State of Iowa v. Walter Lee Miller, Jr. ( 2022 )

IN THE SUPREME COURT OF IOWA
No. 20–0359
Submitted March 24, 2022—Filed June 17, 2022
STATE OF IOWA,
Appellee,
vs.
WALTER LEE MILLER JR.,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Scott County, Henry W. Latham II,
Judge.
A defendant appeals his convictions, arguing the district court erred by
granting his appointed counsel’s motion to withdraw and by concluding the
defendant waived his right to counsel. DECISION OF COURT OF APPEALS AND
DISTRICT COURT JUDGMENT AFFIRMED.
Christensen, C.J., delivered the opinion of the court, in which all justices
joined. Appel, J., filed a concurrence.
2
Thomas Hurd (argued) of Law Office of Thomas Hurd P.LC., Des Moines,
for appellant.
Thomas J. Miller, Attorney General, Martha E. Trout (argued) and Israel
Kodiaga, Assistant Attorneys General, for appellee.
3
CHRISTENSEN, Chief Justice.
The district court granted defense counsel’s motion to withdraw from
representation of the defendant about three weeks before the defendant’s speedy
trial expiration date after defense counsel declared further representation of the
defendant would result in counsel’s violation of our professional rules or other
laws. Although the district court offered to appoint another attorney to represent
the defendant, the defendant insisted on representing himself with the
assistance of standby counsel. After conducting colloquies at the withdrawal
hearing and again immediately prior to the start of trial, the district court
concluded the defendant knowingly, intelligently, and voluntarily waived his
right to counsel and allowed the defendant to proceed pro se with the assistance
of standby counsel.
A jury convicted the defendant on three charges. On appeal, the defendant,
argues the district court abused its discretion by granting defense counsel’s
motion to withdraw and erred in concluding the defendant knowingly,
voluntarily, and intelligently waived his right to counsel. We transferred the case
to the court of appeals, which affirmed the defendant’s convictions.
On further review, we also affirm the defendant’s convictions. The district
court did not abuse its discretion by granting defense counsel’s motion to
withdraw based on defense counsel’s statements that professional
considerations required termination of the representation. Additionally, the
district court correctly concluded the defendant knowingly, intelligently, and
voluntarily waived his right to counsel after engaging in a thorough colloquy.
4
I. Background Facts and Proceedings.
On August 23, 2019, police officers responded to a disturbance call in
Davenport with reports that Walter Miller Jr. assaulted another man with a
machete. The victim and witnesses reported Miller left the scene “in a silver
Crown Victoria shaped vehicle” to return to his home, where the officers
subsequently arranged a perimeter and conducted a traffic stop on the vehicle
behind Miller’s residence. The search of Miller’s vehicle pursuant to the stop
revealed approximately fifteen grams of methamphetamine. Miller made his
initial appearance the next day on three criminal complaints: possession of a
controlled substance with intent to deliver, failure to affix a drug stamp, and
assault while displaying a dangerous weapon. At Miller’s request, the district
court appointed defense counsel, and that counsel filed an appearance on
Miller’s behalf and waived the preliminary hearing on August 26.
The State formally charged Miller by trial information on September 17
with possession of methamphetamine with intent to deliver, third or subsequent
offense, in violation of Iowa Code section 124.401(5) (2019), failure to affix a drug
tax stamp in violation of section 453B.12(2), assault while displaying a
dangerous weapon in violation of section 708.2(3), and willful injury causing
serious injury in violation of section 708.4(2). On September 18, Miller entered
a written arraignment and demanded his right to speedy trial. During a pretrial
conference on October 4, a final pretrial conference was set for November 27 and
trial was set for December 2 with a notation that speedy trial required the trial
to be held by December 16, 2019.
5
On November 19, Miller’s defense counsel filed a motion to withdraw
representation. In relevant part, the motion stated,
2. Further representation of Defendant would result in me
violating the Iowa Rules of Professional Conduct and/or other laws.
I cannot be more specific without violating attorney–client privilege.
