IN THE COURT OF APPEALS OF IOWA
No. 15-2002 Filed April 5, 2017
STATE OF IOWA, Plaintiff-Appellee,
vs.
MARK WESLEY BROWN, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Keokuk County, Randy S.
DeGeest, Judge.
A defendant challenges his conviction. CONVICTION CONDITIONALLY
AFFIRMED; RULING ON MOTION VACATED; REMANDED WITH
DIRECTIONS.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ. 2
VOGEL, Judge.
Mark Brown appeals his conviction for sexual abuse in the second degree,
in violation of Iowa Code sections 709.1 and 709.3 (2014). Brown claims his trial
counsel was ineffective in failing to file a motion to suppress, or object to, the
admission of statements Brown made while being questioned by law
enforcement. Brown also asserts the district court applied the wrong standard in
ruling on his motion for new trial. We conclude Brown was not prejudiced by his
counsel’s performance, but we agree the district court applied the incorrect
standard when ruling on Brown’s motion for a new trial. Accordingly, we
conditionally affirm Brown’s conviction but remand for application of the proper
standard to Brown’s motion for a new trial.
I. Background Facts and Proceedings
In May 2013, law enforcement was contacted concerning an allegation
Brown had sexually abused a minor. Following an interview with the victim,
police obtained a search warrant for an apartment Brown was staying at and
seized computer equipment Brown used to show pornography to the victim.
While executing the warrant, law enforcement located Brown walking down the
street and asked if he would be willing to accompany them to city hall. Brown
agreed.
At city hall, law enforcement informed Brown of his Miranda rights and
provided him with a written copy. Following Brown’s written waiver, the officers
began questioning Brown.1 Over the first eighty minutes of the interview, Brown
and the officers discussed the general events surrounding the allegations,
1 The questioning was recorded on video. 3
eventually drilling down to the specifics of the allegations. After being shown the
search warrant, Brown asked, “Can I get a lawyer?” One officer responded,
“Sure.” The officer then searched Brown’s bag and asked, “So do you want to
continue talking to us about this?” Brown responded, “We can continue talking
but there is really nothing else to say.” Over the next thirty minutes, Brown
denied that he had committed any inappropriate acts. He also discussed various
topics unrelated to the allegations with the officers. Brown then left the building.
On December 2, 2014, the State charged Brown with one count of sexual
abuse in the second degree. The video recording of the interview with Brown
was admitted at the bench trial. The court found Brown guilty as charged.
Brown filed a motion for a new trial, which claimed the district court had admitted
improper evidence. In ruling on Brown’s motion, the court stated:
The court has—prior to this date, I have reviewed the motions and the resistance. I’ve reviewed Iowa’s Rules of Criminal Procedure 2.242(6). Also reviewed State v Robinson and reviewed the motion and applied the standard of review that is set forth in State v Robinson, and I’ve reviewed it in the light more favorable to the State without regard to contradictions and inconsistencies and assisted by all reasonable inferences. By any standard that I look at the Motion for New Trial, I must state that I cannot grant it. There is substantial evidence in the record. This Court is the one that entered the ruling. I believe it’s beyond a reasonable doubt, and so I am going to deny the motion for a new trial at this time. And I’ve applied that standard as set forth in State v Robinson, 288 N.W.2d 337 (Iowa 1980).
Brown appeals.
II. Standard of Review
“[W]e review claims of ineffective assistance of counsel de novo.”
Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). When a defendant claims 4
the district court applied the incorrect standard to a motion for new trial, we
review the claim for errors at law. State v. Root, 801 N.W.2d 29, 30 (Iowa Ct.
App. 2011).
III. Ineffective Assistance of Counsel
Brown claims his counsel was ineffective in failing to file a motion to
suppress, or object to, the admission of a portion of the statements he made
while being questioned by law enforcement. Brown asserts the portion that
should have been suppressed came after he unequivocally invoked his right to
counsel or, in the alternative, after he equivocally invoked his right to counsel and
law enforcement was required to ask him clarifying questions prior to proceeding
with questioning. The State responds that Brown’s mention of counsel was
equivocal and the officers were not required to clarify; therefore, Brown’s counsel
did not fail to perform an essential duty. Additionally, the State claims Brown was
not prejudiced by the admission of the statements made after his mention of
counsel.
