State of Iowa v. Jayme Powell ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 21-1854
Filed May 24, 2023
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JAYME POWELL,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Monona County, Roger L. Sailer,
Judge.
A defendant appeals his convictions, alleging his attorney had a conflict of
interest and challenging the denial of a motion for mistrial. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Ashley Stewart, Assistant
Appellate Defender, for appellant.
Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered by Bower, C.J., Badding, J., and Potterfield, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023).
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BADDING, Judge.
In a diatribe against the compensation paid to court-appointed attorneys,
Jayme Powell’s trial counsel moved for a mistrial outside the presence of the jury.
He argued that it was fundamentally unfair to have “somebody being paid at the
courthouse janitor level to defend [Powell] on something that’s going to take his
freedom away for the rest of his life.” The district court disagreed and denied the
motion, which counsel renewed as the trial progressed, at one point claiming he
was “ineffective to help this man.”
The jury found Powell guilty of attempted murder and related charges.
Powell appeals, claiming (1) “defense counsel had a conflict of interest between
being paid for his services and his effective representation”; and (2) the court
abused its discretion in denying a mistrial after counsel “clearly informed the court
he was providing ineffective representation to his client.” We affirm.
I. Background Facts and Proceedings
The day after Christmas in 2020, Powell got into an argument with his
roommate, Richard. That argument led to a shooting on the interstate, during
which at least two gunshots were fired at a truck being driven by Richard’s
girlfriend. Richard was following behind the truck on his motorcycle. One shot
shattered the back driver’s side window, where Richard’s two-year-old daughter
was sitting in her car seat, and the other went into the passenger side door. The
girlfriend said these shots were fired by Powell from his truck.
When Richard raced forward on his motorcycle to help, Powell ran into him
with his truck. Powell then fled on foot to a nearby farm and took a truck sitting
outside. After driving that truck through a fence, Powell abandoned it and took
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another truck from a neighboring farm. He drove to a friend’s house, where he
was apprehended by the police. Richard was severely injured in the motorcycle
crash but survived, as did his girlfriend and child.
The State filed a trial information charging Powell with two counts of
attempted murder, two counts of intimidation with a dangerous weapon with intent
as a habitual offender, two counts of theft in the second degree, and possession
of a firearm by a felon as a habitual offender. Powell’s first two court-appointed
attorneys withdrew before a third attorney was appointed to represent him in April
2021. The case against Powell proceeded to trial in October where the theme of
the case—outside the jury’s presence—was defense counsel’s ire over the amount
he is paid through his contract with the State Public Defender’s office.
That theme began on the first day of trial when, after the jury was selected,
defense counsel challenged the jury pool because only “20 of the 70 were male.”
Counsel prefaced that argument “with the fact that I’m court-appointed” and paid
at “$68 an hour, which is fundamentally unfair to defendants to adequately
maintain an office and sufficiently prepare to compete against better-funded
prosecution.” The district court denied the request “to disqualify the pool and call
another pool of jurors,” and trial started.
Counsel continued with his theme the next day of trial when he renewed the
challenge to the jury pool:
So I’m asking this Court to kick this jury out simply because
the pool is unfair.
With that, I will finish here with the fundamental fairness in
terms of this public appointment for me because I do not have a
paralegal, and then I have to pay an assistant out of my court-
appointed funds if I wanted one. So I’m not going to be able to do
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the statistics or have somebody go back and work yesterday to
develop that jury pool question for the Court.
....
My position is the State of Iowa is just downgrading this court
appointment process. . . . Clearly, I can come to the Court, and I
have to ask for funds, and the Court has given me extra funds . . .
and I haven’t asked for, you know, beyond that at this point because
I’ve never really had any luck with it very much. . . .
Well, right now I would like somebody to come in or the Court
to appoint somebody to do this jury investigation and come up with
statistics and arguments and proof that the defendant isn’t getting a
fair jury pool here.
The court stated it would “give it another look” and make “a renewed ruling on that
sometime prior to the end of trial,” though no further ruling was made on that issue.
The third day of trial began with defense counsel moving for a mistrial
because he learned the State had charged Richard “with extortion for threatening
the prosecution that he wasn’t going to testify.” The State offered to make Richard,
who had already testified for the prosecution, available if counsel wanted to call
him as a witness. After the court denied the motion, defense counsel asked
for another mistrial and/or an order from the Court as I [thought]
about fundamental fairness about the whole system of the public
defense.
The State is getting paid. Their witnesses are all being paid.
They get their money. The Court knows I did a trial a couple weeks
ago. In the best case, I’m not going to be paid until March of next
year. . . .
