IN THE COURT OF APPEALS OF IOWA
No. 16-1494
Filed November 21, 2018
MONTEZ D. SHORTRIDGE,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,
Judge.
Montez Shortridge appeals from the district court’s denial of his application
for postconviction relief. AFFIRMED.
Erin M. Carr of Carr & Wright, PLC, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee State.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
2
VAITHESWARAN, Presiding Judge.
In 1996, a jury found Montez Shortridge guilty of first-degree murder in
connection with the death of a Des Moines man. This court affirmed his judgment
and sentence, as well as the denial of his first application for postconviction relief.
See Shortridge v. State, No. 01-0199, 2004 WL 574617, at *4–8 (Iowa Ct. App.
Mar. 24, 2004); State v. Shortridge, 589 N.W.2d 76, 79–80 (Iowa Ct. App. 1998).
Shortridge filed a second postconviction-relief application, which was stayed
pending resolution of the first application and subsequently languished for more
than a decade. The district court eventually denied the application following an
evidentiary hearing.
Shortridge now appeals the district court’s resolution of the second
postconviction-relief application. He contends (1) the State suppressed
exculpatory evidence and (2) he is “entitled to an ex parte hearing for the
appointment of an expert.”
I. Suppression of Exculpatory Evidence
In his second postconviction-relief application, Shortridge asserted the
State failed to disclose information relating to State witness Jheri Hatten, who lived
in Iowa for a short period before moving to California.1 Specifically, he alleged, (1)
1 This court summarized her trial testimony as follows. Hatten “lived with Shortridge and
worked for him as a prostitute at the time of the murder.” Shortridge, 589 N.W.2d at 79.
Shortridge “bailed [Hatten] out of jail.” Id.
When he bailed her out she noticed he had a cellular phone and a lot of
money. After they arrived at their apartment, she discovered a bag of dark,
dirty clothing which she described as smelling dirty or like spoiled meat.
While watching a day-time television news broadcast with Shortridge, [the]
picture [of the man who was killed] appeared. Shortridge told Hatten, “he
didn’t look like that when I was through with him.”
Id.
3
“Hatten was on probation out of Woodbury County for a fourth-degree theft
conviction entered on June 28, 1994,”2 (2) a warrant was issued for her arrest, (3)
the State made arrangements to fly Hatten “back from California to be interviewed
by [a] homicide investigator,” (4) the State “obtained a transfer of a probation
violation involving Hatten from Woodbury County to Polk County,” (5) “on the same
day she returned” for the interview, the State “held a [probation] revocation
hearing” in Polk County, and (6) the State “made a “favorable recommendation” in
the probation revocation hearing, which was not disclosed to the defense.
The postconviction court concluded the favorable recommendation “was not
suppressed because the information could have been discovered by defense
counsel.” The court provided the following reasoning:
Defense attorneys knew that Ms. Hatten was on probation at the time
of the murder, and in fact, their alibi defense was partially based on
the timing of applicant bonding her out of jail. They likewise knew
that she had left Iowa for California in September of 1994 . . . . They
knew that she returned to Iowa in February of 1995 to provide a
statement to prosecutors. The probation violation hearing was
conducted on the record and the court filed an order accordingly.
Any review of the file would have revealed that a hearing was held,
which could have led to further investigation. The State made Ms.
Hatten available for deposition on three occasions after the murder
charge was filed. While defense counsel did not know the
circumstances of the probation violation hearing, they at least had
the grounds and opportunity to inquire into any resolution of her
pending probation matter.
The court also concluded “the information was not material.”
On appeal, Shortridge acknowledges “defense counsel would have been
aware of Ms. Hatten’s being on probation.” He also acknowledges his attorneys
2
At the probation revocation hearing, Hatten stated the offense for which she was on
probation was “[f]elony forgery and prostitution.”
4
arguably “could have uncovered the arguments made at Ms. Hatten’s probation
violation hearing.” But he asserts his attorneys “were not privy to . . . the
circumstances bringing her back to Iowa to take care of that.” In his view, those
circumstances could have been used to impeach Hatten at trial.
