IN THE COURT OF APPEALS OF IOWA
No. 17-0116 Filed February 21, 2018
STATE OF IOWA, Plaintiff-Appellee,
vs.
TIMOTHY DALE BROWNLEE, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Lee (North) County, Mark E. Kruse,
Judge.
A defendant challenges his convictions for assault with intent to commit
serious injury, first-degree arson, and possession of incendiary materials.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney
General, for appellee.
Considered by Doyle, P.J., and Tabor and McDonald, JJ. 2
TABOR, Judge.
When Timothy Brownlee told his girlfriend that his “boss” expected him to
“pay a heating bill,” she took it to mean he was “supposed to light a fire” at the
house occupied by the boss’s nemesis. After hearing evidence Brownlee acted
on that expectation, a jury convicted him of first-degree arson, possession of
incendiary material, and assault with intent to commit serious injury. On appeal,
Brownlee focuses on his girlfriend’s accomplice testimony and contends trial
counsel missed key opportunities to challenge the lack of corroboration. He also
contends the jury should not have been allowed to hear about his prior bad acts
through his recorded interview with police.
Because Brownlee’s confession to being at the fire scene amply
corroborated his girlfriend’s testimony, he cannot show he was prejudiced by
counsel’s performance. As for the prior-bad-acts evidence, we find no abuse of
discretion in the district court’s ruling.
I. Facts and Prior Proceedings
Around 5 a.m. on February 7, 2016, a newspaper carrier noticed a “bright
glow” between two houses on his route. He called 911 to report a fire burning in a
wheel barrow and going up the side of the house occupied by Amber Rae. Rae
woke up to rescuers banging on her door and smoke filling her house. Rae’s
neighbor, Dan Miller, tried to fight the blaze with his garden hose—with limited
success. Flames bounced around when sprayed with water, leading Miller to
believe the fire was oil-based. The fire department used foam to fully extinguish
the fire. The shift captain testified Miller’s experience indicated the presence of an
accelerant. Another fire investigator testified the fire’s yellow color was consistent 3
with the use of an accelerant. The fire damaged the siding on both houses, but no
one was hurt.
No charges were filed in connection with the fire until Tanisha Brownlee1
came forward about seven weeks later. She asked the county attorney for
immunity in exchange for her testimony regarding the source of the fire. Tanisha
shared information that her boyfriend, Brownlee, performed “jobs” for a woman
named Jeannie Breashears. Tanisha testified she accompanied Brownlee to rural
Lee County where he received directions from Breashears to “pay a heating bill”
at Rae’s house. Tanisha understood the euphemism to mean set a fire. Tanisha
testified Breashears previously told Brownlee that Rae was “messing with the
wrong person.” Rae testified she knew Breashears was “not a fan” of hers because
Rae had a romantic relationship with Breashears’s boyfriend.
Tanisha took a trip with Brownlee to Rae’s house in January 2016.
According to Tanisha, Brownlee carried “tennis balls with match heads in them”
and paracord on the first trip to the house. Once there, Brownlee “put lighter fluid
on the window sill and tried to light it. It lit for maybe a second and went out. It
was too cold to keep a fire.” In February 2016, Brownlee told Tanisha he was
heading back to Rae’s house to “finish paying the heating bill.” On his second trip,
Brownlee took a glass jar with a “goopy” pink substance “he indicated was
napalm.”2 He also carried lighter fluid and tennis balls that were sliced to
1 Tanisha was married to Brownlee’s cousin but dated Brownlee at the time of the fire. We will use her first name in this opinion to avoid confusion. 2 Tanisha recounted helping Brownlee by transferring the chemical from a metal can into the glass jar. 4
accommodate matchsticks, according to Tanisha’s recollection. After the February
fire, Tanisha did not see Brownlee “for at least a day or more.”
