1 IN THE IOWA DISTRICT COURT FOR DES ... - TownNews.com

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McGhee also contends that trial counsel should have argued that evidence about the number of shots fired from a .22 caliber pistol he allegedly brandished could not be true because the gun held only six bullets and seven shots were fired. The Court finds this argument unpersuasive and there is no substantial evidence that counsel neglected an essential duty by not pursuing a line of questions on this subject. Under the well-established case law, McGhee has failed to establish either prong of the Strickland test. His unsupported claims of ineffective assistance of counsel must therefore fail. B. WHETHER THE STATE OF IOWA WITHHELD MATERIAL, EXCULPATORY EVIDENCE AND WHETHER THERE IS NEWLY DISCOVERED EVIDENCE 1. Introduction McGhee asserts the State of Iowa withheld material, exculpatory evidence from him consisting of five police reports relating to eyewitness identifications of McGhee. See Exhibits 2 – 5. He further contends these reports are newly discovered evidence. McGhee relies in substantial part upon the holding in White v. Helling, 194 F. 3d 937 (8 th Cir. 1999) discussed below. The prosecution has a duty to disclose material, exculpatory evidence. Brady v. Maryland, 373 U. S. 83 (1963). The government violates a defendant’s right to due process when it suppresses evidence “favorable to the accused ... where the evidence is material either to guilt or to punishment ....” 373 U.S. at 87. Under Brady, the burden is on McGhee to show the State of Iowa suppressed evidence, that the evidence was exculpatory, and that the evidence was material to his guilt or punishment. Evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the 12
defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” U.S. v. Bagley, 473 U.S. 667, 682 (1985). 2. Discussion The critical issue at McGhee’s trial was whether the State’s witnesses could identify McGhee as a perpetrator of the robbery/shootings. Several witnesses placed McGhee in the Shamrock Tavern at the time of the shootings. First, witness Michael Mann testified he drove his father’s car to the Shamrock Tavern on January 19 with McGhee, Vesey, Orr, Sherman White and Cunningham. He stated McGhee and White went into the Shamrock for about three minutes. Transcript page 46, lines 2 – 7. The group returned to the Shamrock several minutes later. Mann testified McGhee, White, Cunningham and Orr went into the Shamrock. Mann stated Orr had a shotgun. Mann also knew McGhee had a pistol earlier in the evening. After a few minutes, the four returned to the car where Mann was waiting. Mann testified when the group returned he heard someone ask Glenn whether he shot them all, and Glenn replied yes. Transcript page 54, lines 2 – 12. The group then drove to Vesey’s home where the guns were disposed of. Transcript pages 52 – 53. McGhee did not testify at trial and thus did not deny he made these comments. It appears Mann was never prosecuted for his role in the incident. Guy Abbott testified he was playing cards at the Shamrock on January 19, with Al Stouffer, Bill Arnee, and Harold McFarland, when a robbery occurred. Transcript page 212, lines 21 – 25. He stated “they busted the front door in, came in with a shotgun, and said: ‘This is a holdup. Raise your hands and get on the floor.’ He then 13
Page 1 and 2: FILED 02/15/2013 10:40AM CLERK DIST
Page 3 and 4: McGhee’s rights under the Fifth a
Page 5 and 6: transcript (one volume). Final argu
Page 7 and 8: d) failed to investigate the use of
Page 9 and 10: the evidence, what factual findings
Page 11: McGhee also asserts the State faile
Page 15 and 16: identification. (emphasis added) Tr
Page 17 and 18: The police reports introduced into
Page 19 and 20: The Court continued: “Indeed, the
Page 21 and 22: These questions arguably amount to
Page 23: Dated and signed this 15 th day of

1 IN THE IOWA DISTRICT COURT FOR DES ... - TownNews.com

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