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After a jury trial, David DeSimone was convicted of sexual abuse in the third degree. DeSimone's conviction was affirmed on appeal. DeSimone subsequently filed an application for postconviction relief, asserting that the State committed a Brady violation when it failed to turn over a witness's timecard showing that the witness could not possibly have seen the events to which she testified. The district court denied relief, and the court of appeals affirmed. The Supreme Court vacated the court of appeals and reversed the judgment of the district court, holding that the State's failure to disclose the timecard was a Brady violation because (1) the State suppressed the evidence, (2) DeSimone met his burden of proof that the evidence was favorable to his guilt or innocence, and (3) the evidence was material to the issue of guilt. Remanded.Receive FREE Daily Opinion Summaries by Email
IN THE SUPREME COURT OF IOWA
Filed September 9, 2011
DAVID R. DESIMONE,
STATE OF IOWA,
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Clinton County, David H.
Sivright, Jr., Judge.
Applicant seeks further review of a court of appeals decision
affirming his conviction for sexual abuse in the third degree. DECISION
OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT
REVERSED AND CASE REMANDED WITH DIRECTIONS.
Mark R. Lawson, Maquoketa, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant
Attorney General, Matthew Remissong, Student Legal Intern, Michael L.
Wolf, County Attorney, and Ross J. Barlow, Assistant County Attorney,
In this appeal, we must decide if the State’s failure to turn over a
witness’s timecard showing that the witness could not possibly have seen
the events to which she testified constitutes a Brady violation. 1 In the
postconviction relief action, the district court found no violation
occurred. On appeal, the court of appeals affirmed the judgment of the
On further review, we find a Brady violation occurred.
Therefore, we reverse the judgment of the district court and remand the
case for the district court to enter an order vacating the defendant’s
conviction for sexual abuse and ordering a new trial on the sexual abuse
I. Background Facts and Proceedings.
A jury convicted David R. DeSimone of sexual abuse in the third
degree in violation of Iowa Code sections 709.1 and 709.4(1) (2003).
DeSimone stipulated he committed prior felonies, and the district court
determined the habitual offender sentencing provisions under Iowa Code
sections 902.8 and 902.9(3) applied.
The district court sentenced
DeSimone to a term of imprisonment not to exceed fifteen years. 2
DeSimone’s sexual abuse conviction stems from events that took
place in his home on October 16–17, 2004, when DeSimone hosted a
birthday party for his eighteen-year-old cousin.
One of the attendees
was Samantha, a seventeen year old. Samantha consumed between six
and twelve glasses of beer during the party and was heavily intoxicated.
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97, 10 L. Ed. 2d
215, 218 (1963) (holding due process requires the prosecution to disclose exculpatory
evidence to the accused).
2DeSimone pled guilty to several misdemeanor offenses and was also sentenced
for these offenses at the same sentencing hearing.
Her memory of the party was spotty. She remembered events early in the
night, including using DeSimone’s cell phone to call a friend. She did
not remember an incident with DeSimone in a downstairs bathroom that
resulted in a fight between DeSimone and other males at the party.
At trial, Samantha testified to the following. She recalled placing
her head down on the kitchen table while the party was still well
attended. Her next memory was sitting naked in DeSimone’s bed. She
was confused and did not know why her clothes were off. It was then
she discovered her tampon had been removed. She observed DeSimone
standing near the bedroom light switch with a blanket around him.
DeSimone then turned off the light and “came over and got on top of me.”
She attempted to push him off and screamed loudly for a period of five
DeSimone grabbed her by the throat and threatened her.
Then, DeSimone forced her to engage in vaginal intercourse. She became
sick to her stomach and vomited on DeSimone’s bed, sheets, and in her
hair. After vomiting, she claims DeSimone forced her to have oral sex
and then, for a second time, vaginal intercourse. She also claims that
DeSimone told her during intercourse that he was not going to ejaculate
on her so he would not leave any evidence.
After intercourse, Samantha put on her clothes and quickly ran
out of the house. She said she was unable to find her glasses, purse, or
underwear so she left without them.
