IN THE SUPREME COURT OF IOWA
No. 19–1981
Submitted February 23, 2022—Filed March 25, 2022
STATE OF IOWA,
Appellee,
vs.
ANNETTE DEE CAHILL,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Muscatine County, Patrick A.
McElyea, Judge.
The defendant seeks further review of a court of appeals decision affirming
her conviction for second-degree murder, contending posttrial DNA testing was
required, a twenty-six year delay in prosecution violated her right to due process,
witnesses should have been excluded, and the evidence of guilt was insufficient.
DECISION OF COURT OF APPEALS AND DISTRICT COURT JUDGMENT
AFFIRMED.
Mansfield, J., delivered the opinion of the court, in which all justices
joined. 2
Elizabeth A. Araguás (argued) of Nidey Erdahl Meier & Araguás, PLC,
Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven (argued),
Assistant Attorney General, for appellee. 3
MANSFIELD, Justice.
I. Introduction.
In October 1992, a young man was beaten to death with a baseball bat in
his home just outside of West Liberty. His fiancée discovered his body on their
bedroom floor and called 911. An extensive investigation ensued. The defendant
was considered a suspect. Her potential motive was clear: she had been
romantically engaged with the victim and had been spurned by him the night
before. But with no eyewitnesses and no physical evidence, law enforcement
could reach no conclusion as to the killer’s identity. The case went cold.
Over twenty-five years later, a woman happened to meet a cold-case
investigator while at work, and she told him about a murder confession she
witnessed while having a sleepover at her friend’s house as a nine-year-old girl.
She recounted sneaking downstairs after bedtime and seeing the defendant with
black candles burning, tearfully apologizing to her deceased lover: “I’m so sorry.
I never meant to kill you . . . . I love you.” A fresh investigation commenced with
this new revelation, and the defendant was ultimately charged with murder and
convicted.
The defendant seeks a new trial. She argues the prosecution failed to
timely disclose that the four human hairs found on the victim’s hand had been
determined unsuitable for standard DNA testing. She seeks to compel another
form of DNA testing. She also asserts that the twenty-six year delay in
prosecution violated her right to due process because it was unreasonable and
diminished her ability to present a defense. Additionally, she claims that the 4
main prosecution witnesses, including the woman who came forward to the
cold-case investigator, were too “unreliable and incredible” to be allowed to
testify. And, she contends the evidence was insufficient to sustain a conviction.
We believe the defendant received a fair trial. The defendant could have
sought DNA testing prior to trial but chose not to. Also, the defendant may still
pursue specialized DNA testing in a postconviction proceeding pursuant to Iowa
Code sections 81.10 and 81.11. On the matter of delayed prosecution, we find
no actual prejudice to the defendant’s ability to make her case and no bad faith
on the part of the prosecution. Finally, the district court did not err in allowing
the jury to scrutinize the credibility of witnesses, and there was sufficient
evidence for the jury to find the defendant guilty of second-degree murder. For
these reasons and those that follow, we affirm the defendant’s conviction and
sentence and the decision of the court of appeals.
II. Background Facts and Proceedings.
In October 1992, Cory Wieneke lived with his fiancée, Jody Hotz, in a
house on a gravel road just outside of West Liberty. Wieneke worked nights as a
bartender; Hotz worked during the day for a bank in Iowa City. On Tuesday,
October 13, Jody left for work around 8 a.m. while Wieneke was still asleep in
bed. When Jody returned home around 6:30 p.m., things were out of place. Their
dog was outside unchained, and the screen door was left open. She expected
Wieneke to be at work, but his car was still there. Jody went inside and found
the lifeless body of Wieneke still in his underwear, bloodied and battered, lying
face-down on the carpeted floor next to their bed. The sheets and comforter were 5
mostly off the bed, still around his legs. Blood was spattered on the bed, the
floor, and the wall.
A forensic pathologist later testified that the cuts and bruising on
Wieneke’s body indicated he had sustained thirteen separate blunt-force
injuries, seemingly inflicted by a bat or a pipe. Four of those wounds were to his
head. The fatal blow had split open the back of his skull and left a large H-shaped
laceration.
Before his death, Wieneke tended bar at his uncle’s business, Wink’s Tap
in West Liberty. He had a reputation around town. As a witness at trial put it,
“[H]e was a fun guy. He was friendly, outgoing, charming, everybody was his
friend. I mean, I didn’t know anybody that didn’t like Corey.” Wieneke drove a
conspicuous older-model blue Cadillac. In addition, Wieneke had a reputation
for relationships with women. At the time of his death, Wieneke had ongoing
sexual relationships with at least three women: Hotz; a woman named Wendi
Marshall; and the defendant, Annette Cahill. Also, a fourth relationship was
rumored.
Cahill had married and divorced at a young age. Sometime after the
divorce, Cahill moved with her two children to live with her brother, Denny
Hazen, and his wife, Jacque Hazen, in their farmhouse near Atalissa. Through
living together in the Hazen home, Cahill and Jacque Hazen became friends.
When Cahill first met Wieneke, he was sixteen years old. Wieneke was
significantly younger than Cahill. They “messed around” but did not have sex at
that time. Three years later, they started an “off and on” relationship for at least 6
a year. But things got more serious in 1992. According to Cahill, during the
months leading up to Wieneke’s death, they had sex several times a week,
whenever the opportunity presented itself. Cahill worked in the bar with Wieneke
and they would have sex at the bar, in vehicles, in an apartment above the bar,
at the Hazen farmhouse, or elsewhere. Drinking and cocaine use were also a part
of their relationship.
By October 1992, Cahill and Wieneke had plans to “skip town.” According
to Cahill, they had made arrangements to go to Branson, Missouri together to
look for a bar to purchase. Cahill wasn’t interested in owning a bar, but she loved
Wieneke and planned to start a new life with him. By this time, Cahill was
twenty-nine and Wieneke was twenty-two.
