IN THE COURT OF APPEALS OF IOWA
No. 13-0391
Filed April 30, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DENA ANN BROOKS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, George L.
Stigler, Judge.
Dena Brooks appeals her conviction for willful injury causing bodily injury.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Brian Williams, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., and Tabor and McDonald, JJ.
2
VOGEL, P.J.
Dena Brooks appeals her conviction for willful injury causing bodily injury.
Brooks asserts the district court erred in allowing the State to introduce evidence
of Brooks’s conduct after police arrived, and further erred in denying her motion
for judgment of acquittal. She also claims the court erred in failing to give a
limiting instruction regarding Brooks’s subsequent acts and a proper provocation
instruction. She alternatively frames this argument as an ineffective-assistance-
of-counsel claim. We conclude the district court did not err either in allowing the
evidence of Brooks’s subsequent conduct or in denying her motion for judgment
of acquittal. We further find trial counsel was not ineffective for failing to request
a different provocation instruction. However, we preserve for possible
postconviction relief proceedings on Brooks’s limiting-instruction claim.
Consequently, we affirm.
I. Factual and Procedural Background
The facts offered by the State and the facts offered by the defense differed
significantly. The jury could have found the following to be closest to the truth.
On August 4, 2012, Destiny Jones was at her sister’s house in Waterloo, Iowa,
along with other family members. Neighbors Art and Rhonda Hanson, Tim
Roney, and defendant Brooks were sitting on the Hansons’ porch. An argument
ensued regarding Brooks’s son’s involvement in a shooting the day before. Both
groups were shouting at each other in harsh terms, primarily concerning the
shooting. One or more persons on the Hansons’ porch began shouting racial
3
epithets at the Jones family, including the use of the n-word.1 Brooks made a
statement to the effect that she taught her children to protect themselves and she
will protect herself.
Jones approached the grassy area between the houses, yelled at the
neighbors, and told them to stop using racially abusive language. Brooks
continued to shout at Jones and her family. Brooks then leaned over the porch
railing and pushed Jones, after which she came down off the porch and the two
engaged in a physical altercation. Jones admitted she punched Brooks in the
ribs with her fist six or seven times, though she claimed she did not force Brooks
to the ground or otherwise restrain Brooks’s movement. Jones did not have a
weapon.
Brooks then stabbed Jones with a pocketknife twice, once across the
abdomen and once near her left armpit. Jones crawled away from Brooks and
observed that her left side “was open” and bleeding. A witness observed Brooks
handing her knife to “a guy that was on the porch.”
The Waterloo police were called. Brooks was observed “screaming,
calling [Jones’s] mom a ‘cop caller.’” Once the police arrived, they observed
Jones’s wounds and moved to take Brooks into custody. Brooks resisted until
the police drew their weapons. Officer Adam Liddle testified Brooks stated
“yesterday my son handled his own and today, I handled mine.” Upon
investigation of the scene, police found a black tie cap matching the hat worn by
Jones in the grassy area between the houses. In executing a search warrant,
1
Jones and her family are African American and some mixed race children were also on
the porch. Brooks and the other neighbors involved are Caucasian, however, Brooks’s
two children are biracial.
4
police found a folding pocketknife hidden behind the bushes outside the house.
The crime lab found thread and fibers on the knife consistent with the color of
Jones’s clothing.
Brooks testified at trial, asserting the defense of justification. Brooks
claims she was provoked into stabbing Jones because the Jones family was
making threatening comments, including that her son was “as good as dead”
after the prior day’s shooting. When she leaned over the porch rail, she claimed
Jones punched her, causing her glasses to fly off her head. She claims she then
went down to the grassy area to retrieve the glasses, was rushed by Jones, put
in a headlock, and repeatedly punched in the ribs. Unable to free herself, she
managed to pull out a pocketknife on her key chain and stab Jones. Brooks,
then freed from Jones’s grip, did not run away, as she had a rod in her leg,
impairing her mobility. Two of the officers who arrived described the scene as
chaotic, with ten to fifteen people involved in the heated mix. Rhonda Hanson’s
testimony supported Brooks’s version that she was not the aggressor, but, rather,
attempting to escape a frightening situation.