“In order to succeed on a claim of ineffective assistance of counsel, a
defendant must prove: (1) counsel failed to perform an essential duty; and (2)
prejudice resulted.” State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). In
regards to the first prong, we consider the totality of the circumstances and
evaluate counsel’s performance against the standard of a reasonably competent
practitioner. Id. at 195–96. To show prejudice, a defendant must demonstrate “a
reasonable probability that, but for the counsel’s unprofessional errors, the result
of the proceeding would have been different.” Bowman v. State, 710 N.W.2d
200, 203 (Iowa 2006). Both prongs must be proven by a preponderance of the 5
evidence, but “if the claim lacks the necessary prejudice, we can decide the case
on the prejudice prong of the test without deciding whether the attorney
performed deficiently.” Maxwell, 743 N.W.2d at 196.
Assuming, without deciding, counsel failed to perform an essential duty by
not filing a motion to suppress, or objecting to, the admission of Brown’s
statements after he spoke of wanting an attorney, we conclude Brown was not
prejudiced by his counsel’s performance. In reaching its verdict, the district court
found the victim’s testimony credible and consistent with the testimony of other
witnesses. On the other hand, the court found Brown’s testimony not credible, in
that it was inconsistent and omitted details that reflected poorly on Brown.
Further, there is no indication the court considered the statements Brown made
after his purported invocation of his right to counsel in reaching its verdict, and
our review of the videotape indicates that the statements Brown made after that
point in time were largely innocuous small talk and not prejudicial to his defense
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IN THE COURT OF APPEALS OF IOWA
No. 15-2002 Filed April 5, 2017
STATE OF IOWA, Plaintiff-Appellee,
vs.
MARK WESLEY BROWN, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Keokuk County, Randy S.
DeGeest, Judge.
A defendant challenges his conviction. CONVICTION CONDITIONALLY
AFFIRMED; RULING ON MOTION VACATED; REMANDED WITH
DIRECTIONS.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ. 2
VOGEL, Judge.
Mark Brown appeals his conviction for sexual abuse in the second degree,
in violation of Iowa Code sections 709.1 and 709.3 (2014). Brown claims his trial
counsel was ineffective in failing to file a motion to suppress, or object to, the
admission of statements Brown made while being questioned by law
enforcement. Brown also asserts the district court applied the wrong standard in
ruling on his motion for new trial. We conclude Brown was not prejudiced by his
counsel’s performance, but we agree the district court applied the incorrect
standard when ruling on Brown’s motion for a new trial. Accordingly, we
conditionally affirm Brown’s conviction but remand for application of the proper
standard to Brown’s motion for a new trial.
I. Background Facts and Proceedings
In May 2013, law enforcement was contacted concerning an allegation
Brown had sexually abused a minor. Following an interview with the victim,
police obtained a search warrant for an apartment Brown was staying at and
seized computer equipment Brown used to show pornography to the victim.
While executing the warrant, law enforcement located Brown walking down the
street and asked if he would be willing to accompany them to city hall. Brown
agreed.
At city hall, law enforcement informed Brown of his Miranda rights and
provided him with a written copy. Following Brown’s written waiver, the officers
began questioning Brown.1 Over the first eighty minutes of the interview, Brown
and the officers discussed the general events surrounding the allegations,
1 The questioning was recorded on video. 3
eventually drilling down to the specifics of the allegations. After being shown the
search warrant, Brown asked, “Can I get a lawyer?” One officer responded,
“Sure.” The officer then searched Brown’s bag and asked, “So do you want to
continue talking to us about this?” Brown responded, “We can continue talking
but there is really nothing else to say.” Over the next thirty minutes, Brown
denied that he had committed any inappropriate acts. He also discussed various
topics unrelated to the allegations with the officers. Brown then left the building.
On December 2, 2014, the State charged Brown with one count of sexual
abuse in the second degree. The video recording of the interview with Brown
was admitted at the bench trial. The court found Brown guilty as charged.
Brown filed a motion for a new trial, which claimed the district court had admitted
improper evidence. In ruling on Brown’s motion, the court stated:
The court has—prior to this date, I have reviewed the motions and the resistance. I’ve reviewed Iowa’s Rules of Criminal Procedure 2.242(6). Also reviewed State v Robinson and reviewed the motion and applied the standard of review that is set forth in State v Robinson, and I’ve reviewed it in the light more favorable to the State without regard to contradictions and inconsistencies and assisted by all reasonable inferences. By any standard that I look at the Motion for New Trial, I must state that I cannot grant it. There is substantial evidence in the record. This Court is the one that entered the ruling. I believe it’s beyond a reasonable doubt, and so I am going to deny the motion for a new trial at this time. And I’ve applied that standard as set forth in State v Robinson, 288 N.W.2d 337 (Iowa 1980).