In addition to Wieneke’s relationships with Hotz and Cahill, he had also
fathered a child with Wendi Marshall. Marshall’s child was born in July 1992,
when Marshall was twenty years old. Marshall later testified that she loved
Wieneke and had hoped for a future with him. Hotz, Cahill, and Marshall all
knew of each other and, at the very least, had heard rumors of Wieneke’s
relationships with the other women.
On Columbus Day, October 12, the day before Wieneke’s death, Cahill and
Wieneke each worked a shift at Wink’s. Cahill opened the bar in the morning
and then stayed at the bar while Wieneke worked the evening shift. Cahill
planned to get together with Wieneke after the bar closed at 2:00 a.m. on the
13th. While Wieneke closed up the bar, Cahill got into the front passenger seat 7
of Wieneke’s blue Cadillac and waited for him. She was planning to leave for
Branson with him the following weekend.
Wieneke, however, didn’t arrive at the car alone; instead, Marshall was
with him. Wieneke was planning to drop off Cahill and then go with Marshall.
Cahill was furious. She later admitted she was “incredibly mad” and described
it as a “fish or cut bait” moment.
Not long after the car started moving with the three of them in it, Cahill
tried to open the door and acted like she was going to jump out. Wieneke stopped
the car, and Cahill had a heated discussion with him outside the vehicle.
Eventually, Cahill and Wieneke got back in the Cadillac, and Wieneke drove
Marshall to her car. Wieneke told Marshall in Cahill’s presence that he would go
to Marshall’s house after dropping Cahill off.
Wieneke took Cahill to the Hazen farmhouse where Cahill lived. Wieneke
remained long enough so the two of them could have what Cahill described as
“angry sex,” and then left. Wieneke did eventually show up at Marshall’s house,
possibly around 3 or 4 a.m. He woke her, and they talked for a bit, but he didn’t
stay long. Sometime after that in the early morning hours, Wieneke went home,
got in bed with Hotz, and fell asleep. When Hotz left for work at 8 a.m., her fiancé,
Wieneke, was still asleep.
On the morning of October 13, Cahill surprisingly appeared at a roofing
jobsite in West Liberty. The roofing jobsite was run by Lester McGowan, another
man with whom Cahill had previously had a sexual relationship. McGowan had
picked up Cahill around 7 or 7:30 a.m. and brought her to the jobsite. Her arrival 8
was not expected by Lester Walker, who was one of the regular workers.
McGowan introduced Cahill to Walker and told Walker that Cahill would now be
helping him. Cahill had never done roof work before, and she didn’t know what
she was doing. Walker was told to teach Cahill how to tear off a roof. Cahill did
a poor job of removing shingles for about an hour to an hour and a half. At that
point, Jacque Hazen showed up in her car. Cahill got into that car and departed,
never to return to the jobsite.
A local farmer drove past the Hotz/Wieneke house that morning while on
his way into West Liberty. He recalled seeing two people and a stopped vehicle
outside the house at 9 a.m. or a little later. He didn’t recognize the two people.
Presumably, the two people would have seen him.
Hazen and Cahill admitted that, after leaving the roofing jobsite, they went
by Wieneke and Hotz’s house on the gravel road. According to Hazen, Cahill
wanted to drop off “a letter she had written or a book or something.” Both Hazen
and Cahill claim they were at the house for only a few minutes; Cahill says she
knocked on the door and nobody answered, so she and Hazen left.
Hazen and Cahill maintain that they went on together to Iowa City, where
Hazen had made a doctor’s appointment for a knee issue. Iowa City is about
thirty minutes from West Liberty by car. Hazen later produced receipts for the
doctor’s visit and various shopping transactions in Iowa City, including a three-
day typewriter rental. The only receipt with a time stamp on it said 1:45 p.m.
The knee issue, diagnosed as “pulled muscles,” had no effect on Hazen’s ability 9
to perform these errands, although Hazen testified that she needed to have Cahill
along to drive.
After spending the middle of the day in Iowa City, Cahill and Hazen claim
that they returned to the Hazen farmhouse in the afternoon to be there when
their children got home from school. Cahill and Hazen claim that neither of them
learned of Wieneke’s death until Cahill reported to work that evening at Wink’s.
Hazen and Cahill decided to go to the police that night and volunteer to tell them
their version of events.
Meanwhile, the same farmer who had seen two people standing outside a
car beside the Hotz/Wieneke house in the morning of October 13 drove by the
house again in the early afternoon. This time he didn’t see anyone, but about a
half-mile further along he noticed an aluminum baseball bat lying by the side of
the gravel road. That bat was later retrieved and found to have blood matching
Wieneke’s blood type.
Although law enforcement had found the murder weapon, no physical
evidence linking a specific individual to the murder was ever discovered. Over
the years, law enforcement looked into various theories, including that Wieneke
had been killed for a drug or gambling debt. In 1995, a West Liberty man named
Bob Morrison killed his wife and then killed himself. Morrison was known to be
prone to violent outbursts, and one theory floated at the time was that Morrison
had also killed Wieneke. There were rumors that Morrison’s wife had also been
having an affair with Wieneke in 1992. Cahill had always been a suspect, but 10
she had been consistently cooperative with law enforcement and had the Iowa
City alibi with Hazen. In any event, the Wieneke murder case went cold.
Events took a dramatic turn in December 2017. Jessica Becker was
working as a charge nurse in the intensive care unit at the University of Iowa
hospitals in Iowa City. While performing her duties as a nurse, Becker happened
to encounter Trent Vileta, a special agent for the Iowa Division of Criminal
Investigation (DCI), who was at the hospital to interview a victim-witness in an
unrelated matter. Agent Vileta was in plainclothes, so Becker was unaware of
his status and asked him what he was doing on the floor. This led to a
conversation in which Agent Vileta disclosed that he worked on cold cases.
