IN THE SUPREME COURT OF low A. v. ) SUPREME COURT APPEAL FROM THE IOWA DISTRICT COURT FOR WAPELLO COUNTY HONORABLE DANIEL P.

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1 IN THE SUPREME COURT OF low A ELECTRONICALLY FILED MAR 31, 2016 CLERK OF SUPREME COURT STATE OF IOWA, ) ) Plaintiff-Appellee, ) ) v. ) SUPREME COURT ) SETH ANDREW TECHEL, ) ) Defendant-Appellant. ) APPEAL FROM THE IOWA DISTRICT COURT FOR WAPELLO COUNTY HONORABLE DANIEL P. WILSON, JUDGE APPELLANT'S BRIEF AND ARGUMENT AND REQUEST FOR ORAL ARGUMENT MARK C. SMITH State Appellate Defender MARTHA J. LUCEY Assistant Appellate Defender state.ia. us state.ia. us STATE APPELLATE DEFENDER'S OFFICE Fourth Floor Lucas Building Des Moines, Iowa (515) I (515) FAX ATTORNEYS FOR DEFENDANT-APPELLANT 1

2 CERTIFICATE OF SERVICE On the 31st day of March, 2016, the undersigned certifies that a true copy of the foregoing instrument was served upon Defendant-Appellant by placing one copy thereof in the United States mail, proper postage attached, addressed to Seth Andrew Techel, # , Anamosa State Prison, 406 North High Street, Anamosa, IA APPELLATE DEFENDERS FICE Assistant Appellate Defender Appellate Defender Office Lucas Bldg., 4th Floor 321 E. 12th Street Des Moines, IA (515) state.ia. us state.ia. us MJLjlr/ 10/15 MJL/d/ 10/15 MJLjlr /03 I 16 2

3 TABLE OF CONTENTS Page Certificate of Service... 2 Table of Authorities... 4 Statement of the Issues Presented for Review... 8 Routing Statement Statement of the Case Argument Division I Division II Division III Conclusion Request for Oral Argument Attorney's Cost Certificate Certificate of Compliance

4 TABLE OF AUTHORITIES Cases: Page: Brady v. Maryland, 373 U.S. 83 (1963) De Simone v. State, 803 N.W.2d 97 (Iowa 2011) In re Orcutt, 173 N.W.2d 66 (Iowa 1969) Johnson v. State, 495 N.W.2d 528 (Iowa Ct. App. 1992) Lamasters v. State, 821 N.W.2d 856 (Iowa 2012) Leka v. Portuondo, 257 F.3d 89 (2nd Cir. 2001)... 58, 64, 76 Ragan v. Petersen, 569 N.W.2d 390 (Iowa Ct. App. 1997) Snethen v. State, 308 N.W.2d 11 (Iowa 1981) State v. Allen, 304 N.W.2d 203 (Iowa 1981) State v. Allen, 348 N.W.2d 243 (Iowa 1984) State v. Casady, 491 N.W.2d 782 (Iowa 1992) State v. Clark, 814 N. W.2d 551 (Iowa 20 12) , 48, 56, 63, 68, 70 State v. Clay, 824 N.W.2d 488 (Iowa 2012) State v. Deases, 479 N.W.2d 597 (Iowa Ct. App. 1991) State v. Dudley, 856 N.W.2d 668 (Iowa 2014) State v. Eads, 166 N.W.2d 766 (Iowa 1969)

5 State v. Enderle, 745 N.W.2d 438 (Iowa 2007) State v. Gibb, 303 N.W.2d 673 (Iowa 1981} State v. Graves, 668 N.W.2d 860 (Iowa 2003)... 86, 87, 93 State v. Greene, 592 N.W.2d 24 (Iowa 1999) State v. Heard, 636 N.W.2d 227 (Iowa 2001) State v. Hopkins, 576 N.W.2d 374 (Iowa 1998) State v. LaGrange, 541 N.W.2d 562 (Iowa Ct. App. 1995) State v. Lucas, 323 N.W.2d 228 (Iowa 1982) State v. Martens, 521 N.W.2d 768 (Iowa Ct. App. 1994) State v. Myers, 382 N.W.2d 91 (Iowa 1986) State v. Oppedal, 232 N.W.2d 517 (Iowa 1975) State v. Piper, 663 N.W.2d 894 (Iowa 2003)... 47, 75, 87 State v. Risdal, 404 N.W.2d 130 (Iowa 1987) State v. Simmons, 454 N.W.2d 866 (Iowa 1990) State v. Simpson, 587 N.W.2d 770 (Iowa 1998) State v. Stelzer, 288 N.W.2d 557 (Iowa 1980) State v. Teeters, 487 N.W.2d 346 (Iowa 1992) State v. Tracy, 482 N.W.2d 675 (Iowa 1992}

6 State v. Vance, No , 2014 WL (Iowa Ct. App. April 30, 2014) State v. Williams, 207 N.W.2d 98 (Iowa 1973) State v. Williams, 334 N.W.2d 742 (Iowa 1983) Strickland v. Washington, 466 U.S. 668 (1984) United States v. Bentley, 561 F.3d 803 (8th Cir. 2009) United States v. Burke, 571 F.3d 1048 (loth Cir. 2009) , 65, 77 United States v. Devin, 916 F.2d 280 (1st Cir. 1990) United States v. Mullins, 446 F.3d 750 (8th Cir. 2006) United States v. Young, 45 F.3d 1405 (loth Cir.1995) United States v. Young, 470 U.S. 1 (1985) Wycoffv. State, 382 N.W.2d 462 (Iowa 1986) Constitutional Provisions: U.S. Canst. amend. V U.S. Canst. amend. VI... 56, 78 U.S. Canst. amend. XIV... 56, 78 Iowa Canst. art. I, Iowa Canst. art. I, , 78 6

7 Statutes and Court Rules: Iowa R. Civ. P (1) Iowa R. Crim. P. 2.9(2)... 66, 72 Iowa R. Evid Iowa R. Evid

8 STATEMENT OF THE ISSUES PRESENTED FOR REVIEW I. SHOULD THE COURT HAVE GRANTED TECHEL'S MOTION TO CONTINUE TRIAL AND MOTION FOR MISTRIAL? Authorities State v. Clark, 814 N.W.2d 551, 560 (Iowa 2012) State v. Piper, 663 N.W.2d 894, 901 (Iowa 2003) Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012) State v. Gibb, 303 N.W.2d 673, 678 (Iowa 1981) U.S. Canst. amend. V U.S. Con st. amend. VI U.S. Canst. amend. XIV Iowa Canst. art. I, 9 Iowa Canst. art. I, 10 State v. Simpson, 587 N.W.2d 770, 771 (Iowa 1998) Brady v. Maryland, 373 U.S. 83, 87 (1963) United States v. Young, 45 F.3d 1405, 1408 (loth Cir.l995) United States v. Burke, 571 F.3d 1048, 1053 (loth Cir. 2009) Leka v. Portuondo, 257 F.3d 89, 104 (2nd Cir. 2001) 8