Brooks was charged with willful injury causing serious injury, in violation of
Iowa Code section 708.4(1) (2011). A jury trial was held on February 1, 2013, in
which Brooks used the affirmative defense of justification. The jury returned a
verdict of guilty as to the charge of willful injury causing bodily injury, in violation
of Iowa Code section 708.4(2). On March 4, 2013, Brooks was sentenced to a
term of five years imprisonment. Brooks appeals.
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II. Evidentiary Ruling
Brooks first asserts the district court erred in allowing the State to
introduce evidence regarding her behavior after the police arrived. Brooks claims
the evidence was irrelevant, highly prejudicial, and in contradiction to the court’s
pretrial ruling in which it granted Brooks’s motion in limine regarding the
admissibility of subsequent acts. Brooks further asserts it was inadmissible
character evidence.2
We review evidentiary rulings for an abuse of discretion.
State v. Rodriguez, 636 N.W.2d 234, 239 (Iowa 2001). An abuse of discretion
occurs when the trial court exercises its discretion on grounds or for reasons
clearly untenable or to an extent clearly unreasonable. Id. (internal citation
omitted). A ground or reason is untenable when it is not supported by substantial
evidence or when it is based on an erroneous application of the law. Id. (internal
citation omitted).
At trial, various officers testified about Brooks’s behavior after their arrival,
including testimony that Brooks was uncooperative and belligerent. Testimony
was also elicited regarding Brooks’s behavior after being taken into custody and
her arrival at the police station. Brook’s motion in limine included this request:
“That the Jury not be told at any time by the State or the State’s witness(es) in
any form at any stage of the trial that the Defendant allegedly refused to
2
Brooks also cites to Article 1, section 9 of the Iowa Constitution. However, to the
extent Brooks raises a constitutional argument, that particular claim was never raised in
the district court. Therefore, error was not preserved, and we decline to address the
merits of this claim. See Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012) (holding
the district court must rule on the issue for error to be preserved).
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cooperate, refused to make statements, or requested an attorney.” Prior to trial,
the following exchange occurred:
The Court: The purpose of going on the record outside the
hearing of the jury is to deal with the defendant’s Motion in Limine
. . . . Two, that the jury not be told the defendant has allegedly
refused to cooperate. As I understand it, she did make one
statement about her son having taken care of business the day
before and so she had to take care of business this date. Beyond
that statement, [does the State] intend to get into anything else?
The State: In fact I have admonished my officers to not
indicate that, Your Honor.
After opening statements, Brooks objected to the State’s mention of her
behavior:
[Defense Attorney]: Prior to opening statements, we took up
the motion in limine which was filed by myself. One of the things in
the motion in limine was that I requested that the State not make
reference to defendant allegedly refusing to cooperate. At that time
it is my recollection that [the State] indicated that [it] was not going
to do any of that beyond referring to the alleged statement my client
made about handling of business. Now, when I listened to [the
State’s] opening statement [it] did in fact make mention that my
client failed to cooperate with law enforcement and was
uncooperative when the police arrived.
The Court: Well, there’s no prohibition on that sort of
evidence. That she failed to talk to them or wouldn’t talk to them
certainly you have a right to insist that that evidence not be put
before the jury because that could be viewed as being a violation of
Miranda, but that she didn’t cooperate, what case law is there that
you have that the State cannot show that she failed to cooperate?
[Defense Attorney]: I do not have case law to cite to you at
this time, Your Honor. However, based on just the plain language
that [the State] said [it] was going to abide by, I would believe that
that was improper of [it] to do so.
The Court: Your motion is of record, but it’s denied. The
State has every right to show whether she cooperated or not. It
does not have a right she refused to talk. But if she was belligerent
and using insulting language, the State has every right to show
that.