She stated a car almost hit her
when she ran across Camanche Avenue, the street outside of DeSimone’s
home. She eventually ran to a nearby Hy-Vee grocery store.
Joseph Baker, a party attendee, went into DeSimone’s bedroom to
find his coat after the party had ended. He saw Samantha sleeping in
DeSimone’s bed. Fearing he was too intoxicated to drive, Baker sat down
on the couch in the living room adjacent to DeSimone’s bedroom. He fell
asleep with the television on and slept until around 6 a.m. Baker did not
hear any screaming that evening.
Jeffery Hereid, the grocery store attendant, confirmed that
Samantha entered the store early on the morning of October 17 with her
clothes disheveled, hair messed up, and crying. Samantha asked to use
the phone and called a friend. She then called 911 at the urging of the
grocery store attendant. Samantha made the dispatch call from the HyVee at 3:06 a.m. on October 17.
Brad Nolan, a special agent with the Iowa Division of Criminal
Investigation, responded to the call.
Upon arrival, Nolan discovered
Samantha and described her as distraught and visibly upset. Nolan had
difficulty eliciting information from Samantha, but eventually she
informed him DeSimone had sexually assaulted her.
taken to a local hospital where a rape protocol was followed and a rape
kit was used to collect evidence.
At the hospital, Samantha was tearful and nauseous.
took Samantha’s medical history and her description of the assault. The
assault history Samantha provided differed in some respects from her
She told the nurse she had consumed six or seven
glasses of beer. She did not report that she had passed out before the
Samantha stated DeSimone first forced her to perform oral
intercourse before he forced her to perform vaginal intercourse. She also
told the nurse she did not discover that her tampon was out until she
was at the hospital. The hospital discharged Samantha at 6:45 a.m. on
Nolan obtained a search warrant for DeSimone’s home.
several other officers executed the warrant in the late morning of
October 17. The officers collected DeSimone’s bedding and sheets. They
also seized a blanket found in DeSimone’s basement where the washer
and dryer were located. One officer involved in the search opined he saw
no signs that DeSimone had destroyed evidence in the house.
The department sent the seized evidence to the Iowa Division of
Criminal Investigation for deoxyribonucleic acid (DNA) testing. The DNA
testing revealed small amounts of DeSimone’s blood on his pillowcase.
Additionally, there were two semen stains containing DeSimone’s DNA on
the blanket found in the basement by the washer and dryer. No semen,
blood, or vomit was detected on the seized sheets and bedding.
DeSimone’s DNA was not found on Samantha.
Officers and medical personnel found no evidence of physical
abrasion or redness on Samantha, nor did they observe any vomit on
Samantha. The treating physician found no physical evidence of injury
or trauma, but also stated that this was not unusual in sexual assaults.
The physician noted Samantha was at the end of her menstrual period,
and it was not unusual for women to go several hours without any
discharge of blood.
Before trial, the court granted DeSimone’s motion in limine to
exclude evidence of his prior bad acts, specifically his two jury-trial
acquittals involving allegations that he sexually abused his stepdaughter
and his wife’s niece. DeSimone’s trial counsel, William Vilmont, however,
affirmatively informed the jury about these two prior sexual abuse
allegations during his cross-examination of Samantha.
While not returning to DeSimone’s previous sexual abuse charges,
Vilmont, on numerous occasions, engaged in a line of questioning that
showed Samantha had contacts with people familiar with DeSimone and
who had reasons to dislike him.
Vilmont elicited a response from
Samantha that she previously lived with S.R.—the niece of DeSimone’s
S.R. had previously made sexual abuse allegations
Vilmont also elicited a statement from Samantha
that the friend she called from the Hy-Vee store, before calling the police,
was at S.R.’s house at the time of the call.
Vilmont also questioned
Samantha about whether she knew her son’s grandmother did not like
DeSimone and that the grandmother had been romantically involved with
Vilmont elicited testimony from Nolan that he
used S.R.’s testimony to corroborate Samantha’s testimony in order to
obtain a search warrant for DeSimone’s home.