3. I have tried unsuccessfully to resolve the issue.
4. I am therefore required to withdraw from further
representation of Defendant pursuant to Iowa Rule of Professional
Conduct 32:1.16(a)(1).
The district court held a hearing on this motion on November 26. Defense
counsel reiterated what he stated in his motion to the district court, and the
district court asked Miller if he had “any objection.” Miller responded, “By being
so close to trial, what am I supposed to do?” The district court told Miller that
the State filed a motion to continue but that the court believed there was “a
speedy trial issue.” The State countered, asserting that Miller’s speedy-trial
demand required the trial to be held by December 16 and that the State was
“perfectly willing to try [the case] December 9 or 16” but had a witness availability
issue on December 2. Miller told the district court, “I don’t want to waive my 90
days, if that’s what he’s saying. No.”
The district court explained to Miller that he had a constitutional right to
counsel but “based on the colloquy that [the court] . . . had with [Miller’s]
attorney, [the court] believe[s] [it] ha[s] no choice but to grant his application to
withdraw.” However, the district court then reversed its ruling on that issue. The
court told Miller, “[B]ecause you have the right to have an attorney appointed to
represent you, I am willing to appoint another attorney to represent you. Do you
6
request the appointment of counsel?” Miller replied, “No.” The district court
asked Miller, “Is it your desire, then, to continue in this matter and represent
yourself,” to which Miller answered, “Yes.”
The district court conducted a Faretta colloquy1 with Miller to determine
whether he knowingly, intelligently, and voluntarily waived his right to counsel.
During that colloquy, Miller indicated he did not have adequate time to discuss
whether he would waive his right to representation with his attorney but also
informed the district court that he did not want any time with his attorney to
discuss the matter. Instead, he wished to proceed with the waiver of an attorney.
The district court also asked then-defense counsel whether he believed it was in
Miller’s “best interests to waive his right to be represented by an attorney.”
Defense counsel stated,
I think Mr. Miller would be happier if he represented himself.
I think that he has his own ideas about the best way to try the case,
and he feels comfortable it’s the best way to do it.
We haven’t always agreed on certain things, but in terms of
his -- I think he’s got the ability to come up with the theory of the
case and to argue it and to question witnesses. Whether it’s gonna
be successfully, I don’t know.
But asking me if it’s his best interests, I’m not sure how to
begin to answer that question. I think Mr. Miller is aware of the
risks. He’s got a vision for what he wants to do with the case. It’s his
life. If that’s the way he wants to go, then so be it.
1Faretta v. California, 422 U.S. 806, 835 (1975), established what we now call the “Faretta
colloquy” that a district court must perform to ensure that a defendant is knowingly and
intelligently forgoing the traditional benefits associated with the right to counsel by acting pro
se.
7
The district court again asked Miller if it was his “desire to not have an
experienced, trained, and licensed attorney represent [him]” and whether he
preferred to represent himself. Miller explained, “Well, from what happened
today, I mean, about him getting off my case, I wouldn’t want it to go any longer
than what it’s already been, so I decided to represent myself.” Miller informed
the district court that he had previously represented himself in a past case with
the assistance of standby counsel. Miller proceeded to express his complaints
about his current defense counsel noting, “I’m not getting nothing that I asked
for in my case. I’m not getting my depositions. I’m not getting a certain witness.
I’m not getting certain video footage from officers. I mean, it would be the same.
I mean, I can do everything myself, I feel.” He later explained, “I feel if I go to trial
and if I just tell exactly what happened and how everything happened, I feel like
I would be free, and that’s how I feel.”
After the district court continued to warn Miller of the perils of
representing himself, Miller requested the assistance of standby counsel.
Defense counsel informed the district court that he believed it would still be
unethical for him to serve as standby counsel under the circumstances because
he would “be in the same ethical situation [he’s] in now” if he had to assist Miller
during the trial. The district court subsequently asked the prosecutor whether
he believed “the matter could be continued to a time within [Miller’s] 90-day
speedy trial demand and still allow standby counsel to be brought up to speed
in this matter, in [his] opinion[.]” The prosecutor answered, “Yeah, I could walk
into this case and be standby counsel. It’d just be an issue as to whether standby
8
counsel was appointed to someone else that has a speedy trial demand on
whatever date we’re dealing with.”
