Opinion
No. 4-467 / 03-2056.
August 26, 2004.
Appeal from the Iowa District Court for Webster County, Joel E. Swanson, Judge.
Randy Alan Zaabel appeals from the district court's ruling granting the State's motion for summary judgment in this postconviction relief case. AFFIRMED.
Alfredo Parrish of Parrish Kruidenier Moss Dunn Boles Gribble Cook, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, and Timothy Schott, County Attorney, for appellee.
Considered by Huitink, P.J., and Hecht and Eisenhauer, JJ.
Randy Alan Zaabel appeals from the district court's ruling sustaining the State's motion for summary judgment. We affirm.
I. Background Facts and Proceedings.
The body of Michelle Gibson, a pregnant murder victim, was found in rural Webster County on March 30, 1998. When interviewed by law enforcement officers, Randy Zaabel claimed Gibson had been riding with him in his truck when they were confronted and attacked by persons to whom Gibson owed a drug debt. Zaabel was thereafter charged, tried, and convicted for Murder in the Second Degree, in violation of Iowa Code section 707.3 (1997), and for Nonconsensual Termination of a Human Pregnancy, in violation of section 707.8(1). Our court affirmed the convictions on September 26, 2001.
Zaabel next filed an application for postconviction relief requesting vacation of the sentence and a new trial based on newly discovered evidence. The "new" evidence urged by Zaabel consists in part of an affidavit of Spencer Fitzpatrick who, on March 30, 1998, resided a short distance from where Gibson's body was found. The affidavit asserts Jason Rosalez appeared at Fitzpatrick's residence on the night of the murder "high on drugs" and covered in blood, confessed his participation in the murder of Ms. Gibson, and stated the belief that Zaabel had also been killed in the altercation. Fitzpatrick further claims in the affidavit that he did not come forward earlier with this evidence because he assumed Rosalez "had been caught." The substance of the affidavit was disclosed by Fitzpatrick to Zaabel's current counsel in August of 2001, more than two years after the criminal trial concluded.
The state filed a motion for summary judgment in this postconviction proceeding on October 10, 2003. In its motion, the State contended the subject of Rosalez's alleged involvement in Gibson's murder was not new evidence. In support of its position, the State referred to portions of the trial transcript tending to establish that law enforcement officers interviewed Rosalez before the criminal trial because they were told that Rosalez had bragged of involvement in the Gibson murder. Based on their interview of Rosalez and related investigation, the officers concluded Rosalez had an alibi. In the alternative, the State's motion for summary judgment asserted that even if true, the substance of Fitzpatrick's affidavit would not change the result if a new trial were granted because the evidence of Zaabel's guilt is overwhelming. The district court granted the State's summary judgment motion on November 25, 2003. Zaabel appeals.
II. Scope and Standards of Review
"Postconviction relief proceedings are actions at law and are reviewed on error." Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). "When summary judgment is granted in a postconviction relief action, we examine the record to determine if a genuine issue of fact exists and whether the moving party is entitled to a judgment as a matter of law." Bugley v. State, 596 N.W.2d 893, 895 (Iowa 1999). In ruling on a motion for summary judgment, the court must view the facts in the light most favorable to the party resisting the motion. Phillips v. Covenant Clinic, 625 N.W.2d 714, 717 (Iowa 2001). The court must consider every legitimate inference that can be reasonably deduced from the record in favor of the resisting party. Id. at 718. The burden is on the party moving for summary judgment to prove the facts are undisputed. Id. at 717. "Motions for new trials on the basis of newly discovered evidence are looked upon with disfavor." Cornell v. State, 430 N.W.2d 384, 387 (Iowa 1988) (citing Jones v. Scurr, 316 N.W.2d 905, 910 (Iowa 1982)).
III. Discussion
Iowa Code section 822.2(4) (2001), states that when "[t]here exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice," the person standing convicted may institute a post-conviction relief action to secure relief.
A new trial may be granted on the strength of newly discovered evidence only if: (1) the evidence was discovered after judgment; (2) the evidence could not have been discovered earlier in the exercise of due diligence; (3) it is material to the issue, not merely cumulative or impeaching; and (4) it would probably change the result if a new trial is granted.
Summage v. State, 579 N.W.2d 821, 822 (Iowa 1998). We will review the evidence claimed by Zaabel to be "new" in the light of these principles.
