IN THE COURT OF APPEALS OF IOWA
No. 20-0158 Filed July 21, 2021
STATE OF IOWA, Plaintiff-Appellee,
vs.
TANNER JON KING, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Webster County, Kurt J. Stoebe,
Judge.
A defendant challenges his two convictions for first-degree murder.
AFFIRMED.
Jack Bjornstad of Jack Bjornstad Law Office, Spirit Lake, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Heard by Bower, C.J., and Tabor and Schumacher, JJ., and Carr and
Gamble, S.J.*
*Senior judges assigned by order pursuant to Iowa Code section 602.9206 (2021). 2
TABOR, Judge.
This double homicide case raises a narrow question. Did the district court
derail Tanner King’s defense by limiting the testimony of a local barber who shared
second-hand information about an alternative suspect with a police
detective? Finding the court properly applied the Iowa Rules of Evidence, we
affirm King’s two convictions for murder in the first degree.
I. Facts and Prior Proceedings
Her shift at the convenience store ended at 11:00 p.m., and M.S. headed
home to do some cleaning at the Fort Dodge duplex she shared with her
grandmother. As she threw out the trash, M.S. “heard a whole bunch of gunshots”
and “people screaming.” When she looked out the window she saw a man running
up the street. A streetlight allowed her to get a good look. M.S. testified the man
carried a phone in one hand and a gun in the other. How certain was she about
the weapon? “100 percent sure it was a gun.” M.S. also testified the man’s face
was uncovered, allowing her to see his skin color was white.1 Another neighbor
called 911 at 12:03 a.m. to report two men on the ground in the alley. The caller
looked out her window after hearing gunshots and screaming.
Responding to the 911 call, officers found two shooting victims—Eldominic
(Dominic) Rhodes and his brother, Marion. Autopsies revealed Marion and
Dominic suffered numerous gunshot wounds. Also in the alley, investigators
collected seven fired cartridges, one unfired slug, and one fired bullet. Later
1As our record shows, King is white. Alternative suspect Cletio Clark is black. In an interview with police, M.S. identified King as the man she saw. 3
laboratory testing showed the bullets and fired cartridges were .40 caliber
ammunition. Investigators could not locate a murder weapon.
Law enforcement considered both King and Cletio Clark as suspects.2 King
came into the picture when Fort Dodge Police Detective Larry Hedlund canvassed
the neighborhood after patrol officers found the bodies. Hedlund and another
officer knocked on King’s door around 2:00 a.m. but received no answer. As the
officers were leaving the apartment building, they encountered King on the second
floor landing. When they asked King where he had been that night, he gave a
series of alibis. Yet none of the people he mentioned (including Clark’s girlfriend
Meggin White) could confirm his whereabouts for the time of the shootings.
Likewise, police suspected Clark’s involvement as surveillance cameras
showed White’s vehicle in the alley just before the shootings. When officers went
to interview White at her apartment, they found Clark, whom they considered a
“person of interest” in the investigation. Police interviewed White, who lied to
provide an alibi for Clark.
Turning to King, police executed a search warrant at his apartment two days
after the shootings. In his trash, they found a box of .40 caliber ammunition,
missing fifteen bullets. At first, King told police the bullets did not belong to him,
so he threw them away. But police also found a Wal-Mart receipt for the
ammunition dated two days before the shootings. Surveillance video showed King
shopping that day. King’s landlady later found two bullets in a sock that he left
2 King and Clark knew each other for more than two decades. Clark’s cousin is the mother of King’s nine-year-old daughter. 4
behind in his apartment. The ammunition found at King’s apartment—according
to state criminalist Victor Murillo—was similar in manufacture and design to the
fired cartridges collected at the crime scene.
After the search, Detective Hedlund interviewed King at the station. King
changed his story from their first encounter. When confronted with information that
someone saw him running from the scene, King admitted hearing gunshots and
“walking” away. King rationalized not telling the truth earlier, saying “I don’t like
talking to you guys.”
Shifting back to the other suspect, the next day Detective Hedlund picked
up Clark at the Black Hawk County jail and drove him to Fort Dodge.3 Before
questioning Clark during the drive, Hedlund gave Miranda warnings and told Clark
that he was “implicated in the murder case.” Clark insisted he killed no one. But
he admitted asking White to craft an alibi for him.