At the conclusion of the hearing, the district court found Miller made a
knowing, voluntary, and intelligent decision to represent himself, though the
district court also found it “appropriate to appoint standby counsel” and granted
the State’s motion to continue the trial to December 9. The court indicated it
would grant the public defender’s motion to withdraw but only after standby
counsel was in place.
The next day, November 27, the district court filed a written order granting
defense counsel’s motion to withdraw and appointing another attorney as
standby counsel. Appointed standby counsel entered his appearance that day.
Just before the jury trial commenced on December 9, the district court
conducted a second colloquy to ensure Miller was making a knowing, voluntary,
and intelligent decision to represent himself. In doing so, the district court asked
Miller, “And what are your reasons for not wanting a court-appointed attorney,
sir?” Miller said, “I did want one,” and elaborated,
I did have one. He just decided to get off my case right before trial,
and I wasn’t about to waive my speedy trial, so I had to take it on
myself. In so many words, I had a lawyer, an appointed attorney all
the way up until it was time to go to trial and he withdrew the other
day and he wanted me to waive my 90 days and I decided not to and
that’s why I’m representing myself.
Nevertheless, Miller reiterated that he was making the decision to
represent himself with standby counsel. Standby counsel informed the district
court that he “spent time [with Miller] over the past few days . . . going over
everything and discussing the fact that -- I think I used the words ‘he’s running
9
the show,’ I’m just here if he has like a procedure or rule question.” The district
court ultimately concluded Miller “still [made] a knowing, voluntary, and
intelligent decision to represent [himself] in this matter.”
The jury convicted Miller of possession of methamphetamine, third or
subsequent offense; failure to affix a drug tax stamp; and assault while
displaying a dangerous weapon. Miller stipulated to being a habitual offender.
The district court sentenced him to a term of imprisonment not to exceed fifteen
years for the possession charge, a term not to exceed fifteen years on the drug
tax stamp charge, and a term not to exceed two years on the assault charge. The
district court ordered the two fifteen-year sentences to run concurrently, while
the two-year sentence would run consecutively to the other sentences.
Miller timely appealed, arguing the district court abused its discretion by
allowing defense counsel to withdraw so close to his trial date and erred by
finding that he knowingly, intelligently, and voluntarily waived his right to
counsel. We transferred the matter to the court of appeals, which affirmed
Miller’s convictions. We granted Miller’s application for further review.
II. Standard of Review.
We review a district court’s ruling on defense counsel’s motion to withdraw
for abuse of discretion. State v. Rhode, 503 N.W.2d 27, 35 (Iowa Ct. App. 1993).
An abuse of discretion occurs when the district court’s ruling “is based on clearly
untenable grounds.” Liquor Bike, LLC v. Iowa Dist. Ct., 959 N.W.2d 693, 696
(Iowa 2021) (quoting NuStar Farms, LLC v. Zylstra, 880 N.W.2d 478, 482 (Iowa
10
2016)). We review constitutional claims regarding the right to counsel de novo.
State v. McKinley, 860 N.W.2d 874, 878 (Iowa 2015).
III. Analysis.
Miller presents two arguments on appeal. First, he claims the district court
abused its discretion by granting defense counsel’s motion to withdraw so close
to his trial date. Second, Miller maintains he did not knowingly, intelligently, and
voluntarily waive his right to counsel. We address these arguments in turn.
A. Defense Counsel’s Motion to Withdraw. Miller contends the district
court abused its discretion by granting defense counsel’s motion to withdraw.