9 De Simone v. State, 803 N.W.2d 97, 103 (Iowa 2011) In re Orcutt, 173 N.W.2d 66, 70 (Iowa 1969) State v. Williams, 207 N.W.2d 98, 107 (Iowa 1973) Iowa R. Crim. P. 2. 9(2) State v. Simmons, 454 N.W.2d 866, 868 (Iowa 1990) Iowa R. Civ. P (1) State v. Teeters, 487 N.W.2d 346, 34 7 (Iowa 1992) State v. LaGrange, 541 N.W.2d 562, 564 (Iowa Ct. App. 1995) State v. Eads, 166 N.W.2d 766, 771 (Iowa 1969) Ragan v. Petersen, 569 N.W.2d 390, 395 (Iowa Ct. App. 1997) United States v. Devin, 916 F.2d 280, 290 (1st Cir. 1990) II. DID TRIAL COUNSEL PROVIDE INEFFECTIVE ASSISTANCE? Authorities State v. Lucas, 323 N.W.2d 228, 232 (Iowa 1982) State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987) U.S. Const. amend. VI U.S. Const. amend. XIV 9

10 Iowa Const. art. I, 10 Strickland v. Washington, 466 U.S. 668, 686 (1984) Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981) 1. Did trial counsel render ineffective assistance by eliciting testimony that Thomas opined Techel lied? Iowa R. Evid Iowa R. Evid State v. Oppedal, 232 N.W.2d 517, 524 (Iowa 1975) State v. Myers, 382 N.W.2d 91, 95 (Iowa 1986) State v. Dudley, 856 N.W.2d 668, (Iowa 2014) State v. Enderle, 745 N.W.2d 438, (Iowa 2007) State v. Vance, No , 2014 WL , at *1 (Iowa Ct. App. April 30, 2014) State v. Tracy, 482 N.W.2d 675, (Iowa 1992) Johnson v. State, 495 N.W.2d 528, 531 (Iowa Ct. App. 1992) 2. Did trial counsel render ineffective assistance by failing to object to prosecutorial misconduct in closing argument. State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003) State v. Piper, 663 N.W.2d 894, 901 (Iowa 2003) 10

11 United States v. Mullins, 446 F.3d 750, 757 (8th Cir. 2006) State v. Deases, 479 N.W.2d 597, 601 (Iowa Ct. App. 1991) State v. Williams, 334 N.W.2d 742, 745 (Iowa 1983) State v. Martens, 521 N.W.2d 768, 773 (Iowa Ct. App. 1994) United States v. Bentley, 561 F.3d 803, (8th Cir. 2009) United States v. Young, 470 U.S. 1, (1985) 3. If error was not preserved in Division I, did counsel provide ineffective assistance? State v. Stelzer, 288 N.W.2d 557, 560 (Iowa 1980) State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999) 4. Did cumulative error establish a Sixth Amendment violation? State v. Clay, 824 N.W.2d 488, (Iowa 2012) Wycoffv. State, 382 N.W.2d 462, 473 (Iowa 1986) III. DID THE STATE PRESENT SUFFICIENT EVIDENCE TO PROVE TECHEL GUILTY? Authorities State v. Heard, 636 N.W.2d 227, 229 (Iowa 2001) State v. Allen, 304 N.W.2d 203, 206 (Iowa 1981) 11

12 State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998) State v. Allen, 348 N.W.2d 243, 247 (Iowa 1984) State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992) 12

13 ROUTING STATEMENT Transfer to the Court of Appeals is appropriate because the issues raised involve applying existing legal principles. Iowa R. App. P (2)(d) and (3)(a). STATEMENT OF THE CASE Nature of the Case: Seth Techel appeals following his conviction of murder in the first degree and nonconsensual termination of a human pregnancy. Iowa Code 707.1, and 707.8(1) (2011). Course of Proceeding and Disposition Below: On July 9, 2012, Techel was charged with murder in the first degree and nonconsensual termination of a human pregnancy, for alleged acts occurring on May 26, 2012 which resulted in the deaths of his wife Lisa and unborn daughter. (TI)(App. 10). Trial commenced on February 19, On March 15, 2013, the court declared a mistrial when a unanimous verdict could not be reached. (Mistrial 1)(App ). 13

14 A second trial commenced on October 28, On November 15, 2013, the court declared a mistrial when the jury could not reach a unanimous verdict. (Mistrial 2) (App }. Techel's privately-retained attomeys moved to withdraw. (MTW)(App ). On December 5, 2013, the court appointed new counsel. (Appt. Counsel)(App ). Venue for the third trial was moved to Scott County. The trial was scheduled to begin on July 14, ( Ruling)(App. 70). On April 30, 2014, Techel moved to continue trial. Counsel requested additional time for trial preparation. ( MTC)(App ). The court denied the motion. (517 I 14 MTC Ruling)(App ). Techel again moved to continue trial on July 8, ( MTC)(App ). On July 9, 2014, the court again denied Techel's motion. (7 19 I 14 Ruling)(App ). 14

15 On July 11, 2014, Techel moved for a continuance of his third trial in order to fully investigate the State's omission of exculpatory evidence. Counsel discovered Lisa had a sexual relationship with Jason Tinnes, a co-worker. Tinnes testified he had been questioned by a Washington County Deputy at the request of someone in the Wapello County Sheriffs Office because of text messages between him and Lisa which had been obtained from her phone. (7 /14/14 MTC; 7/14/14 MTC Ruling)(App , 221). The State resisted. (3rd MTC Resist)(App ). The court denied the motion to continue, concluding Techel had not shown substantial justice would be more nearly obtained by granting the requested continuance. (7 I 14/14 MTC Ruling)(App ). The third trial commenced on July 14, (Tr. 1L1-25)(App. 236). After the presentation of the defense's case, Techel moved for a mistrial. Counsel asserted that despite diligent efforts, they were unable to fully investigate the newly discovered line of exculpatory evidence. (Mistrial 15