Becker decided to tell him about something she had witnessed twenty-five years
earlier when she was nine years old.1
As a child, Becker was close friends with Kayla, one of Hazen’s daughters,
and she was a frequent guest at the Hazen farmhouse. Becker would often go
over for sleepovers, and she knew Cahill. Becker recalled interacting with Cahill:
“She would take us to get movies, scary movies, pizza. She was the fun, the
favorite aunt and we spent quite a bit of time with her, too.” Becker also knew
Wieneke and described him as a “big brother down the street.”
During one sleepover at the Hazens’ in the fall of 1992, Becker and Kayla
decided to sneak downstairs. Becker recalled, “I’m not sure exactly what we were
1In Becker’s words: [F]or some reason I just felt comfortable with him and that I could share that knowledge and share that burden and at least if for nothing else to get it off my chest to share with somebody that had the potential to do something with it. 11
up to, but something that we weren’t supposed to be doing . . . .” On direct
examination at trial, Becker described what happened next:
A. We heard some noise when we got down to the bottom of the steps, and then at that point we heard Annette in the dining room and saw her from the back side.
Q. Now, I showed the photo on the screen there showing the stairs. Did you step all the way down on the floor or did you stay on the steps?
A. I can’t recall if we actually made it all the way down to the floor or if we were on the last step, but close to either of those spots.
Q. And you said that you heard Annette?
A. Yes.
Q. Tell the jury what you heard.
A. Well, we heard Annette crying and sobbing in the dining area. And we heard her make several statements that included, Corey, I never meant to hurt you. Corey, I’m so sorry. I never meant to kill you, Corey. And Corey, I love you.
Q. You said the defendant was sobbing?
A. That’s correct.
Q. Was there anything else unusual in that front room?
A. Yes. There was multiple candles. She was also lighting candles. . . . [B]lack candles, to be specific.
The girls went back up the stairs to avoid being caught, and Becker tried
to talk with Hazen’s daughter about it, but Hazen’s daughter “became defensive
and had explained that her aunt was in love with Corey and was very upset about
his death and she didn’t want to talk about it anymore.” Later, Becker told her
mother, Cynthia Krogh, what she saw and heard. But Krogh was afraid to take
her daughter to the police. She testified, 12
I was scared. Ron Hazen [Cahill’s uncle] was the Sheriff at the time and, I mean, he’s a relative. Who was going to believe a nine-year old child and who was going to listen to her? Plus the fact that my ex-husband [McGowan] was still friends with the Hazens, this family, and he had threatened me on a separate occasion that if I didn’t keep my mouth shut that he would kill me. So I was scared.
The DCI re-interviewed Cahill. The interviews were recorded and later
played back at Cahill’s trial. Cahill continued to deny any involvement in
Wieneke’s murder, but some of her statements could have struck a listener as
somewhat odd. Cahill said Wieneke didn’t deserve to be killed, yet at the same
time she added, “Go knock the shit out of somebody if you are that mad, but . . .
don’t do this.” Cahill also made an arguably defensive statement that when her
first husband cheated on her, she got a divorce; she didn’t kill him. And her
account of her actions on October 13, 1992, had some inconsistencies with prior
accounts. For example, she initially claimed not to remember stopping at
Wieneke’s house before she and Hazen went on to Iowa City—until confronted
with her prior statements.
On June 07, 2018, the State filed a trial information to the Muscatine
County District Court charging Cahill with first-degree murder, a class “A”
felony. See Iowa Code § 707.2(1)(a) (1991).
Before her first trial, on January 11, 2019, Cahill filed a motion to dismiss
based on pre-accusatorial delay. More than twenty-six years had passed since
the time of the murder, and Cahill claimed this delay violated her right to due
process because it was unreasonable and prejudicial to her ability to put on a
defense. She said that other suspects and several key witnesses had died or now 13
had diminished memories. Cahill also pointed out that Becker had passed along
some information to West Liberty police in 2001.
The district court denied Cahill’s motion to dismiss on February 14. It
found that Cahill had not established actual prejudice at that point simply
because persons who had given various statements to law enforcement were no
longer available. Furthermore, the court found that any delay in prosecution was
not unreasonable because it was not designed to gain a “tactical advantage.” See
State v. Wagner, 410 N.W.2d 207, 210 (Iowa 1987).
The next day, Cahill moved to exclude the testimony of Becker and Krogh
under Iowa Rule of Evidence 5.104(a), which requires the court to “decide any
preliminary question about whether a witness is qualified, a privilege exists, or
evidence is admissible.” Cahill argued that the testimony of Becker and her
mother was inconsistent and self-contradictory. Cahill also claimed that their
testimony was tainted due to bias: Krogh used to be married to McGowan, the
contractor, and both witnesses knew that McGowan had cheated on Krogh with
Cahill.
The court denied Cahill’s motion to exclude witnesses on February 28,
reasoning that “[t]he issues raised by Cahill’s motion are more appropriate to be
decided by the jury as a matter of credibility.”
Cahill’s first trial occurred in March 2019 and resulted in a hung jury. In
July 2019, DCI agents re-interviewed a former friend of the Hazen family, Scott
Payne. Payne said that maybe a day or two after Wieneke’s death, he was at the
Hazen farm when Cahill 14
[c]ame speeding up the driveway and went around and out back towards the burn barrel . . . . She got out of the car and opened the trunk and took a paper bag with clothes in it and dumped them out and . . . Jacque [Hazen] met her out at the burn barrel with a gas can and they lit the clothing on fire.
