KEVIN R. JOHNSON, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 6-986 / 06-0323
Filed February 28, 2007
KEVIN R. JOHNSON,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Gordon C.
Abel, Judge.
Applicant appeals following dismissal of his application for postconviction
relief. AFFIRMED.
Susan R. Stockdale, Colo, for appellant.
Thomas J. Miller, Attorney General, Thomas W. Andrews, Assistant
Attorney General, Matthew Wilber, County Attorney, and Margaret Reyes,
Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
2
MILLER, J.
Kevin Johnson appeals from the district court order that granted the
State’s motion to dismiss his application for postconviction relief. He contends
the court erred in concluding that his claims were barred under Iowa Code
sections 822.3 and 822.8 (2003), and in denying his discovery requests. We
affirm the district court.
I. Background Facts and Proceedings.
In November 1980, Kevin Johnson (Johnson) was convicted of the murder
of his two-month-old son, Kevin Jr. (Kevin). Johnson's conviction was affirmed in
on appeal. State v. Johnson, 318 N.W.2d 417 (Iowa 1982). The denial of a
subsequent application for postconviction relief was affirmed by this court in
2003. Johnson v. State, No. 01-2013 (Iowa Ct. App. June 13, 2003). As we
noted in that decision:
The State's trial experts testified that Kevin had a large hematoma
at the top and back of his head, and that the child's death resulted
from intracranial swelling caused by a blow to the head. Testimony
from Johnson's wife, Kristi, indicated that physical abuse from
Johnson was the sole cause of Kevin's death. The evidence,
including Kristi's testimony and Johnson's own pre-trial inculpatory
statements, tied Johnson to the disposal of Kevin's body and the
baby's things.
In addition, trial testimony from Kristi and her family indicated
that Johnson had engaged in a pattern of violent abuse towards
and severe neglect of Kevin, and had frequently expressed a wish
that Kevin would die. The lay testimony regarding Kevin's abuse
was supported by testimony from an experienced pediatric
radiologist, Dr. Bickers, who opined that Kevin's postmortem x-rays
showed signs of multiple healing fractures.
Johnson . . . presented only minimal lay testimony . . . aimed
at discrediting and implicating Kristi . . . to the point the jury would
disregard her testimony . . . then find the remainder of the evidence
insufficient to tie Johnson to Kevin's death.
3
On appeal from the denial of Johnson’s postconviction relief application,
we addressed his claims of newly discovered evidence and ineffective assistance
of counsel. In relevant part, Johnson asserted recently-obtained expert opinions
constituted newly discovered evidence. One of those experts, Dr. Plunkett, had
opined, based on post-trial science, that the healing fractures identified by Dr.
Bickers were in fact “an artifact called physiologic periosteal changes,” a “normal
variant.” We rejected the claim, concluding that even if Dr. Plunkett’s opinion
constituted newly discovered evidence, Johnson had not shown admission of this
evidence would probably change the outcome of the proceeding.
In June 2004, Johnson filed a pro se application for postconviction relief,
raising four claims of newly-discovered evidence:
(1) “[n]ew radiological-forensic principles” would show what Dr.
Bicker’s identified as healing fractures were in fact the result of
decomposition, specifically “ARTIFACTS called periosteal changes
which are normal variants”;
(2) “a novel, new scientific procedure known as Brain
Fingerprinting,” 1 employed by Dr. Lawrence Farwell, Ph.D., would
verify his innocence;
(3) recently-obtained information that, contrary to his testimony
during trial, Dr. Samuel Rosa did not attend Kevin’s autopsy; and
(4) “novel, new scientific procedures . . . can detect and identify
congenital, metabolic disorders which have been proven to cause
unexplained deaths in infant children.”
The application was supported by Johnson’s affidavit and limited portions of the
trial transcript.