“[T]he 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.” Brady
v. Maryland, 373 U.S. 83, 87 (1963). To establish a Brady violation, Shortridge
must prove by a preponderance of the evidence “(1) the prosecution suppressed
evidence; (2) the evidence was favorable to the defendant; and (3) the evidence
was material to the issue of guilt.” Moon v. State, 911 N.W.2d 137, 145 (Iowa
2018) (quoting DeSimone v. State, 803 N.W.2d 97, 103 (Iowa 2011)). We begin
and end with the first prong: whether the evidence was suppressed.
“Evidence is suppressed when information is discovered after trial which
had been known to the prosecution but unknown to the defense.” Harrington v.
State, 659 N.W.2d 509, 522 (Iowa 2003) (quoting Cornell v. State, 430 N.W.2d
384, 385 (Iowa 1988)). “‘[I]f the defendant either knew or should have known of
the essential facts permitting him to take advantage of the evidence,’ the evidence
is not considered ‘suppressed.’” DeSimone, 803 N.W.2d at 103 (quoting
Harrington, 659 N.W.2d at 522).
Shortridge’s attorneys conceded they had access to police reports before
trial. One of the reports prepared by the officer who interviewed Hatten on her
return from California stated:
5
On 24 Feb. 95 at 0930 hours this officer met with Jheri Hatten
at the DM Airport as she had returned back from CA to meet with us
reference this case. This officer escorted Ms. Hatten down to my
office at the [Des Moines Police Department] where in room 317E in
the Crimes Against Persons Section she was interviewed reference
this case by myself.
The report would have apprised the attorneys of Hatten’s return to Iowa.
Shortridge points out that the report omitted reference to the State’s
payment of Hatten’s travel expenses. In his view, his attorneys were entitled to
know of this benefit she received from the State, a benefit that could have been
used to impeach her at trial. But Shortridge had ample opportunity to glean this
information before trial. And, in any event, one of Shortridge’s attorneys testified
by deposition that he probably would not have questioned Hatten about a promise
to pay those expenses. In his words, “I mean, if they want to fly her in to interview
her, they’re not going to put that on her dime, anyway.”
Shortridge’s attorneys also had access to the transcription and videotape of
the police interview of Hatten. At the conclusion of the interview, the officer asked
Hatten whether her statement was “given freely and voluntarily and without any
threats or promises” and whether it was “true to the best of [her] knowledge.”
Hatten responded, “Yes.” Again, Shortridge’s attorneys could have questioned
Hatten about the veracity of this statement in one of the four pretrial depositions
they conducted. In any event, those depositions of Hatten gave the defense
everything they needed concerning the State’s favorable recommendation at
Hatten’s probation revocation hearing.
In her first deposition, Hatten acknowledged she was arrested for forgery
in Sioux City, Iowa, pled guilty to the charge, and received “alternate sentencing.”
6
At this juncture, then, defense counsel knew the conviction emanated from
Woodbury County.
In the second deposition, Hatten discussed convictions for prostitution and
forgery and stated an arrest warrant was out for not reporting to her probation
officer. Although the warrant differed from the one pending when the probation
revocation hearing was held, the underlying convictions were the same. Critically,
Shortridge’s attorney asked Hatten, “Were those both, prostitution and forgery,
from Polk County?” Hatten responded, “Yes. No. Actually, they were from Sioux
City.” She also named her probation officer. The same officer spoke to the Polk
County district court at Hatten’s probation revocation hearing and recommended
revocation of Hatten’s probation.
Towards the end of the second deposition, Shortridge’s attorney again
asked Hatten to name the county from which her probation for forgery issued. She
responded, “Sioux City.” He repeated, “And that was from, you said, Sioux City?”
Hatten responded, “Correct.” Counsel followed up with, “Was that probation
transferred to Polk County?” Hatten responded, “Yes, it was.”