In addition, Vilmont
asked Nolan whether he knew of S.R.’s connection to DeSimone. This
testimony indicates Vilmont was trying to establish that Samantha was
collaborating with the persons who disliked DeSimone in order to convict
The State called several witnesses to corroborate Samantha’s
It called Baker to testify he saw Samantha sleeping in
DeSimone’s bed, fully clothed, as the party wound down. The State also
called Hereid, the grocery store attendant, to testify about Samantha’s
appearance and actions at the Hy-Vee store she ran to for help.
State also called Nicole as a witness.
Nicole was an eighteen-year-old high school student who met
Samantha about two months prior to trial through a mutual friend.
Nicole testified that one evening she and Samantha were driving on
Camanche Avenue, the road DeSimone’s home is on, and Samantha told
her about the sexual assault.
According to Nicole, Samantha’s story
triggered her memory of an incident that occurred after leaving work
early one morning in October 2004. Nicole testified she got off work from
Burger King at 2:30 a.m. and, while driving on Camanche Avenue, a girl
“ran right in front of my vehicle to try to get me to stop, but I almost hit
her, so I swerved.” She stated she did not stop because she was scared
and did not call the police because she was not sure what was going on.
Twice during her testimony, Nicole stated this incident occurred on
October 13, not October 17.
The prosecutor questioned Nicole as to
whether the incident occurred on October 13 or 17. She responded, “It
was somewhere around there. I can’t—I thought it was the 13th, but it
might not have been.
It was a long time ago.”
The prosecutor used
Nicole’s testimony to corroborate Samantha’s testimony that a car almost
hit Samantha as she ran out of DeSimone’s house and across Camanche
examination. His sole line of questioning was to elicit from Nicole that
she was driving to a bar/pool hall on the night she saw a girl run across
After his conviction, DeSimone filed a direct appeal of his
conviction and sentence, which the court of appeals affirmed. While the
direct appeal was pending, DeSimone investigated Nicole’s testimony.
DeSimone claimed, after reading the trial transcript, that Nicole’s
testimony struck him as very coincidental and that he heard somebody
mention Nicole’s name in conjunction with Burger King during the trial.
DeSimone wrote a letter to Burger King asking about the hours
Nicole worked on October 16–17. Burger King responded with a letter
and timecard copy showing Nicole punched out of work at 3:30 a.m. on
Burger King’s letter also stated that Burger King had
provided copies of Nicole’s timecard to the Clinton Police Department in
August 2005, several weeks before DeSimone’s trial.
911 at 3:06 a.m. on October 17 from the Hy-Vee store. Thus, Nicole’s
timecard establishes that Nicole could not have seen Samantha running
across Camanche Avenue on the morning of October 17 as the
prosecutor contended. We will set out additional facts as they relate to
After DeSimone lost his direct appeal, he filed an application for
postconviction relief application and DeSimone appealed. We transferred
the case to the court of appeals.
The court of appeals affirmed the
district court’s denial of DeSimone’s postconviction relief application.
DeSimone asked for further review, which we granted.
Two grounds are at issue in this appeal. First, DeSimone asserts
he received ineffective assistance of counsel because his trial counsel
affirmatively disclosed DeSimone’s prior sexual abuse acquittals to the
jury, even after trial counsel secured a motion in limine to exclude the
State from eliciting this evidence. Second, DeSimone alleges the State
committed a Brady violation when it failed to reveal to DeSimone that
Nicole’s timecard showed she did not leave work until 3:30 a.m.,
approximately twenty-four minutes after Samantha called the police from
the Hy-Vee store. The issue involving the Brady violation is dispositive of
this appeal. Therefore, we will not address the ineffective-assistance-ofcounsel claim.
III. Standard of Review.
When the applicant’s claims are of a constitutional nature, we will
conduct a de novo review. Everett v. State, 789 N.W.2d 151, 155 (Iowa
Accordingly, DeSimone’s Brady-due-process-violation claim will
be reviewed de novo.