Defense counsel cited rule 32:1.16(a)(1) in his motion to withdraw. This portion
of the rule provides, “[A] lawyer shall not represent a client or, where
representation has commenced, shall withdraw from the representation of a
client if: (1) the representation will result in violation of the Iowa Rules of
Professional Conduct or other law.” Iowa R. Prof’l Conduct 32:16(a)(1). At the
hearing on the motion, defense counsel informed the district court that he was
“in a situation for professional considerations where withdrawal is mandatory”
but could not “be more specific without violating privilege.” He reiterated his
belief “that continued representation of Mr. Miller through trial would result in
my either violating a rule of professional conduct or another law. And [he]
attempted to resolve the situation unsuccessfully.”
Miller seizes on the district court’s statement during the hearing that it
had “no choice but to grant his application to withdraw” and maintains this
conclusion is incorrect because Iowa Rule of Professional Conduct 32:1.16(c)
11
permits the district to use its discretion to order representation to continue.
Notably, the district court explicitly reversed this statement and reserved the
issue for further consideration before providing a written ruling the next day.
Rule 32:1.16(c) states, “A lawyer must comply with applicable law requiring
notice to or permission of a tribunal when terminating a representation. When
ordered to do so by a tribunal, a lawyer shall continue representation
notwithstanding good cause for terminating the representation.” Id. r. 32:1.16(c).
Miller claims the district court should have “conducted some form of
further inquiry to determine whether Miller believed continued representation by
his current counsel was possible if the Court ordered it.” But, the district court’s
concern in considering a motion to withdraw representation is not “whether [the
client] believed continued representation by his current counsel was possible if
the Court ordered it” as Miller contends. “As we see it, the issue has to do with
disclosure: the question is whether the trial court should require defense counsel
to disclose confidential information when counsel avows that counsel has an
ethical conflict requiring withdrawal.” Maricopa Cnty. Pub. Def. Off. v. Superior
Ct., 927 P.2d 822, 826 (Ariz. Ct. App. 1996). “[S]olicitude for a client’s preference
for retaining their court-appointed attorney does not preclude disqualification
when circumstances require it.” McKinley, 860 N.W.2d at 880. “There are times
when an accused’s right to counsel of choice must yield to a greater interest in
maintaining high standards of professional responsibility in the courtroom,” so
the district court may “disqualify counsel if necessary to preserve the integrity,
12
fairness, and professionalism of trial court proceedings.” State v. Vanover, 559
N.W.2d 618, 626 (Iowa 1997).
We are not holding that once a defense attorney moves to withdraw,
invoking the Rules of Professional Conduct and client confidentiality, the court
should grant the motion without further inquiry regardless of the defendant’s
objections. Nor are we holding that a district court may not inquire further when
defense counsel moves to withdraw in these situations. Rather, we are simply
reiterating the guidance to the district court and attorneys that is already
established in the comments to our rules of professional conduct and trusting
our district court judges to take the best course of action in each unique
situation.
Comment 3 to rule 32:1.16 provides,
When a lawyer has been appointed to represent a client, withdrawal
ordinarily requires approval of the appointing authority. . . .
Difficulty may be encountered if withdrawal is based on the client’s
demand that the lawyer engage in unprofessional conduct. The
court may request an explanation for the withdrawal, while the
lawyer may be bound to keep confidential the facts that would
constitute such an explanation. The lawyer’s statement that
professional considerations require termination of the representation
ordinarily should be accepted as sufficient.
Iowa R. Prof’l Conduct 32:1.16 cmt. 3 (emphasis added). Granted, this comment
is not authoritative and uses the term “ordinary” instead of a definitive term like
“always.” But we rely on these comments to “provide guidance for practicing in
compliance with the rules.” Id. Preamble & Scope [14]. The guidance in comment
3 contradicts Miller’s claim that the district court was “required” to inquire
further about “whether Miller believed continued representation by his current
13
counsel was possible if the Court ordered it.” Miller’s failure to offer any authority
to the contrary is also telling.
