State v. Spencer

McGIVERIN, Chief Justice.

The question presented here is whether a criminal defendant suffered a violation of his sixth amendment right to self-representation when the district court appointed counsel for him over hi's objection. The court of appeals agreed with the trial court’s ruling. We affirm.

I. Background facts and proceedings. On July 18, 1990, Monona county sheriff Dennis Smith went to Joseph Spencer’s rural home to investigate complaints that Spencer was discharging firearms on his property. Sheriff Smith assumed Spencer was present because he noticed Spencer’s vehicle parked there. When no one responded to Smith’s knock on the front door, he walked to the edge of the house looking for another door. From that vantage point, Smith observed marijuana growing in Spencer’s garden. Sheriff Smith then obtained a search warrant issued on the basis of those observations. Marijuana plants, cocaine, and several firearms were seized from Spencer’s premises upon execution of the search warrant.

On August 20, trial informations were filed charging Spencer with possession of marijuana with intent to manufacture, unauthorized possession of firearms, possession of cocaine, and possession of marijuana in violation of Iowa Code sections 204.401(l)(b), 724.3, 204.-401(3), and 204.401(3) (1989), respectively.

Defendant Spencer retained a private attorney, Richard Mock of Onawa, to represent him and pleaded not guilty. Attorney Mock filed a motion to suppress drugs and weapons seized during the execution of the search warrant. After an evidentiary hearing, the district court overruled the motion.

A trial date was set. On May 17, 1991, a few days before trial, attorney Mock moved to withdraw from his representation of defendant Spencer. During the hearing on that motion, the question arose as to who would represent defendant at trial. Defendant Spencer told the court he wished to represent himself but admitted he did not know legal procedures or how to object to improper evidence. After a lengthy colloquy, the district court stated, “As far as I’m concerned, although he indicates he wants to do it himself, I don’t see that he’s competent and qualified to do it himself.” The district court then appointed attorney Richard McCoy of Sioux City to represent Spencer.

The case was continued and went to trial about one year later. Attorney McCoy fully represented defendant prior to and during the trial. Spencer was found guilty by a jury and was sentenced on the four charges.

Spencer appealed, contending through new counsel that the district court denied his right to self-representation.

The court of appeals affirmed in a 2-1 decision. That court concluded that Spencer’s statements asserting a desire to proceed pro se “came out of frustration rather than a distinct and unequivocal request for that constitutional right.” The court further held that even if Spencer did initially assert his right to self-representation, he waived that right by failing to reassert it before and during trial.

We granted Spencer’s application for further review.

Because Spencer contends the deprivation of a constitutional right occurred, our review is de novo with respect to factual as well as legal determinations. Armento v. Baughman, 290 N.W.2d 11, 15 (Iowa 1980).

II. Right to self-representation. Spencer contends that the district court forced counsel upon him, contrary to his rights under the sixth amendment of the federal constitution. The court of appeals concluded that Spencer waived his sixth amendment right to self-representation, noting that he made his request out of frustration and later abandoned any further assertions of that right. We agree with the court of appeals.

The sixth amendment provides that an accused “shall enjoy the right ... to have the assistance of counsel for his defence.” The fourteenth amendment of the federal constitution extends this right to state prosecutions. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562, 566 (1975). In Faretta, the Supreme Court held that the right to self-representation to make one’s own defense is necessarily implied by the structure of the sixth amendment. Id. at 819, 95 S.Ct. at 2533, 45 L.Ed.2d at 572. However, the Supreme Court also recognized an important limitation on that right: Although the defendant may elect to represent himself (usually to his detriment), the trial court “may — even over objection by the accused — appoint a ‘standby counsel’ to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant’s self-representation is necessary.” Id. at 834-35 n. 46, 95 S.Ct. at 2541 n. 46, 45 L.Ed.2d at 581 n. 46 (emphasis added); accord McKaskle v. Wiggins, 465 U.S. 168, 184, 104 S.Ct. 944, 954, 79 L.Ed.2d 122, 137 (1984). Such an appointment serves “to relieve the judge of the need to explain and enforce basic rules of courtroom protocol or to assist the defendant in overcoming routine obstacles that stand in the way of the defendant’s achievement of his own clearly indicated goals.” McKaskle, 465 U.S. at 184, 104 S.Ct. at 954, 79 L.Ed.2d at 137. A case may be too complicated to allow self-representation. Butler v. United States, 317 F.2d 249, 258 (8th Cir.1963), cert. denied, 375 U.S. 836, 84 S.Ct. 67, 11 L.Ed.2d 65 (1963), and cert. denied, 375 U.S. 838, 84 S.Ct. 77, 11 L.Ed.2d 65 (1963).