After talking to Clark, Hedlund returned to King, who claimed Clark “did
nothing.” Instead, King said he saw four people in the alley but couldn’t see their
faces because they wore hoods. He allegedly heard them arguing about “papers”
and discussing people from Missouri or Kansas. King thought “they were all black”
because he believed “black people have a certain way they talk.” King said after
he heard shots he “took off” and “jogged” but not far because of a prior hip injury. 4
Ping-ponging back to Clark, Detective Hedlund brought him from the
Webster County jail for a second interview. Clark told Hedlund he was ready to
3Clark had separate robbery charges pending. 4King testified he incurred the injury when he jumped from the roof of the Webster County jail while trying to escape after his 2012 burglary conviction. 5
“quit going around the bush.” According to Clark, his girlfriend was mad at King
because he sold her “some bad dope” and she wanted Clark to talk to him. (Text
messages between Clark and White support this claim.) Clark told the detective
that he confronted King about the low-quality drugs, and they argued. As for the
murders, Clark disclosed that he saw King shoot the Rhodes brothers. And Clark
claimed that King shot at him too.
Yet again, Hedlund interviewed King, relaying that Clark identified him as
the shooter. King continued to deny any role in the shootings. When the detective
confronted King with the text messages about the drugs, King acknowledged he
was arguing with Clark, but King said he didn’t “take it serious.”
The State charged King with two counts of first-degree murder for shooting
the Rhodes brothers and one count of attempted murder against Clark. The State
later amended the trial information to omit the attempted-murder count.
A jury trial occurred in November 2019. In his testimony, Division of
Criminal Investigations Agent Ray Fiedler estimated officers interviewed over
one-hundred people as they tried to solve the crimes. Those interviews yielded
evidence incriminating King. For example, White’s friend Jaide Wetzel said she
and White visited King’s apartment a day before the shootings. Wetzel saw a
holster underneath his shirt with one or two handguns in it. She recalled King was
“acting different” than normal. In a threatening manner, he displayed a shotgun on 6
the table and then set out three bullets, one in front of each of them.5 He then let
them leave.
Another witness remembered King acting “weird” right after the
shootings. Although a reluctant witness for the State, H.K. testified she and her
father, Paul Keller, had just heard about the shootings on the police scanner when
King stopped at their house. King said he saw cars in the alley when on his “blunt
walk.”6 King did not say he saw the bodies but did comment on his relationship
with the Rhodes brothers, saying “he was pretty cool with both of them.” He added
that “he had had a few arguments with them but never too serious.”
King’s edginess persisted. When his girlfriend, Amber Bonewitz, visited his
apartment a few days after the shootings, King acted nervous and said he
expected “the feds would be knocking at his door.” She saw him remove a “velcro
belt” from his waist. She also remembered seeing a gun, but “he never took it out.”
Toward the end of its case in chief, the State called Detective Hedlund to
summarize the murder probe. Hedlund explained the investigation was
“complicated” by “a lot of individuals, the defendant being one of them,” who were
“unwilling to answer questions” or “unwilling to be truthful.” In a contentious
cross-examination, defense counsel quizzed Hedlund about his understanding of
“confirmation bias.”7 Hedlund defended his approach to following leads as they
5 When questioned by Hedlund, King admitted acquiring that shotgun after the murders for his protection but insisted the weapon was “irrelevant” to the murders. 6 In his testimony, King explained: “I smoke marijuana so I roll up a blunt and
smoke it while I walk around.” 7 The defense later called forensic psychologist Wayne Wallace as an expert
witness. He wrote his doctoral dissertation on “The Effect of Confirmation Bias on Criminal Investigation Decision Making.” He defined confirmation bias as “the 7
came in. For instance, the detective rejected the premise that he “dismissed”
information from Marion’s brother-in-law, Jeremy Mack,8 that Clark had a motive
for the shootings. Also during that cross-examination, the defense elicited
testimony that a source told Hedlund King left his gun at Keller’s house.
After the State rested, the defense focused on blaming Clark for the
murders. To that end, King subpoenaed Clark. But Clark refused to testify,
invoking his privilege against self-incrimination and citing his pending robbery
prosecution.
