

retelling of the events was a lie.

      The defense again emphasized Brodsack’s “pack of lies” and the

different versions of the events he had told the DCI. The defense also

prodded Brodsack’s motive for going to the authorities on April 29,

pointing out Lovely had shown up at Brodsack’s house in the evening of
that day to talk about the murder. The defense portrayed Brodsack as a

liar who purposefully agreed to the April 29 interview to shift police focus
                                   21

away from himself and to Moon and other individuals, such as

McPhillips.

       The defense’s theory of the case focused on Brodsack’s presumed

history of blaming other individuals for his crimes and his penchant for

lying. In fact, the defense impeached, or at least attempted to impeach,

Brodsack’s credibility by delving into his past forgery and fraudulent

practice charges. Forgery and fraudulent practice go to the very heart of

veracity, thus casting doubt on Brodsack’s testimony. The defense also

brought up the plea deal between Brodsack and the State in which the
State agreed to reduce the charge against him from first-degree murder

to second-degree murder in exchange for truthful testimony at trial. We

conclude the record shows the defense thoroughly impeached Brodsack’s

credibility at trial.

       In addition to the defense’s persistent attempts to poke holes at

Brodsack’s credibility and portrayal of Brodsack as a suspect attempting

to shift police focus away from himself, the State laid out its cards,

although for strategic reasons, for the jury and the defense. The State

admitted in its opening statement that Brodsack had originally lied to the

DCI, denying his involvement in the murder. The State further admitted

Brodsack changed his story a number of times in the face of additional

evidence and continued to lie. Furthermore, the State disclosed to the

jury that it had originally charged Brodsack with first-degree murder, but

made a plea deal with him to reduce the charge to second-degree murder

if Brodsack testified truthfully about Dickson’s murder. Thus, Brodsack

had motive to testify against Moon.     Cf. Bagley, 473 U.S. at 683–84,

105 S. Ct. at 3384 (reasoning the prosecutor’s failure to disclose any
monetary inducements, as well as its disclosure of affidavits stating the

witnesses received no promises of a reward, misled the defendant to
                                     22

believe that the witnesses could not be impeached when, in actuality,

“the possibility of a reward gave [the witnesses] a direct, personal stake

in [the defendant’s] conviction”).

      The de minimis effect of the allegation that Brodsack prepared

Boone would not have changed the outcome at trial.       We have stated

“[w]ithholding impeachment evidence can [amount to] a Brady violation,

but when a witness’s testimony has been otherwise impeached with prior

inconsistent statements, we are less likely to find the impeaching

statements would have impacted the outcome of the trial.”        Aguilera,
807 N.W.2d at 254 (emphasis added). In other words, the impeachment

value of Brodsack’s alleged preparation of Boone to give false statements

is incremental. See Rowe v. Grizzard, 591 F. Supp. 389, 397 (E.D. Va.

1984) (stating if suppressed impeachment evidence would have had no

significant effect on the witness’s credibility, there is no due process

violation); accord Romeo, 542 N.W.2d at 552.

      At the end of trial, the jury could fully appreciate the fact that

Brodsack may not be a truthful person and could be lying on the witness

stand about how Dickson’s murder unfolded. The trial record indicates

the jury knew Brodsack mostly lied to the authorities before he finally

told them the presumed complete story in December 1999 when he

signed the plea agreement.       Despite Brodsack’s previous lies to the

authorities, the jury found Brodsack’s trial testimony presumably

truthful or at least worthy of some degree of credence.        Given this

premise, we find the jury could reasonably lump the alleged fact that

Brodsack prepared Boone to give false statements as just another one of

Brodsack’s attempts to shift police focus away from himself before he
finally decided to tell the authorities the truth in December 1999. Thus,
                                   23

we do not think the alleged potentially exculpatory evidence would have

“le[d] to a new dynamic at trial.” Aguilera, 807 N.W.2d at 257.

      We realize the only two individuals towering over Dickson’s body in

the basement on that fateful day were Moon and Brodsack. Moon did

not testify at his own trial. Thus, Brodsack was the only witness who

gave a firsthand account of what unfolded in the basement. However,

Boone’s allegation that Brodsack prepared him to give false statements to

law enforcement, at best, casts another shadow of doubt on the

credibility of Brodsack’s testimony, which already loomed with clouds of
doubt even without the alleged newly discovered evidence. Cf. Cornell,

430 N.W.2d at 386 (holding the stepbrother’s “testimony was otherwise

impeached because of several inconsistent statements” and further

impeachment with the first alleged exculpatory statement would not

undermine confidence in the defendant’s conviction).