16 Motion)(App ). The court denied the motion for mistrial. (Tr. 982L L21)(App ). The case was submitted to the jury on July 23, (Tr. 1229L1-1230L25)(App ). On July 24, 2014, the jury returned a verdict finding Techel guilty as charged. (Verdict Order)(App ). On September 10, 2014, Techel was sentenced to be incarcerated for the remainder of his life for murder in the first degree. The court ordered the twenty five year sentence for nonconsensual termination of a human pregnancy to be served consecutively. (Judgment)(App ). Techel filed a timely Notice of Appeal. (Notice)(App. 1141). Facts: Lisa and Seth Techel were married in October (Tr. 699L4-6)(App. 616). They lived in a mobile home in rural Agency. (Tr. 378L1-9, 699L10-12)(App. 305, 617). Lucas Howell lived with the Techels until May 17, Lisa was expecting a baby. Howell moved out because he needed shoulder surgery and the Techels needed his room for 16

17 the baby. (Tr. 524L6-21, 527L13-528L16, 531L8-ll, 538Ll9-25)(App , , 463, 472). When Howell moved in, they generally kept the doors locked but over time this tapered off where the doors were not locked at all. (Tr. 526L8-527L12, 535L11-22)(App , ). Howell owned a Mossberg model 500 shotgun. The shotgun was generally kept in different locations throughout the trailer. The shotgun was often kept loaded. (Tr. 528L17-530L19, 534L20-535L6)(App , 467). When Howell moved out he left some items, including the Mossberg shotgun, at the trailer. (Tr. 531L12-24)(App. 463). Lisa and Techel were well known to the Wapello County law enforcement community. Lisa was Deputy Todd Caldwell's daughter. She was ajailer at the Washington County Jail. Techel was scheduled to start working as a Wapello County jailer in late May (Tr. 375L19-377L9, 672L19-673L8,695L21-696L24,699L19-700L5, L16-702L1)(App , , ). 17

18 On May 25, 2012, Techel and Lisa had breakfast at a local restaurant. (Tr. 883L12-884L10)(App ). After breakfast, they went to the credit union where they spoke to Nate Bissell about Lisa's pregnancy. They appeared to be happy. (Tr. 890L1-891L16, 892L2-12, L22-893L22)(App ). On May 26, 2012, at 5:23 a.m. Techel called 911. (Tr. 336L22-337L2)(App. 257). requested an ambulance. Lisa had been shot and he (Tr. 338L11-339L5, 352L3-17)(App , ). 911 operator Ray Schafer dispatched the Agency First Responders and Deputy Marty Wonderlin. (Tr. 340L19-341L18, 356L3-20, 374L11-20)(App , , 301). Techel again called 911 at 5:27a.m. (Tr. 340Ll-13, 341L9-342L21, 350L17-351L5, 381L8-17)(App , , 306). At 5:30a.m., Schafer called Techel back to obtain additional information. (Tr. 342L22-343L22, 351L6-23)(App , ). Techel was outside on 18

19 the porch talking on the phone when First Responder Brian Bennett arrived. Techel was wearing only a pair of shorts. (Tr. 354L22-355L21, 357L2-9, 358L13-359L12, 368L7-8)(App , , 295). Techel was panicked or hysterical. (Tr. 361L13-15, 368L25-369L3)(App , ). Techel told Bennett "she's not breathing." (Tr. 358L16-21, 359L13-19, 360L10-17, 368L9-20)(App , 295). Lisa was lying on her back with only her knee covered by the sheet. Bennett could not observe anything apparently wrong. (Tr. 362L3-20)(App ). Lisa was warm to the touch but did not have a pulse. Bennett put the automatic external fibrilla tor on her which audibly indicated "No shock advised." Bennett immediately started CPR. (Tr. 362L21-363L22) (App ). Wonderlin arrived at the residence at 5:36a.m. (Tr. 380L19-25, 381L8-17)(App ). Wonderlin told Schafer to get Caldwell to the scene. (Tr. 346L9-347L11, 435L23-436L2, 702L14-24)(App , 354, 621). Techel 19

20 was on the porch when Wonderlin arrived. (Tr. 381L8-383L19, 384L2-14, 385L20-386L1, 420L13-421L9)(App , 311, ). Techel was "doubled over, bent at the waist, and sounded as if he was crying, sobbing." (Tr. 386L9-24)(App.312). Wonderlin did not observe any marks on Techel's body. (Tr. 422L9-11)(App. 340). Wonderlin went into the bedroom. (Tr. 363 L23-25, 364L11-14, 387L15-22, 400L16-401L6)(App , , ). W onderlin assisted Bennett with CPR. (Tr. 365L6-15, 401L25-402L25)(App. 291, ). Bennett determined Lisa should be moved to the floor. Bennett then noticed a large amount of blood that had been covered by her body. Bennett rolled her onto her left side to see the injury. Once he observed the injury Bennett opined she was dead. (Tr. 365L16-366L15, 403L6-404L4)(App , ). Wonderlin went outside onto the porch. Techel was visibly upset and still sobbing. Wonderlin found it odd he did 20

21 not see any tears coming from his eyes. (Tr. 404L8-405L4, 421L10-422L8, 436L12-437L3)(App , , ). Wonderlin spoke to Techel on the porch and later by the patrol car. Techel said he was in the shower, he heard a gun go off, ran down the hallway to the bedroom, noticed Lisa was lying there, grabbed his gun, ran down the hallway to the front door, found it open and no one around. (Tr. 405L5-406L4, 407L7-16, 409L3-ll)(App , ). Techel said he only heard one shot while he was in the shower. (Tr. 409L12-24)(App. 327). A lot of people showed up at the scene. (Tr. 369L13-25, 423L9-13, 437L13-18, 702L25-703Ll1)(App , , 356, ). Wapello County Sherriffs Department members, including Jeff Layton, Sherriff Don Kirkendall, Mark Miller, and Don Phillips, arrived. (Tr. 34 7Ll2-25, 428Ll 0-17, 429L22-430L 7, 672L2-4)(App. 270, 345, 347, ). Many people went into the trailer, including Amy and Todd Caldwell, two paramedics and Miller. 21