After Tanisha gave her statement to authorities, Fort Madison Police Officer
David Doyle interviewed Brownlee. Brownlee initially denied knowing Rae and
said he had never been to her house. But as the interview progressed,3 Brownlee
admitted Breashears wanted him to go to Rae’s house and “harass her.” Brownlee
told the officer he knew Breashears “unfortunately better than I’d like to” and had
known her since she was a teenager. The officer introduced the idea that
Breashears was “selling dope” and Brownlee acknowledged he owed her $300.
He recalled driving out to rural Montrose to meet with Breashears because she
was looking for somebody to “evict” Rae. Brownlee confessed to going to Rae’s
house on two separate occasions about two weeks apart. Brownlee denied setting
fire to Rae’s house, saying he only “flicked a lighter” to show Breashears, who he
believed to be watching from a nearby street, that he was carrying out her orders.
He told Doyle that “most of the flame was from the alcohol spray bottle” he spritzed
into the air. At one point, he did acknowledge lighting a fire that resulted in the
grass burning outside Rae’s house. Midway through the interview, Brownlee told
Officer Doyle: “If there’s one thing I know, it’s fire.” Brownlee also said after the
second trip, he “got out of town.” Brownlee said Breashears sent him a message
to thank him for taking care of the job, and he did not tell her otherwise.
3 The prosecutor recalled during closing arguments, Brownlee seemed nervous and was “sweating bullets” during his conversation with Officer Doyle. 5
The State filed a trial information accusing Brownlee of two counts of
attempt to commit murder, as class “B” felony, in violation of Iowa Code
section 707.11 (2016) (counts I and II), two counts of arson in the first degree, a
class “B” felony, in violation of sections 712.1(1) and 712.2 (counts III and IV), and
two counts of possession of explosive or incendiary devices with intent to use them
to commit a public offense, a class “C” felony, in violation of section 712.6(1)
(counts V and VI). Counts I, III, and V related to acts alleged to have occurred in
January 2016. Counts II, IV, and VI addressed the events of February 7, 2016.
Brownlee stood trial in November 2016. The jury acquitted Brownlee on
counts I, III, and V, which related to the January events. On the second count of
attempt to commit murder, the jury returned a guilty verdict on the lesser-included
offense of assault with intent to commit serious injury, an aggravated misdemeanor
assault, in violation of sections 708.1 and 708.2(1). The jury convicted Brownlee
with arson in the first degree and possession of explosives as charged in counts
IV and VI. The sentencing court imposed concurrent sentences on counts IV and
VI and ordered the assault sentence to run consecutively, for a total prison
sentence not to exceed twenty-seven years.
II. Scope and Standards of Review
We review Brownlee’s claims of ineffective assistance of counsel de novo.
See State v. Ortiz, 905 N.W.2d 174, 179 (Iowa 2017). We apply an abuse-of-
discretion standard when deciding if the district court properly allowed into
evidence portions of Brownlee interview with Officer Doyle. See State v. Richards,
879 N.W.2d 140, 145 (Iowa 2016). When reviewing for an abuse of discretion, we 6
give considerable leeway to the trial judge who is making a judgment call about
the impact of the evidence at issue. Id.
III. Analysis
A. Corroboration of Accomplice—Ineffective Assistance of Counsel
To establish ineffective assistance, Brownlee must show (1) counsel failed
to perform an essential duty and (2) the omission resulted in prejudice to
Brownlee’s case. See Strickland v. Washington, 466 U.S. 668, 687 (1984). On
the duty prong, Brownlee must show “counsel’s representation fell below an
objective standard of reasonableness” considering all the circumstances. See id.
at 688. On the prejudice prong, Brownlee must show but for counsel’s
unprofessional errors, a reasonable probability exists the outcome of the
proceeding would have been different. See id. at 694. Inability to satisfy either
prong is fatal to Brownlee’s claim. See State v. Neitzel, 801 N.W.2d 612, 624
(Iowa Ct. App. 2011). We often preserve ineffective-assistance claims for possible
postconviction proceedings, but we will address them on direct appeal if the record
allows. Id. The parties agree the present record is adequate to assess Brownlee’s
claims.