Payne described Cahill as “frantic-like” and said the clothes looked bloodstained,
a characteristic he recognized because he used to drain the blood out of pigs,
and his clothes were often covered in blood. When asked why he didn’t tell law
enforcement this information in the prior investigation, Payne explained, “I was
not in a good place at that point and time in [my] life. I was driving illegally and
doing illegal substances and I tried to avoid the police as often as I could.”
Thereafter, the State added Scott Payne to its list of minuted witnesses. In
response, on September 3, Cahill filed another rule 5.104(a) motion seeking to
exclude Payne’s testimony. She argued that Payne’s testimony was inconsistent
and self-contradictory, largely because the DCI had interviewed Payne in 1996
and, at that time, Payne said he heard from someone else that Cahill was seen
burning “stuff” after Wieneke’s death. He also told DCI that someone named Jeff
Murdoch confessed to Wieneke’s murder. But in 2019, Payne could not
remember what he said in 1996 and said he didn’t even know a Jeff Murdoch.
On September 6, the court denied Cahill’s second rule 5.104(a) motion for
the same reasons it had denied the first.
Cahill’s second trial began on September 9. Becker, Krogh, Payne, Walker,
Hotz, Marshall, and the farmer who had observed the bat all testified, along with
a number of law enforcement witnesses. Cahill did not testify, but her recorded 15
DCI interviews from 2018 were admitted into evidence. Hazen was called as a
defense witness but was impeached by prior inconsistent statements.
In the middle of trial, the State realized that the DCI had possession of a
draft lab report showing an unsuccessful attempt to perform STR (short tandem
repeat) DNA testing on four human hairs found in Wieneke’s left hand. This
late-disclosed document was viewed at the time as helpful to the prosecution
because it tended to dispel a defense theory that the State had not investigated
the case thoroughly enough. When the State acknowledged that it could not use
the document because of its late disclosure, Cahill’s defense team accepted that
status quo.
On September 19, the jury returned a verdict finding Cahill guilty of
second-degree murder, a lesser included offense. See Iowa Code § 707.3. Cahill
filed a motion for new trial and also a motion to compel mitochondrial DNA
testing on the four human hairs that had been retrieved from Wieneke’s left
hand. On November 22, the district court denied Cahill’s motions and sentenced
Cahill to fifty years in prison. See id. § 707.3(2). Cahill appealed, and we
transferred the case to the court of appeals.
The court of appeals affirmed, and we granted Cahill’s application for
further review.
On appeal, Cahill raises several claims. First, she contends that she is
entitled to a new trial because the prosecution failed to disclose until trial the
draft DCI lab report relating to the four human hairs found in Wieneke’s hand
and because her motion to compel mitochondrial DNA testing on those hairs was 16
denied. Second, she contends the twenty-six year delay in prosecution violated
her right to due process. Third, Cahill urges that the district court should have
excluded the testimony of Becker, Krogh, and Payne under Iowa Rule of Evidence
5.104(a). And fourth, she asserts the evidence was insufficient to support the
jury’s verdict.
III. Standard of Review.
Due process claims asserting a Brady violation are reviewed de novo.
DeSimone v. State, 803 N.W.2d 97, 102 (Iowa 2011). Likewise, claims alleging a
due process violation caused by prosecutorial delay are reviewed de novo. State
v. Brown, 656 N.W.2d 355, 362 (Iowa 2003).
We review the denial of a motion for a new trial based on newly discovered
evidence for abuse of discretion. State v. Uranga, 950 N.W.2d 239, 243 (Iowa
2020).
“Matters of statutory interpretation and application are reviewed for errors
at law.” State v. Tong, 805 N.W.2d 599, 601 (Iowa 2011).
“Our review of the district court’s ruling on a preliminary question of
admissibility is for the correction of legal error.” State v. Veverka, 938 N.W.2d
197, 202 (Iowa 2020). But “[w]hen the preliminary question is one of fact, ‘we
give deference to the district court’s factual findings and uphold such findings if
they are supported by substantial evidence.’ ” Id. at 202 (quoting State v. Long,
628 N.W.2d 440, 447 (Iowa 2001) (en banc)).
We review sufficiency-of-evidence claims for correction of errors at law.
State v. Jones, 967 N.W.2d 336, 339 (Iowa 2021). “[W]e are highly deferential to 17
the jury’s verdict. The jury’s verdict binds this court if the verdict is supported
by substantial evidence.” Id.
IV. Analysis.
A. Is Cahill Entitled to a New Trial Based on Late Disclosure of the
DCI Draft Lab Report? As part of its crime scene investigation back in 1992,
DCI gathered fibers and hairs from Wieneke’s left hand. It determined that they
included synthetic fibers, cat hair, and four human hairs. During the first two
days of trial testimony, defense counsel asked several of the State’s witnesses
about the four human hairs found in Wieneke’s hand, setting up a jury argument
that the State had failed to test them to see if they might match someone of
interest in the case.2
This prompted Agent Vileta during trial to call the DCI lab, which retrieved
a draft lab report indicating that “none of the human hairs were suitable for DNA
STR analysis.” The following morning, the parties made a record outside the
presence of the jury concerning the previously undisclosed draft report. The
district court asked the parties what they intended to do:
THE COURT: . . . Have you developed a plan with this document?
MR. OSTERGREN [Prosecutor]: Well, as much as I’d like to introduce the fact that the hairs were not suitable for analysis, I don’t really know how I can do that.
2For example: Q. Are you familiar with any followup investigation of those human hairs that were found in the left hand of the victim? A. I am not. 18
THE COURT: Okay.
MR. OSTERGREN: The report’s not signed, it’s not in the Minutes so my plan was to just not use it at this point. So if Counsel wants to use it, I would not object to them offering it as an exhibit, but, you know, the State basically plans to leave it lay.
THE COURT: All right.
With that, what record does the Defense wish to make? Mr. Erdahl or Ms. Araguas?
MS. ARAGUAS [Defense Counsel]: So just to be clear, the State is not intending to offer this as evidence?