Moreover, a defendant waives his right to self-representation unless he asserts that right by “knowingly and intelligently forgoing] his right to counsel.” McKaskle, 465 U.S. at 173, 104 S.Ct. at 948, 79 L.Ed.2d at 130. This waiver may occur despite the defendant’s statement that he wishes to represent himself if he makes that statement merely out of brief frustration with the trial court’s decision regarding counsel and not as a clear and unequivocal assertion of his constitutional rights. Reese v. State, 391 N.W.2d 719, 724 (Iowa App.1986). See also Burton v. Collins, 937 F.2d 131, 133-34 (5th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 642, 116 L.Ed.2d 660 (1991) (Defendant’s statements were correctly interpreted as “indieat[ing] dissatisfaction with his attorney” rather than as unequivocally asserting his right to self-representation.).

In addition, “ ‘[a] waiver [of the right to self-representation] may be found if it reasonably appears to the court that defendant has abandoned his initial request to represent himself.’ ” Reese, at 723 (quoting Brown v. Wainwright, 665 F.2d 607, 611 (Former 5th Cir.1982)). See also United States v. Weisz, 718 F.2d 413, 427 (D.C.Cir.1983), cert. denied, 465 U.S. 1027, 104 S.Ct. 1285, 79 L.Ed.2d 688 (1984), and cert. denied, 465 U.S. 1034, 104 S.Ct. 1305, 79 L.Ed.2d 704 (1984) (Court noted that, even though the district court granted defendant’s request to represent himself, the fact that defendant permitted standby counsel to conduct his entire defense “suggested] that at some point [defendant] reconsidered his decision to proceed pro se and decided to avail himself of the assistance of counsel.”); United States v. Montgomery, 529 F.2d 1404, 1406 (10th Cir.1976), cert. denied, 426 U.S. 908, 96 S.Ct. 2281, 48 L.Ed.2d 838 (1976) (By allowing the public defender to conduct plea bargaining on his behalf, defendant “demonstrated that he was no longer asserting his right to represent himself.”); Hodge v. Henderson, 761 F.Supp. 993, 1003 (S.D.N.Y.1990), aff'd, 929 F.2d 61 (2nd Cir.1991) (“[E]ven if [defendant’s] conduct could be construed as constituting an assertion of the Faretta right, subsequent occurrences [i.e. neither persisting in nor reasserting of his desire to appear pro se] formed the basis of a waiver of the right.”). In either case, we look to the record as a whole to determine whether the defendant desired to be represented by counsel. See id.¹

We believe that the trial court did not err in appointing an attorney for Spencer. The intent behind the appointment, from the comments of both the court and Mock, defendant’s withdrawing attorney, was to provide Spencer with “standby counsel” as envisioned in Faretta and McKaskle. The following comments were made at the hearing on attorney Mock’s application to withdraw:

THE COURT: Well, I don’t think that you’re [the defendant] in the position of being able to defend yourself. And the least I would do is have somebody appointed to sit and be available as your counsel. But, frankly, I’m not going to put the court in the position whereby you defend yourself and then it’s reversed if there is a conviction, just because there was no attorney present. It’s as simple as that. Now, do you have any other person in mind?

THE DEFENDANT: No, sir.

THE COURT: Mr. Mock, do you have any suggestions?