King took the stand in his own defense. From the start, he admitted he was
not a truthful person. He justified lying to police because that was “the way [he]
was brought up.” King also said Clark told him to lie. According to King, he and
Clark had been arguing by text the day before the shootings. When asked about
the murders, King testified he was out for his nightly “blunt walk” when he heard
four or five people yelling in the alley. King recalled they were wearing hooded
sweatshirts, but he recognized one of them as Clark. When King heard the shots,
he “did a little short jog” past the duplex where M.S. lived. King acknowledged
going to Keller’s house after hearing the shots but denied leaving anything
there.9 King added other details to implicate Clark. For example, he said Clark
selective seeking of evidence to reach a conclusion or a belief already determined. It includes seeking only information that agrees with your hypothesis or your theory. It includes ignoring disconfirmatory evidence or anything that disagrees with it.” In Dr. Wallace’s opinion, confirmation bias played a role in Detective Hedlund’s investigation. 8 Mack’s sister testified that she was Marion’s common-law wife. 9 During his cross-examination, the prosecutor asked King: “If you had left the gun
at Paul Keller’s you’d lie about it; right?” King replied: “Yeah.” 8
took bullets from the box at King’s apartment. And he claimed that Clark came
back to his apartment the day after the murders and described the victims as
“snitches.”
Beyond his own testimony, King called other witnesses to press his case
against Clark. Central to the issue on appeal, King asked barber Priest Wilson to
convey how he alerted Detective Hedlund to rumors in his shop that Clark was the
shooter. In an offer of proof, Wilson described the pivotal role of the barbershop
in his African-American community—calling it “church away from
church.” Because it was a place “where a lot of people gather to communicate,”
Wilson’s barbershop became a hub for chatter about the Rhodes’ murders. King
sought to offer Wilson’s testimony that he told Hedlund about Clark’s gang-related
motive for the shootings. But finding no reliable source for Wilson’s information,
the district court restricted his testimony. Surprisingly, the court took a different
stance on defense witness Mack. The court allowed Mack to testify that word on
the street was that Clark carried out a gang-related “hit” on the brothers.
The jury found King guilty as charged. The court sentenced him to
consecutive life sentences. King now appeals.
II. Scope and Standards of Review
The parties disagree on the standard of review. King acknowledges we
review evidentiary rulings for an abuse of discretion. See State v. Elliott, 806
N.W.2d 660, 667 (Iowa 2011). But because he is asserting a constitutional claim,
King argues our scope of review is de novo. See State v. Leedom, 938 N.W.2d
177, 185 (Iowa 2020) (“Our review of a claim of a violation of the constitutional 9
right to present a defense, a Due Process Clause challenge, is de novo.”). By
contrast, the State contends we review the rulings on admissibility of evidence for
an abuse of discretion—without resort to de novo review. See State v.
Countryman, 573 N.W.2d 265, 266 (Iowa 1998) (“[T]here is no due process right
to present evidence which is inadmissible under prevailing rules of evidence.”).
We apply yet a different standard. Because the court ruled on hearsay, we
review for correction of legal error. State v. Ross, 573 N.W.2d 906, 910 (Iowa
1998). On other evidentiary questions, we review for an abuse of discretion.
Elliott, 806 N.W.2d at 667.
III. Analysis
King raises a single issue: did the limit on Priest Wilson’s testimony deny
him a complete defense? Invoking the so-called Bowden defense, King contends
by restricting Wilson’s testimony the court violated his right to due process.
Because Iowa case law has not addressed the Bowden defense, at least
not by name, it is useful to explore its origins. The defense takes its name from
the 1976 murder conviction of Horace Bowden. Commonwealth v. Bowden, 399
N.E.2d 482, 484 (Mass. 1980). Bowden’s attorneys cross-examined Boston police
officers about the lack of scientific testing for gunpowder and fingerprints. See
Lisa J. Steele, Investigating and Presenting an Investigative Omission Defense,
Crim. L. Bull., July 2021, at art. 1, n.3. The judge instructed Bowden’s jury that
“the lack of evidence or the non-existence of a certain type of evidence is certainly
not to be considered by you as any evidence in this case.” Bowden, 399 N.E.2d
at 485 n.7. The appellate court disavowed that instruction, holding, “The fact that 10
certain tests were not conducted or certain police procedures not followed could
raise a reasonable doubt as to the defendant’s guilt in the minds of the jurors.” Id.
at 491. More generally, Bowden stands for the proposition that the accused may
“rely upon relevant deficiencies or lapses in the police investigation to raise the
specter of reasonable doubt, and the trial court violates [the accused’s] right to a
fair trial by precluding the jury from considering evidence to that effect.” State v.