MR. OSTERGREN: Right.
MS. ARAGUAS: Okay. I think with that in mind we don’t have any fighting issue here.
THE COURT: All right. Then we’ll close the record with this issue. If something else comes up, certainly let the Court know and we’ll make a further record and address it.
The draft lab report was never admitted into evidence, and the issue did
not surface again during the remainder of trial. Five days later, at closing
argument, the defense took advantage of the state of the record to argue that
there had been human hair found in Wieneke’s left hand but no evidence to show
it matched Cahill’s hair:
There were four human hairs found in [Wieneke’s] left hand. Look at the scene and the facts. Does that seem more likely than a killing by a 120-pound 5-foot seven woman? Or more like something done by a powerful man?
....
Let’s revisit the human hair evidence. There were four human hairs in the victim’s left hand. State has presented no evidence that the human hairs matched Annette’s hair either by microscopic comparison with known hairs through slides or by DNA comparison. Moreover, the hairs tell us it is unlikely Corey was unaware of his assault. The fact he was an experienced fighter, weighed 230 pounds 19
and was a football player make it unlikely that there was only one assailant unless that was someone powerfully built.
After trial, the defense became aware that another form of DNA testing—
mitochondrial DNA (mtDNA) testing—was available in addition to STR DNA
testing. MtDNA testing is typically performed when a sample is insufficient to
allow STR DNA testing. It is less precise but can definitively exclude an individual
from being the source of the DNA.
Cahill thus sought a new trial or at least a delay in the entry of judgment
and sentence while a lab performed mtDNA testing at State expense. Cahill urged
that she was entitled to a new trial based on the untimely disclosure of the draft
lab report and because the draft lab report constituted newly discovered
evidence. The district court overruled these motions.3
The State concedes that the draft lab report should have been disclosed
before trial but denies that it was favorable to the defense or material to the
defendant’s guilt. See Uranga, 950 N.W.2d at 243 (explaining that a new trial
based on newly discovered evidence under Iowa Rule of Criminal Procedure
2.24(2)(b)(8) requires that the evidence be “material” and “probably would have
changed the result of the trial” (quoting State v. Smith, 573 N.W.2d 14, 21 (Iowa
1997))); Moon v. State, 911 N.W.2d 137, 145 (Iowa 2018) (explaining that a Brady
violation requires a showing that the evidence was “favorable to the defense” and
3The State argues that Cahill failed to preserve error on the alleged Brady violation by not moving for a new trial on that ground, while conceding that she did move for a new trial based on newly discovered evidence. In this case, the two arguments are essentially two peas from the same pod because the alleged newly discovered evidence was in the State’s possession before trial. We will consider both grounds preserved. 20
“material to the issue of guilt” (second quoting DeSimone, 803 N.W.2d at 105)).
The district court found it was neither favorable to the defendant nor material.
On our de novo review, we agree.
First, it is undisputed that before trial, Cahill’s attorneys were well aware
that four human hairs had been obtained from Wieneke’s left hand. Presumably,
the hairs were still available for DNA testing. Yet Cahill’s attorneys did not seek
to have DNA testing performed. Evidently, they preferred to argue that the
unidentified human hair created additional uncertainty as to how thorough the
State’s investigation had been, whether there had been a struggle, and who the
true killer was. It is difficult to see how this calculation would have been any
different if Cahill’s attorneys had known before trial that the prevalent form of
DNA testing could not be performed, even if they had known a less specific form
of testing possibly could be performed.
Of course, after Cahill was convicted, all bets were off. At that point, Cahill
was looking for any path to a new trial. But we should assess Brady materiality
by examining a counterfactual of how the trial would have played out with timely
disclosure. See DeSimone, 803 N.W.2d at 105 (“[T]he materiality requirement
requires the court to assess the possible effects nondisclosure had on trial
preparation and strategy, not merely the weight of the evidence.”). It is difficult
to imagine that with timely disclosure of the draft lab report, this trial “would
have taken on a different dynamic.” Id. at 106. Cahill’s counsel already knew the
hairs were there and hadn’t sought to have them tested. 21
Second, other evidence tends to show there was no struggle. Wieneke was
last seen alive by his fiancée sleeping in his bed in his underwear, and his dead
body was found face down on the carpeted floor next to the bed in his underwear
with the back of his head bludgeoned. Wieneke’s head, back, and shoulders were
struck thirteen times by a baseball bat. There was blood on the bed, indicating
that he had been initially struck there before his body rolled onto the floor, where
he was found with his legs still wrapped in bedding. There were no bruises on
his hands or forearms as might have been the case if Wieneke had put up
resistance.
Third, we have said that a defendant “is not entitled to a new trial on the
basis of newly discovered evidence where the defendant was aware of the
evidence prior to the verdict but made no affirmative attempt to obtain the
evidence or offer the evidence into the record.” Uranga, 950 N.W.2d at 243. We
seek to “prevent the defendant from gambling on a defense verdict while holding
back his grounds for a new trial in case the jury returned a verdict of guilty.” Id.
at 243–44.
In this case, defense counsel found out about the draft lab report several
days before the case went to the jury and told the court, “[W]e don’t have any
fighting issue here.” In other words, Cahill was content to let things lie and to
argue that an unknown person’s hair was found in Cahill’s left hand while
implying that the State didn’t bother to check it out. In fairness, the defense
didn’t learn until two months after trial that mtDNA testing can potentially be 22
performed when there isn’t enough material for STR DNA analysis.4 But this gets
back to our first point: If it took the defense, even with the incentive of a guilty
verdict and a looming fifty-year prison sentence, two months just to arrive at a
theory why earlier disclosure of the draft lab report would have been beneficial,
what are the odds that anything different would have happened had this report
been disclosed before trial?
