Opinion
No. 5-514 / 04-0690
Filed October 12, 2005
Appeal from the Iowa District Court for Black Hawk County, James C. Bauch, Judge.
Pamela Newman appeals her conviction for first-degree arson. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Raymond Walton, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Zimmer, JJ.
Pamela Newman appeals from a judgment and sentence entered following her conviction for first-degree arson, in violation of Iowa Code sections 712.1 and 712.2 (2001). We affirm.
I. Background Facts Proceedings
On January 12, 2002, members of Waterloo Fire Rescue and the police department responded to a report of a fire at the home of Pamela Newman. Officers noted that the pattern of the fire showed an accelerant had been present. Also, there was a smell of gasoline in the house. Officers concluded the fire had been intentionally set.
Over the course of the investigation into the cause of the fire, Newman gave several different accounts of what happened. At the scene of the fire, Newman told authorities she had been sewing in her living room and got up to go to the bathroom. She stated that when she got out of the bathroom the kitchen was on fire, and she did not know how the fire started. She explained that the snowmobile suit she was wearing at the time caught on fire as she ran through the kitchen to get out of the house and she rolled on the ground after escaping the house to put out the fire. She said she might have kicked a gas can left in the kitchen by a mechanic the previous day on her way out of the house. Newman also stated she had been cooking and could not remember whether she left the burners on. She told one officer on the scene that she was cooking and a gas can either near on or the stove had caught fire. She stated she was the only one in the home.
At the police station Newman stated that during an argument with Darryl Speller he pinned her against a wall in the kitchen and poured gasoline over her. Newman stated that she escaped into the bathroom, but when she came out the kitchen was on fire.
Darryl Speller, who had been living with Newman since June 2001, told officers on the scene he had been in the house when the fire started. Clothing worn by Newman and Darryl Speller the day of the fire tested positive for the presence of gasoline. After the fire, Newman made a claim on her homeowner's insurance for damage caused by the fire. Her claim was denied. Newman was charged with arson in the first degree, in violation of Iowa Code sections 712.1 and 712.2.
At trial, Newman testified that in August 2001 she caught Speller smoking crack cocaine. He was not working at the time and had become verbally and physically abusive. Therefore, in September 2001, Newman asked Speller to pack his things and move out. Between September 2001 and January 2002, Newman asked Speller twice to move his property out of her house and move his trucks, tires, and trailers off of her property.
Newman and Ronald Speller, Darryl's brother, offered differing testimony about what transpired the day of the fire. Newman testified that Darryl lost his temper and pinned her in a corner of the kitchen in front of the bathroom door, where he kept her for approximately two hours. He banged her head up against the wall. At some point, he picked up a gas can and started pouring gas on Newman. While Darryl and Newman argued, Ronald Speller knocked at the front and back doors, telling Darryl to let Newman go. Newman testified that Ronald never came into the house.
Newman begged Darryl to let her use the bathroom. When she came out, the kitchen was a wall of fire. Newman ran through the fire in the kitchen and fell in the dining room. The legs of her snowsuit caught fire; she ran across the street and rolled on the ground to put out the fire. Newman testified she lied to the authorities at the scene of the fire because she was scared of Darryl, who was still in the area.
Ronald Speller testified that he went to Newman's house after receiving a phone call informing him that Darryl and Newman were arguing. According to Ronald, Newman invited him into the house. The two were in the garage area of the house, arguing about their relationship. At some point during the argument, Darryl told Newman the relationship was over. Newman dropped her lighted cigarette onto the kitchen floor, picked up a gas can, went into the bathroom and started shaking it. She slipped and fell in the gas, got back up, and continued shaking the gas container in the kitchen, spilling gasoline on the floor. The gas on the kitchen floor ignited, and Ronald and Darryl ran out the back door.
Dave Boesen, the Waterloo fire marshal, testified at trial that based on the evidence of the fire in the bathroom, if Newman had been in the bathroom during the fire, as she claimed, she would have been severely burned or would not have escaped at all.
