Opinion
No. 0-802 / 00-0095.
Filed February 7, 2001.
Appeal from the Iowa District Court for Webster County, Joel E. Swanson, Judge.
Defendant appeals the judgment and sentence entered upon his drug-related convictions. REVERSED AND REMANDED FOR NEW TRIAL.
Linda Del Gallo, State Appellate Defender, and John P. Messina, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Ron Robertsen, County Attorney, and Ricki Williamson, Assistant County Attorney, for appellee.
Heard by Vogel, P.J., and Mahan and Miller, JJ.
Tate Owen Steburg appeals the judgment and sentence entered upon his convictions for various drug-related offenses. Steburg claims he should have been granted a new trial based on newly discovered evidence. We agree and reverse and remand for new trial. Background facts . On March 21, 1999, Steburg was driving in his vehicle with a passenger. He stopped in a parking lot and was approached by Officer David Beshey, who had been informed that Steburg's license was suspended. Officer Beshey ran a license check before advising Steburg that he was going to be arrested for driving while his license was under suspension. The passenger, Mike Mallinger, requested permission to drive Steburg's vehicle home. However, when Mallinger was questioned about his name and license status, he provided false information and his behavior became increasingly nervous. A subsequent search of the interior of the vehicle divulged a marijuana cigarette in the ashtray and a large amount of cash concealed in the dashboard. While conducting a patdown of Mallinger, Officer Dennis Mernka felt a concealed object in his pants. Mallinger then fled from police, discarding a black pouch while running. The pouch contained a large quantity of illegal narcotics, drug paraphernalia, and a credit card bearing Steburg's name.
Steburg's convictions include possession of methamphetamine with intent to deliver as a second or subsequent offender in violation of Iowa Code sections 124.401(1)(b)(7) (1999) and 124.411, possession of mescaline with intent to deliver in violation of section 124.401(1)(c), failure to affix a drug tax stamp in violation of sections 453B.1, 453B.3, and 453B.12, possession of marijuana in violation of section 124.401(5), and driving under suspension or revocation in violation of section 321.218(1). The sentences were set to run consecutively and totaled a ninety-year term of incarceration.
Because we have already determined Steburg is entitled to a new trial on the basis of newly discovered evidence, we need not address his other issue regarding prior bad acts on appeal.
Mallinger became a witness for the State and admitted to using and selling drugs. He testified at trial that although he and Steburg had used methamphetamine that evening, he did not own the black pouch, had never seen it before and was not aware of the cash in the car. He maintained Steburg handed him the pouch when the police car pulled into the parking lot. Conversely, Steburg asserted he had no knowledge of the presence of the drugs or money, either in his vehicle or on Mallinger's person and Mallinger was the guilty party. Mallinger also claimed that prior to trial, Steburg had attempted to bribe him to claim possession of the drugs. Steburg denied that accusation. The jury found Steburg guilty on all counts and he now appeals.
Scope of review . A district court is given "unusually broad discretion" in ruling on a motion for a new trial based on newly discovered evidence. State v. Miles, 490 N.W.2d 798, 799 (Iowa 1992). This broad discretion is particularly appropriate because it is important to distinguish between the unavoidable, legitimate claims and those proposed in desperation by a disappointed litigant. Id. From its closer vantage point, the presiding trial court has a clearer view of this crucial question, and we generally yield to its determination. Id. In order to prevail on such a motion, the defendant must show that the evidence (1) was discovered after the verdict, (2) could not have been discovered earlier in the exercise of due diligence, (3) is material to the issues in the case and not merely cumulative, and (4) probably would have changed the result of the trial. Id. (citing Jones v. State, 479 N.W.2d 265, 274 (Iowa 1991)).
New trial . Steburg alleges the trial court abused its discretion in denying his motion for a new trial based on newly discovered evidence. Steburg alleges the testimony of John Hayes, a fellow inmate with Mallinger, serves to exonerate his culpability and, therefore, he is entitled to a new trial. Hayes' custody in the Webster County Jail began on August 26, 1999. A verdict was delivered in Steburg's trial on August 27, 1999. In a hearing on the motion, Hayes testified Mallinger told him, in a series of conversations, that prior to being stopped by the police, Mallinger and Steburg had been using Steburg's credit card to make lines of drugs. Mallinger then put Steburg's credit card into the bag with the drugs so the police would wrongly place ownership of the drugs with Steburg. Hayes further alleged Mallinger admitted the drugs belonged to him rather than Steburg. Mallinger denied making these statements to Hayes.
Iowa Rule of Criminal Procedure 23(2)(b) states:
The court may grant a new trial for any or all of the following causes:
* * *
(8)When the defendant has discovered important and material evidence in his or her favor since the verdict, which the defendant could not with reasonable diligence have discovered and produced at the trial. . . .
During Steburg's trial, Mallinger, a key witness for the State, had been impeached during his testimony. The new witness, Hayes, appeared to be a neutral witness with no prior dealings or acquaintance with either Steburg or Mallinger and, therefore, may have a greater credibility before a jury. This was a case of finger pointing between Steburg and Mallinger as to who owned the drugs. Mallinger was caught with the drugs on his person but the pouch contained Steburg's identification or credit card. The jury needed to sort out these conflicting facts to make their findings. The new testimony proffered by Hayes was not cumulative, nor was there overwhelming evidence apart from Mallinger's testimony to support Steburg's conviction. Cf. State v. Fox, 491 N.W.2d 527, 534 (Iowa 1992) (denying the motion for new trial because of overwhelming evidence against the defendant). The new evidence in this case, Mallinger's jailhouse confessions, is both material and would probably have changed the result upon another trial. State v. Whitsel, 339 N.W.2d 149, 156-57 (Iowa 1983).
The trial court heard the testimony of Hayes during a hearing on the motion for a new trial. In denying the motion, the trial court stated, "Mr. Hayes' testimony would suggest that Michael Mallinger was not truthful during his testimony at trial." The court summarily found Steburg had not met his burden of proof to obtain a new trial. In its ruling, the trial court stopped short of making any credibility findings regarding either Hayes or Mallinger. Additionally, it failed to set forth any reasons this new evidence would not have had an impact on the jury's findings. Because we review the denial of a motion for new trial for an abuse of discretion, the ruling must contain sufficient findings to demonstrate the trial court exercised its discretion. Id. From the limited ruling on this issue we cannot conclude the court properly exercised its discretion.
For these reasons we reverse and remand for a new trial.
REVERSED AND REMANDED FOR NEW TRIAL.