Brooks is correct in her assertion the State at first indicated it did not
intend to introduce evidence “that the Defendant has allegedly refused to
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cooperate.” However, in her motion in limine, Brooks did not specify that it was
her post-incident behavior and language she sought to exclude. With the issue
honed after opening statements, the district court distinguished between failing to
cooperate by invoking her right to remain silent as opposed to being “belligerent
and using insulting language.” Therefore, the introduction of this evidence did
not contradict any explicit court ruling, which is necessary to establish error. See
State v. Delany, 526 N.W.2d 170, 177 (Iowa Ct. App. 1994) (noting the district
court’s ruling on the motion in limine was equivocal, and therefore no violation
occurred when the State introduced evidence).
Moreover, the State’s introduction of such testimony does not rise to the
level of prosecutorial misconduct. See, e.g., State v. Graves, 668 N.W.2d 860,
870–76 (Iowa 2003) (holding the prosecutor’s cross-examination of the
defendant about whether police officer made up testimony, as well as the
prosecutor’s closing argument in which he stated the defendant lied and virtually
called police officer a liar, amounted to prosecutorial misconduct). Nor, as
Brooks claims, is this situation analogous to the State breaching a plea
agreement—there was no exchange of promises or detrimental reliance on the
State’s position, given such a generalized request in the pretrial motion.
Consequently, this argument is without merit.
Furthermore, the district court did not abuse its discretion in admitting this
evidence. Although in her motion in limine Brooks sought to keep out any
alleged “character” evidence, it too failed to specify her conduct at the scene of
the melee. Additionally, Iowa Rule of Evidence 5.404(b) only applies when
character evidence is admitted for the purpose of showing the defendant’s
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propensity to commit certain acts. See State v. Sullivan, 679 N.W.2d 19, 24–25
(Iowa 2004) (“[A] specific exclusionary rule such as rule 5.404(b) is necessary to
exclude bad-acts evidence whose only relevancy is to illustrate the character of
the accused for purposes of establishing other actions in conformity with that
character”) (internal citation omitted). Here, the State did not offer evidence of
her belligerent state to show Brooks’s propensity to commit crimes or otherwise
not act in accordance with the law. Rather, it was offered to show her intent and
state of mind at the time of the incident and immediately thereafter, which was
important considering Brooks’s justification defense. Consequently, it was also
relevant and not unduly prejudicial. See Iowa R. Evid. 5.403 (only excluding
evidence where the danger of unfair prejudice substantially outweighs the
evidence’s probative value). Therefore, the district court did not err in admitting
this evidence.
III. Motion for Judgment of Acquittal
Brooks further claims the court erred in overruling her motion for judgment
of acquittal. Brooks asserts the State failed to disprove, beyond a reasonable
doubt, her justification defense. Alternatively, Brooks requests we consider this
argument as an ineffective-assistance-of-counsel claim. The State responds
Brooks failed to preserve error on this specific argument, considering the only
challenge made in Brooks’s motion concerned the State’s evidence of “serious”
injury, as opposed to the lesser crime of “bodily” injury.
“The doctrine of error preservation has two components—a substantive
component and a timeliness component.” State v. Krogmann, 804 N.W.2d 518,
523 (Iowa 2011) (holding a one-page resistance that stated there was no legal
9
basis for the State’s actions did not properly preserve error with respect to the
defendant’s constitutional claims). To preserve error on appeal, the party must
first state the objection in a timely manner, that is, at a time when corrective
action can be taken, in addition to the basis for the objection. Id. at 524. The
court must then rule on the issue. Lamasters v. State, 821 N.W.2d 856, 864
(Iowa 2012). “If the court’s ruling indicates that the court considered the issue
and necessarily ruled on it, even if the court’s reasoning is ‘incomplete or sparse,’
the issue has been preserved.” Id. (quoting Meier v. Senecaut, 641 N.W.2d 532,
540 (Iowa 2002)).
Here, Brooks’s motion for judgment of acquittal asserted the evidence was
insufficient to show Jones suffered a serious injury, rather than merely a bodily
injury. She did not raise or argue the State’s failure to disprove her justification
defense. Therefore, the district court did not address this argument, and so error
was not preserved.