MR. MOCK: No, Your Honor, other than I would hope the defendant understands that if he elects to represent himself, that he could have an attorney sitting here beside him to guide him so he wouldn’t go all alone, if he wishes to proceed in that manner.

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THE COURT: Well, what familiarity do you have with the legal system?

THE DEFENDANT: I don’t have any, Your Honor....

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THE COURT: An ordinary citizen can defend himself, but frankly an ordinary citizen is going to have a little difficulty following the procedures, making the proper objections and defending his own interests, unless he’s familiar with the procedure in court. That’s the problem I have. If you think you can do that, that’s one thing; otherwise, what will happen is, if there is a conviction, it will be appealed and they will say you should have had somebody here to protect your rights.

(Emphasis added.)

The court thus properly appointed attorney McCoy over defendant’s objection. If defendant had wished to treat this appointed attorney as standby counsel, he could have done so.

The record here, however, evinces Spencer’s initial desire to be represented by counsel (in employing attorney Mock), leading us to conclude that even if he wished to proceed pro se at the time of the withdrawal hearing, he waived and abandoned that right by acquiescing to attorney McCoy’s full representation of his case for the following year leading up to and during the jury trial.

As the court of appeals observed, Spencer’s request for self-representation came out of frustration rather than a distinct and unequivocal request for that constitutional right. When Spencer was first charged in August 1990, he hired a private attorney (Richard Mock). Spencer worked with him until his motion to suppress evidence was overruled. Then, in May 1991, Mock moved to withdraw. Defendant was exasperated and did not want to pay for another attorney.

Yet he willingly accepted attorney McCoy’s name and address from the court and clearly relied on McCoy’s representation during the following year and throughout trial. Spencer never attempted to try the jury case himself with McCoy as standby counsel. He never again raised the self-representation issue in the trial court; nothing in the record indicates any assertion of this right. As the McKaskle Court stated, “Once a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant’s acquiescence.... ” 465 U.S. at 183, 104 S.Ct. at 953, 79 L.Ed.2d at 136. See also Weisz, 718 F.2d at 427, Montgomery, 529 F.2d at 1406, and Hodge, 761 F.Supp. at 1003.

Only on appeal did defendant Spencer again raise the self-representation issue.

Finally, defendant Spencer has pointed to nothing that he would have done differently had he represented himself at trial, nor has he demonstrated any way in which attorney McCoy denied him “a fair chance to present his case in his own way.” McKaskle, 465 U.S. at 177, 104 S.Ct. at 950, 79 L.Ed.2d at 132; cf. United States v. Johnson, 585 F.2d 374, 376 (8th Cir.1978) (per curiam) (“[Tjhere was nothing objectionable in appointing standby counsel as a precaution in case [defendant] decided at some point during the trial that he wanted counsel.”), cert. denied, 440 U.S. 921, 99 S.Ct. 1246, 59 L.Ed.2d 473 (1979).

III. Conclusion. As one court put it, the right to self-representation “place[s] trial judges between a rock and a hard place.” United States v. Berkowitz, 927 F.2d 1376, 1383 (7th Cir.1991). We believe that the trial court’s appointment of attorney McCoy to be available as standby counsel satisfied Spencer’s request to represent himself but ensured that Spencer’s other rights were protected as well. By his later acts Spencer waived and abandoned any right to self-representation that he may have had.

The court of appeals also affirmed the trial court’s ruling that overruled defendant’s motion to suppress evidence. We agree with both courts on that issue and defendant does not challenge the ruling on further review.

We therefore affirm the decision of the court of appeals and the judgment of the district court.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.

All justices concur except LAVORATO, J., who is joined by SNELL, ANDREASEN and TERNUS, JJ.

1 . Although we believe the district court's inquiry was proper in this case, we point the bench and bar to a model inquiry for situations in which a defendant asserts his right to self-representation. It is found in 1 Bench Book for United States District Judges 1.02-2 (3d ed. 1986), as well as United States v. McDowell, 814 F.2d 245, 251-52 (6th Cir.), cert. denied, 484 U.S. 980, 108 S.Ct. 478, 98 L.Ed.2d 492 (1987).