 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Richey v. State12/11/2002
The State appeals the district court's decision vacating the first-degree murder conviction of applicant and ordering a new trial.
REVERSED, VERDICT REINSTATED.
The State appeals from the district court's decision vacating the first-degree murder conviction of applicant Robert C. Richey and ordering a new trial. The State contends the post-conviction court erred in vacating the murder conviction because the challenged conduct (1) was not prosecutorial misconduct, (2) did not affect the outcome of the trial, and (3) was procedurally defaulted. Applicant's claims all stem from allegations of ineffective assistance of counsel. We reverse the order granting a new trial and reinstate the verdict.
On May 8, 1996 the victim, Don Larkin, was found dead in his home in Garner, Iowa. He had been shot in the back of his head by what appeared to be a shotgun fired through a dining room window. Larkin at the time was dating applicant's former wife, and applicant had only learned of that fact shortly before the murder. There was evidence at trial that applicant was upset about the relationship between Larkin and his former wife and had indicated to several other people he was out to get Larkin. Applicant's former wife testified she saw someone driving a pickup truck that she thought was the applicant near Garner at about 8:20 on the evening of the murder. The murder was determined to have happened shortly before the 9:40 p.m. call to 911. The applicant's fingerprints were found on a ledge in the area where the shotgun was fired. There were injuries to applicant's left hand and his cheek that a witness testified were consistent with shooting a shotgun. Shoes found some time after the murder in applicant's barn and marked with his name were consistent with those that made a footprint beneath the window from where the shot that killed the victim came. Applicant contended he was at home in Garner, drunk, when the shooting occurred. Police who were sent to applicant's home in Britt found applicant standing in his kitchen at 10:05 p.m., about twenty-five minutes after the 911 call following the murder.
In his opening statement the prosecutor made a number of statements indicating the victim was a fine man, a hard worker, a single father, and that he participated in local government and in chamber of commerce endeavors. The prosecutor made statements that the applicant was an alcoholic, a jealous man, and told the jury they would find from the evidence that applicant was the killer. The prosecutor also held a 12-gauge shotgun in his hand in opening statement. The gun was seized from the applicant's home after the murder and admitted into evidence at trial, but was never identified as the murder weapon. The actual murder weapon was not found. Applicant contended the references to the victim in essence as a saint in opening statement by the prosecutor and the defendant as a bad guy and holding the shotgun while doing so, constituted prosecutorial misconduct.
The post-conviction court found appellate counsel was ineffective in not raising prosecutorial misconduct on appeal and that when considering the totality of circumstances surrounding the trial there was a reasonable probability applicant would have received a new trial had the issue of prosecutorial misconduct been raised on direct appeal. The post-conviction court further found that applicant showed by a preponderance of the evidence a different result would have been obtained on appeal had the issue been raised.
The post-conviction court said:
While the evidence of applicant's guilt was strong, it was not as overwhelming as the stigma placed upon the applicant from the very outset of tria
Page 1 2 3 4 5 Iowa DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|