On cross-examination, Newman's attorney asked Boesen if aggressive fires, such as the one in this case, were generally set by men, which Boesen denied. The prosecutor then questioned Boesen about whether it was possible to profile arsonists, as it was with some other crimes. Boesen responded that there was no reliable body of evidence to support the profiling of people who set fires. Newman sought to introduce the expert testimony of John Woodland, a fire investigator, to show that the fire was more likely started by a man than a woman. In a report Woodland stated:
I believe the "profile of the fire scene" is indicative of an act committed by a man, and not typically the act of a woman. The violence of the act, and the volume and type of fuel required to cause the level of damage observed, implies a confidence in and understanding of the fuel, not typically portrayed by women.
Woodland's report served as an offer of proof as to his testimony. The district court ruled that Woodland could testify to the cause of the fire, the spread of the fire, and the types of burns that are on clothing. The court determined it would invade the province of the jury, and was outside the area of Woodland's expertise, to allow him to testify to arson profiling.
A jury found Newman guilty of first-degree arson. She was sentenced to a term of imprisonment not to exceed twenty-five years. Newman appeals.
II. Expert Testimony
Newman contends the district court abused its discretion by excluding Woodland's proposed testimony about psychological profiles and gender statistics in arson cases. She points out that Boesen was permitted to testify that aggressive fires could be set by a man or a woman. She believes Woodland should have been permitted to contradict that statement by testifying that aggressive fires are more likely to be set by a man.
Generally, we review questions of admissibility of expert testimony for an abuse of discretion. State v. Spilger, 508 N.W.2d 650, 652 (Iowa 1993). An abuse of discretion occurs when the district court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Khalsa, 542 N.W.2d 263, 267 (Iowa Ct.App. 1995).
The admission of expert opinion testimony is governed by Iowa Rule of Evidence 5.702, which provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.
Iowa has a liberal tradition in the admission of opinion evidence under rule 5.702. State v. Buller, 517 N.W.2d 711, 713 (Iowa 1994).
In State v. Hulbert, 481 N.W.2d 329, 331 (Iowa 1992), the defendant claimed the district court abused its discretion by refusing to permit expert opinion testimony about whether he fit the profile of a child molester. The supreme court concluded the district court had not abused its discretion. Hulbert, 481 N.W.2d at 333. The court noted, "expert psychological evidence may not be used to merely bolster a witness's credibility" because "veracity is not a `fact in issue' subject to expert opinion." Id. at 332 (citing State v. Myers, 382 N.W.2d 91, 97 (Iowa 1986)).
The court also determined expert testimony that a defendant does or does not fit a certain profile "clearly goes beyond ordinary character evidence. It comes cloaked with an aura of scientific reliability about the predisposition of certain individuals to commit the type of crime at issue." Id. at 333. Therefore, this type of evidence improperly comments on the guilt or innocence of the defendant. Id.
For the same reasons the supreme court found no abuse of discretion in the exclusion of expert opinion testimony on the issue of profile evidence in Hulbert, we determine the district court in this case did not abuse its discretion in excluding Woodland's proposed testimony on the issue of whether Newman met the profile of an arsonist. The evidence would have been presented merely to bolster Newman's credibility. See id. at 332. Also, the evidence would have been an improper comment on Newman's guilt or innocence. See id. at 333.
Furthermore, Woodland's proposed profiling testimony did not present any evidence concerning whether a specific female defendant, such as Newman, was guilty or innocent. By stating that most aggressive fires are set by men, this does not eliminate the fact that some aggressive fires are set by women. The underlying premise of Woodland's testimony was unreliable, and "`unreliable evidence cannot assist a trier of fact.'" Buller, 517 N.W.2d at 713 (quoting State v. Murphy, 451 N.W.2d 154, 156 (Iowa 1990)).
III. Ineffective Assistance
Newman claims she received ineffective assistance from her trial counsel. Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied defendant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998). The defendant must prove both elements by a preponderance of the evidence. State v. Reynolds, 670 N.W.2d 405, 411 (Iowa 2003). "[T]here is a strong presumption that trial counsel's conduct fell within the wide range of reasonable professional assistance." DeVoss v. State, 648 N.W.2d 56, 64 (Iowa 2002).
In order to show prejudice, a defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984)). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome" of defendant's trial. Id.
We generally preserve ineffective-assistance claims for postconviction relief proceedings "to afford the defendant an evidentiary hearing and thereby permit development of a more complete record." Reynolds, 670 N.W.2d at 411. However, we will consider such claims on direct appeal "where the record is adequate to determine as a matter of law that the defendant will be unable to establish one or both of the elements of [her] ineffective-assistance claim." Id.