1
As the supreme court noted in Harrington v. State, 659 N.W.2d 509, 516 n.6 (Iowa
2003), the process purports to “measure[ ] certain patterns of brain activity (the P300
wave) to determine whether the person being tested recognizes or does not recognize
offered information. This analysis basically ‘provide[s] information about what the
person has stored in his brain.’” In that case, the supreme court found the applicant’s
due process claim to be dispositive, and thus did not address the district court’s
determination that while brain fingerprinting constituted newly discovered evidence, the
postconviction application was nevertheless time barred under section 822.3.
Harrington, 659 N.W.2d at 516.
4
Counsel was appointed to assist Johnson, but later moved to withdraw on
the basis that he believed Johnson’s claims were without merit. Counsel noted
he had reviewed relevant documents, spoken with Dr. Plunkett, and contacted
counsel for Dr. Farwell. He asserted that Dr. Plunkett had stated “no ‘newly
discovered evidence’ is available to present” at the postconviction hearing, and
was advised that Dr. Farwell would contact him if he was interested in employing
brain fingerprinting on Johnson, and that no contact had been made. The court
granted counsel’s motion, and denied Johnson’s request for substitute counsel.
The State moved for summary dismissal of Johnson’s application.
It
asserted Johnson had not shown his claims were based on newly discovered
evidence and thus were untimely under section 822.3’s statute of limitations, and
moreover that the claims were barred under section 822.8 because they either
had not been raised in, or had been raised and adjudicated in, the direct appeal
and prior postconviction proceeding. In resistance, Johnson provided an affidavit
that asserted he did not become aware of the newly discovered evidence until
some time after the resolution of the first postconviction proceeding.
In December 2005 the district court heard argument on the State’s motion,
as well as Johnson’s motion to compel production of police notes and reports
from the original investigation, and his motion for production of various autopsyrelated trial exhibits. The court overruled Johnson’s production requests, and
granted the State’s motion for summary dismissal. Johnson appeals, asserting
the district court erred in both respects.
5
II. Scope and Standard of Review.
Our review is for the correction of errors at law. Manning v. State, 654
N.W.2d 555, 559 (Iowa 2002).
The district court’s discovery rulings will be
upheld absent a demonstrated abuse of discretion. State v. Smith, 573 N.W.2d
14, 17 (Iowa 1997). However, a court error is not reversible unless that error was
also prejudicial. See Mercer v. Pittway Corp., 616 N.W.2d 602, 612 (Iowa 2000).
III. Discussion.
We turn first to the summary dismissal of Johnson’s claims. The court
may dismiss Johnson’s application upon the State’s motion if “it appears from the
pleadings, depositions, answers to interrogatories, and admissions and
agreements of fact, together with any affidavits submitted, that there is no
genuine issue of material fact and the [State] is entitled to judgment as a matter
of law.” Iowa Code § 822.6. As the moving party the State bears the burden of
showing the nonexistence of a material fact. Behr v. Meredith Corp., 414 N.W.2d
339, 341 (Iowa 1987); see also Manning, 654 N.W.2d at 559-660 (noting
applicability of summary judgment principles in this context). However, a party
resisting a properly supported motion must “set forth specific facts showing that
there is a genuine issue for trial. If the adverse party does not so respond,
summary judgment, if appropriate, shall be entered.” Iowa R. Civ. P. 1.981(5).
Reviewing the record in this matter in the light most favorable to Johnson,
Knudson v. City of Decorah, 622 N.W.2d 42, 48 (Iowa 2000), we agree summary
dismissal was appropriate.
6
Pursuant to that portion of Iowa Code section 822.3 which applies to this
case, Johnson’s claims are barred 2 unless they are based on “a ground of fact or
law that could not have been raised within the applicable time period.” Claims
based on newly discovered evidence fall within this exception. See id. § 822.2(4).
However, to prevail on such a claim an applicant must show
(1) that the evidence was discovered after the verdict; (2) that it
could not have been discovered earlier in the exercise of due
diligence; (3) that the evidence is material to the issues in the case
and not merely cumulative or impeaching; and (4) that the evidence
probably would have changed the result of the trial.