22 (Tr. 367L16-23, 369L13-371L7, 423L14-20, 428L1-20, 679L6-680L9, 704L2-4)(App. 294, , 342, , ' 622). The investigation The property adjacent to the trailer was searched and the area secured with tape. (Tr. 429L22-430L7, L22-433L14, 439L , 510L10-511L15; PPP)(App , , , PhotoApp13). Deputies checked the shower to see if it was wet; it was still dripping. There was a wet towel. (Tr. 422L18-423L1, 433L24-434L2, 673L23-674L23, 680L10-681L10)(App. 341, 352, , ). Layton interviewed Techel. (Tr. 674L24-675L18; 102, 103)(App ; Ex.App.56, 57). Techel said both he and Lisa were scheduled to work. He got up first and Lisa said she was going to sleep ten more minutes. Techel had been in the shower five to ten minutes when he heard a shot. He grabbed a towel and ran into the bedroom. Lisa was just lying 22

23 there; Techel shook her, pulled the covers back and saw she had been shot. Techel said he heard something that sounded like someone had leapt off the step into the living room. He grabbed his gun and went down the hallway finding the door wide open. He did not find anyone outside. He went back to the bedroom to find Lisa was not breathing. He called 911. Techel started to do CPR, but couldn't do it. (103 1L8-2L70, 5L , 6L21 0-7L263, 9L )(Ex.App , 61-63, 65). Layton asked Techel about what they did on Friday. Techel took him through the day and night. He said they both had the alarms set for 4:30 or so. Techel said he let his dog Remington out around 4:15. Remington did not bark but looked around like something might be out there. He then trotted off. Techel went back and lay down. He let him in when he heard him barking. Remington was down by the shed where the puppy was. Remington carne back to the 23

24 house and Techellay back down for minutes. (103 34L L1775)(Ex.App ). Layton asked Techel about his neighbor- Tate. 1 Techel said before Lisa and he moved into the trailer, he went to the neighbors to introduce himself. Techel tried to talk to Tate but he either drove away or did not answer his door. ( L419-13L544)(Ex.App ). One night when Techel was driving home he saw a dead deer on the road and he moved the carcass into the ditch. In the spring, Lisa saw the deer hide hanging high up in a tree on Tate's side of the fence line. Later, they found the deer hide in their burn barrel. The hide was thrown back and forth between the properties. (103 13LSS0-16L668)(Ex.App ). Caldwell called Techel after Tate complained to the Sheriffs Department about someone putting dog feces and rocks in his yard. Caldwell told him if he was doing it to 1 Layton was aware there had been problems between Brian Tate and the Techels. (Tr. 682Ll-17, 683Lll-684L5; A51) (App ; Ex.App. 293). 24

25 knock it off. But Caldwell did not find any feces or rocks. (103 16L )(Ex.App. 72). Techel thought the dispute was over. But the week of May 14th, Lisa called him at work and said there was a section of rerod and the deer hide in the driveway. Techel called the Sheriff. Caldwell and Phillips went to talk to Tate. Tate was agitated and called the Techels terrorists. ( L699-18L767)(Ex.App ). Less than a month before, Remington woke him up. Techel thought he heard shuffling feet on the concrete. When he went outside, Remington ran to the fence and clawed and growled. Techel did not see anything. Remington drank something out of a saucer. Techellooked at the where Remington had been licking. He saw footprints where someone had been standing in the tall weeds on Tate's side of the fence. Remington got sick and Techel took him to the vet. The vet suspected some type of poison that did not show up in the blood test. (103 21L884-24L1033)(Ex.App ). 25

26 Techellater told Wonderlin about a conversation he had with Lisa the night before where she accused him of not being excited about the baby. Lisa had a "pocket-sized ultrasound machine" what would amplify the baby's heartbeat so they both could listen to it. Techel explained "I don't want to say she was annoying me, but, fuck, I worked all day and wanted to go to bed." (Tr. 414L13-415L20)(App ). Later in the morning, Techelleft the property with his parent. (Tr. 416Lll-25, 417L6-23, 434L3-435L8)(App , ). The Division of Criminal Investigation (DCI) was called to assist with the investigation into Lisa's death. The on-call crime scene team, Michael Halverson and Justin Grodnitzky, arrived in Ottumwa at 10:30 a.m. and attended a briefing. (Tr. 583L21-585L21, 901L16-902L9)(App , ). They then went to the scene to process it and collect evidence. (Tr. 585L22-587L6, 650Ll-651L8, 895L16-896L12)(App , , ). There was no indication of a 26

27 forced entry or any sort of struggle. (Tr , )(App ). DCI Agent Thomas and Layton conducted another interview of Techel at the Sheriffs Department. (Tr , ; Ex.App.l04A, 104B, 105)(App. 595, ; Ex.App ). Techel said they had the alarms set for 4:30a.m. When Techel got up Lisa said she was not going to take a shower, so she could sleep longer. Techellet Remington out. Remington acted like something was out there. Techel reset the alarm and lay down. The alarm went off at 5:00. He let Remington who was on the porch back into the house. Techel told Lisa he was going to shower and he would wake her up when he was done. Techel got into the shower and within 5 minutes he heard a loud noise. He got out of the shower, wrapped the green towel around his waist and ran into the bedroom. Lisa was lying on tpe bed. Techel shook her and asked if she was okay. Lisa moaned a little but did not say anything. He saw 27

28 a hole in the covers; he pulled them back and saw the hole in her sports bra. Techel recognized it as a gunshot wound. Lisa was still breathing and he heard a thud. Techel grabbed his gun from its holster on the nightstand and ran down the hallway. was open. He did not see anyone in the house, but the door He went out onto the porch did not see anyone and ran back inside. He shook Lisa again and she was not breathing. He went into the living room, got the phone and called 911. He went back into the room, rolled Lisa onto her back to do CPR. He froze and couldn't do it. He grabbed the phone and called 911 again from the porch. Bennett showed up and went into the bedroom. Techel could not walk back into the trailer. (105 11L467-28L1226, 32L L1459, 137L L6498, 162L )(Ex.App , , , 263). Thomas asked Techel if there were any guns missing from the house. Techel said he did not look. Thomas asked Techel to make a list of guns he had at his house and where 28

29 they are located. Techel made a list. ( L L1533)(Ex.App ). Techel did not list Howell's 12-gauge Mossberg shotgun. (Tr. 747L18-750L3; Ex. 106)(App ; Ex.App. 287). Tate was the first person Techel thought might have shot Lisa. Techel told Thomas about his interactions and disputes with Tate. (105 37L L2643, 81L L3687)(Ex.App , ). Techel did not mention playing a role in his friends "messing" with Tate. (Tr. 750L21-751L16)(App ). Techel also said there had been a former student and a co-worker from Job Corps who made threats against him. ( L L3504)(Ex.App ). Techel said neither he nor Lisa was involved in an extramarital affair. Techel did acknowledge a texting relationship with Rachel McFarland. He initially downplayed the extent of the relationship, but eventually admitted to flirting, kissing and communicating with McFarland. Techel 29

