IN THE IOWA DISTRICT COURT FOR MARION COUNTY. Defendant/Petitioner ( Defendant ), Jason Carter, by and through his undersigned

Transcription

1 IN THE IOWA DISTRICT COURT FOR MARION COUNTY BILLY DEAN CARTER, BILL G. CARTER AND ESTATE OF SHIRLEY CARTER by and through BILL G. CARTER, Executor, vs. JASON CARTER, Plaintiffs/Respondents, Law No. LACV PETITION FOR RELIEF Defendant/Petitioner. Defendant/Petitioner ( Defendant ), Jason Carter, by and through his undersigned counsel, states as follows for his Petition for Relief pursuant to Iowa R. Civ. P : PARTIES AND JURISDICTION 1. At the time of her death, Shirley Carter was a resident of Marion County, Iowa. 2. At all times material hereto the Plaintiff/Respondent ( Plaintiff ), Bill G. Carter, was a resident of Marion County, Iowa. 3. Bill G. Carter is the widower of Shirley Carter. 4. At all times material hereto the Plaintiff, Billy D. Carter, was a resident of Polk County. 5. Billy D. Carter is the son of Bill G. Carter and Shirley D. Carter. 6. The Estate of Shirley Carter has been established in the Marion County, Iowa Probate Court No. ESPR Bill G. Carter has been appointed as Executor of the Estate of Shirley D. Carter. 8. At all times material hereto the Defendant, Jason Carter, was a resident of Marion County, Iowa. 1

2 9. The killing of Shirley Carter, which forms the basis of Marion County Case No. LACV and the immediate Petition for Relief, occurred in Marion County, Iowa. 10. Marion County, Iowa is the proper venue for this action. 11. The relief sought is within the jurisdictional limits of this court. FACTUAL BACKGROUND 12. On January 6, 2016, Plaintiffs filed suit against Defendant in Marion County Case No. LACV095809, alleging that Defendant was civilly liable for negligently causing the death of Shirley Carter. 13. From December 4, 2017 through December 15, 2017, a jury trial was held in the Iowa District Court for Marion County. 14. On December 15, 2017, the jury entered a verdict for Plaintiffs, upon which judgment was subsequently entered by the Court. 15. On December 17, 2017, the State arrested Defendant, and on December 18, 2017, the State charged him with homicide in the first degree. GROUNDS FOR RELIEF 16. In February 2018, Defendant began receiving discovery from the State, containing significant exculpatory evidence. This evidence is the subject of the Petition for Relief and supporting brief. 17. Iowa Rules of Civil Procedure and provide for vacation or modification of judgments and orders or the grant of a new trial. Rule specifies the grounds and sets forth the procedure. 18. Iowa R. Civ. P (6) provides that upon timely petition and notice under Rule , the court may vacate a final judgment or order on the ground of material evidence, 2

3 newly discovered, which could not with reasonable diligence have been discovered and produced at trial, and was not discovered within the time for moving for a new trial under rule The standard for vacation of judgment pursuant to Iowa R. Civ. P (6) is the same as the standard for a new trial under the same rule. This rule requires the movant to show (1) the evidence is newly discovered and could not, in the exercise of due diligence, have been discovered prior to the conclusion of the trial; (2) the evidence is material and not merely cumulative or impeaching; and (3) the evidence will probably change the result if a new trial is granted. In Re D.W., 385 N.W.2d 570, 583 (Iowa 1986). 20. The voluminous exculpatory evidence received during the criminal case is exhaustively detailed on the brief and supporting exhibits filed herewith. Defendant could not have discovered it through due diligence in this civil matter prior to the conclusion of the trial. This evidence lays entirely new ground and overwhelmingly supports Defendant s defense that he did not murder his mother. It consistently points to entirely different parties as responsible for the same. It shows significant holes in the evidence presented at trial, fleshes out the scope of DCI s investigation beyond the selective materials available to the jury and goes far beyond merely cumulative or impeaching evidence. The evidence will in all likelihood change the result if a new trial were to be granted. REQUESTED RELIEF 21. Based on the foregoing and the documents filed concurrently in support of the same, Defendant respectfully requests the Court vacate the judgment entered against him because of the new evidence that would have changed the outcome of the trial. 22. In the event the Court denies Defendant s request to vacate judgment, Defendant alternatively requests that the Court order a new trial of this matter based on the same grounds 3

4 asserted. Given the vast difference between these forms of relief, and the high stakes involved, the denial of Defendant s request to vacate judgment would be significantly adverse to his interests, even were a new trial ordered. Accordingly, Defendant expressly notifies the Court and Plaintiffs that he considers determination of his request to vacate judgment a separate issue for purposes of appeal and preserves his right to undertake the same, regardless of the Court s determination on his alternative request for a new trial. 22. Pursuant to Rules (1) and 1.413(3), Defendant attaches a supporting affidavit from counsel with personal knowledge concerning the receipt of newly discovered evidence. (App. at (Ex. C, Affidavit of Grant Woodard)). WHEREFORE, Defendant respectfully requests that this Court vacate the judgment entered against him in this matter for the reasons stated herein and in Defendant s brief in support; or, in the alternative, that the Court order a new trial in this matter based on the same grounds set forth therein. Respectfully submitted, /s/ Alison F. Kanne Alison F. Kanne AT Steven P. Wandro AT Grant A. Woodard AT Terry L. Gibson AT WANDRO & ASSOCIATES, P.C Grand Ave. Suite B Des Moines, IA Telephone: (515) Facsimile: (515) akanne@2501grand.com swandro@2501grand.com gwoodard@2501grand.com tgibson@2501grand.com ATTORNEYS FOR DEFENDANT/ PETITIONER 4

5 CERTIFICATE OF SERVICE The undersigned certifies that the foregoing instrument was served upon the parties to this action on May 30, 2018 by CM/ECF. Copies to: Mark E. Weinhardt David N. Fautsch The Weinhardt Law Firm 2600 Grand Ave. Suite 450 Des Moines, IA Ron Danks Carly Smith Myers, Myers, Danks & Smith 201 W. Monroe St. PO Box C Pleasantville, IA ATTORNEYS FOR PLAINTIFFS/ RESPONDENTS /s/ Alison F. Kanne 5