Collins, 10 A.3d 1005, 1025 (Conn. 2011).
At King’s trial, specifically during Detective Hedlund’s cross-examination,
defense counsel drew the court’s attention to Bowden, as well as a more recent
Massachusetts case, Commonwealth v. Silva-Santiago, 906 N.E.2d 299, 314
(Mass. 2009), holding modified by Commonwealth v. Moore, 109 N.E.3d 484
(Mass. 2018). Silva-Santiago differentiated between (1) a Bowden defense,
alleging inadequate police investigation, and (2) a third-party culprit defense,
where the accused elicits evidence that tends to show that another person
committed the crime. Id. Although distinct, the two defenses may overlap. Silva-
Santiago held that information about a third-party culprit—whose involvement
police never investigated despite receiving tips—may be admissible under a
Bowden defense. Id. at 315. In that situation, the evidence is not offered to prove
the truth of the matter asserted (that is the third-party’s guilt), but to show that
tipsters provided information to police, who failed to reasonably act on it. Id.
By contrast, if a defendant offers third-party culprit evidence for the truth of
the matter asserted—that someone else is the true culprit—hearsay rules 11
apply.10 Id. Under Massachusetts law, a judge may admit the hearsay if the
defendant can show the evidence is otherwise relevant; it will not tend to prejudice
or confuse the jury; and there are other “substantial connecting links” to the
crime. Commonwealth v. O’Brien, 736 N.E.2d 841, 851–52 (Mass. 2000).11
Defense counsel cited these Massachusetts cases after the following
exchange with Hedlund about information he received from Jeremy Mack.
Q. . . . One of the things you told him is “There’s a lot of rumors and speculation going on out in the streets, which we don’t really need any more of?” A. That’s true. Q. And Jeremy acknowledged that there was a lot of, quote, bullshit going on?
The State objected on hearsay grounds. Defense counsel responded that
Bowden and Silva-Santiago established that “a legitimate defense to pursue is that
the State did not conduct a fair investigation, and that in bringing forth that defense,
the rules of hearsay need to be relaxed because you need to examine what the
officers knew and what they ignored.” Counsel argued that to prove Clark’s motive
the defense needed to elicit testimony that Hedlund heard from Mack that “this
case is about Johnny Young, that this is retaliation for Johnny—for the deceased
snitching on Johnny Young and that Cletio Clark was involved in the hit in
retaliation for them snitching on Johnny Young.” In response, the prosecutor
contended that testimony would be “double hearsay,” and the Massachusetts
10 Hearsay refers to “a statement that a ‘declarant does not make while testifying at the current trial’ and which ‘[a] party offers into evidence to prove the truth of the matter asserted in the statement.’” State v. Dessinger, 958 N.W.2d 590, 599 (Iowa 2021) (alteration in original) (quoting Iowa R. Evid. 5.801(c)). 11 In Massachusetts, Bowden evidence is admissible if its probative value is not
substantially outweighed by the danger of unfair prejudice. Moore, 109 N.E.3d at 497 n.9. 12
cases did not change the Iowa Rules of Evidence. When the court asked if
Bowden had been adopted in Iowa, defense counsel acknowledged, “Not by
name.” But counsel reasoned the State “opened the door” by claiming
investigators “tracked down every viable lead.” Counsel declared: “Hearsay or not,
that is admissible.”
After reviewing Bowden and Silva-Santiago, the court sustained the State’s
hearsay objection. While noting the difference between procedure in Iowa and
Massachusetts, the court found insufficient evidence to determine whether the
proffered statement was “any more than a street rumor.” In managing the cross-
examination, the court allowed defense counsel to ask Hedlund whether Mack
“came in with a lead” and to “talk about [Hedlund] disparaging the lead.” But the
court prohibited inquiry into alternative suspects Clark and Young. Yet, as it
happened, defense counsel did ask Hedlund about Clark: “And you told this
witness that ‘Had we arrested Cletio Clark, I guarantee you we’d have fifty people
coming forward saying it wasn’t Cletio, it was Tanner’; right?” Hedlund
acknowledged it sounded like something he would say.