30 stated he had misled McFarland into thinking he was leaving Lisa. Techel denied he had sexual intercourse with McFarland. (105 84L L3895, 98L L4399, 126L , 149L L7021, 165L L7591, 172L , 178L L7972)(Ex.App , , 227, , , 273, ). Techel was also asked about his telephone number. He did not mention a TracFone. (Tr. 750L4-22; 105 5L193-6L215)(App ; Ex.App ). Thomas spoke to Techel about doing a gunshot residue test. Techel said it would show "nothing." (Tr. 763L22-765L10; L L 7076)(App ; Ex.App ). Thomas had no training on gunshot residue testing. His supervisor said the DCI lab did not do the test due to the unreliability of the results. (Tr. 765L11-766L14)(App ). Thomas did not take Techel's clothing or scrape his fingernails. (Tr. 766L15-23)(App. 680). 30

31 Thomas accused Techel of killing his wife. He said the "facts" showed it. Techel denied he killed Lisa. ( L L8264){Ex.App ). Halverson collected items from the trailer. (Tr. 605L4-606L5, 607L4-16, 635L17-636L10){App , ). They examined the trailer for blood and fingerprints. (Tr. 612L6-613L25, 639L22-642L5)(App , ). The three vehicles parked at the trailer were searched. From Techel's truck they collected a TracFone and a.40 Glock handgun. (Tr. 644L22-646L9)(App ). Two other cell phones were seized; a Motorola phone was found on the nightstand and a Samsung phone was found on the bed. (Tr. 646L12-647L14, 655L10-656L1)(App , ). After the interview on May 26th, Thomas attempted to conduct a Cellebrite examination of Lisa's phone. He was not successful. (Tr. 755L8-756L7)(App ). 31

32 On May 27th, Howell's Mossberg shotgun was found very close to a tree in tall grass. There was a fired shell in the chamber and four unfired shells in the magazine. The live shells contained deer slugs. (Tr. 611L1-6, 614L7-21, 615L23-622L15, 633L13-634L18,897L4-5, 898L5-6, 901L9-15, 903L25-904L21)(App. 532, , , , ). The DCI lab determined the slug that killed Lisa was fired from the Mossberg shotgun. (Tr. 813L3-814L24, 817L17-23, 829L2-832L18, 833L6-15, 841L8-843L7)(App , , , ). Halverson made a list of everything they collected for the case on May 26-27, Halverson noted whether the item was taken to the DCI lab or left in the custody of Wapello County Sheriffs Office. (Tr. 651L9-652L6, 653L1-12; G)(App ; Ex.App. 306). On May 29, 2012, Thomas attempted a Cellebrite examination of the TracFone. He was able to extract data from McFarland's phone. (Tr. 756L8-15)(App ). In 32

33 June 2012, Jason Owens of the DCI Cyber Crime Unit examined three cell phones. Lisa's phone was not examined in June (Tr. 909L20-913L7, 1014L12-18)(App , 887). Halverson directed the lab to fingerprint the gun and the four live 12-gauge shells from the magazine. He did not request printing of the spent shell. (Tr. 644L1-18, 660L11-661L2, 667L18-689L7, 692L23-693L8)(App. 560, , , ). No identifiable prints were found on the shotgun or the live shells. (Tr. 686L7-688L3)(App ). Fingerprint lifts from the door were identified as from Techel, Colton Millard, Howell and Tyler Batterson. (Tr. 690L11-692L8)(App ). Two cigarette butts were submitted for DNA analysis. A partial male DNA profile was developed from a cigarette butt from the driveway but it did not match any of the known samples submitted. A second cigarette butt failed to develop a DNA profile. (Tr. 789L12-791L9)(App ). 33

34 An autopsy was conducted on May 27, (Tr. 800L15-19)(App. 703). wound to her left chest. Lisa died as a result of the shotgun (Tr. 808L7-809L1, 816L12-21)(App , ). Lisa was approximately weeks into her pregnancy. The fetus' life was terminated when Lisa died. (Tr. 815L6-13)(App. 711). Techel was the father ofthe baby. (Tr. 792L4-793L8)(App ). The DCI lab does not conduct gunshot residue testing. (Tr2 1752L Ll2; Tr. 835L22-841L5, 856L24-859L23)(App , , ). Gunshot residue expert Allison Murtha testified at trial. 2 (Tr Ll7-1721L7, 1726L L23; Tr. 913L23-915Ll9)(App , 20-23, ). Murtha opined gunshot residue should be collected if it is possible. It would be probative evidence of whether or not a person had discharged a firearm. (Tr L L14, 2 Murtha's Trial2 testimony was read into the record. The page numbers from the transcript available at the time of Trial 3 do not match the official transcript. See Amended Index. 34

35 1747L L22, 1754L Ll4, 1768L8-1769Ll2)(App , 37-52). Expert John Cayton opined gunshot residue testing could have been done in the case. (Tr. 935L11-937L10, 938L24-944Ll)(App ). Brian Tate When Todd Caldwell arrived at the scene, he said, "Go get him now." Caldwell was referring to Brian Tate. (Tr. 425L18-426L5, 703L12-704Ll, 706L24-707L6)(App. 343, 622, 626). Caldwell instantly believed Tate was responsible for Lisa's death. (Tr. 706Lll-18, 721L22-25)(App , 644). There was a "neighborhood squabble" between Tate and Techel. (Tr. 722L20-723L12)(App. 645). Tyler Batterson was Techel's friend. (Tr. 541Ll4-543L13)(App ). difficulties Techel had with Tate. Batterson was aware of the (Tr. 555Ll-12, 558Ll4-559L5)(App. 491, ). Batterson testified Techel encouraged him to "mess with" Tate. (Tr. 543L14-544Ll2)(App ). "Messing" with Tate was just 35

36 something to do. (Tr. 545L9-25)(App ). Batterson and his friends gathered dog feces from his house and dumped the feces on Tate's Blazer and his front porch. They told Techel what they had done. Techellaughed. (Tr. 546L1-549L24, 550L2-13, 557L3-23)(App , ). The next weekend, Batterson and his friends threw rocks onto Tate's garage and shed roof. Techel did not influence them to do this but he was aware it had happened. (Tr. 550L14-552L25, 557L24-558LIO)(App , ). Caldwell's first interaction with Tate was in late April Deputy McMartin had been there the day before for a complaint regarding someone dumping horse manure on Tate's property and throwing rocks. McMartin believed Tate to be "1 0-96" which means mental subject. Tate showed Caldwell the manure and the rocks. Caldwell took pictures. Caldwell thought "these were figments of his imagination." Tate had a shotgun near him during Caldwell's visit. Tate had informed Caldwell the only person he may have upset recently was 36