IV. Brady-Due-Process-Violation Claim.
A. Error Preservation.
The State argues DeSimone did not
preserve error on his Brady claim because he could have found the
material through reasonable diligence. The State cites to a line of cases
holding a court will only grant a motion for new trial based upon newly
discovered evidence if the evidence could not have been obtained through
reasonable diligence. See State v. Jefferson, 545 N.W.2d 248, 249 (Iowa
1996) (citing State v. Miles, 490 N.W.2d 798, 799 (Iowa 1992)). The cited
case and its progeny are appellate court decisions reviewing district court
decisions in granting or denying new trials.
The State’s cited
doctrine is not an error preservation issue, but a standard we have
adopted in deciding whether to grant a new trial. The State’s authority
has no applicability to error preservation when a Brady violation is
Its argument is relevant, however, as to whether the State
suppressed the alleged exculpatory evidence in our analysis of a Brady
B. Brady Standard. DeSimone asserts the State violated his due
process rights 3 by failing to disclose favorable evidence to him and this
failure constitutes a Brady violation. Specifically, DeSimone argues the
State’s failure to disclose the Burger King accountant’s email detailing
Nicole’s timecard on October 16–17 runs afoul of Brady. The email was
sent to the Clinton Police Department and forwarded to prosecuting
3In his postconviction relief application, DeSimone asserted the State violated
his due process rights under both the Federal and Iowa Constitutions. At no point on
appeal, however, has DeSimone argued that the Iowa Constitution provides a different
level of protection than the United States Constitution or that a different analysis
should apply under the United States Constitution. Therefore, for the purposes of this
appeal, we will consider the constitutional provisions as congruent.
attorney Ross Barlow on September 6, 2006, approximately one week
before trial and is favorable to DeSimone.
To establish a Brady violation has occurred, DeSimone 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.”
Harrington v. State, 659
N.W.2d 509, 516 (Iowa 2003) (quoting State v. Veal, 564 N.W.2d 797, 810
(Iowa 1997)) (internal quotation marks omitted); accord Strickler v.
Greene, 527 U.S. 263, 281–82, 119 S. Ct. 1936, 1948, 144 L. Ed. 2d 286,
1. Suppression of evidence. The prosecution “has a duty to learn
of any favorable evidence known to . . . others acting on the government’s
behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419,
437, 115 S. Ct. 1555, 1567, 131 L. Ed. 2d 490, 508 (1995).
Nondisclosure of evidence is the touchstone for suppression; the good or
bad faith of the prosecutor is not relevant. State v. Romeo, 542 N.W.2d
543, 551 (Iowa 1996). The prosecution has a duty to disclose regardless
of whether the accused requests Brady material. Harrington, 659 N.W.2d
“Nonetheless, ‘if the defendant either knew or should have
known of the essential facts permitting him to take advantage of the
evidence,’ the evidence is not considered ‘suppressed.’ ”
Cornell v. State, 430 N.W.2d 384, 385 (Iowa 1988)); accord United States
v. Ladoucer, 573 F.3d 628, 636 (8th Cir. 2009); United States v. O’Hara,
301 F.3d 563, 569 (7th Cir. 2002).
However, before holding a lack of
diligence on the part of defense counsel, defense counsel must be aware
of the potentially exculpatory nature of the evidence and its existence.
See United States v. Griggs, 713 F.2d 672, 674 (11th Cir. 1983) (stating a
Brady violation does not exist where the defendant or his attorney knew
of the alleged exculpatory information); Harrington, 659 N.W.2d at 522
(holding although the defendant had knowledge of the existence of the
police reports, the defendant “did not have the ‘essential facts’ of the
police reports so as to allow the defense to wholly take advantage of this
evidence [and] ‘only access to the documents themselves would have
provided the range and detail of information necessary to fully
understand the implications of the police investigation’ ” (quoting Mazzan
v. Warden, 993 P.2d 25, 37 (Nev. 2000))).
We must address two 4 “suppression” issues.
First, the factual
issue of whether Barlow did in fact fail to send Vilmont the email from
Burger King, indicating that Nicole was working when she claimed she
saw Samantha crossing the street. Second, there is an issue whether
defense counsel used “reasonable diligence” to secure the same
information from Burger King.