Ultimately, “attorneys are officers of the court, and ‘when they address the
judge solemnly upon a matter before the court, their declarations are virtually
made under oath.’ ” Holloway v. Arkansas, 435 U.S. 475, 486 (1978) (quoting
State v. Brazile, 75 So. 2d 856, 860–61 (La. 1954)). “The trial court should give
great weight to a representation by counsel that there is a[n ethical issue],
particularly in the case where the counsel has been appointed by the court rather
than retained by the defendants.” State v. Davis, 514 P.2d 1025, 1027 (Ariz.
1973) (en banc). Though not dispositive, we note that defense counsel who
sought to withdraw in this case is an experienced member of the State Public
Defender’s Office who is well aware of his ethical obligations. Cf. Iowa Sup. Ct.
Att’y Disciplinary Bd. v. Jacobsma, 920 N.W.2d 813, 819 (Iowa 2018) (explaining
that “[y]ears of experience as an attorney can be considered an aggravating
factor” in determining an attorney’s sanction for misconduct); GreatAm. Leasing
Corp. v. Cool Comfort Air Conditioning, Inc., 691 N.W.2d 730, 733 (Iowa 2005)
(noting an attorney’s experience is a factor for the district court to consider in
assessing the reasonableness of attorney fees); Mathison v. Young, 333 N.W.2d
477, 480 (Iowa 1983) (en banc) (holding the court must consider certain factors,
including an attorney’s experience, in determining compensation for
court-appointed attorneys in juvenile cases). Unless an attorney seeks guidance
from the district court about a potential ethical dilemma in moving to withdraw
or the circumstances raise a specific concern, we should trust that our attorneys
14
know their ethical duties and are acting in good faith when they seek to withdraw
to avoid violating their ethical obligations or the law.
In State v. Hischke, defense counsel for a defendant charged with
possession of marijuana moved to withdraw on the day the trial was set to begin,
stating that “his client initially claimed ownership of the marijuana but shortly
before the trial . . . denied ownership.” 639 N.W.2d 6, 8 (Iowa 2002). Defense
counsel informed the court,
It’s my personal belief that Mr. Hischke’s original statements to me
that the marijuana was his was the truth, and if Mr. Hischke
requires me to present evidence otherwise I think I would be
presenting perjured testimony, and so I don’t feel I can ethically be
permitted to do that. But Mr. Hischke wishes to present that defense
and that’s, I guess, the dilemma we have here.
Id. The district court did not grant the motion to withdraw but “informed Hischke
he would not be permitted to testify as to the ownership of the marijuana.
Hischke declined to testify and the jury found him guilty as charged.” Id.(footnote omitted). Hischke appealed, claiming he did not receive effective
assistance of counsel when defense counsel “informed the court he believed his
client was going to present perjured testimony” because counsel did not have
actual knowledge that Hischke’s testimony would be false. Id.Although Hischke did not contend counsel violated attorney–client
privilege by explaining his concerns about his client’s intent to perjure himself
to the district court, we stressed that our decision was not an affirmation that
defense counsel “was required to take the particular course of action he chose to
pursue.” Id. at 11. Instead, we recognized that “when counsel is faced with the
15
situation of client perjury,” there are “competing interests at stake.” Id. As we
explained,
Counsel must contend with duties of zealous advocacy,
confidentiality, and loyalty to the client. On the other hand, these
interests are counter-balanced by duties of accountability to the
courts and justice. In order to accommodate these competing
interests, there are various appropriate options a lawyer may choose
among to decide how to handle such a situation.
Id. (emphasis added). Our decision today recognizes those various options before
defense counsel and endorses both defense counsel’s ability to choose the most
appropriate way to handle the situation based on their firsthand experience with
the client and the district court’s discretion in choosing whether to inquire
further about counsel’s reason for moving to withdraw.
