Opinion
No. 2-451 / 00-2050.
Filed June 19, 2002.
Appeal from the Iowa District Court for Lee (North) County, R. DAVID FAHEY and JOHN G. LINN, Judges.
Defendant-appellant appeals his judgment and sentence following a jury trial in which he was found guilty of interference with official acts as a habitual offender under Iowa Code sections 719.1(2) and 902.8 (1999). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Thomas D. Overton, Ft. Madison, for appellant pro se.
Thomas J. Miller, Attorney General, Martha Boesen and Robert Glaser, Assistant Attorneys General, and Michael Short, County Attorney, for appellee.
Considered by SACKETT, C.J., and HUITINK and HECHT, JJ.
Defendant-appellant Thomas D. Overton appeals his judgment and sentence following a jury trial in which he was found guilty of interference with official acts as a habitual offender under Iowa Code sections 719.1(2) and 902.8 (1999) and sentenced to an indeterminate term of incarceration not to exceed fifteen years, to be served consecutively with his existing sentence. Defendant represented himself at trial. On appeal defendant claims that he did not waive his right to representation by counsel knowingly and voluntarily, as he was not informed that he would remain in leg restraints during the trial, that his ability to move about the courtroom would be restricted, and that there would be several armed guards in the courtroom. Defendant further alleges prosecutorial misconduct during closing statements. We affirm.
On August 13, 1999, while imprisoned at the Iowa State Penitentiary in Fort Madison, defendant allegedly attacked correctional officer Larry Noble. Apparently Noble, who had discovered defendant in possession of dice, was writing a report on the offense when defendant grabbed him and struck him repeatedly. Defendant was charged with interference with official acts causing injury as a habitual offender.
At an October 29, 1999 pre-trial hearing defendant sought to represent himself. The court engaged defendant in a lengthy colloquy and noted the disadvantages of self-representation as well as the difficulties he might face in establishing his planned post-traumatic stress disorder defense. The court also instructed defendant as to courtroom procedure, with which defendant was relatively familiar, having been a jailhouse lawyer for about twenty years. The court further inquired into defendant's intelligence, education and mental health, and his reasons for wishing to represent himself. The court repeatedly warned defendant of the risks of self-representation. Throughout and following this colloquy defendant maintained his wish to represent himself.
On October 16, 2000, immediately prior to trial, defendant objected to being restricted in his movement, and to the several armed guards in the courtroom. The court responded that neither defendant nor counsel for the State would be permitted to move about the courtroom, that each could stand during voir dire and opening and closing statements, but that otherwise each was to remain in his chair at counsel table. Defendant made no further objection and did represent himself at trial. His attorney acted as stand-by counsel. Defendant was convicted.
Defendant now argues on appeal that he was unaware when asserting his right to represent himself that he would still have to wear leg restraints at trial, his movement in the courtroom would be restricted, and several armed guards would monitor the courtroom. Defendant argues his lack of knowledge on these points establishes that his waiver of the right to counsel was not knowing and intelligent. The State responds that these restrictions were not germane to the knowing and voluntary element of defendant's waiver, and furthermore, that defendant was aware of these restrictions prior to trial, and upon learning them could have sought full representation from stand-by counsel. See State v. Rater, 568 N.W.2d 655, 661 (Iowa 1997).
In a state criminal trial, a defendant enjoys both a sixth amendment and a fourteenth amendment right to self-representation. Faretta v. California, 422 U.S. 806, 817-18, 95 S.Ct. 2525, 2532, 45 L.Ed.2d 562, 572 (1975). Before the right attaches, however, the defendant must voluntarily elect to proceed without counsel by "knowingly and intelligently" waiving his sixth amendment right to counsel. Id. at 835, 95 S.Ct. at 2541, 45 L.Ed.2d at 582. Because defendant asserts he was denied his sixth amendment right to counsel, we review de novo. Rater, 568 N.W.2d at 657.