A. Evidence Discovered After Judgment
The district court found, and we agree, that the testimony presented in the Fitzpatrick affidavit was not known to either party in this case prior to the conviction and sentencing of the Applicant in April of 1999. Although the parties knew before trial that Rosalez allegedly bragged of his involvement in Gibson's death, it was not until Zaabel and Fitzpatrick met while incarcerated in 2001 that Zaabel learned Fitzpatrick would testify that he saw a bloody-clothed Rosalez on the night of the murder in the vicinity of the crime scene. Thus, a genuine issue of fact exists on the first prong of the Summage test.
B. Exercise of Due Diligence in Discovering Said Evidence
The district court concluded as a matter of law that the testimony of Fitzpatrick could have been discovered before trial through the exercise of due diligence. We disagree. Zaabel's appellate brief details a wide array of investigatory methods used to uncover both eyewitness testimony and other evidence that would either exculpate him or lead to the identity of the killer. These methods included setting up and advertising a "hotline" in an attempt to locate any person with information relevant to the investigation and traveling to other states to interview potential witnesses. The exercise of due diligence requires only reasonable efforts at investigation by defense counsel. See State v. Compiano, 261 Iowa 509, 518, 154 N.W.2d 845, 850 (1967). Given the substantial efforts of Zaabel's counsel to find evidence in support of its "Rosalez theory," we cannot say as a matter of law that the substance of Fitzpatrick's affidavit could have been discovered earlier in the exercise of due diligence.
C. Materiality of the Evidence Presented
The third prong of the Summage test requires that the newly proffered evidence must be material. If it is to justify a new trial, such evidence must not be merely cumulative or duplicative of evidence already presented at Zaabel's criminal trial. See Harrington v. State, 659 N.W.2d 509, 520 (Iowa 2003). The State contends that because evidence linking Rosalez to the killing was presented at the criminal trial, the substance of the Fitzpatrick affidavit is merely cumulative. Zaabel conversely maintains that the Fitzpatrick affidavit not only places Rosalez in the immediate vicinity of the crime scene, but also posits that Rosalez was covered in blood and was in an excited state in temporal proximity to the murder. We conclude Fitzpatrick's affidavit is not therefore merely cumulative of evidence produced at trial. Thus, the third prong of the Summage test for newly discovered evidence cannot be resolved against Zaabel as a matter of law at the summary judgment stage.
D. Probability of a Changed Result
The final prong of our inquiry into the Fitzpatrick affidavit is whether the admission of the testimony at a new trial "would probably change the result." Summage, 579 N.W.2d at 822. The word "probably" invokes a "more likely than not" standard for weighing the outcome were the evidence added to the Applicant's defense on retrial. Assuming the affiant's truthful recollection for the purposes of analysis, the contents of Fitzpatrick's affidavit do little more than establish the participation of a third party. In short, the contents of the affidavit do not exculpate Applicant; and they do not contradict the compelling body of evidence offered by the State against the Zaabel.
A jury convicted Applicant of the crimes based at least on the following evidence, which the State now contends and we conclude is overwhelming: 1) Zaabel had both a pecuniary (as beneficiary of victim's life insurance policy) and romantic (desire to re-kindle a past love interest) to kill the victim; 2) bone fragments from the victim's skull and blood spatter from the victim, as well as a bloody 2" by 2" piece of lumber (the apparent murder weapon) were found on Applicant's property; 3) a splinter matching the lumber was found matted in the victim's hair; 4) blood found on Applicant's jacket was consistent with splatter commonly found on blunt trauma assailants; 5) Gibson's body showed evidence that it had been moved to the place where it was finally discovered; and 6) Gibson's blood was also found in Zaabel's truck.
The district court rested its fourth prong analysis on the credibility of the newly proffered evidence. On summary judgment, assessment of affiant credibility by the district court is not generally appropriate. Petit v. Ervin Clark Const. Co., 243 Iowa 118, 124, 49 N.W.2d 508, 512 (1951). However, even if the credibility of the Fitzpatrick affidavit is not questioned, and its contents are assumed to be truthful, the affidavit does nothing more than establish the possibility that Applicant had an accomplice, not that Rosalez was the sole perpetrator of the crimes. Because we agree with the district court's determination that the other record evidence of Zaabel's guilt is overwhelming, we conclude that a new trial would probably not change the result. While the contents of the Fitzpatrick affidavit are material, in the sense that a reasonable fact-finder could infer from them that Rosalez played some role in the crime's commission, they do not raise a genuine issue of material fact as to whether a new trial would produce a different result as to Zaabel's guilt. Therefore, under the fourth prong of the Summage analysis, the district court's ruling on the summary judgment must be affirmed.
IV. Conclusion
We affirm the district court's ruling on the State's motion for summary judgment.