37 Techel. After the visit, Caldwell told Techel and Lisa if someone was doing anything to Tate to stop it. Techel said no one was doing anything to him; he was just crazy. Caldwell did not know anything about Batterson and his friends "messing" with Tate. Caldwell had the dispatcher send an warning other deputies about Tate's mental condition and having a gun. (Tr. 707Ll3-715L23)(App ). On May 15, 2012, Techel called Caldwell complaining about Tate throwing some rebar into his yard. When Caldwell came on duty, he and Phillips went to talk to Tate. Caldwell told Tate his neighbors were nice or good people. Tate believed what was happening to him were acts of terrorism. Caldwell told Lisa and Techel if anything was thrown across the fence, he would investigate it and file charges. (Tr. 715L24-721L21)(App ). Rachel McFarland Rachel McFarland met Techel at Job Corps where both worked. (Tr. 443L7-19, 444L4-12)(App ). The 37

38 relationship developed in December (Tr. 444L13-25)(App ). They communicated on Facebook. The communication became more personal and flirtatious. (Tr. 445L1-13)(App ). In January, McFarland's live-in boyfriend Drew Ballard found the Face book messages. McFarland stopped using Facebook to communicate with Techel. (Tr. 445L14-447L9, 497L16-498L2, 500L5-23)(App , 425, ). McFarland and Techel also communicated by text messages. Lisa found out Techel was texting McFarland. Lisa called McFarland and angrily told her to not talk to her husband. (Tr. 453L14-455L11)(App ). McFarland and Techel continued to communicate but by . Techel's account used the name Rick Jones. The s became more sexual in nature. McFarland believed they both exchanged nude photographs. The communication ended when Ballad found the s. (Tr. 447L10-452L9, 498L20-501L14)(App , ). 38

39 They did not communicate for a time period. McFarland agreed if Techel bought a TracFone she would talk to him. McFarland "was starting to really like him a lot." (Tr. 452L8-453L13, 509L9-510L9)(App , ). The text messages were very sexual and flirtatious. (Tr , 457L9-459L14; 98)(App , ; Ex.App ). McFarland sent him nude pictures. The pictures were not taken specifically for Techel as McFarland had sent them to other men. (Tr. 489L16-490L6)(App ). McFarland believed they were in love. (Tr. 455L25-456L10, 469L10-470L3)(App , ). Sometime in February or early March, the relationship moved to some in-person interactions. They met several times at a park where they talked, kissed, hugged and engaged in limited sexual touching over the clothing. (Tr. 459L15-461L2, 466Ll-467L20, 489L1-5, 490L22-492L4, 493Ll3-494L15)(App , , 416, ). 39

40 Techel and McFarland never engaged in intercourse or oral sex. (Tr. 488L19-25, 491L22-23)(App. 416, 420). They were not having an affair; they were just flirting. (Tr. 489L6-15, 492L10-21)(App , ). Techel told Colton Millard about McFarland. Techel showed him a topless picture of McFarland. (Tr. 509L17-510L9, 514L15-25, 520L3-7)(App , 444, ). A week before May 26th, Lisa was looking for Techel and called Millard. Millard and Techel created a story to cover for Techel who was with McFarland. (Tr. 515L17-519L1)(App ). Techel never told Millard he was leaving Lisa. He was excited about the baby. (Tr. 508L20-509L4, 519L16-520L2)(App. 437, 450). McFarland's and Ballard's relationship ended on May 18, 2012, basically because of Techel but she was also interested in Brandon Coffman. (Tr. 461L4-21, 486L19-487L6, 488L12-18, 494L20-495L2, 498L5-14; B54)(App , , 416, 423, ; Ex.App. 294). McFarland told 40

41 Techel about spending time with Coffman. Based upon Techel's text messages, McFarland thought he seemed very angry and jealous. (Tr. 462L2-20, 463L10-24, 470L8-16)(App , ). McFarland expressed that Coffman was available while Techel was married. (Tr. 463L25-465L19)(App ). Once when they were at a park, Coffman called McFarland. Techel said Coffman was just trying to have sex with her and she should not be with him. Techel told McFarland "Just give me two more weeks." (Tr. 467L21-469L9, 490L7-13)(App , 418). Techel was quitting Job Corps. (Tr. 490L14-21, 493Ll-12)(App. 418, 421). Techel told McFarland he was going to leave Lisa. McFarland believed he was going to tell Lisa he wanted a divorce on May 24th. (Tr. 464L4-17, 466L22-467L2, 470L15-473L8, 474L13-17)(App. 388, 391, ). On May 25th, Techel texted McFarland, "Well, we talked. I told her I wasn't happy. She got mad, then sad. Then I slept on the 41

42 couch. And all she wants is for me to be there tonight after work when she packs. So hello, Mrs. Resuscitator." 3 (Tr. 474L18-475L23)(App ). McFarland thought this meant they were going to be together. (Tr. 476L13-478L18)(App ). Later on May 25th, Techel texted McFarland using his "real" cell phone. (Tr. 478L19-25)(App ). McFarland believed this indicated he no longer needed to hide and they were going to start a relationship. (Tr. 480L11-16, 481L11-14)(App ). On May 26th, McFarland texted Techel's "real phone." She believed Lisa had moved out. (Tr. 481L8-482L9)(App ). McFarland's last text to Techel told him she had heard what had happened and she was going to give him space. (Tr. p. 482L10-22)(App. 410). 3 McFarland gave Techel the nickname "Mr. Resuscitator" because he was a volunteer firefighter. (Tr. 4 75L L12) (App ). 42

43 Michael Schakel worked with Techel. (Tr , )(App ). In April 2012, Schakel noticed Techel had two cell phones. Techel told Schakel one of the phones was how he communicated with McFarland and he had feelings for her. (Tr. 565L5-566L24)(App ). Techel showed him pictures of McFarland. (Tr. 567L8-568L6)(App ). Schakel expressed his opinion that Techel needed to choose. Techel asked him if he wanted to pay his child support. Techel was concerned if he ended his marriage it would ruin his relationship with Caldwell. (Tr , 571L )(App , ). At the end of April or early May, Schake I overheard Techel arguing on the phone with Lisa. When Techel got off the phone he said "it would be better off if she was in a car wreck and died." (Tr. 570L9-571L21)(App ). 43