Brown appeals.
II. Standard of Review
“[W]e review claims of ineffective assistance of counsel de novo.”
Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). When a defendant claims 4
the district court applied the incorrect standard to a motion for new trial, we
review the claim for errors at law. State v. Root, 801 N.W.2d 29, 30 (Iowa Ct.
App. 2011).
III. Ineffective Assistance of Counsel
Brown claims his counsel was ineffective in failing to file a motion to
suppress, or object to, the admission of a portion of the statements he made
while being questioned by law enforcement. Brown asserts the portion that
should have been suppressed came after he unequivocally invoked his right to
counsel or, in the alternative, after he equivocally invoked his right to counsel and
law enforcement was required to ask him clarifying questions prior to proceeding
with questioning. The State responds that Brown’s mention of counsel was
equivocal and the officers were not required to clarify; therefore, Brown’s counsel
did not fail to perform an essential duty. Additionally, the State claims Brown was
not prejudiced by the admission of the statements made after his mention of
counsel.
“In order to succeed on a claim of ineffective assistance of counsel, a
defendant must prove: (1) counsel failed to perform an essential duty; and (2)
prejudice resulted.” State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). In
regards to the first prong, we consider the totality of the circumstances and
evaluate counsel’s performance against the standard of a reasonably competent
practitioner. Id. at 195–96. To show prejudice, a defendant must demonstrate “a
reasonable probability that, but for the counsel’s unprofessional errors, the result
of the proceeding would have been different.” Bowman v. State, 710 N.W.2d
200, 203 (Iowa 2006). Both prongs must be proven by a preponderance of the 5
evidence, but “if the claim lacks the necessary prejudice, we can decide the case
on the prejudice prong of the test without deciding whether the attorney
performed deficiently.” Maxwell, 743 N.W.2d at 196.
Assuming, without deciding, counsel failed to perform an essential duty by
not filing a motion to suppress, or objecting to, the admission of Brown’s
statements after he spoke of wanting an attorney, we conclude Brown was not
prejudiced by his counsel’s performance. In reaching its verdict, the district court
found the victim’s testimony credible and consistent with the testimony of other
witnesses. On the other hand, the court found Brown’s testimony not credible, in
that it was inconsistent and omitted details that reflected poorly on Brown.
Further, there is no indication the court considered the statements Brown made
after his purported invocation of his right to counsel in reaching its verdict, and
our review of the videotape indicates that the statements Brown made after that
point in time were largely innocuous small talk and not prejudicial to his defense
of a general denial. In light of these facts, we conclude there is no reasonable
probability the outcome of Brown’s trial would have been different absent his
counsel’s alleged errors. Therefore, we reject Brown’s claim of ineffective
assistance of counsel.
IV. Motion for a New Trial
Brown asserts the district court applied the incorrect standard in ruling on
his motion for a new trial and requests a remand with direction to apply the
proper standard. The State agrees a remand is necessary.
In ruling on a motion for a new trial, district courts are required to
determine whether the verdict is against the weight of the evidence. State v. 6
Ellis, 578 N.W.2d 655, 659 (Iowa 1998). Here, the district court relied on the
standard set forth in State v. Robinson—a case in which the defendant
challenged the sufficiency of the evidence supporting his guilty verdict, and our
supreme court applied a substantial-evidence review. 288 N.W.2d 337, 338
(Iowa 1980).
We agree the case must be remanded to the district court for application
of the proper weight-of-the-evidence standard as required by Ellis. See Root,
801 N.W.2d at 31 (“While we place great confidence in the district court’s
experience in utilizing the differing standards, we have repeatedly remanded to
make certain the proper standard was applied and reflected in its ruling.”).
V. Conclusion
We conclude Brown was not prejudiced by any alleged errors by his
counsel and, therefore, reject Brown’s claim of ineffective assistance of counsel.
However, because the district court applied the incorrect standard, we vacate the
district court’s ruling on Brown’s motion for a new trial and remand for application
of the proper standard.
CONVICTION CONDITIONALLY AFFIRMED; RULING ON MOTION
VACATED; REMANDED WITH DIRECTIONS.