In sum, defense counsel confirmed that both convictions underlying the
probation revocation proceeding arose in Woodbury County, learned the identity
of Hatten’s probation officer from whom he could have obtained additional
information about her status, and determined that the probation proceeding was
transferred to Polk County. The second deposition was taken more than a year
before trial.3
3
Also admitted as an exhibit in the postconviction-relief hearing is a “victim packet” with
handwritten comments stating a judge in Woodbury County had “no problem with” having
7
Two additional depositions followed. Counsel did not pursue the probation
revocation issue in those depositions.
We conclude Shortridge knew before trial “the essential facts permitting him
to take advantage of the evidence.” DeSimone, 803 N.W.2d at 103 (quoting
Harrington, 659 N.W.2d at 522). We further conclude the evidence was not
suppressed. We affirm the district court’s denial of postconviction relief on this
claim.
II. Ex-Parte Hearing-Expert
During the postconviction proceedings, Shortridge filed a motion for
appointment of substitute counsel and stay of proceedings. When the court asked
him about the motion, Shortridge mentioned several Iowa Supreme Court opinions,
including State v. Dahl, 874 N.W.2d 348, 353 (Iowa 2016). He stated:
I mean, my concern is this. In Dahl, the Iowa Supreme Court just
ruled on January 22nd of this year that any time you’re discussing
strategic matters or you’re asking for funds or any type of assistance
from the Court dealing with your defense, that that matter needs to
be dealt with ex parte.
See Dahl, 874 N.W.2d at 353 (exercising “supervisory powers . . . to articulate a
protocol to balance the statutory right of an indigent defendant to the appointment
of a private investigator under section 815.7 against his or her burden to present
sufficient information to the trial court to support the granting of an application for
appointment of a private investigator at state expense,” and holding, “When a trial
court deems an indigent defendant’s application for appointment of a private
investigator may have some merit but does not contain adequate information for
a judge in Polk County handle the probation revocation hearing. It is unclear whether
Shortridge’s attorneys had this document before trial.
8
the court to determine whether it should grant the application, the court should hold
an ex parte hearing before ruling on the merits of the application”).
The postconviction court addressed Shortridge’s reference to Dahl as
follows:
The issue in Dahl was whether a criminal defendant could
make an ex parte request to the court to appoint a private investigator
at state expense. The court held that the request could be
considered ex parte to avoid revealing trial strategy. However, Dahl
is not analogous. This is not a criminal case, but a post-conviction
case reviewing aspects of the criminal case that is already complete.
The burden of proof and elements to be proved are different. See
State v. Utter, 803 N.W.2d 647, 652 (Iowa 2011). There was no
concern with petitioner revealing trial strategy. Accordingly, there
was no right to an ex parte hearing.
We discern no error in this reasoning. Dahl was premised on Iowa Code
section 815.7 (2013), which authorizes the payment of expenses for indigent
defense in criminal matters. Id. at 351. In construing the provision, the court cited
the State’s obligation under the Sixth Amendment to the United States Constitution
“to pay for reasonably necessary defense services for which indigent defendants
demonstrate a need in order to ensure such defendants receive effective
assistance of counsel.” Id. at 351–52. The Sixth Amendment right to counsel does
not apply in postconviction cases. See Coleman v. Thompson, 501 U.S. 722, 752
(1991) (“There is no constitutional right to an attorney in state post-conviction
proceedings”); but cf. Goode v. State, ___ N.W.2d ___, ___, 2018 WL 6004877,
at *4 (Iowa 2018) (declining to reject a claim of ineffective assistance of
postconviction counsel solely on the basis that it was framed as a constitutional
right, noting, “The source of the claim . . . was not an issue on appeal, and the
State was not disadvantaged in any way by the manner in which Goode elected to
9
frame his issue”). Accordingly, we conclude the postconviction court did not err in
denying Shortridge’s motion.
We affirm the district court’s denial of Shortridge’s second postconviction-
relief application and motion.
AFFIRMED.