44 Jason Tinnes Washington County Sheriff Jerry Dunbar received a call sometime after Lisa's murder from someone "investigating that case." The best Dunbar could remember the caller asked him "if [he] could visit with or talk to Jason Tinnes to see if he was having an affair with Lisa." Tinnes was a jailer and worked with Lisa. Dunbar recalled the information prompting the inquiry was from Lisa's phone. (Tr. 944L20-945L18, 947L7-948L10, 951L10-15)(App , , 818). Dunbar had Investigator Chad Ellis speak to Tinnes in June (Tr. 949L5-20)(App. 815). Ellis picked Tinnes up and they had the conversation in Ellis' car. Tinnes denied having a relationship with Lisa. Ellis verbally reported back to Dunbar. (Tr. 950L1-951L1, 952L8-12)(App , 819). Ellis did not write a report regarding his conversation with Tinnes. (Tr. 951L20-952L4)(App ). Dunbar believed he reported back to Wapello County Sheriffs Office but did not 44

45 remember to whom he spoke. (Tr. 945L9-947L6, 951L6-9)(App , 818). Tinnes had known Lisa since April2011. (Tr. 953L1-18, 963L22-964L4)(App. 820, ). Sometime before Lisa was married in October 2011, Tinnes and Lisa began a sexual relationship. (Tr. 954L10-955L1, 960L19-961L3)(App , 829). Generally, they had sexual intercourse after work in a parking lot or on a gravel road approximately two times a week. By mutual agreement, the sexual relationship ended in late April They determined Tinnes was not the father of Lisa's baby because they did not have sex in January (Tr. 955L2-956L10, 961L4-12, 964L6-965 L9, 967L5-968L9, 970L3-24, 979L17-980L8)(App , 829, , , , ). After Lisa's death, in June 2012, Ellis asked Tinnes about the text messages between Lisa and him. Tinnes told Ellis there was no affair. Tinnes did not want his wife to find out. He did not disclose the affair until the prosecutor called him in 45

46 June (Tr. 956L11-958L13, 960L10-18, 970L25-972L2, 980L9-981L4, 1018L11-19, 1049L17-23)(App , , , , , 921). Tinnes had no reason to believe Techel knew of the affair until June (Tr. 958L16-959L4)(App ). On Saturday July 19, 2014, Tinnes provided a DNA sample to a DCI agent. (Tr. 959L5-24, 972L3-974L14)(App , ). Tinnes was excluded as the father of the fetus. He was also eliminated as the source of the partial DNA profile from the cigarette butt from the driveway. (Tr. 1015L L13; 129)(App ; Ex.App. 292). Tinnes denied killing Lisa. (Tr. 978L19-979L6)(App ). Tinnes' wife testified he was in bed sleeping with her at the time of Lisa's death. (Tr L L20)(App ). DCI agent Tony Birmingham was assigned as the case agent for the investigation into Lisa's murder. (Tr. 1045L15-23)(App ). Birmingham did not contact 46

47 Washington County about Tinnes. To his knowledge no one from the DCI or local law enforcement made the call. (Tr. 1045L L15)(App ). Tinnes never appeared on Birmingham's "radar screen at all". (Tr. 1049L L3)(App ). In late April2012, Matt Goodwin spoke to Techel about Lisa. Techel said they were having trouble and he thought Lisa might be seeing someone possibly where she worked. (Tr. 1020L14-17, 1021L4-8, 1023L1-1024L16)(App. 894, ). ARGUMENT I. THE DISTRICT COURT SHOULD HAVE GRANTED TECHEL'S MOTION TO CONTINUE TRIAL AND THE MOTION FOR MISTRIAL. A. Standard of Review. This Court reviews the court's denial of a motion to continue and motion for mistrial for an abuse of discretion. State v. Clark, 814 N.W.2d 551, 560 (Iowa 2012); State v. Piper, 663 N.W.2d 894, 901 (Iowa 2003). 47

48 A violation of a constitutional right to due process is reviewed de novo. Clark, 814 N.W.2d at 560. B. Preservation of Error. Techel moved to continue trial on July 11, (7 I MTC)(App ). The court's denial addressed both a due process and a Rule 2. 9(2) basis for a continuance. (7 I MTC Ruling pp. 4-6)(App ). At the conclusion of the defendant's evidence, Techel moved for a mistrial which was denied. (Tr. 982L21-1 OOOL21; Mistrial Motion)(App , ). Error was preserved. Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012); State v. Gibb, 303 N.W.2d 673, 678 (Iowa 1981). C. Discussion. "Lisa was not under investigation" The purpose of collecting electronic devices such as cell phones and computers is to recover text messages, s, internet history, contact lists, and photographs which may lead to other evidence. (Tr. 653L21-655L6, 669L2-13, 48

49 768L2-770L10, 909L3-19, 104 7L2-22)(App , , , , ). Lisa's Samsung phone was found on the bed by her body. Lisa's phone is not on the list of items seized during the search of the property. According to Halverson's crime scene notes, the Lisa's phone and Techel's "real phone" were turned over to Agent Birmingham at 4: 19 p.m. on May 26, (Tr. 655L10-656L23, 1047L2-11; Trl C-002; G)(App , 918; Ex.App. 6-8, 306). During the interview on May 26, 2012, Thomas asked Techel what he had spoken to McFarland about on Friday night. ST: She just asked if I was, you know, if I was going to go through with it and I said, yeah. I mean, I shouldn't have lied, obviously, but... CT: Right. Do you think we didn't check the phones, uh... ST: I know you did. CT :... ng. h t away.? 49

50 ( L ) 4 (Ex.App. 268). While Thomas reluctantly admitted he was sometimes untruthful during the interview (Tr. 761L4-8, 762L5-13)(App ), it is unclear whether Thomas was telling Techel the truth about someone looking at the phones. From the context of the interview, it appears Thomas was not only aware of McFarland but had information that Techel had been discussing their supposed future. (Tr. 757L19-758L4)(App. 669). Thomas denied looking at the phones at this point in the interview. He said he had not been told anyone had looked at the cell phones. (Tr. 753L11-21)(App. 664). It is unclear on this record where this information came from if not from Techel's phone. The TracFone was not seized until May 27th. (G)(Ex.App. 306). The record shows McFarland was interviewed on May 29, (MNT Resist. 6)(App. 377). But if Birmingham had the two phones by 4: 19 p.m. on May 26th, Thomas easily could 4 Techel signed a consent to search his cellphone at approximately 3:44p.m. (105 79L , 108L L4916; 124)(Ex.App. 180, , 288). 50

