Basil Pendleton v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 19-1944
Filed June 16, 2021

BASIL PENDLETON,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mary E. Howes,

Judge.

The applicant appeals denial of his postconviction-relief application.

AFFIRMED.

G. Brian Weiler, Davenport, for appellant.

Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee State.

Considered by Mullins, P.J., Ahlers, J., and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2021).
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BLANE, Senior Judge.

Basil Pendleton appeals the denial of his fourth application for

postconviction relief (PCR). He asserts newly discovered evidence exonerates

him thirty-five years after his convictions for first-degree murder and first-degree

robbery. Edward Martin, a witness in Pendleton’s trial, recently recanted his

testimony that Pendleton told him he committed the crime. Martin now says a

police detective threatened and coerced him into telling this lie. The district court

found the recantation lacked credibility and the remaining evidence of Pendleton’s

guilt was sufficient to support the convictions. On our review, we affirm.

Pendleton was convicted of first-degree murder and first-degree robbery in

1984 for the robbery of the St. Louis bar in Davenport. During the robbery,

Pendleton and his codefendant, Daryl Hollins, shot and killed the bartender.

Pendleton lost his direct appeal. See State v. Pendleton, No. 84-1319 (Iowa Ct.

App. Nov. 26, 1985). He also lost his habeas petition and his first three

applications for PCR. See Pendleton v. Hundley, No. 95-3391, 1996 WL 224108

(8th Cir. May 6, 1996); Pendleton v. State, No. 02-1709, 2004 WL 57581 (Iowa Ct.

App. Jan. 14, 2004); Pendleton v. State, No. 11-1786, 2012 WL 3027143 (Iowa Ct.

App. July 25, 2012).

On Pendleton’s fourth application for PCR, we reversed a summary

dismissal and remanded for a hearing. See Pendleton v. State, No. 15-0069, 2017

WL 362591, at *3 (Iowa Ct. App. Jan. 25, 2017). The PCR court heard the merits

of the claim in fall 2019 and denied relief. Pendleton appeals.

Pendleton’s claim is based on the Iowa Code provision a person may seek

postconviction relief if “[t]here exists evidence of material facts, not previously
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presented and heard, that requires vacation of the conviction or sentence in the

interest of justice.” Iowa Code § 822.2(1)(d) (2013). We review PCR proceedings

based on newly discovered evidence for corrections of errors at law. See More v.

State, 880 N.W.2d 487, 498 (Iowa 2016). To prevail on this claim, the applicant

must show:

(1) that the evidence was discovered after the verdict; (2) that it could
not have been discovered earlier in the exercise of due diligence; (3)
that the evidence is material to the issues in the case and not merely
cumulative or impeaching; and (4) that the evidence probably would
have changed the result of the trial.

Id. (quoting Jones v. State, 479 N.W.2d 265, 274 (Iowa 1991)). “The standard for

whether the evidence probably would have changed the result of the trial is a high

one because of the interest in bringing finality to criminal litigation.” Id.

Pendleton contends that the PCR court erred in concluding the recantation

of Martin’s testimony would not have resulted in a not-guilty verdict. Under oath

before a grand jury, in a pre-trial deposition and at the criminal trial, Martin testified

that Pendleton told him he was involved in a robbery and someone was killed. At

the PCR hearing, Martin testified he knew Pendleton as a child growing up and

saw him in Davenport roughly in the timeframe of the offenses. Martin originally

went to Davenport police, according to his recollection, to report Pendleton for

stealing his stereo. While talking to police, the officer mentioned the robbery at St.

Louis Bar and told Martin to say Pendleton was the robber. Martin was fifteen or

sixteen at this time and spoke to police without his parents. He was unaware of

the robbery until the officer mentioned it. He testified the police officer threatened

to charge him with the murder if Martin did not point to Pendleton. Martin

explained, “I was scared, and, you know, I didn’t know what to do. You know, like
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I said, I was a juvenile, and I was scared, and I just did what the police officer asked

me to do.” The officer also told him to implicate Pendleton in the robbery “because

the stereo he couldn’t do nothing about.” Martin did not recall the name of the

officer. Martin later testified in front of a grand jury, in a deposition, and at the jury

trial. In the early 2010s, he ran into Pendleton’s daughter at a gathering and told

her he lied. He said he would sign an affidavit to that effect.

Detective Mike Hammes testified he conducted the investigation into the

robbery and murder, including twenty to thirty interviews with witnesses and

suspects. He said Martin approached two officers on foot and told them he had

information about the robbery. Those officers told Hammes, and Hammes went to

Martin’s home to interview him. Hammes said their conversation was “very cordial”

and he never threatened Martin with prosecution. Martin’s report was not coerced

or forced from him in any way. Hammes described Martin as “very outgoing” and

said “[h]e came out and told—he told [me] everything.” And he testified Martin was

never a suspect. Martin told Hammes he was walking with Pendleton and

Pendleton said “not to tell anybody but that he killed that lady at the tavern because

she had seen his face.” When asked whether Martin was motivated to point the

finger at Pendleton over the stolen stereo, the officer testified the stereo theft did

not happen until several days after his interview with Martin.