To the extent Brooks frames this argument as an ineffective-assistance-of-
counsel claim, we review those claims de novo. State v. Straw, 709 N.W.2d 128,
133 (Iowa 2006). To succeed on this claim, the defendant must show, first, that
counsel breached an essential duty, and, second, that she was prejudiced by
counsel’s failure. Id.
To overcome Brooks’s justification defense, the State had to prove beyond
a reasonable doubt either Brooks started or continued the incident, she did not
believe she or another person was in imminent danger of death or injury, she did
not have reasonable grounds for the belief, or the force used by Brooks was
unreasonable. See State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993).
10
Brooks testified Jones started the physical altercation; Jones testified it was
Brooks who started the fight. Accepting the State’s version of the incident was
sufficient for the jury to have concluded the State overcame Brooks’s justification
defense beyond a reasonable doubt. See Iowa R. Crim. P. 2.21(3)
(“Corroboration of the testimony of victims shall not be required”); State v.
Hildreth, 582 N.W.2d 167, 170 (Iowa 1998) (“We find that the alleged victim’s
testimony is by itself sufficient to constitute substantial evidence of Defendant’s
guilt”). Consequently, any argument regarding the State’s failure to overcome
Brooks’s justification defense would be overruled. Because trial counsel had no
duty to raise a meritless argument, see State v. Greene, 592 N.W.2d 24, 29
(Iowa 1999), Brooks’s ineffective-assistance claim fails.
IV. Jury Instructions
Brooks’s final issue asserts the district court erred in failing to give a
limiting instruction regarding Brooks’s subsequent acts, as well as a jury
instruction regarding provocation that “accurately reflects the law.” Alternatively,
Brooks frames this argument as an ineffective-assistance-of-counsel claim for
not requesting a limiting instruction and for failing to object to the provocation
instruction. She asserts she was prejudiced because the jury would have
acquitted had the correct instructions been given.3
A defendant may raise an ineffective-assistance claim on direct appeal if
the record is adequate to address the claim. Straw, 709 N.W.2d at 133. We may
either decide the record is adequate and issue a ruling on the merits, or we may
3
Because Brooks acknowledges trial counsel did not raise either issue before the district
court, error was not preserved. Consequently, we will address her arguments as an
ineffective-assistance claim.
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choose to preserve the claim for postconviction proceedings. Id. We review
ineffective-assistance-of-counsel claims de novo. Id. To succeed on this claim,
the defendant must show, first, that counsel breached an essential duty, and,
second, that he was prejudiced by counsel’s failure. Id.
As an initial matter, the district court did not have an obligation to sua
sponte issue a limiting instruction advising the jury on how to view Brooks’s
conduct subsequent to her arrest. See, e.g., State v. McKettrick, 480 N.W.2d 52,
55 (Iowa 1992) (stating a limiting instruction is a matter of trial tactics). With
regard to whether trial counsel was ineffective for failing to request a limiting
instruction, we do not have an adequate record to address such a claim. See
State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004) (“Ordinarily, ineffective
assistance of counsel claims are best resolved by postconviction proceedings to
enable a complete record to be developed and afford trial counsel an opportunity
to respond to the claim”). Therefore, this claim is preserved for possible
postconviction relief proceedings, where a more complete record may be
established. See Straw, 709 N.W.2d at 133.
With respect to counsel’s failure to object to the provocation instruction,
Brooks failed to prove counsel breached an essential duty. The instruction
stated: “Words of provocation and insulting nature may be considered, together
with all of the other evidence, to determine who started the incident and whether
the defendant’s apprehension of danger was reasonable.” This is a correct
statement of the law, and any objection would not have resulted in a change of
the instruction. See State v. Thompson, 836 N.W.2d 470, 478 (Iowa 2013)
(discussing provocation). Trial counsel did not breach an essential duty in failing
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to pursue a meritless argument. See Greene, 592 N.W.2d at 29. Therefore,
Brooks’s ineffective-assistance claim has no merit.
Having considered all of Brooks’s arguments properly preserved for
appeal, we affirm her conviction.
AFFIRMED.