Here, defense counsel declared in his motion to withdraw and at the
hearing on that motion that professional considerations require termination of
the representation but stressed that he could not “be specific without violating
attorney–client privilege.” He reiterated this again when the district court asked
whether he believed it would be unethical for him to serve as standby counsel,
explaining that he would still “be in the same ethical situation [he’s] in now.” The
district court thoroughly examined the situation and conducted the level of
inquiry it believed was best in that situation. We cannot find the district court
abused its discretion by granting defense counsel’s motion to withdraw after
defense counsel stated that professional considerations required termination of
the representation.2
2See, e.g., State v. Coven, 340 P.3d 1101, 1104 (Ariz. Ct. App. 2015) (“The Arizona Rules
of Professional Conduct provide that a lawyer ‘shall withdraw from the representation of a client
16
B Miller’s Waiver of His Right to Counsel. Miller argues he did not
knowingly, intelligently, and voluntarily waive his right to counsel. In summary,
Miller claims his decision to represent himself was not truly voluntary because
he was forced to choose between waiving his right to speedy trial or representing
himself given the short timeline between defense counsel’s motion to withdraw
and his scheduled trial date. The Federal and State Constitutions afford
if . . . the representation will result in violation of the Rules of Professional Conduct or other law.’
Ariz. R. Sup. Ct. 42, ER 1.16(a)(1). Upon filing of such a motion, the trial court must determine
whether good cause has been shown before permitting the withdrawal, Ariz. R. Crim. P. 6.3(b),
and may request an explanation for the withdrawal. Ariz. R. Sup. Ct. 42, ER 1.16, cmt. 3. The
trial court should not condition grant or denial of the request on the attorney’s willingness to
disclose confidential information, rather ‘[t]he lawyer’s statement that professional
considerations require termination of the representation ordinarily should be accepted as
sufficient.’ Id.” (omission and alteration in original) (citations omitted)); State v. Pardo, No.
1409011585, 2015 WL 6509168, at *1 (Del. Super. Ct. Oct. 27, 2015) (“It should not be necessary
to disclose confidential information for the Court to full and fairly consider defense counsel’s
motion to withdraw. The Rules of Professional Conduct expressly address situations in which
the request to withdraw may require balancing of the lawyer’s obligations to maintain client
confidences and to abide by the duty of candor toward the tribunal. As set forth in Comment 3
to Rule 1.16, if defense counsel has concluded that professional considerations require
withdrawal, then defense counsel’s ‘statement that professional considerations require
termination of the representation ordinarily should be accepted as sufficient.’ ”); State v. Smith,
773 S.E.2d 114, 120 (N.C. Ct. App. 2015) (“In light of Comment 3’s recognition [in the
professional rules] that a ‘lawyer’s statement that professional considerations require
termination of the representation ordinarily should be accepted as sufficient’ to permit
withdrawal, we cannot conclude that the trial court’s decision to accept [counsel’s] assertion that
his withdrawal was mandatory in light of his professional considerations was an abuse of
discretion.” (quoting N.C. R. of Prof’l Conduct 1.16 cmt. 3)); Sims v. Sims, 623 S.W.3d 47, 58
(Tex. App. 2021) (“We find Hagger’s motion and her arguments adequately demonstrate good
cause for her to withdraw from the case. We do not agree with Appellant’s assertion that the trial
court judge’s ‘fail[ure] to attempt to discover the factual basis of Hagger’s claimed “conflict of
interest” or the “communication issues” between her and [Appellant] . . . could have been done
in camera.’ Rather, the trial court inquired about the nature of the conflict and Hagger informed
the court divulging the facts involved would violate the attorney–client privilege and potentially
jeopardize Appellant’s case.” (alterations and omission in original)); Sardini Grp., Inc. v. Imperial
Pac. Int’l, 1:20–cv–00007, 2021 WL 6884600, at *2 (D.N. Mar. I. Feb. 12, 2021) (“The Court finds
that Hasselback’s statements that continued representation in this matter would cause him to
violate several ethical obligations trigger mandatory withdrawal under Model Rule 1.16(a) and is
sufficient for granting his motion. The Model Rules, its related comments and caselaw support
the Court’s decision: Hasselback need not be required to provide details, beyond his written
motion, to establish that mandatory withdrawal is warranted. Requiring him to specify the basis
for his mandatory withdrawal could create the untenable situation of an attorney having to
choose between his obligation of candor to the Court and his obligation to maintain his client’s
confidences.”).