We must look at the other evidence in the record to determine whether

Martin’s recantation would have changed the result of the trial. The bar owner,

Frank Lingard, testified he saw two black men running out of the bar. When he

went in, he saw the bartender on the floor. She had been shot through the stomach
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and died. But Lingard could not positively identify Pendleton as one of the two

robbers.

Tawana Harris, Pendleton’s then fiancée, testified that early in the morning

after the night of the robbery, Pendleton came home nervous, shaking, and

sweating. He seemed upset about something, and when Harris asked what was

wrong, he said he had “just robbed a place and somebody got shot.” He had a

bank bag with cash in it and a gun. Pendleton explained to her:

He said that they had got a gun from a guy in a bar, and that they
had went to St. Louis Bar, and held up the lady, the bartender, she
was alone, and he said that he asked her, “How do you open the
cash register?” and she lied, told him that you push a button
underneath the cash register, and he knew better, so he put the
gun—they put the gun up to her and asked her, “We know that you’re
lying,” you know, “tell us how to do it,” so she told them, and he turned
around, and while he was getting the money, he heard the gun go
off, and he turned around, and he told me that [codefendant] Daryl
[Hollins] had shot the woman, she was laying on the floor at the time,
he told me that he had her on the floor, with the gun up to her.

Pendleton and Harris went to another bar in Rock Island and sold the gun. Later

on, Pendleton and Harris talked about the robbery and murder more. Pendleton

said the bartender was shot because “she could identify them, she seen their

faces.” Pendleton also told Harris he wanted her to testify that Pendleton was

home with her when Hollins “came busting in and telling us that he had just, you

know, robbed and killed someone.” In early September, approximately two weeks

after the robbery, Pendleton and Harris moved to Milwaukee, Wisconsin.

Michelle Perkins testified she was at a bar with Pendleton and Harris.

Pendleton spoke alone with Perkins, and they discussed the robbery. Pendleton

said, “I guess you heard what happened.” Then Pendleton “said something to the

effect of ‘I was there,’ or something along that line. He was involved, or he was
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there.” He asked Perkins to hold onto a package for him. It was a small, flat,

brown bag about six inches long and four inches wide. She put it behind the bar

for him, and fifteen minutes later, he came and picked it up, saying he was going

to Rock Island. Pendleton and Harris left together.

Will Stanley Davis was at the bar in Rock Island when Pendleton and Harris

came in. In their conversation, Pendleton said “that he had did something down

there, robbed the St. Louis Bar, him and some other guy, and he believed that they

had killed this person.”

Viewing the circumstances in full, we ask whether Martin recanting his story

would have changed the result of the trial. We conclude it would not. First, we

look at recantation testimony with extreme skepticism. Jones, 479 N.W.2d at 275

(“We have repeatedly held that a witness’ recantation testimony . . . is looked upon

with the utmost suspicion.”). Second, the district court made explicit findings that

Martin’s testimony was not credible and Hammes’s was. “[W]e give weight to the

lower court’s findings concerning witness credibility.” Ledezma v. State, 626

N.W.2d 134, 141 (Iowa 2001). Martin said Hammes threatened to accuse him of

robbery and murder if he did not point his finger at Pendleton. Hammes said that

did not happen, that Martin came to police with the admissions Pendleton made,

and that Martin willingly gave him the information without any force or coercion.

Hammes also said Martin was never a suspect in the robbery and murder, making

it unlikely Hammes would have threatened him with prosecution. The interview

took place in Martin’s home, rather than a potentially coercive police department.

According to Hammes’s testimony, Martin’s story about the stolen stereo does not
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make chronological sense, undercutting Martin’s claims about Hammes’s

statements to him.

Further, even if we were to accept Martin’s testimony as true, there is ample

evidence in the record to support the verdicts, including Pendleton’s admissions to

others. Harris explained his appearance and demeanor that morning and his

admission that he was involved in the robbery and shooting, as well as the items

in his possession—including a bank bag of cash and a gun—and how he disposed

of them. Perkins’s interaction with Pendleton led to an independent admission to

her and tracks Harris’s explanation that they sold the gun at a bar in Rock Island.

And Davis independently received the same admission from Pendleton. Harris

and Davis both heard from Pendleton that the robbery escalated to a murder

because the bartender saw Pendleton’s face and could identify him. Even taking

away Martin’s statements from this, the record is adequate to identify Pendleton

as the robber and support the convictions. Martin’s recantation would not have led

to a different verdict.

Pendleton’s strategy on appeal is to attack the witnesses and their

credibility. It is not a winning strategy. A jury found those witnesses credible, and

Martin rescinding his statements does not impugn them in this case. See State v.

Hunt, 801 N.W.2d 366, 377 (Iowa Ct. App. 2011) (“[T]he jury was free to believe

or disbelieve the testimony of the witnesses and to give as much weight to the

evidence as, in its judgment, such evidence should receive. The very function of

the jury is to sort out the evidence and place credibility where it belongs.” (citation

omitted)). Three other witnesses gave credible and consistent testimony that

Pendleton committed the crime and admitted it. Taking Martin’s recantation into
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account, as well as the court’s credibility determinations, and applying weight

accordingly, we find the PCR court did not err in determining the newly discovered

evidence probably would not change the verdict to not guilty. For that reason, we

affirm.

AFFIRMED.