....
So I can go through this whole trial now and get ready for
cases, and the public defender—and of course I understand that I’m
on the contract, but I won’t know for months whether or not the public
defender is going to pay me. Okay? Which in the back of my mind
it’s there.
I’m completely honest with my client in this public support
system. And he has me, and he knows the situation. It’s not affecting
my . . . it’s not impacting me in terms of being here and doing what
I’m doing.
So I’m asking this Court to give an order that the State Public
Defender’s Office pay me at the end of this trial when it goes to jury.
Otherwise I will have to wait months to be paid.
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Now, to lay it out a little more, the State is paid weekly. The
prosecution. And I’m sure the Court is as well. The only one that
doesn’t get paid weekly or has to worry about getting paid is me.
And I have to stand here and represent this man, and I will
argue that that is not only unfair and it raises to the level of a mistrial
at this point because of . . . this immunity thing and forcing a witness
to testify. . . . [T]he State has an office right over here with their own
staff that gets paid. And I brought it up yesterday. I get paid $68 an
hour. I have to maintain a secretary. $18 living wage. That give[s]
me[] $50. I have to maintain my office, pay for my computers, all of
my equipment, and do everything else . . . which brings me less than
the courthouse janitor.
So you have somebody being paid at the courthouse janitor
level to defend him on something that’s going to take his freedom
away for the rest of his life. And I get thrown hardballs and hardballs.
And it’s just me. [The prosecutor] has the whole system behind him.
. . . . And if that’s the way the State wants to play this game
of defense work, it just [is] fundamentally unfair.
. . . . I’m asking for a mistrial, but I’m also asking the Court
order the State to pay me so that at least . . . I’m not sitting here and
having to worry about my bills and living my life and at the same time
defending this guy because I have to invest my time and food and
motels and getting here and then still worry about getting paid. The
last time I did a trial over here the State wouldn’t even pay me for
staying here.
Though the court said that it was “not without sympathy” for defense counsel, it
denied the motion for mistrial and request for an order requiring payment.
Later on that day, defense counsel again decried his lack of resources while
challenging an exhibit the State offered that was “a summary of data information
received from Verizon.” The court overruled the objection, noting the State had
put all the data into the record as an exhibit. Yet counsel argued: “I don’t have the
resources to have this—these specialized programs and licenses to go back
through and analyze and look at and contribute to how this data works.” So he
again “urge[d] the Court just to throw it all out and start this whole thing over and
then give the defense the resources necessary to defend this man.” Once more,
the court denied the motion.
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On the last day of trial, defense counsel closed his theme with a final appeal
to the court for a mistrial:
Yesterday the prosecution argued that I had the evidence,
that I could have analyzed it, that I could have done depositions.
He’s sitting here with state investigators in the courtroom that can
help him. He’s got all of his office. And the fundamental fairness of
this is my client is indicating to me stuff that I should have done and
could have done which makes me ineffective because I didn’t have
the time.
. . . . [O]ver the years you just get into this process of give
reasonable representation but don’t—you know, you just can’t do too
much; otherwise, we are not going to pay you. So that makes me
ineffective to help this man. So we are moving for a mistrial.
Noting that it had considered the same arguments previously, the court again
denied the motion.
The jury ultimately found Powell guilty of two counts of attempted murder;
two counts of intimidation with a dangerous weapon with intent; possession of a
firearm by a felon; and the lesser-included offenses of operating a motor vehicle
without owner’s consent. Powell stipulated to prior felony convictions for the
habitual offender enhancements and was sentenced to a total indeterminate
sentence of fifty-four years in prison. He appeals.
II. Conflict of Interest
Citing his “Sixth Amendment right to counsel,”1 Powell first claims that his
attorney’s statements about his compensation from the State Public Defender’s
1 While “[c]onflict-of-interest claims are typically raised in ineffective-assistance-of-
counsel claims,” Powell has not made that specific claim under his first issue
heading. See State v. Smitherman, 733 N.W.2d 341, 345 (Iowa 2007). Instead,
he frames the issue as a “generic conflict-of-interest claim.” Id. As a result, we do
not find any impediment to our authority to consider the claim on direct appeal. Cf.
Iowa Code § 814.7 (2020) (limiting the authority of Iowa’s appellate courts to
resolve ineffective-assistance claims on direct appeal).
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office “should have alerted the district court to a possible conflict of interest, thus
giving rise to the court’s obligation [to] inquire further to determine if an actual
conflict existed.” Because the court knew or should have known of the conflict,
Powell argues “reversal is required” under State v. Watson, 620 N.W.2d 233, 238
(Iowa 2000). We review this claim de novo. See Smitherman, 733 N.W.2d at 345.