The question we are faced with is whether the trial court denied defendant a knowing and voluntary waiver of counsel by failing to inform him at the pre-trial hearing that his movement would be restricted and that guards would be present at trial. In making this determination we are urged by the State to consider that the State's counsel was similarly restricted at trial, that the defendant's leg irons were not entirely visible, and that the court admonished the jury not to use defendant's inmate status against him. Under the State's argument, the guards and defendant's leg irons were not highly prejudicial to defendant's case because the State was similarly restricted, the leg irons were not readily apparent, and the jury knew better than to consider them. We decline to find this argument by the State persuasive, as it addresses the question of prejudice. We note that a harmless error analysis is not applicable when the question of the sixth amendment right to self-representation is at issue. See State v. Cooley, 608 N.W.2d 9, 17-18 (Iowa 2000).
The State also urges that although the court did not explain to defendant that he would be in leg irons when defendant expressed his wish to proceed pro se during the October 29, 1999 hearing, defendant was clearly aware of the problems leg irons might cause his pro se efforts, as evidenced by defendant's own objections to both the leg irons and the several armed security guards in the courtroom, which he made on October 16, 2000, just before trial. The State argues that upon learning that his movement would be restricted at trial, defendant could have waived his right to self-representation and elevated stand-by counsel to full representation. We find this argument persuasive.
For authority, defendant cites Abdullah v. Groose, 44 F.3d 692, 695 (8th Cir. 1994), which was vacated on procedural grounds ( see Abdullah v. Groose, 75 F.3d 408, 415 (8th Cir. 1996)), for its conclusion that a trial court was obligated to inform a pro se defendant of the effects of shackling on his self-representation. Because the trial court had not done that in Abdullah, the court concluded defendant's choice of self-representation was not knowingly and intelligently made. Abdullah, 44 F.3d at 695. In this case defendant argues that the trial court similarly erred by making no effort "to ascertain whether [defendant] understood the effect [leg irons and guards] would have on his ability to represent himself."
While it is true that at the waiver hearing the trial court did not inform defendant he would be in leg irons, the evidence does not show the court knew this would be the case at trial. More importantly, given defendant's objections before trial, it is clear that defendant understood both that he would be restrained, and that this restraint would affect his ability to represent himself. Just prior to trial, defendant argued for the removal of the guards and restraints, and clearly expressed an understanding of the detrimental effects of leg irons and the presence of guards on his pro se representation. Nevertheless, after the court confirmed that his movement would remain restricted and that armed guards would remain in the courtroom, defendant proceeded to represent himself without objecting further. Although defendant's understanding of the effect of leg irons and guards would have been apparent to the court only just before trial began, given that defendant proceeded with his own defense shortly after articulating for the court the problems with doing so, we find defendant knowingly and intelligently waived his right to counsel. Defendant had full knowledge of the conditions under which he would be representing himself before the trial began, and he did not seek independent counsel. We believe these facts distinguish this case from Abdullah, for in Abdullah, following the court's decision to leave the defendant in shackles, the defendant was not informed of, nor did he independently articulate, the potentially detrimental effects of shackles on self-representation.
Defendant's second argument on appeal is that the trial court erred in overruling defendant's objection to the prosecutor's alleged misstatement of the law in closing argument, in his statement to the jury that the defendant "has . . . the presumption of innocence up until the moment [the jury] walk[s] out [the] door and into the door of the jury room."
We review for abuse of discretion. State v. Melk, 543 N.W.2d 297, 300 (Iowa Ct.App. 1995). The trial court's overruling defendant's objections to the prosecutor's statement of the law during closing argument is not an abuse of discretion. Although the prosecutor could have employed better phrasing, his statement could reasonably be construed to mean that the jury, once it entered the jury room, could find that the facts of guilt outweighed the presumption of innocence. Additionally, the trial court had already advised the jury that defendant was presumed innocent. We find no abuse of discretion and affirm on this point.
Defendant also contends that the district court abused its discretion by overruling defendant's objections to the prosecutor's statement of the record during closing argument. We find no abuse of discretion on this point either, especially considering defendant's long and sometimes confusing statements during his own closing, to which the prosecutor was making reference.
Defendant's further constitutional challenges and challenges to the sufficiency of the evidence, made in supplemental pro se briefs, are without merit.
AFFIRMED.