Concerning the first suppression issue, the record is clear that
Barlow did not include the email in his trial notebook or fax a copy of it
to Vilmont. Barlow suggested he hand-delivered a copy of the email to
Vilmont, as that would be his normal practice. Vilmont testified at the
postconviction relief hearing that he did not receive the information, but
also admitted he did not review the file before the postconviction relief
is also some precedent that suggests that an “open-file policy” satisfies a
prosecutor’s Brady requirements. See, e.g., Mathis v. Dretke, 124 Fed. App’x. 865, 877
(5th Cir. 2005). The issue need not be confronted here because the record shows the
email detailing Nicole’s timecard was not in Barlow’s trial notebook; therefore, the
“open-file policy” would not disclose the information. Strickler, 527 U.S. at 284, 119
S. Ct. at 1949, 144 L. Ed. 2d at 303 (1999) (“If it was reasonable for trial counsel to rely
on, not just the presumption that the prosecutor would fully perform his duty to
disclose all exculpatory materials, but also the implicit representation that such
materials would be included in the open files tendered to defense counsel for their
examination, we think such reliance by counsel appointed to represent petitioner in
state habeas proceedings was equally reasonable.”).
hearing. There are several reasons, however, that cause us to find on
our de novo review that Barlow did not hand-deliver the email to
First, it is inconceivable that Barlow would have used Nicole as a
witness if he knew her testimony was false and he provided the
information proving her testimony was false to Vilmont. As a prosecutor,
Barlow had an ethical duty not to present testimony that he knew to be
Iowa R. of Prof’l Responsibility 32:3.3(b).
This ethical duty is
consistent with the American Bar Association’s standards applicable to
prosecutors. ABA Standards for Criminal Justice: Prosecution Function
and Defense Function 3-5.6(a) (3d ed. 1993) (“A prosecutor should not
knowingly offer false evidence . . . .”).
Second, Vilmont testified that he shared all documentation with
DeSimone, who scrupulously reviewed the material. Had DeSimone seen
this email, he most certainly would have brought it to the attention of
Vilmont, as the email destroys the credibility of one of the State’s few
Third, given the impeachment value the email would have had on
Nicole’s testimony, it is difficult to believe that an experienced criminal
defense lawyer like Vilmont would not have used the evidence at either
Nicole’s deposition or on cross-examination at trial. Vilmont testified to
as much, stating he “would have used it, certainly.”
The second suppression issue concerns whether evidence of
Nicole’s timecard was reasonably available to Vilmont and whether
Vilmont exercised reasonable diligence to obtain it. Vilmont confirmed
he received a copy of Nicole’s police interview conducted on August 29,
Vilmont also received Nicole’s employment verification report,
dictated on August 25, 2005, indicating Burger King was going to send
Nicole’s timecard for October 16–17 to the Clinton Police Department.
Therefore, Vilmont should have been aware of Nicole’s expected
corroborative testimony and that her timecard for the evening in question
The State argues that Vilmont had equal access to the information
and should have subpoenaed the records himself.
defense attorney should not have a duty to investigate every witness to
determine whether a prosecutor knowingly offers false testimony, when
there is no reason to believe that the prosecutor would offer such
testimony. The State received this information late in the game. Both
parties were preparing for trial. At no time prior to trial did the State
indicate to Vilmont that they would not be calling Nicole as a witness. A
reasonable attorney in Vilmont’s situation would have believed the State
would not knowingly call a witness that would give false testimony.
Thus, Vilmont acted reasonably in believing the information received
from Burger King was not exculpatory.
We believe Vilmont never received the records the State possessed
establishing that Nicole was working at the time she allegedly saw
reasonable diligence in the matter since there is no way he knew or
should have known of the exculpatory nature of the email. Accordingly,
we find the State suppressed the evidence provided by Burger King in
violation of Brady.
2. Favorability. “Impeachment evidence . . . as well as exculpatory
evidence, falls within the Brady rule.