Powell is correct that the court in Watson held “that where the trial court
knew or should have known of a particular conflict, reversal is required without a
showing that the conflict adversely affected counsel’s performance, even though
no objection is made at trial.” 620 N.W.2d at 238. But in cases since Watson, our
supreme court has adopted the United States Supreme Court’s holding in Mickens
v. Taylor, 535 U.S. 162 (2002). See State v. Vaughan, 859 N.W.2d 492, 500
(Iowa 2015). The court in Vaughan explained that following Mickens,
automatic reversal is required under the Sixth Amendment only when
the trial court refuses to inquire into a conflict of interest over
defendant’s or counsel’s objection. When neither the defendant nor
his or her attorney raises the conflict of interest, the defendant is
required to show an adverse effect on counsel’s performance to
warrant reversal, even if the trial court should have known about the
conflict and failed to inquire.
Id. (internal citations omitted); accord Smitherman, 733 N.W.2d at 347 (“[W]hen
the trial court failed to conduct an inquiry (or even if it did conduct an inquiry), the
Supreme Court required the defendant to show his counsel’s performance was
adversely affected by the conflict of interest before it would presume prejudice and
find a Sixth Amendment violation warranting reversal.”).
While Powell’s attorney extensively discussed his payment issues at trial—
mostly to advance other arguments he was making, like the jury pool issue—
Powell concedes on appeal that neither he nor his attorney raised the potential
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conflict-of-interest issue before the court. So, under Vaughan and Smitherman,
Powell must show the alleged conflict adversely affected counsel’s performance.
Because he advocates for automatic reversal, Powell has not made that showing.
We accordingly reject his claim. See State v. Kramer, No. 16-2048, 2018
WL 346454, at *4 (Iowa Ct. App. Jan. 10, 2018); Kensett v. State,
No. 17-1702, 2018 WL 6715484, at *1 (Iowa Ct. App. Dec. 19, 2018).
In doing so, we note that while defense counsel tied his compensation to
Powell’s ability to receive a fair trial, he specifically stated, “[I]t’s not impacting me
in terms of being here and doing what I’m doing.” That was apparent from
counsel’s performance at trial, where he cross-examined witnesses, presented
defense witnesses, and moved for a mistrial multiple times. Further, as the State
points out, Powell cites no authority holding “that this type of claim about contract
rates or reimbursement timetables for appointed counsel can establish an actual
or potential conflict of interest.” Cf. United States v. O’Neil, 118 F.3d 65, 71 (2d
Cir. 1997) (rejecting an argument “that failure to pay fees or an attorney’s motion
to withdraw for his client’s failure to pay, without more, gives rise to a conflict of
interest”); accord United States v. DiCarlo, 575 F.2d 952, 957 (1st Cir. 1978). For
these reasons, we deny Powell’s conflict-of-interest claim.
III. Mistrial for Ineffective Assistance
Powell next claims “the district court abused its discretion when it denied
the motion for a mistrial after the defense counsel clearly informed the court he
was providing ineffective representation to his client.” The parties agree that we
should review this claim for an abuse of discretion. See State v. Newell, 710
N.W.2d 6, 32 (Iowa 2006).
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We first observe that, like with his last claim, Powell does not cite any
authority supporting his claim that a mistrial can be granted because of ineffective
assistance of counsel. Nor have we been able to find any. Cf. State v.
Harrison, 578 N.W.2d 234, 238 (Iowa 1998) (“For a judge, sua sponte, to declare
a mistrial because of perceived inadequacy of defense counsel is—and certainly
should be—a rare event.”).
In any event, we find no abuse of discretion in the court’s denial of this claim.
Iowa Code section 814.7 states that “[a]n ineffective assistance of counsel claim
in a criminal case shall be determined by filing an application for postconviction
relief pursuant to chapter 822.” In interpreting a prior version of section 814.7
(2018), our supreme court held that the district court did not err in refusing to
consider ineffective-assistance claims that a defendant raised in a motion for new
trial because, at the time, such claims could be raised only in postconviction relief
and direct appeal.2 See State v. Trane, 934 N.W.2d 447, 464 (Iowa 2019). We
reach the same conclusion here.
AFFIRMED.
2 As noted in the preceding footnote, section 814.7 has since been amended to
remove our authority to resolve ineffective-assistance-of-counsel claims on direct
appeal. See State v. Jacobs, 959 N.W.2d 395, 399 (Iowa 2021).