Brownlee alleges his trial counsel made two critical omissions: (1) failure to
challenge the sufficiency of the State’s evidence to corroborate Tanisha’s
testimony regarding his possession of incendiary material and (2) failure to request 7
a jury instruction on the necessity of corroborating accomplice testimony.4 We will
address each of these claims in turn.
1. Was Counsel Ineffective in Failing to Move for Judgment of Acquittal on Lack of Corroborating Evidence for Possession of Incendiary Material?
The jury found sufficient proof that on February 7, 2016, Brownlee
possessed an incendiary device5 with the intent to use it to commit a public offense.
See Iowa Code § 712.6(1). On appeal, Brownlee claims “the only evidence that
the jury could have found [he] possessed an incendiary or explosive device was
provided by the testimony of an accomplice—Tanisha.” Brownlee asserts that
because Tanisha’s testimony was not corroborated, that count would not have
reached the jury had counsel raised the corroboration issue in his motion for
judgment of acquittal.
“A conviction cannot be had upon the testimony of an accomplice . . . ,
unless corroborated by other evidence which shall tend to connect the defendant
with the commission of the offense; and the corroboration is not sufficient if it
merely shows the commission of the offense or the circumstances thereof.” Iowa
Rule of Crim. P. 2.21(3). Corroborating evidence may be either direct or
circumstantial; it need not be “strong” proof of guilt, so long as it backs a material
aspect of the accomplice’s testimony and tends to link the accused with the
commission of the offense. State v. Yeo, 659 N.W.2d 544, 548 (Iowa 2003).
4 Brownlee also alleges counsel was ineffective in failing to raise a relevancy objection to Brownlee’s prior bad acts revealed during his police interview. We will address that allegation as we consider the preserved objections to the prior-bad-acts evidence. 5 The jury instructions defined incendiary device as “a device, contrivance, or material causing or designed to cause destruction of property by fire.” 8
The State concedes Tanisha could have been charged as an accomplice
under an aiding-and-abetting theory of liability. But the State rebuffs Brownlee’s
assertion that he was prejudiced by counsel’s failure to move for judgment of
acquittal on the possession count by alleging inadequate corroboration. In the
State’s estimation: “Any such motion would have been flatly rejected by the district
court.” The State points to “independent testimony and evidence obtained from
the scene” as corroboration for Tanisha’s statements that Brownlee possessed
and used incendiary material to light Rae’s home on fire. Arson experts testified
the color and behavior of the flames and the intense burn signaled the use of
accelerants. The very location of the fire was suspicious, as one firefighter
observed: “There was no reason for a fire to be at that location.”
The State also highlights the corroborating nature of Brownlee’s admissions
to police. State v. Douglas, 675 N.W.2d 567, 572 (Iowa 2004) (reaffirming “the
testimony of an accomplice and the confession of a defendant constitute
acceptable corroboration, one for the other”). Officer Doyle testified Brownlee
initially denied any connection to Rae or her residence. But when Doyle, falsely,
suggested the police had video and a fingerprint linking Brownlee to the arson,
Brownlee changed his story and acknowledged going to Rae’s house on
instructions from Breashears, but Brownlee unpersuasively denied liability for the
fire. Brownlee admitted Breashears wanted Rae to “move out of town” and wanted
him to “harass her.” Brownlee volunteered the fact he visited Rae’s home twice.
He also volunteered that he carried a spray bottle with alcohol that created flames.
Although Brownlee denied setting the fire, he stated after his second visit he left 9
town for “a while.” That admission was consistent with Tanisha’s statement she
did not see him for a day or more.
