Opinion
No. 5-157 / 03-1910
Filed June 15, 2005
Appeal from the Iowa District Court for Black HawkCounty, Jon C. Fister, Judge.
John J. Becker appeals from the district court's dismissal of his application for postconviction relief. AFFIRMED.
Lori Holm, West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kimberly A. Griffith, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Hecht, JJ.
John J. Becker appeals from the district court's dismissal of his application for postconviction relief. After considering the issue presented, we affirm.
Becker was convicted of second-degree robbery in violation of Iowa Code section 711.3 (1999) on November 19, 1999. He subsequently filed an application for postconviction relief. He now claims that the district court erred in dismissing his application. He urges that he is entitled to a new trial based on newly discovered evidence. The newly discovered evidence cited is that a State's witness, Kelli Leohr, would testify that she was coerced by the county attorney to give false deposition testimony implicating Becker in the commission of the crime. Becker claims this evidence was discovered after the verdict and could not have been discovered earlier. The district court rejected Becker's application, determining the evidence was not newly discovered.
Our review is for correction of errors at law. Brown v. State, 589 N.W.2d 273, 274 (Iowa Ct.App. 1998). The record indicates Becker knew of this purported evidence prior to trial yet failed to present it. In addition, testimony of Leohr's mother and sister that Becker claimed would bolster his claim, was also known and could have been presented at trial. Finally, Leohr did testify at trial and recanted much of her alleged perjured testimony. As such, the proffered new evidence is not newly discovered evidence and would not support the granting of a new trial. See State v. Miles, 490 N.W.2d 798, 799 (Iowa 1992); Jones v. Scurr, 316 N.W.2d 905, 910 (Iowa 1982). We therefore affirm the district court's dismissal of Becker's application for post conviction relief.