Opinion
No. 5-753 / 04-2000
Filed December 7, 2005
Appeal from the Iowa District Court for Clayton County, J.G. Johnson, Judge.
A defendant appeals following conviction and sentence for possession of methamphetamine in violation of Iowa Code section 124.401(5) (2003), alleging violation of her right to self representation and ineffective assistance of counsel. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Robert Ewald, Assistant Attorney General, and Kevin H. Clefisch, County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
Debra Sweet appeals following conviction and sentence for possession of methamphetamine, a serious misdemeanor, in violation of Iowa Code section 124.401(5) (2003). She alleges her right to self representation was violated and claims her trial counsel was ineffective. Upon our de novo review of these constitutional claims, State v. Watson, 620 N.W.2d 233, 235 (Iowa 2000), we affirm Sweet's conviction and sentence, but preserve her ineffective assistance of counsel claim for a possible postconviction proceeding.
The facts underlying Sweet's conviction are straightforward and have little relevance to the issues on appeal. Therefore, we turn directly to Sweet's contention that the district court improperly denied her request to represent herself.
Sweet was driving a vehicle that was stopped for speeding. After Sweet and the two other occupants of the vehicle were removed, police conducted a canine check of the vehicle. The dog alerted to an area containing two purses, one of which contained a plastic bag of white powder later determined to be methamphetamine. When asked to identify her purse Sweet indicated she owned the purse in which the methamphetamine had been found. When shown the plastic bag, Sweet stated she knew the bag contained methamphetamine, but did not remember it being inside her purse. Sweet was charged with possession of methamphetamine, and following trial a jury found her guilty of the offense. She was sentenced to pay a fine of $250 and to serve two days in jail.
Right to Self Representation.
Sweet has a constitutional right to proceed without counsel if she voluntarily and intelligently elects to do so. Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562, 581-82 (1975). Assertion of the right must be "clear and unequivocal," and not merely a request provoked by a temporary whim, brief frustration, or annoyance. See Reese v. Nix, 942 F.2d 1276, 1281 (8th Cir. 1991); Jackson v. Ylst, 921 F.2d 882, 888-89 (9th Cir. 1990); State v. Spencer, 519 N.W.2d 357, 359 (Iowa 1994). "In the absence of a clear and knowing election, a court should not quickly infer that a defendant unskilled in the law has waived counsel and has opted to conduct his own defense." Reese v. State, 391 N.W.2d 719, 723 (Iowa Ct.App. 1986) (citation omitted).
Moreover,
even if a defendant requests to represent himself, the right may be waived through his subsequent conduct indicating he is vacillating on the issue or has abandoned his request altogether. . . . Since the right of self-representation is waived more easily than the right to counsel at the outset, before assertion, it is reasonable to conclude it is more easily waived after assertion. . . . A waiver may be found if it reasonably appears to the court that defendant has abandoned his initial request to represent himself.
Id.
Sweet contends she made three clear and unequivocal assertions of her right to self representation. The first assertion referenced by Sweet was contained in a pretrial pro se motion to dismiss her second court-appointed attorney, Jean Curtis. The motion was directed to alleged deficiencies in Curtis's performance, and requested that Curtis be dismissed as counsel and Sweet "be allowed proper counsel or to be able to continue to trial pro se."
Sweet's first court-appointed attorney, James Kann, was allowed to withdraw, as Sweet and the attorney had "reached an impasse due to the way that the defense should be conducted." Sweet's written consent to withdrawal stated she would "accept Jean Curtis as my new court appointed attorney."
At the commencement of the hearing on the motion, however, the court stated that both Curtis and the prosecuting attorney had indicated Sweet's "main concern is the interpretation of [the court's] ruling on the motion to suppress." During the hearing Sweet addressed the suppression motion, indicated she was not interested in a plea offer, complained about the length of time the charge had been pending, and indicated she was ready to proceed to trial the following week. She did not request dismissal of counsel or indicate a wish to proceed pro se, even after the court stated that "Miss Curtis will be the lawyer [at trial]." The court then entered a ruling denying Sweet's motion to dismiss her attorney.
The second alleged assertion occurred following jury selection, during a discussion regarding Sweet's request to strike a juror. Curtis stated Sweet "now wants the Court to dismiss that juror . . . and/or in the alternative she wants myself to withdraw as attorney of record for her." The court assigned the juror as the alternate, but denied Sweet's request to dismiss Curtis. The court noted, "[I]f it isn't you, Ms. Curtis, it's going to be somebody else. Ms. Sweet had problems with [prior court-appointed counsel] and now she's got problems with you."
During voir dire the juror indicated he could not objectively evaluate the evidence because he knew someone with a methamphetamine addiction. Sweet had wanted the juror struck, but due to confusion during jury selection, Curtis struck a different juror.
The third alleged assertion occurred during trial. Outside of the jury's presence, the court took up the question of whether certain evidence which Sweet wished to offer was admissible to impeach a witness's testimony. After hearing the arguments of counsel, the court ruled the evidence inadmissible. The following exchange then occurred:
SWEET: I'd like to proceed pro se. I would. I ask to proceed pro se, please.
THE COURT: Wait.
SWEET: Pro Se.
THE COURT: No. What are you asking now, Ms. Sweet?