On this record, we conclude Brownlee cannot show he was prejudiced by
counsel’s omission. As the State points out, Brownlee’s brief “implicitly concedes”
the prosecutor offered sufficient evidence to submit the arson count to the jury. It
is hard to argue the prosecution generated a jury question as to whether Brownlee
intentionally started an outdoor fire in early February with the aim of burning Rae’s
residence, but elicited insufficient evidence he used incendiary material to start
that same fire. A motion for judgment of acquittal premised on the lack of
corroboration for the possession of incendiary material offense would not have
been successful given the State evidence supporting Tanisha’s testimony.
2. Was Counsel Ineffective in Failing to Request A Jury Instruction on Necessity of Corroborating Accomplice Testimony?
Separate from his complaint about counsel’s performance, Brownlee
contends the district court had a duty, even without being asked, to instruct the jury
about the need to corroborate Tanesha’s testimony. 6 Brownlee relies on State v.
Anderson, 38 N.W.2d 662, 665 (Iowa 1949), which states: “It is prejudicial error to
fail to instruct even without request on the requirement of corroboration where the
6 Brownlee quotes this uniform instruction: An ‘accomplice’ is a person who knowingly and voluntarily cooperates or aids in the commission of a crime. A person cannot be convicted only by the testimony of an accomplice. The testimony of an accomplice must be corroborated by other evidence tending to connect the defendant with the crime. If you find (name of witness) is an accomplice, the defendant cannot be convicted only by that testimony. There must be other evidence tending to connect the defendant with the commission of the crime. Such other evidence, if any, is not enough if it just shows a crime was committed. It must be evidence tending to single out the defendant as one of the persons who committed it. 10
jury could find the only witness against defendant was an accomplice.” Here, the
jury could not have found the only witness against Brownlee was an accomplice.
True, Tanisha was the main witness against Brownlee, but other witnesses also
presented evidence incriminating him. Principal among those was Officer Doyle,
who interviewed Brownlee and found his story shifted during the interrogation.
Because Tanisha was not the sole witness to testify against Brownlee, the district
court was not obliged to give the accomplice-testimony instruction in the absence
of a request. See State v. Moss, No. 08-1224, 2009 WL 3381053, at *2–3 (Iowa
Ct. App. Oct. 21, 2009). While the district court must instruct the jury fully and
fairly, our adversarial system imposes the burden upon counsel to preserve error
by specifically requesting pertinent instructions. See State v. Sallis, 262 N.W.2d
240, 248 (Iowa 1978).
Because counsel did not ask for the accomplice-testimony instruction,
Brownlee alleges his representation fell below constitutional norms. We agree
counsel should have asked the court to instruct the jury that Brownlee could not
be convicted of any of the charges on Tanisha’s word alone, but rather her
accomplice testimony had to be corroborated by other evidence connecting
Brownlee to the crimes. But we conclude Brownlee has failed to establish a
reasonable probability exists that, had his attorney requested a corroboration
instruction, the outcome of the trial would have been different. Given his own
highly incriminating statements to Officer Doyle that jibe with Tanisha’s testimony,
it is more than likely the jury would have found adequate corroboration. See State
v. Barnes, 791 N.W.2d 817, 825 (Iowa 2010). 11
Finally, we consider Brownlee’s argument that he “was prejudiced by trial
counsel’s multiple errors on pivotal issues.” “Under Iowa law, we should look to
the cumulative effect of counsel’s errors to determine whether the defendant
satisfied the prejudice prong of the Strickland test.” State v. Clay, 824 N.W.2d 488,
500 (Iowa 2012). Because we find Brownlee’s defense suffered no measure of
harm stemming from any of counsel’s alleged errors, we reject his cumulative
prejudice argument. See Schrier v. State, 347 N.W.2d 657, 668 (Iowa 1984)
(reviewing effect of various claims “both individually and cumulatively” and finding
the appellant did not establish he was denied a fair trial).
