Opinion
No. 2-264 / 01-0601.
Filed May 15, 2002.
Appeal from the Iowa District Court for Polk County, SCOTT D. ROSENBERG, Judge.
Clyde Phillip Cox appeals from the denial of his application for postconviction relief. AFFIRMED.
Frank Burnette of Burnette Kelley, Des Moines, for appellee.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, John P. Sarcone, County Attorney, and Odell McGhee, Assistant County Attorney, for appellant
Considered by MAHAN, P.J., and MILLER and HECHT, JJ.
Clyde Phillip Cox, convicted of first-degree murder, appeals the denial of his fourth application for postconviction relief. He contends newly discovered evidence confirms he was not involved in the murder. We affirm.
Cox was convicted of first-degree murder following a second jury trial. We affirmed his conviction. State v. Cox, 502 N.W.2d 175 (Iowa Ct. App. 1992). Cox filed an application for postconviction relief claiming his trial and appellate counsel were ineffective. We affirmed the denial of this postconviction relief application. Cox v. State, 554 N.W.2d 712 (Iowa Ct. App. 1996). Cox filed two additional postconviction relief applications raising various other ineffective assistance of counsel claims, which were denied by the district court and affirmed by our supreme court. On December 21, 1999, Cox filed the present application for postconviction relief, which alleges newly discovered evidence. Following a hearing, the district court denied the application. Cox appeals.
We typically review postconviction relief proceedings for error. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). In addition, we give weight to the lower court's findings concerning witness credibility. Id.
An applicant alleging newly discovered evidence as the basis for postconviction relief must show: (1) the evidence was discovered after the verdict; (2) the evidence could not have been discovered earlier in the exercise of due diligence; (3) the evidence is material to the case and not merely cumulative or impeaching; and (4) the evidence probably would have changed the result of the trial. Grissom v. State, 572 N.W.2d 183, 184 (Iowa Ct. App. 1997).
Cox claims he is entitled to a new trial on the ground of newly discovered evidence. Specifically, he alleged newly discovered evidence consisted of the recanted testimony of Phillip Cox, the defendant's son. Phillip claims he lied in the criminal trial about seeing a .32 and .38 caliber gun in Cox's drawer just two days before the shooting.
The postconviction court is not required to believe the recantation and has wide discretion to view the matter in its entirety to determine if a defendant had a fair criminal trial and if a new trial would likely produce a different result. Adcock v. State, 528 N.W.2d 645, 647 (Iowa Ct. App. 1994). The reviewing court will not interfere unless there is a clear abuse of discretion. Id. In addition, a witness's recantation of testimony is looked upon with the utmost suspicion and does not necessarily entitle the defendant to a new trial. State v. Frank, 298 N.W.2d 324, 328-29 (Iowa 1980). This is especially true when the witness is the child of the defendant. State v. Tharp, 372 N.W.2d 280, 282 (Iowa Ct. App. 1985).
In the present case, the postconviction court determined that Phillip Cox's recantation was not credible and would not have changed the result if a new trial was granted. We find there is substantial evidence in the record to support the district court's conclusion on this issue. Carroll v. State, 466 N.W.2d 269, 271 (Iowa Ct. App. 1990). We have previously stated there "was a great deal of evidence from several witnesses . . . which placed Cox at the murder scene with a weapon." Cox, 554 N.W.2d at 715. In addition, two independent eyewitnesses observed Cox shooting the victim. Even without the recanted testimony, the other evidence presented at Cox's trial was sufficient to support the conviction. Without the probability of a different result, a new trial is not warranted. Accordingly, we affirm the denial of Cox's application for postconviction relief.
AFFIRMED.