Such evidence is ‘evidence
favorable to an accused,’ so that, if disclosed and used effectively, it may
make the difference between conviction and acquittal.” United States v.
Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481, 490
(1985) (quoting Brady, 373 U.S. at 87, 83 S. Ct. at 1196, 10 L. Ed. 2d at
218) (citation omitted); accord Romeo, 542 N.W.2d at 551.
With minimal physical evidence, Samantha’s credibility was
essential to the State’s case. The State called three lay witnesses for the
primary purposes of corroborating Samantha’s testimony and bolstering
her credibility. Baker testified he saw Samantha sleeping, fully clothed,
in DeSimone’s bed. Hereid testified Samantha came to the Hy-Vee store
looking disheveled and crying.
Nicole’s testimony corroborated how
Samantha left DeSimone’s apartment and ended up at the Hy-Vee store.
It also helped corroborate that Samantha was emotionally unstable and
reckless after the sexual assault.
Nicole’s timecard impeaches her
testimony, showing it was impossible for Nicole to have seen Samantha
run across Camanche Avenue on October 16–17. In a case that hinges
on a victim’s credibility, evidence that impeaches one of the victim’s few
corroborating witnesses is, without question, favorable to the accused.
DeSimone has met his burden of proof that the evidence is favorable to
his guilt or innocence.
Due process is only denied when the favorable,
suppressed evidence is material to the issue of guilt. The Supreme Court
stated evidence is material when “there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the
proceeding would have been different.
A ‘reasonable probability’ is a
probability sufficient to undermine confidence in the outcome.” Bagley,
473 U.S. at 682, 105 S. Ct. at 3383, 87 L. Ed. 2d at 494; accord
Harrington, 659 N.W.2d at 523.
“[T]he materiality inquiry is not just a matter of determining
whether, after discounting the inculpatory evidence in light
of the undisclosed evidence, the remaining evidence is
sufficient to support the jury’s conclusions. Rather, the
question is whether ‘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, 527 U.S. at 290, 119
S. Ct. at 1952, 144 L. Ed. 2d at 307 (alteration in original) (citation
omitted)). Thus, the materiality requirement requires the court to assess
the possible effects nondisclosure had on trial preparation and strategy,
not merely the weight of the evidence. Materiality requires a “reasonable
probability” of a different trial outcome, not merely a “reasonable
possibility.” Strickler, 527 U.S. at 291, 119 S. Ct. at 1953, 144 L. Ed. 2d
The State was unable to present any DNA or medical evidence to
substantiate Samantha’s claim of sexual abuse. Indeed, there was none.
The State’s case turned on the credibility of Samantha and the
These witnesses’ testimony corroborated
Samantha’s testimony that she was sexually abused.
DeSimone been provided the evidence to which he was entitled, Nicole’s
testimony would have been shown to be false and the trial would have
taken on a different dynamic.
The defense’s conspiracy theory had
credibility where the evidence showed Samantha had contacts with
persons who disliked DeSimone. Bringing Nicole’s false testimony into
the conspiracy theory completes the picture.
Additionally, Samantha’s testimony is not without some question
Much of Samantha’s testimony was inconsistent with
other statements she made and the physical evidence. She said she left
DeSimone’s house without her purse and underwear. The police found
her purse, but not her underwear, while searching DeSimone’s home.
Samantha testified she vomited in her hair and on the bed sheets. The
police did not find vomit in her hair or on the bed sheets.
Samantha gave inconsistent versions of how the sexual assault occurred.
At trial, she stated that she knew her tampon was out at DeSimone’s
house and that he first assaulted her vaginally, then orally.
hospital records, she stated that she did not know her tampon was out
until she was at the hospital and that DeSimone first assaulted her
orally, then vaginally.
Accordingly, we hold the State’s failure to disclose the Burger King
timecard was a Brady violation.
Due to the Brady violation, we vacate the decision of the court of
appeals, reverse the judgment of the district court, and remand the case
to the district court to enter an order vacating DeSimone’s conviction for
sexual abuse and ordering a new trial on the sexual abuse charge.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
All justices concur except Mansfield, J., who takes no part.