B. Was the Admission of Prior Bad Acts Cause for Reversal?
Brownlee contends the jury’s verdicts were influenced by damaging
information about his character from his recorded interview with Officer Doyle. He
argues he is entitled to a new trial based on the admission of prior-bad-acts
evidence.
During hearing on a motion in limine, the State confirmed its plan to play the
video-recording of Brownlee’s statement to Officer Doyle. Defense counsel
expressed concern that the video revealed Brownlee’s drug use and that he sold
methamphetamine for Breashears. The State argued the video was relevant to
show Brownlee’s motive and intent to commit the crimes. The court overruled the
defense request to exclude the evidence, stating: “It did appear that the State’s
theory of the case is that the fire was started to pay off a drug debt, the debt owed
to Ms. Breashears. That relationship is relevant to motive, intent of the defendant
in this case.” 12
During trial, defense counsel renewed his objection to portions of the video
being shown to the jury. Specifically, he cited Brownlee’s references to (1) “being
fronted an eight ball”; (2) doing “jobs” for Breashears; and (3) having a drug debt.
The district court overruled the objections, finding the evidence was admissible to
prove motive, lack of mistake, and the continuing relationship between Brownlee
and Breashears. The court also ruled the probative value of the evidence was not
outweighed by the danger of undue prejudice.
On appeal, Brownlee argues his trial attorney was ineffective for not raising
a relevancy objection to the evidence that he used drugs, sold drugs, provided
drugs to Tanisha, and spent time in jail in Illinois. He also argues the district court
abused its discretion in allowing the jury to hear the entirety of his recorded
interview with police.
“Evidence of a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that on a particular occasion the person acted
in accordance with the character.” Iowa R. Evid. 5.404(b). But “[t]his evidence
may be admissible for another purpose such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
Id. “[R]ule 5.404(b) is a rule of exclusion.” State v. Richards, 879 N.W.2d 140,
153 (Iowa 2016).
“Courts employ a two-step analysis to determine whether the bad-acts
evidence is admissible.” State v. Sullivan, 679 N.W.2d 19, 25 (Iowa 2004). The
first step is to decide if the evidence is relevant to prove a legitimate factual issue
in dispute. Id. If it is, the second step is to decide if its probative value is
substantially outweighed by the danger of unfair prejudice. Id.; see also Iowa R. 13
Evid. 5.403. If the probative value is outweighed by the danger of unfair prejudice,
the court must exclude the evidence. State v. Mitchell, 633 N.W.2d 295, 298–99
(Iowa 2001). When a prosecutor offers evidence of uncharged misconduct to
establish a defendant’s intent, the district court must require the prosecutor to
“articulate a tenable non-character theory of logical relevance.” Sullivan, 679
N.W.2d at 28 (citation omitted).
Brownlee contends the fact he owed Breashears a drug debt or used illegal
drugs himself was not admissible under rule 5.404(b). He asserts the information
served no purpose but to portray him in a bad light. Brownlee continues, even if
the drug evidence was “minimally relevant to a noncharacter theory,” it should have
been excluded because the risk that it could improperly influence the verdict was
high. See State v. Liggins, 524 N.W.2d 181, 188–89 (Iowa 1994) (acknowledging
juries who discover a defendant is a drug dealer may have an “instinct to punish
drug dealers”). Brownlee also argues the evidence was not harmless. In cases of
nonconstitutional error, reversal is required when it appears “the rights of the
complaining party have been injuriously affected by the error or that [the party] has
suffered a miscarriage of justice.” State v. Reynolds, 765 N.W.2d 283, 292 (Iowa
2009) (quoting State v. Henderson, 696 N.W.2d 5, 12 (Iowa 2005)).