      Admittedly, there are similarities between Harrington and the case

at hand. In Harrington, the jury knew the primary witness was a liar: he

had named three other individuals before finally pointing the finger at

the defendant. 659 N.W.2d at 524. Moreover, the jury knew the state

agreed to drop various theft and burglary charges in exchange for his

testimony against the defendant.     Id. at 515.   Yet, in Harrington, we

found the questionable veracity of the primary witness was not what

“undermine[d] our confidence in the defendant’s trial” because “[the

primary witness’s] ability and propensity to lie were well known” at the

time of the trial. Id. at 524. Rather, we reasoned the primary witness’s

unreliability was “important groundwork . . . because this circumstance

makes it even more probable that the jury would have disregarded or at
least doubted [the primary witness’s] account of the murder had there

been a true alternative suspect.” Id. Had the defense known about the
                                     24

information contained in the police reports, the defense would have

zeroed in on the alternative suspect and would have used the suspect “as

the centerpiece of a consistent theme that the State was prosecuting the

wrong person.” Id. Here, unlike in Harrington, the defense knew about

all potential alternative suspects.       Moreover, as we have already

established, the defense zeroed in on Brodsack.

      We conclude even if the State had disclosed to Moon the alleged

interference on the part of Brodsack and the defense had used the

information to impeach Brodsack’s testimony, there is no reasonable
probability that the outcome of trial would have been different. Moon

fails to undermine our confidence in the outcome at trial and ultimately

fails to establish a valid Brady violation.              Because Brodsack’s

preparation of Boone is not material to the issue of guilt, Moon’s

conviction does not violate his due process right to a fair trial.

Accordingly, we find there is no genuine issue of material fact on the

materiality of the suppressed evidence because the suppressed evidence

has no reasonable probability of changing the outcome of trial. Thus,

Moon fails to fulfill this element of his Brady claim.

      Because no genuine issue of material fact exists on the third

element that is required to prove a Brady violation, the State is entitled

to a judgment as a matter of law on Moon’s Brady claim.

      VI. Newly-Discovered-Evidence Claim.

      Moon next alleges Boone’s affidavit, specifically Boone’s admissions

that he gave false statements to law enforcement at Brodsack’s behest

and because of a pending murder warrant, constitutes newly discovered

evidence pursuant to Iowa Code section 822.2(1)(d). Section 822.2(1)(d)
gives a postconviction-relief applicant a right of action when “[t]here

exists evidence of material facts, not previously presented and heard,
                                     25

that requires vacation of the conviction or sentence in the interest of

justice.” Iowa Code § 822.2(1)(d).

      To prevail on his newly discovered evidence claim, Moon must

show by a preponderance of the evidence

      (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); Jones v. Scurr,

316 N.W.2d 905, 907 (Iowa 1982).

      A. Discovered After the Running of the Three-Year Statute of

Limitations. The obvious fact is that Boone’s 2011 affidavit came after

Moon’s 2000 trial.     The question is whether Moon discovered the

contents of Boone’s affidavit after the verdict.    In Jones, a defendant

alleged the postjudgment testimonies of his two codefendants constituted

newly discovered exculpatory evidence. 316 N.W.2d at 906–07. The first

codefendant had invoked his privilege against self-incrimination at the

defendant’s hearing on a motion for new trial and had allegedly refused
to testify at defendant’s trial. Id. at 907–08. The second codefendant

was a fugitive at the time and therefore did not testify at the defendant’s

trial or hearing. Id. at 908. We held the testimonies did not constitute

newly discovered evidence because the defendant knew about the

evidence even though it was unavailable at the time of trial. Id. at 910.

      Unlike the defendant in Jones, the record shows Moon did not

know at the time of trial or within the applicable limitations period that

Boone gave false statements to law enforcement for whatever Boone’s
reasons. Because the potentially exculpatory evidence was unavailable
                                   26

and unknown to Moon within the appropriate limitations period, we find

a genuine issue of material fact exists as to whether Moon discovered the

evidence in question after the verdict. Thus, he would be entitled to a

hearing on this element of his newly-discovered-evidence claim.

      B. Could Not Have Been Raised Earlier in the Exercise of Due

Diligence.   The burden is on Moon to demonstrate he could not have

raised the newly discovered evidence earlier in the exercise of due

diligence.   Moon has met this burden.     Specifically, he exhausted the

probable sources of information related to this case. The record shows
on January 27, 2000, Moon filed a motion to produce evidence

concerning Boone’s proposed testimony.       Moon further requested to

depose Boone. However, Moon did not have the opportunity to depose

Boone or investigate Boone’s May 1999 statements to the DCI because

Boone had absconded. The State had to issue a warrant to arrest him as

a material witness. By the time the State informed Moon that Boone was

in custody, it was already June 9, 2000, and the trial was set for

June 12. Moreover, following his arrest, Boone refused to participate in

any interviews by the State or the DCI. At this point, it appears Boone

did not want to cooperate with any parties involved in the case.