Lastly, Cahill argues she should have been granted mtDNA testing
posttrial and prior to sentencing under the authority of Iowa Code sections 81.10
and 81.11. But these provisions contemplate the filing of a separate
postconviction application for DNA testing. The application must cover twelve
discrete points. See Iowa Code § 81.10(2)(a)–(l). A proceeding is commenced in
the district court where the conviction took place. See id. § 81.10(3)(a). The
application is served with sixty days to respond. See id. The court hears the
application. See id. § 81.10(3)(b). Cahill did not undertake these steps, and we
find she has failed to preserve error below on any claim for relief under sections
81.10 and 81.11.
4Cahill also asserted at oral argument before us that the lab report could have been used
to impeach prosecution testimony that DNA testing was not available at the time when the crime was investigated. However, the ability to use the report for any impeachment purpose would have been immediately apparent during trial. See Uranga, 950 N.W.2d at 243; see also State v. Clark, 814 N.W.2d 551, 563 (Iowa 2012) (explaining that “evidence is not considered suppressed in a constitutional sense ‘ “if the defendant either knew or should have known of the essential facts permitting him to take advantage of the evidence” ’ ” (quoting State v. Piper, 663 N.W.2d 894, 905 (Iowa 2003), overruled on other grounds by State v. Hanes, 790 N.W.2d 545 (Iowa 2010))). The draft lab report is undated, so it is not clear when the effort to subject the hairs to STR DNA testing occurred. The State represented below that it took place in or after 2001. 23
Our opinion does not foreclose Cahill from filing a separate application
under Iowa Code sections 81.10 and 81.11. We offer no view on whether such
an application would or would not meet the requirements of the statute.
For the foregoing reasons, we find that Cahill is not entitled to relief on
direct appeal based on the State’s late disclosure of the draft DCI lab report.
B. Should Cahill’s Motion to Dismiss Have Been Granted Due to
Delayed Prosecution and a Due Process Violation? Cahill contends that the
State’s case should have been dismissed because the twenty-six-year delay in
filing charges was a due process violation. “To prevail on a claim that such a
delay violated due process, a defendant has the heavy burden of proving both
(1) the defendant’s defense suffered actual prejudice due to a delay in
prosecution and (2) the delay causing such prejudice was unreasonable.” State
v. Smith, 957 N.W.2d 669, 677 (Iowa 2021) (quoting Brown, 656 N.W.2d at 363).
“There is no constitutional right to be arrested and charged at the precise
moment probable cause comes into existence.” State v. Trompeter, 555 N.W.2d
468, 470 (Iowa 1996).
The first requirement, actual prejudice, requires defendants to show their
“ability to present a defense” has been “meaningfully impaired.” Smith, 957
N.W.2d at 677 (quoting State v. Edwards, 571 N.W.2d 497, 501 (Iowa Ct. App.
1997)). “Generalized claims of prejudice, such as ‘loss of memory, loss of
witnesses, or loss of evidence’ do not constitute actual prejudice.” Brown, 656
N.W.2d at 363 (quoting Edwards, 571 N.W.2d at 501). 24
Last year, in State v. Smith, we found that a thirteen-month pre-indictment
delay between the time the defendant was charged with robbery and the time the
arrest warrant was served did not violate the Fourteenth Amendment to the
United States Constitution or article I, section 10 of the Iowa Constitution. 957
N.W.2d at 673–74, 680. In terms of prejudice, the defendant raised generalized
claims of “spoliation” and “faded memories.” Id. at 678. He also argued that he
had missed an opportunity for concurrent sentences because he should have
been charged while still serving an unrelated sentence. Id. We rejected the
defendant’s generic assertions of prejudice and found that he could not show
that his sentences would have run concurrently or that the State delayed
prosecuting him solely to avoid concurrent sentences. Id. at 679.
An earlier case, State v. Brown, involves facts more like the present case.
656 N.W.2d 355. Murder charges were brought twenty-four years after the crime.
Id. at 358–59. But twelve years after the murder, an inmate had contacted the
police with new information. Id. at 358. The inmate gave a full interview in which
he described his involvement in a scheme with the defendant to commit robbery.
Id. at 358–59. He claimed that the defendant deviated from their plan and killed
the victim instead. Id. at 359. Even though the county attorney’s office heard of
this development, the investigation did not move forward. Id. Twelve years later,
a new county attorney reopened the investigation and ultimately prosecuted the
defendant. Id.
The defendant argued on appeal that a twenty-four-year delay in
prosecution violated his due process rights because “evidence was lost and 25
witnesses that might have exonerated him died or disappeared.” Id. at 362. Yet
he presented an expert who “offered only generalized claims of prejudice” and
could not express how the defense was meaningfully impaired. Id. at 363.
Consequently, we held that the defendant failed to prove actual prejudice. Id.
In another cold case, State v. Hall, it took the State seven years to file
charges. 395 N.W.2d 640, 641 (Iowa 1986). The prosecution explained that its
delay was primarily the result of a key witness changing his story. Id. at 642.
Without that witness’s testimony implicating the defendant, the State doubted
whether it could get a conviction. Id. Also, investigators did not know where to
find the defendant for five years after the murder. Id. We found the delay to be
reasonable. Id. at 643.
State v. Trompeter presented a different scenario. 555 N.W.2d 468. The
defendant was released from a juvenile facility the day before his eighteenth
birthday, where he had been held for committing third-degree sexual assault. Id.
at 469. When he turned eighteen the next day, the prosecutor charged him with
second-degree sexual assault for an incident that the State had been aware of
for nearly three years. Id. The prosecutor’s stated reason for the delay was that
he understood the defendant to be receiving treatment as a juvenile but learned
from professionals that he was likely to reoffend. Id. at 469–70. In effect, the
prosecutor’s plan was to prolong the defendant’s incarceration by bringing
charges seriatim. Id. at 471. We held that this strategic move was not a legitimate
reason for delay and was therefore unreasonable. Id. We also found that the
defendant’s facing charges in adult criminal court rather than juvenile court 26
amounted to actual prejudice. Id. We affirmed the district court’s dismissal of
the second-degree sexual assault charge. Id. At the same time, we recognized
that “further investigation into the crime” was an “obvious example” of a
legitimate reason that might justify a delay in bringing criminal charges. Id. at
470.