51 have had information from the phone when he told Techel they looked at the phones. (Tr. 655L10-656L23, 1047L2-1048L23; L , 167L )(App , ; Ex.App. 236, 268). Thomas used the plural- phones. ( L7466)(Ex.App. 268). Thomas informed Techel they had a search warrant which encompassed the phones. ( L )(Ex.App. 281). It would then be permissible to look at Lisa's phone, but such action and any information obtained should be memorialized in a report. On May 26, 2012, Thomas attempted to conduct a Cellebrite examination of L~sa's phone. He was not successful. (Tr. 755L8-756L7, 1048L2-6; MNT Resist. 2)(App ; Ex.App. 370). Presumably, Lisa's phone was physically present at the Sheriffs Department at this time. (Tr. 771L2-7, 1047L2-1048L23)(App. 685, ). Another unsuccessful attempt was made on June 6th. (Tr. 1016L L4, 1048L7-16; MNT Resist. 3)(App , ; Ex.App. 371). Lisa's phone was not successfully 51

52 examined until May (Tr. 909L20-913L7, 1014Ll2-18, 1048L Ll6, 1050L L6; MNT Resist. 4}(App , 887, ; Ex.App ). Birmingham was cross-examined about why Lisa's phone was not examined. Birmingham explained: Because we, as investigators, and myself specifically as a case agent, we follow-- First of all, our job is to find the truth. So what I do is follow the facts and follow the evidence. So there was no evidence on June 14th or subsequently after June 14th to indicate that we needed to do anything with Lisa's phone. (Tr. 1051L7-17)(App ). a. Motion to Continue On April 30, 2014, Techel moved to continue trial. Counsel requested additional time for trial preparation. (5/2/ 14 MTC)(App ). The State's resistance mentions the examination of Lisa's phone. (5/6/14 MTC Resist.)(App ). Counsel stated after getting through all of the materials, it became apparent to him what had not been done - 52

53 examination of Lisa's phone. (5/2/ 14Tr. 3L20-4L17)(App ). The prosecution did not think "there was going to be fabulous evidence" on Lisa's phone or they would have run it. The phone was located at the Wapello County Sheriffs Department and would need to go to the DCI. (5/2/ 14Tr. 11L13-13L14)(App ). The prosecutor noted the case was two years old. "And to sort of postpone it even further is ' really more of a significant risk of prejudice than worrying that maybe there won't be quite enough time to prepare the best possible strategy." (5/2/ 14Tr. 15L8-22)(App ). Counsel stated he did not have 80 DCI agents to go around and investigate things. He only had co-counsel and one investigator. (5/2/ 14Tr. 18L17-20)(App ). Counsel stated he could not rely on the prior trial and he had a duty to investigate; that was what he was asking for time to do. (5/2/ 14Tr. 19L4-8)(App. 98). The court denied the motion. (5/7 I 14 MTC Ruling)(App ). 53

54 Techel moved to continue trial again on July 8, Counsel received an extensive report on Lisa's phone. The phone records created the need to investigate a new witness who was not available for a deposition until July 8th. (7/8/14 MTC)(App ). The State resisted a continuance of the trial. (7/10/14 MTC Resist.)(App ). The defense discovered from Lisa's phone records a relationship between Lisa and one of her co-workers. A deposition was scheduled. Counsel asked the prosecutor why Lisa's phone had not been examined. "He said, 'I don't want to do your job for you.'" (7 /8/14Tr. 15L5-7L9)(App ). The defense did not know where the investigation would lead. (7 /8/14Tr. 17L13-19L12)(App ). The prosecutor agreed he instructed the DCI not to examine Lisa's phone because it was his practice, unless there was a really good reason, not to do an examination of a victim's phone as Lisa was not under investigation. (7 /8/ 14Tr. 19L22-20L11, 20L17-21L11)(App ). Counsel 54

55 responded before the DCI attempted to Cellebrite Lisa's phone, they must have looked at the messages as they did with the other phone. ( Tr. 25L1-13)(App. 158). The court denied Techel's motion. ( Ruling)(App ). On July 11, 2014, Techel moved for a continuance of the trial scheduled to start the following Monday. (7 I 14 I 14 MTC Ruling)(App ). Techel sought a continuance of trial in order to fully investigate the State's non-disclosure of exculpatory evidence- Lisa's affair with Tinnes and Tinnes' questioning based on texts found on Lisa's phone. (7 I 14 I 14 MTC; Tr. 3L19-9L22)(App , ). Counsel only wanted a "chance to find out who told who to do what and where and when." (7 I Tr. 8L5-9L1)(App ). The State resisted. (3rd MTC Resist.)(App ). The prosecution argued the fact Lisa was having an affair was now known. Ellis had told the State he did not make a report because there "wasn't anything to report." The prosecutor did 55

56 not understand the significance of the fact there was no documentation. (7 I Tr. 12L17-18L23, 22L19-25L2l)(App , ). The prosecution made it clear the State was not investigating anything further - "you're not getting anything else from us. Our investigation is done." (7 I Tr. 30L16-31L2)(App. 214). The court denied the motion. The court stressed the extensive discovery already conducted, the information already provided, and the need for finality. The court concluded Techel had not shown substantial justice will be more nearly obtained by granting the requested continuance. ( MTC Ruling)(App ). Right to Due Process and Right to a Fair Trial Techel is guaranteed due process and the right to a fair trial by United States and Iowa Constitutions. U.S. Canst. amends. V, VI, XIV; Iowa Canst. art. I, 9, 10. The right to a defense stems from the Sixth Amendment right to a fair trial. Clark, 814 N.W.2d at 560. The Iowa Supreme Court and the 56

57 United States Supreme Court "has simply relied on the Due Process Clause alone when deciding issues in this area." State v. Simpson, 587 N.W.2d 770, 771 (Iowa 1998). There is no constitutional due process right to pretrial discovery-. Id. However, in Brady v. Maryland, the United States Supreme Court held "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. 83, 87 (1963). Evidence is "material" within the meaning of Brady "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Young, 45 F.3d 1405, 1408 (loth Cir.1995). "Impeachment evidence as well as exculpatoryevidence falls within the Brady rule." Id. A typical case involving a Brady violation is where the Brady material is not disclosed until after trial. United States 57

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