Jones v. State, 479 N.W.2d 265, 274 (Iowa 1991).
A postconviction relief
applicant cannot raise a ground for relief that could have been raised in a prior
proceeding. Iowa Code § 822.8. Nor may he attempt to relitigate a claim that
was finally adjudicated in a prior proceeding. Id.
Johnson’s first claim, regarding the distinction between periosteal changes
and healing fractures, was clearly raised and ruled on in the prior postconviction
proceeding. In addition, a supplemental affidavit filed by Johnson indicates that
facts supporting both the above claim, and the claim based on the alleged perjury
of Dr. Rosa, were known at the time of the prior postconviction relief proceeding.
Johnson is accordingly barred from raising these claims in the present
postconviction proceeding. Id. at §§ 822.3, .8.
Johnson’s remaining claims assert that “novel, new scientific procedures,”
specifically brain fingerprinting and unspecified procedures that detect congenital
2
In relevant part, section 822.3 (formerly section 663A.3) imposes a three year statue
of limitations on applications for postconviction relief. Because Johnson’s appeal was
finalized before the 1984 enactment of the limitations period, his application was
required to be filed on or before June 30, 1987. See Whitsel v. State, 525 N.W.2d 860,
863 (Iowa 1994).
7
metabolic disorders causing unexplained deaths in infants, constitute newly
discovered evidence. Even if we assume these procedures did not exist or were
not available until sometime after Johnson’s first postconviction proceeding, we
would still conclude that summary dismissal was appropriate.
As we have previously noted, to succeed on a claim of newly discovered
evidence an applicant must demonstrate that the evidence probably would have
changed the result of the trial. Jones, 479 N.W.2d at 274. Even viewed in the
light most favorable to Johnson, nothing in the record before the district court
generated a disputed issue of material fact in this regard.
While brain
fingerprinting is an existing procedure, nothing in the record indicates its
application would reveal information that would assist Johnson in refuting the
charges, that the results of a brain fingerprinting analysis of Johnson would be
admissible, or that Dr. Farwell is even willing to administer the procedure in this
particular case.
There is even less support in the record for the alleged
procedures that identify congential metabolic disorders causing unexplained
infant death, which are not described or specifically identified in any way.
Significantly, nothing in the record indicates that proof of these disorders would in
any manner refute the evidence that Kevin died as the result of blunt trauma to
the head. The district court did not err in summarily disposing of these claims.
We accordingly turn to Johnson’s assertion that the district court
committed reversible error when it denied his discovery requests. We find this
contention to be without merit. Notably, nothing in the record indicates that any
of the requested evidence, if produced, would have allowed Johnson to avoid
summary dismissal of his claims.
8
Johnson’s motion to compel police notes and records asserted that the
evidence was relevant to his first two claims of newly discovered evidence
“insofar as they related to probable Brady v. Maryland Due Process violations
committed” by the police and the prosecution. We have already determined that
the first claim, relating to periosteal changes, is barred under section 822.8. In
addition, there is no indication that any information which might be contained in
the police records would in any way support the second claim, that a brain
fingerprinting analysis would establish Johnson’s innocence. Moreover, nothing
in the record, other than Johnson’s conclusory assertions, indicates that the trial
exhibits were necessary to support his claims of newly discovered evidence.
If Johnson believed the evidence was necessary to mount a proper
resistance to the State’s motion for summary dismissal, he was required to
demonstrate the requested evidence was “essential to justify the opposition” to
the State’s motion. See Iowa R. Civ. P. 1.981(5). This he did not do. We find no
reversible error in the district court’s decision to deny his discovery requests.
IV. Conclusion.
The record does not contain any disputed issue of material fact regarding
Johnson’s claims of newly discovered evidence.
Nor does it appear that
Johnson’s discovery requests, if granted, would have enabled him to generate a
disputed issue of material fact. Accordingly, we affirm the district court’s denial of
Johnson’s discovery requests and its summary dismissal of his application for
postconviction relief.
AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