A.
Newman first contends that she received ineffective assistance because her trial counsel failed to object to evidence of her drug use. During the prosecutor's cross-examination, Newman testified as follows:
A. Darryl had been smoking and I don't know if you know anything about them kind of people.
Q. Well, you apparently do.
A. Yes.
Q. You use drugs yourself?
A. I don't smoke crack.
Q. What do you smoke?
A. I was smoking marijuana at the time.
Q. How much marijuana were you smoking?
A. A twenty sack a week.
Q. Smoked marijuana but didn't smoke crack?
A. No.
Q. Okay.
A. Cost too much.
Q. Cost too much?
. . . .
Q. Didn't have that kind of money?
. . . .
A. Yes sir, I did not have that kind of money.
Newman argues this evidence was inadmissible under Iowa Rule of Evidence 5.404( b) as evidence of other crimes, wrongs or acts. She claims the "drawn out conversation" was irrelevant and highly prejudicial.
We conclude as a matter of law that there is no prejudice sufficient to support a claim for ineffective assistance of counsel. Contrary to Newman's assertion, the testimony was not a "drawn out conversation." Prior to the prosecutor's cross-examination, Newman's attorney elicited testimony from her that Darryl Speller smoked crack cocaine on the day of the crime and on other occasions. Newman's reference to her own marijuana use on cross-examination was isolated and was not raised again at any other point during Newman's testimony, which took place over two days.
The brief testimony of Newman's marijuana use is in stark contrast to the evidence of cocaine delivery and distribution the supreme court concluded was irrelevant and prejudicial in State v. Liggins, 524 N.W.2d 181 (Iowa 1994). In that case, three witnesses testified during defendant's murder trial about his delivery and distribution of cocaine. Liggins, 524 N.W.2d at 188. The court reversed defendant's conviction and remanded, concluding "[t]he admission of evidence of cocaine delivery and distribution is inherently prejudicial." Id. The evidence of Newman's marijuana use presented much less potential for prejudice than the evidence at issue in Liggins.
Moreover, counsel is not ineffective for failing to object to evidence which is "not likely to be outcome determinative." State v. Carberry, 501 N.W.2d 473, 477 (Iowa 1993). The brief mention of Newman's marijuana use, without more, was not likely to have changed the verdict. Because we do not believe a reasonable fact finder would conclude the outcome of this proceeding would have been different if this testimony had been excluded, we conclude Newman cannot prevail on her ineffective-assistance claim based on counsel's failure to object to this testimony.
B.
Newman also contends she received ineffective assistance because her trial counsel did not file a motion for a new trial challenging the weight of the evidence. See Iowa R. Crim. P. 2.24(2)( b)(6) (the court may grant a new trial when "the verdict is contrary to . . . evidence"). She points to Ronald Speller's testimony as "problematic" and contrary to evidence of Newman's care for her home and her actions in the months leading up to the incident.
A motion for new trial should be granted if the court determines the verdict is contrary to the weight of the evidence. State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1998). A verdict is contrary to the weight of the evidence where a greater amount of credible evidence supports one side of an issue or cause than the other. Id. The trial court's power to grant a new trial based on the ground that the verdict was contrary to the weight of the evidence "should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict." Id. (quoting 3 Charles A. Wright, Federal Practice and Procedure § 533, at 245-48 (2d ed. 1982)).
We conclude the verdict in this case was not contrary to the weight of the evidence. The greater amount of the credible evidence supported the jury's verdict finding Newman guilty of first-degree arson. Newman gave several different accounts of how the fire may have started. The Waterloo fire marshal, Boesen, testified that Newman would have been severely burned if the fire had occurred as she claimed. Ronald Speller testified he observed Newman start the fire. Furthermore, the trial judge stated during sentencing that the jury had "return[ed] a verdict which I find to be appropriate, based upon the evidence that was presented at the trial — I don't have any problem with the jury's verdict." Based on the evidence presented at trial and the trial court's comments at sentencing, we conclude Newman's case did not present the "exceptional case" in which the evidence "preponderates heavily against the verdict." Therefore, defense counsel was not ineffective for failing to file a motion for a new trial.
We affirm Newman's conviction.