SWEET: I was just asking if I could proceed pro se, because it's just hard for Jean [Curtis] sometimes to get the words out, and by the time the question is finished, you don't remember what she was asking.
THE COURT: Well, I think she's doing okay in that respect, ma'am. And you're free to confer with her at any time you like.
Trial then resumed, and Curtis continued to represent Sweet. The record contains no further reference to any desire by Sweet to proceed pro se.
After reviewing the above facts in light of the prevailing case law, we conclude the first two alleged assertions of a right to self representation by Sweet are easily resolved. Assuming without deciding the request in Sweet's pretrial motion was sufficiently clear and unequivocal to invoke her right to self representation, we believe the right was waived by Sweet's failure to even address her dismissal of counsel and self representation requests during the hearing. See Reese, 391 N.W.2d at 723. Nor did Sweet renew her request to proceed pro se following jury selection. Curtis's statement referred only to a request to dismiss her as Sweet's attorney, and in no way addressed Sweet's right of self representation.
While Sweet's pro se motion to dismiss counsel did request that she "be able to continue to trial pro se," the request was forwarded as one of two alternatives in the event Sweet succeeded in removing Curtis. As previously noted, Sweet's request to dismiss Curtis was denied.
The third alleged assertion, which occurred during trial, presents a closer question. Sweet did state that she wished to proceed pro se after the trial court ruled evidence she wished to offer to impeach a witness was inadmissible. However, when viewed in context, it appears Sweet's statement was prompted by her frustration with Curtis's current performance. Moreover, when the court disagreed with Sweet's assessment of counsel's performance, and reminded Sweet of her right to confer with counsel, Sweet did not pursue her request. We are not inclined to conclude that this type of demand meets the clear and unequivocal standard of Faretta. See Spencer, 519 N.W.2d at 359; Reese, 391 N.W.2d at 723.
Moreover, as our supreme court noted in State v. Smith, 215 N.W.2d 225, 227 (Iowa 1974), the right to self representation becomes "sharply curtailed" after commencement of trial. "`There must be a showing that the prejudice to the legitimate interests of the defendant overbalances the potential disruption of proceedings already in progress, with considerable weight being given to the trial judge's assessment of this balance.'" Smith, 215 N.W.2d at 227(quoting United States v. Denno, 348 F.2d 12, 15 (2d Cir. 1965)) (citations omitted).
Like the supreme court in Smith, we find guidance in federal case law, which provides that "once trial commences, the district court retains discretion to balance the interests of the defendant against the potential disruption of the proceedings already in progress." United States v. Kosmel, 272 F.3d 501, 506 (7th Cir. 2001). In determining whether a late request to proceed pro se should be granted, "the appropriate criteria for a trial judge to consider are the defendant's reasons for the self-representation request, the quality of counsel representing the party, and the party's prior proclivity to substitute counsel." Williams v. Bartlett, 44 F.3d 95, 100 n. 1 (2d Cir. 1994).
Accord Buhl v. Cooksey, 233 F.3d 783, 798 n. 16 (3rd Cir. 2000); United States v. Beers, 189 F.3d 1297, 1303 (10th Cir. 1999); United States v. Stevens, 83 F.3d 60, 66-67 (2d Cir. 1996).
Here, the complaint underlying Sweet's request to proceed pro se was the adequacy of counsel's performance in questioning witnesses. The district court implicitly concluded that this complaint lacked merit. We give weight to the court's assessment, particularly as a review of the transcript reveals counsel had asked clear and direct questions during cross-examination. We also note Sweet's dissatisfaction with counsel's trial performance is consistent with her pre-trial complaints about both her first court-appointed attorney and Curtis, her successful request to dismiss her first court-appointed attorney, and her attempts to have Curtis dismissed.
Looking to the record, we find no indication that Curtis's continued representation prejudiced Sweet's legitimate interests, much less gave rise to prejudice that overbalanced the all but certain disruption that would result from allowing Sweet to commence self representation at that point in the proceeding. We accordingly conclude there was no violation of Sweet's Sixth Amendment right to self representation.
Ineffective Assistance of Counsel.
Sweet contends Curtis provided ineffective assistance when she did not call Sweet to testify in her own defense, contrary to Sweet's own wishes, and thereby prevented Sweet from presenting the jury with the "entire background of the incident." To establish this claim, Sweet must prove her attorney's performance fell below "an objective standard of reasonableness" and that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).
Typically, ineffective assistance of counsel claims are preserved for possible postconviction review, to allow a full development of the record regarding counsel's actions. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). We address such a claim on direct appeal only where the record is sufficient to reach the merits of the defendant's contentions. State v. Miller, 622 N.W.2d 782, 785 (Iowa Ct.App. 2000). Sweet and the State agree the record is insufficient to resolve the ineffective assistance claim. We concur, as the record contains no information regarding Sweet's decision to testify, Curtis's advice on the issue, or whether Sweet waived her right to testify. See Ledezma v. State, 626 N.W.2d 134, 146 (Iowa 2001); State v. Taylor, 352 N.W.2d 683, 687-88 (Iowa 1984).
Conclusion.
We affirm Sweet's conviction and sentence, and preserve her ineffective assistance of counsel claim for a possible postconviction proceeding.