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Tu v. Maryland10/25/1994
to the defendant's arrest; the arresting officer testified, according to the first trial transcript, "After discovery of the marijuana near his room, [the defendant] was placed under arrest by me for the marijuana, and following his arrest I removed from him this wallet containing $877." Id. at 404. Prior to the second trial, "the trial court reserved ruling on the motion [to suppress], concluding that a fact issue existed concerning where and when defendant's wallet was taken from his person." Id. At the retrial, the trial court admitted evidence offered by the State tending to prove that "the defendant's wallet was not seized from the defendant's room but was removed from defendant's trouser pocket in a search of the defendant's person which occurred outside the residence after his arrest." Id. The Iowa Supreme Court affirmed. Noting that "the facts before the court upon the second trial are materially different from those appearing upon the first," Id. at 405, it applied the "substantially different" evidence exception.
The officer in Grosvenor, did not change his testimony; at best, he merely clarified it. Moreover, and most important, the Court of Appeals - not the prosecutor, and certainly not the arresting officer - misinterpreted the evidence. The record of the first trial was clear, the officer seized the defendant's wallet incident to his arrest and not from a jacket in the closet in the defendant's room. As indicated, because the appellate court clearly and erroneously misconstrued the record in the case below it, this case is more readily explained on the "clearly erroneous" exception to the law of the case doctrine.
To be sure, between the reversal and the remand, further investigation may uncover new evidence. The "substantially different" evidence exception to the law of the case doctrine undoubtedly is designed to allow for that contingency. Consequently, the exception must contemplate that "substantially different" evidence and "newly discovered" evidence are one and the same. See Smith Intl, Inc., 759 F.2d at 1579; People v. Roybal, 672 P.2d 1003, 106 (Colo. 1983); Ulmet v. United States, 17 Cl. Ct. 679, 693 (1989). Because it does not so treat them, the majority's interpretation of the exception in this case is erroneous.
No other court has interpreted the "substantially different" evidence exception as the majority does. Not one of the smattering of courts that have employed it has considered a State witness' testimony that is reconsidered and, therefore, diametrically different from that which he or she gave at the prior proceedings, to be "substantially different," so as to trigger a reconsideration of the admissibility of previously suppressed evidence. Indeed, most courts have refused to apply the "substantially different" evidence exception when the proffered evidence could have been offered during the first proceedings.
In Smith Intl., Inc., supra., Smith International, Inc. (Smith) filed a complaint against Hughes Tool Company (Hughes), seeking a declaratory judgment that a Hughes patent was invalid. Hughes filed a counterclaim, asserting that Smith had infringed not only the subject patent, but another patent as well. Following a trial, the district court found both of the Hughes' patents to be invalid. The Court of Appeals for the Ninth circuit reversed on the grounds that Smith had not met its burden of proving Hughes' patents invalid. The court reinstated Hughes' patent infringement claim, and remanded the case for further proceedings on the counterclaim. On remand, Hughes' motion for a preliminary injunction enjoining Smith's use of one of its patents was denied and Hughes appealed to the Court of Appeals for the Federal Circuit. The court
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