Later in his cross-examination, Hedlund confirmed he also heard from
Wilson. But much like the questions about Mack, the district court limited what
counsel could ask Hedlund about Wilson’s tip. Defense counsel asked Hedlund
how he reacted after speaking to Wilson about potential suspects:
Q. . . . He directed you towards a third person who he thought had information about these people with motive? A. He told me he had heard something on the streets. Q. And you indicated that you would contact this third person? A. That I would contact the third person? Q. Yes. A. Yes. 13
Q. And although he wasn’t indicating to you that this person had information about Tanner King, you told him that you thought this person knows a lot and that he probably knows where Tanner got his gun and he might know where it went after the murders; right? A. Yes. Q. So just so we’re clear, he was telling you to talk to this third person about other potential suspects. And your response was “I’ll go talk to this person to see if he’s got information about Tanner”? A. Something similar to that, yes.
The Bowden/Silva-Santiago issue reemerged when the defense called
Wilson to testify. Outside the presence of the jury, the prosecutor posed
preliminary questions. She asked if Wilson had relayed information to Hedlund
that he had “heard on the streets.” He answered: “I did hear. It wasn’t in the
street. It was in my barbershop.” Wilson admitted he did not have “personal
knowledge” about the shootings.
Defense counsel then made an offer of proof that Wilson told the detective
that he heard Clark killed the Rhodes brothers. Wilson described Clark’s motive:
A few years ago, Marion and Johnny got into some trouble with cashing checks. And I guess Marion snitched. And when Johnny was locked up, he encountered Cletio. And during . . . Johnny and Cletio being locked up, the conversation came up about what Marion had did. And that—that’s what it was about.
Wilson also mentioned a regular customer who stopped frequenting the
barbershop “right after the killings.” Wilson told Hedlund that customer was
“somebody that he needed to talk to.” Wilson said Hedlund agreed he should talk
to that person. But Hedlund told Wilson the purpose of that conversation would be
to ask what King did with the gun.
In his limited testimony, Wilson told the jury he had worked as a barber in
Fort Dodge for thirteen years and also managed a music group that featured the 14
Rhodes brothers. Wilson testified that he saw Marion Rhodes almost every day
and had never seen “Marion have any beef with Tanner.”
After receiving the rulings restricting his proposed “word on the street”
evidence under Bowden and Silva-Santiago, the tide turned for King. The defense
called Mack to the stand. Predictably, the State asked the court to place the same
limits on the questioning of Mack as it did for Wilson’s examination. Unpredictably,
the court declined, explaining “it’s appropriate for [Mack] to testify about what he
has direct knowledge to concerning Johnny Young. And that would have to be
conveyed to him directly.” The court decided what Mack told Hedlund was “fair
game” because it went to the defense argument that the detective “didn’t look into
all of these avenues.”
Freed by that ruling, the defense asked Mack about his communication with
Hedlund. Mack testified he told the detective about “bad blood” between Young
and the Rhodes brothers because “somebody had snitched on somebody.” Mack
explained that both Clark and Young belonged to the Vice Lords gang. Mack told
Hedlund that Dominic “was being told not to fuck with Johnny.” In other words,
Mack testified that he conveyed to the detective that Young ordered Clark to kill
the brothers. To be clear, Mack’s information did not implicate Clark alone. On
cross, Mack acknowledged telling Hedlund: “It’s not that Tanner King didn’t do
it.” Mack just heard that others were also involved.
Because the court did allow King to pursue third-party culprit evidence
through Mack’s testimony, his complaint on appeal is a narrow one. He contends
the limits on Wilson’s testimony “hobbled” his Bowden defense. King ventures that 15
Wilson, a respected local businessperson, would have had more credibility with
the jury than Mack because the jury heard Mack was in custody on an arson charge
at the time of trial. King emphasizes Wilson’s knowledge of the “word on the
street,” which was “flowing through his barber shop,” would have corroborated
Mack’s version of events. King argues that without Wilson’s testimony pointing to
Clark, defense counsel “couldn’t tie together the pieces with a credible thread.”