      Additionally, in his January 2011 affidavit, Moon declared he had

never seen any police reports or investigative notes concerning Boone’s

alleged false statements to law enforcement or knew of this information

prior to obtaining the affidavit. Furthermore, as mentioned before, Moon

could not have obtained this information from Boone during their time

together in prison in 1995 or 1996 because Boone made the alleged false

statements to law enforcement from 1998 to 1999.
      We acknowledge Moon did not call Boone to testify at trial. See id.

at 910 n.1 (noting it was “questionable whether [the first codefendant]
                                     27

was unavailable at trial” when the defendant failed to call the

codefendant to testify at trial despite the codefendant’s alleged refusal to

so testify). However, we have stated, “The showing of diligence required

is that a reasonable effort was made. The applicant is not called upon to

prove he sought evidence where he had no reason to apprehend any

existed.” State v. Compiano, 261 Iowa 509, 519, 154 N.W.2d 845, 850

(1967) (emphasis added) (quoting Westergard v. Des Moines Ry.,

243 Iowa 495, 503, 52 N.W.2d 39, 44 (1952)). Moon filed a motion to

exclude Boone’s testimony because it appears Moon believed Boone’s
proposed testimony, as memorialized in the minutes of testimony, would

harm Moon’s defense.

      Moreover, according to Boone’s affidavit, had Boone testified at

trial, he would have given the same story that Brodsack allegedly

prepared him to give to law enforcement. Thus, even if Moon had called

Boone to testify on the witness stand, Moon could not have discovered

the alleged false statements before the verdict.

      Lastly, nothing in the trial record shows the defense became aware

of the possibility that Brodsack had prepared Boone to implicate Moon in

the murder. Cf. id. at 519, 154 N.W.2d at 851 (holding the defendant

failed to exercise due diligence when he knew of the possibility of the

officer’s mistake during the officer’s testimony at trial yet did not ask for

a continuance after failing to locate the officer during the noon recess).

Accordingly, we find a genuine issue of material fact exists as to whether

Moon exercised due diligence in attempting to depose Boone and

investigate the May 1999 interview, and could not have raised the alleged

potentially exculpatory evidence earlier. Thus, he would be entitled to a
hearing on this element of his newly-discovered-evidence claim.
                                      28

      C.   Material and Not Merely Cumulative or Impeaching.             At

most, the alleged exculpatory evidence is merely impeaching of

Brodsack’s testimony and therefore not considered material in the

context of a newly-discovered-evidence claim.          Accordingly, because

Moon fails to establish by a preponderance of the evidence that the

evidence is material, there is no genuine issue of material fact concerning

materiality. Thus, he fails to fulfill this element of his newly-discovered-

evidence claim.

      D. Probably Would Have Changed the Result. Moon’s alleged
exculpatory evidence probably would not have changed the result. First,

Boone did not testify at trial. Had Boone testified, the State’s case would

have been stronger because, according to the affidavit, Boone would have

stuck to the same story Brodsack had prepared him to tell law

enforcement.

      Second, the State proved Moon committed first-degree murder

beyond a reasonable doubt “independent of the retracted testimony”

Boone originally gave to law enforcement in May 1999. See id. at 518,

154 N.W.2d at 850 (“Mere recantation of a witness on any material

matter should not necessitate a new trial if, eliminating such evidence,

there is still substantial evidence to support the jury’s verdict.”).

      Third, as we discussed in the Brady context, Moon fails to show

that the newly discovered evidence would have probably changed the

outcome.     See Cornell, 430 N.W.2d at 386–87 (applying the Brady

materiality test requiring a reasonable probability to the probability

prong of a newly-discovered-evidence claim); see also Compiano,

261 Iowa at 520, 154 N.W.2d at 851 (stating the test is whether “there is
a reasonable probability of a different result upon another trial” (quoting

Westergard, 243 Iowa at 500, 52 N.W.2d at 43)). Even if Brodsack did in
                                     29

fact prepare Boone and the defense utilized this evidence efficiently at

trial, the jury could still find Moon guilty based solely on the evidence

that was available at trial.

      We find there is no genuine issue of material fact as to Moon’s

failure to carry his burden that the newly discovered evidence probably

would have changed the result. Thus, he fails to fulfill this element of

his newly-discovered-evidence claim.

      In sum, because no genuine issue of material fact exists on two of

the elements needed for a successful newly-discovered-evidence claim,
the State is entitled to a judgment as a matter of law on Moon’s newly-

discovered-evidence claim.

      VII. Disposition.

      We vacate the decision of the court of appeals. However, we affirm

the judgment of the district court summarily dismissing Moon’s

postconviction-relief application.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.

      All justices concur except Hecht, J., who takes no part.