In response, the State argues Brownlee’s involvement with the drug trade
was relevant to its noncharacter theory that his motive was to satisfy his drug debt
by doing the bidding of his drug supplier. We agree. Not all references to drugs
are irrelevant for purposes of rule 5.404(b). See State v. Crawley, 633 N.W.2d
802, 808 (Iowa 2001) (upholding admission of defendant’s drug use in a forgery
case because it was relevant to his motive for cashing check). Here, Brownlee’s 14
association with a “dope” dealer was not “wholly independent” of the crimes for
which he was being tried. See id. His drug debt to Breashear and their ongoing
relationship explained his incentive for committing the arson and associated
crimes. Brownlee suggests the fact that the debt was for drugs was not relevant
and the State could have advanced its theory by simply describing a general debt
to Breashear. We disagree. It is unlikely a jury would be as ready to believe
Brownlee would commit arson at the direction of someone to whom he owed just
$300 without the explanatory backdrop of the drug trafficking.7
Having determined the drug debt was relevant to a legitimate factual issue
in dispute, we turn to the second step in our analysis. We must decide if the
probative value of the drug evidence was substantially outweighed by the danger
of unfair prejudice. See Iowa R. Evid. 5.403. The State contends the mentions of
Brownlee’s drug use in the video played for the jury were “tangential and brief,
vaguely referring to the substance as ‘dope.’” We find it significant the drug
references were not placed front and center by the prosecution. In his testimony,
Officer Doyle does not discuss Brownlee’s involvement with drugs, only stating that
Brownlee “thought he owed between 300 and 350 dollars” to Breashears. The
prosecutor did not mention drugs in his closing argument. Given their limited use,
any undue prejudice from the casual references to Brownlee’s drug debt in the
police interview did not substantially outweigh their probative value.
7 In fact, the defense made hay during closing argument by divorcing the amount of debt from the drug connection: “The State is making you believe that he had this $300.00 debt and, therefore, he was supposed to go kill Amber Rae for a debt of $300.00? Again, use your common sense.” 15
Even if the drug-debt evidence was improperly admitted under rules 5.403
and 5.404(b), we find the record affirmatively establishes a lack of prejudice. A
party may claim error in a ruling to admit evidence only if the error affects a
substantial right of the party. See Iowa R. Evid. 5.103(a). “While a presumption
of prejudice arises when the trial court has received inadmissible evidence over
proper objection, that presumption will not suffice if the record demonstrates a lack
of prejudice.” Shawhan v. Polk Cty., 420 N.W.2d 808, 810 (Iowa 1988). Here, the
State presented compelling evidence of Brownlee’s commission of arson,
possession of incendiary material, and assault with intent to commit serious injury.
Tanisha’s testimony about his preparation for the crimes coupled with Brownlee’s
corroborating admissions—including his confession to being at the location of the
fire—clinched his fate with the jury. We cannot say the veiled references to “dope”
in the police interview affected Brownlee’s substantial rights.
Nor can we say a different outcome would have been reasonably probable
if trial counsel had objected to this drug-debt evidence on relevance grounds. In
addition to the drug-debt evidence, Brownlee complains about Tanisha’s testimony
that “Tim and his friends” gave her marijuana and Xanax without a prescription and
about Brownlee’s statement that he served time in jail in Illinois. Brownlee cannot
show prejudice from counsel’s failure to object to these references. Defense
counsel introduced the topic of Tanisha’s drug use during cross examination, and
the prosecutor asked on redirect where she was getting the marijuana and Xanax.
Any objection to her response would not have been sustained. See State v.
Williams, 171 N.W.2d 521, 529 (Iowa 1969) (holding defense opened door to
inquiry on drug issue on cross examination, allowing State to ask additional 16
questions on redirect). As for the jail reference, Brownlee said at the end of his
interview that he “did [his] jail time in Illinois” and “quit selling dope.” While it would
have been preferable for the State to edit out these comments, we cannot find the
isolated references amounted to Strickland prejudice considering the strength of
the State’s case and the incriminating nature of Brownlee’s entire interview.
Accordingly, we reject Brownlee’s third claim of ineffective assistance of counsel.