Defense counsel clarified at oral argument that King was not pursuing a
third-party culprit defense, where the evidence would be offered for the truth of the
matter asserted. Rather, King proffered Wilson’s testimony to show Detective
Hedlund’s responsive conduct was not reasonable. Under that Bowden
framework, King argues the testimony would fall outside the definition of hearsay.
In addressing King’s claim, we decline his implied invitation to adopt a new
defense based on Massachusetts law. Instead, we see our role as applying Iowa
law to decide if he is entitled to a new trial because the court limited Wilson’s
testimony. Under Iowa law, King had a right to present evidence relevant to his
theory of defense. See State v. Nelson, 480 N.W.2d 900, 906 (Iowa Ct. App.
1991). Because King wished to offer evidence tending to incriminate another, he
had to confine his proof to “substantive facts,” which “create more than a mere
suspicion” that another person committed the crime. See State v. Farmer, 492
N.W.2d 239, 242 (Iowa Ct. App. 1992). King met that standard. So the district
court gave King a greenlight to present evidence pointing to Clark as the
shooter. For instance, King testified he saw Clark in the alley the night of the
shootings. And Mack testified to Clark’s motive for killing the Rhodes brothers. 16
Yet King contends his defense was incomplete without Wilson’s
corroboration of Mack’s testimony. That contention collides with our hearsay
rule. King insists he was not offering Wilson’s testimony for the truth of the matter
asserted—that Clark was the killer—but to show its impact on Hedlund’s
investigation. True, when the proponent uses an out-of-court statement to prove
something other than the truth of the matter asserted, such as responsive conduct,
the court may admit the statement as nonhearsay. Dessinger, 958 N.W.2d at
603. But we must decide whether the statement is indeed relevant to the asserted
purpose, or whether the statement seeks to put inadmissible evidence before the
jury. Id.
After close examination, we find King offered the testimony for the truth of
the matter asserted. Despite exploring Hedlund’s confirmation bias, King’s true
purpose for offering Wilson’s word-in-the-barbershop evidence was not to show
how Hedlund responded. King did not seek Wilson’s expanded testimony to show
police received a lead about Clark and failed to follow it. Indeed, both Agent Fiedler
and Detective Hedlund testified Clark was an early focus of their investigation. Law
enforcement spoke with Clark several times, even transporting him from out of
county. Rather, King aimed to expose the jury to more local gossip supporting his
alternative-suspect theory. The content of the rumors—including Clark’s alleged
motive—carried relevance only if King was offering Wilson’s second-hand
information for the truth of the matter asserted—that Clark was the killer. King’s
“real purpose” was to show investigators made the wrong choice between two 17
suspects. Because the rumors Wilson heard were offered for their truth, they were
inadmissible hearsay.
King’s emphasis on Wilson’s credibility underscores the point that King was
interested in Wilson’s testimony for the truth of the matter asserted. King does not
argue Wilson’s credibility matters because it would have constituted a more
plausible or reliable tip to further Hedlund’s investigation. Instead, King focuses
on barber Wilson’s credibility before the jury. Because no question existed that
both Mack and Wilson relayed those rumors to Hedlund, the conduit’s credibility is
important only if the content of those rumors is at issue. Because King sought
Wilson’s testimony for its truth, the court properly excluded it.
Finally, even if the district court wrongly limited Wilson’s testimony, any error
was harmless. See State v. Juste, 939 N.W.2d 664, 675 (Iowa Ct. App. 2019)
(examining record to see whether complaining party suffered miscarriage of justice
or party’s rights were injuriously affected by the error). King cannot show prejudice
because Mack testified to similar rumors suggesting Clark was involved. Hedlund
also testified that he received comparable tips from Mack and Wilson. Plus, the
State showed the investigation included Clark as a potential suspect before more
evidence pushed the needle toward King. Finally, the State presented strong
evidence of King’s guilt. That evidence included his shifting stories, the similarity
between the .40 caliber ammunition at his home and the casings in the alley, an
eyewitness who saw him fleeing the scene holding a gun, and several other
witnesses who noted King acting strangely and anticipating law enforcement
contact after the shootings. Because the proffered evidence constituted 18
inadmissible hearsay, King had no due process right to present it as part of his
defense. The district court did not err in excluding the evidence. So we affirm the
convictions.