Turning to the present case, Cahill maintains her defense was hampered
because certain individuals who had given law enforcement information about
other suspects were no longer available. In particular, according to Cahill’s
investigator, nine persons who previously had information on six other suspects
had either died or suffered from diminished memory by 2019. However, for the
most part, these individuals had only offered secondhand hearsay and rumors.
And their stories contradicted each other. Cahill does not claim that any specific
individual would have saved the day for her; at most she claims that her “ability
to present a complete defense was meaningfully impaired by her inability to
investigate the statements made by these witnesses” and her “inability to
thoroughly investigate and possibly interview these deceased suspects
meaningfully impaired her ability to present a complete defense.”
Actually, despite the passage of twenty-seven years between Wieneke’s
death and the trial, we are struck by how much evidence was still available to
Cahill. Her alibi witness, Jacque Hazen, testified, but apparently her testimony
was not convincing. The layout of the Hazen farmhouse remained intact, and
Cahill was able to present photographs and make arguments to the jury as to
why Becker could not have seen and heard what she testified she saw and heard. 27
Furthermore, Hazen’s daughter, Kayla, presumably would have been available
to testify had Cahill chosen to offer her as a witness. Accordingly, we find that
no actual prejudice resulted from the delay.
In addition, the State’s delay was not unreasonable. In Hall, we decided
that a seven-year lag in bringing murder charges was “both reasonable and
justified” given that the State “was uncertain of the likelihood of a conviction”
until a key material witness changed his story and implicated the defendant. 395
N.W.2d at 642–43.
Here, Becker’s firsthand witnessing of Cahill’s confession was critical to
the State’s case. Yet Becker didn’t speak to the DCI until December 2017. At that
point, a reinvestigation ensued and charges against Cahill were brought within
several months. Cahill argues that Becker also spoke to West Liberty police
sometime in the early 2000s, but her actual deposition testimony (which was
filed in connection with the motion to dismiss) makes clear that this was a limited
interaction:
Q. And you didn’t tell anyone between telling your mother in 1992 and telling Agent Vileta in 2017?
A. I -- I thought that I had said something to a West Liberty Officer at some point about the case, but not the exact details.
Q. And how did you encounter that officer?
A. I believe I was down there over an issue with a pet of mine and just in conversation, but -- I don’t recall what the officer said to me, and it wasn’t shared detailed as to what I’d overheard.
Q. So -- I’m sorry. So you just asked him about the case, in general? 28
A. Um-hum. Yes.
Q. And did you tell him that you knew anything about the case?
A. I -- I said something about Annette, and I believed that the officer dismissed me, and I couldn’t even tell you which officer it was.
Q. Do you think this was within the last five years?
A. No. It would have been shortly out of high school.
Q. What year did you graduate from high school?
A. 2001.
Q. So sometime in the early to mid 2000’s?
Q. Did you tell that officer that you’d seen Annette Cahill say that she killed Corey?
A. No.
Cahill has not shown actual prejudice. Neither has she shown that the
prosecution acted unreasonably. Therefore, her due process claim was properly
rejected.
C. Should Cahill’s Rule 1.504(a) Motion to Exclude Becker, Krogh, and
Payne as Witnesses Have Been Granted? Iowa Rule of Evidence 5.104(a)
states, “[T]he court must decide any preliminary question about whether a
witness is qualified, a privilege exists, or evidence is admissible. In so deciding,
the court is not bound by evidence rules, except those on privilege.”
Cahill argues that the district court erred in admitting the testimony of
Becker, Krogh, and Payne. She characterizes the testimony of these witnesses as
“impossible and absurd and self-contradictory.” See Graham v. Chi. & N.W. Ry., 29
119 N.W. 708, 711 (Iowa 1909), aff’d in part, rev’d in part on reh’g, 122 N.W. 573
(Iowa 1909). Under her theory, the court should have decided, as a preliminary
question under rule 5.104(a), that their testimony could not be heard by the jury
because it was too “unreliable and incredible.”
We have previously held, citing Graham v. Chicago & N.W. Ry., that “the
testimony of a witness may be so impossible, absurd, and self-contradictory that
the court should deem it a nullity.” State v. Mitchell, 568 N.W.2d 493, 503 (Iowa
1997). But we have only applied the Graham rule when reviewing whether
evidence was sufficient to sustain a verdict. See, e.g., State v. Lopez, 633 N.W.2d
774, 785 (Iowa 2001) (determining whether inconsistent testimony should have
been considered in the context of a sufficiency of the evidence review); Mitchell,
568 N.W.2d at 502–04 (discussing the Graham rule in the sufficiency-of-the-
evidence context); State v. Frank, 298 N.W.2d 324, 328–29 (Iowa 1980) (applying
the rule when the defendant argued for a directed verdict because “recanted
testimony should not be considered and that without it there was not sufficient
evidence to submit the case to the jury”); Graham, 119 N.W. at 710–12 (finding
evidence to be so “self-contradictory that it should be deemed a nullity” while
considering whether the “[d]efendant’s motion to direct a verdict should have
been sustained”); see also State v. Smith, 508 N.W.2d 101, 103–05 (Iowa Ct. App.
1993) (holding that self-contradictory statements of alleged victims, as the only
evidence of guilt, were insufficient to support a conviction). Cahill does not cite
a single reported Iowa case holding that inconsistencies in recollection or
narrative are, by themselves, a ground for excluding a witness. 30
Rule 5.104(a) is not a substantive rule of evidence. The relevant
substantive rule is Iowa Rule of Evidence 5.601. It states that “[e]very person is
competent to be a witness unless a statute or rule provides otherwise.” Id. As
Professor Doré has explained, “The basic premise behind Federal Rule 601 and
presumably behind the most recent Iowa rule is that virtually all witnesses who
possess relevant evidence should be allowed to present it to the jury and allow
the jury to determine its probative value.” 7 Laurie Kratky Doré, Iowa Practice:
Evidence § 5.601:1, at 535 (2018–2019 ed. 2018); see also State v. Brotherton,
384 N.W.2d 375, 378 (Iowa 1986) (en banc) (affirming the trial court’s
determination that a four-year-old was a competent witness and stating that
“[c]ompetency of a witness is not disproved by a witness’ ‘mere testimonial
inconsistency;’ rather, this is a matter directed to the weight to be afforded the
witness’ testimony by the jury” (quoting State v. Paulsen, 265 N.W.2d 581, 586
(Iowa 1978))).
Cahill’s challenges to the three witnesses are classic examples of jury
arguments about weight rather than arguments for the court about
admissibility. For example, Cahill maintains that Becker’s story was not
believable because the stairway from which she observed the candlelight
confession had a door at the bottom that would have obstructed the view to the
dining room. But there was no door at the time of trial. The only evidence for
such a door came from one of Cahill’s 2018 interviews when she drew a floorplan
purporting to show a door. It is noteworthy that Hazen testified for the defense
but was not asked about a door. In any event, the door (if there was one) could 31
have been open. The district court did not err in allowing Becker—and therefore
Krogh—to testify.
Cahill’s arguments about Payne’s competence to testify suffer from the
same deficiencies. Cahill argues that Payne didn’t disclose that he had witnessed
the burning of bloody clothes despite prior opportunities to do so; his 1996
interview indicated only that he had secondhand information about Cahill having
been seen “burning a bunch of stuff.”5 Cahill also argues that Payne was biased
because he loaned the Hazens $5,000 that they never repaid. Again, these
matters go to weight and not admissibility. Payne testified that he was a heavy
drinker and drug user in the 1992 to 1996 time period and “was not in a good
place.” The jury could decide whether this explanation enhanced or diminished
his credibility.
It was not the district court’s job to decide on witness credibility prior to
trial. See State v. Musser, 721 N.W.2d 758, 761 (Iowa 2006) (“It is not the
province of the court . . . to resolve conflicts in the evidence, to pass upon the
credibility of witnesses, to determine the plausibility of explanations, or to weigh
the evidence; such matters are for the jury.” (quoting State v. Williams, 695
N.W.2d 23, 28 (Iowa 2005))).
D. Was the Evidence Sufficient to Allow a Jury Determination of Guilt
Beyond a Reasonable Doubt? Cahill contends that the State lacked substantial
evidence to prove that she was the one who battered Wieneke to death with an
5A DCI agent testified at trial that Payne told him in 1996 that the “stuff” was a diary. 32
aluminum baseball bat. No physical evidence or eyewitness testimony implicates
Cahill. And she was physically of much slighter build than Wieneke.
On our review of the record, we find sufficient evidence to sustain the
conviction. Becker’s testimony as to Cahill’s confession was corroborated by
Cahill’s admitted presence at the Hotz/Wieneke home near the time of the
murder and Payne’s testimony that he saw Cahill burning bloody clothes.
Some other points are worth noting. The forensic and photographic
evidence strongly suggests that Wieneke had been struck fatally in the back of
his head while he was asleep or incapacitated. So the physical dimensions of his
assailant would not have mattered as much. Also, the State’s most important
witness, Becker, had an impressive life history as an ICU charge nurse and an
officer in the Army Reserve while raising a family. Perhaps of greater significance
to the jury, her testimony was relatable. The actions of nine-year-old Becker and
the memories that stuck out in her mind were in line with what one would expect
from a child that age. Also, Becker did not seem to have a vested interest in the
outcome of the trial; she just happened to have met an agent who worked cold
cases and told her story. On top of that, Becker’s mother confirmed that Becker
had been consistent in her story since 1992.
While Payne clearly had some reliability issues, the jury could have
believed him as well. Perhaps he had not previously been forthcoming because
he was engaged in illegal activity and was friends with the Hazens at the time.
Also damaging to Cahill’s case were the interviews she gave to the DCI. In
her video interview, even after the passage of over twenty-five years, her raw 33
emotions in regard to Wieneke come through. Cahill admitted she had been badly
hurt by Wieneke’s rejection the night before the murder occurred. She
characterized the night as “horrible.” Cahill also described her obsession with
Gothic novels in the video interview, a detail that could have made Becker’s
testimony about black candles ring true.
In addition, Cahill’s and Hazen’s account of October 13, 1992, just didn’t
make sense and could have been seen as an elaborate effort to stage an alibi.
For instance, it is curious that Cahill decided the morning after a wrenching and
nearly sleepless night to try her hand at removing roof shingles for the first time.
She then visibly departed the job site within an hour to an hour and a half when
Hazen arrived and never returned. Hazen’s medical appointment in Iowa City
and the need for Cahill to come along were also strange. One could question the
severity (or existence) of Hazen’s knee injury since she was mobile enough for a
shopping trip, treatment turned out to be unnecessary, and the ailment was
diagnosed as “pulled muscles.” Hazen also shopped various locales around Iowa
City at a time when the family budget was tight enough they couldn’t pay the
phone bill. It is reasonable to assume jurors who have experienced financial
troubles might question this story.
V. Conclusion.
For the foregoing reasons, we affirm Cahill’s conviction and sentence and
the decision of the court of appeals.