17
defendants the right to counsel at all critical stages, but a defendant may choose
to waive this right. State v. Majeres, 722 N.W.2d 179, 182 (Iowa 2006). “A proper
waiver must be voluntary, knowing, and intelligent.” Hannan v. State, 732
N.W.2d 45, 52 (Iowa 2007). Accordingly, courts must “engage the accused in a
colloquy sufficient to apprise a defendant of the dangers and disadvantages
inherent in self-representation” for the defendant to properly waive the right to
counsel. Id. at 53 (quoting State v. Stephenson, 608 N.W.2d 778, 782 (Iowa 2000)
(en banc)).
“The degree of inquiry necessary to assure a valid waiver varies with the
nature of the offense and the ability of the accused to understand the process.”
Stephenson, 608 N.W.2d at 782. An adequate colloquy examines “the nature of
the charges, the statutory offenses included within them, the range of allowable
punishments thereunder, possible defenses to the charges and circumstances in
mitigation thereof, and all other facts essential to a broad understanding of the
whole matter.” Hannan, 732 N.W.2d at 53 (quoting State v. Cooley, 608 N.W.2d
9, 15 (Iowa 2000) (en banc)). The district court also must admonish the
defendant “as to the usefulness of an attorney at that particular proceeding, and
made cognizant of the danger in continuing without counsel.” Id. (quoting
Cooley, 608 N.W.2d at 15).
Here, the district court engaged in a thorough colloquy with Miller at the
withdrawal hearing and again immediately prior to the start of Miller’s trial.
Miller points to his answers to the following two questions to support his claim
18
that he did not knowingly, intelligently, and voluntarily waive his right to
counsel:
THE COURT: Have you had adequate time to discuss with
your attorney whether or not you will waive your right to be
represented by an attorney?
THE DEFENDANT: No, sir.
....
THE COURT: Have you discussed the trial strategy in this case
with your attorney?
THE DEFENDANT: No, sir.
But these statements taken in isolation do not reflect the full extent of the
colloquy.
Although Miller indicated he did not have “adequate time to discuss with
[his] attorney whether or not [he] will waive [his] right to be represented by an
attorney,” he also informed the district court that he did not “wish to have some
time at [that] point to discuss that matter with [his attorney]” and “wish[ed] to
proceed with [his] waiver of attorney.” The district court informed Miller at the
withdrawal hearing on November 26 that it was willing to appoint another
attorney to represent him, but Miller declined the offer.
In both colloquies, the district court adequately advised Miller of the perils
of self-representation and the benefits of having an attorney. It also explained
the tasks Miller would have to undertake, including “handling
cross-examinations of witnesses, objecting to evidence, . . . presenting evidence
at trial, and making opening and closing statements at trial.” Likewise, the
district court discussed the nature of the charges, the punishment, and the rules
19
that Miller would be subject to in representing himself even though he is not a
licensed attorney. After all of this, Miller reiterated his desire to represent himself
with only the assistance of standby counsel. He also revealed during the colloquy
that he had represented himself in the past with the assistance of standby
counsel.
Miller claims he was forced to represent himself because he did not want
to waive his right to a speedy trial, but there was adequate time to appoint new
counsel. In discussing the appointment of standby counsel, the district court
asked the prosecutor if he believed standby counsel could be brought up to speed
in Miller’s case if the matter was continued to a time within the 90-day speedy
trial demand. The prosecutor answered, “I could do it if I was still on the defense
bar . . . . Yeah, I could walk into this case and be standby counsel.” Miller was
in fact able to spend time with standby counsel for a “few days . . . going over
everything” leading up to trial. Standby counsel likely could have been prepared
to fully represent Miller if Miller had not waived his right to counsel given one of
the purposes of standby counsel is “to be available to represent the accused in
the event that termination of the defendant’s self-representation is necessary.”
State v. Martin, 608 N.W.2d 445, 451 (Iowa 2000) (en banc).
At the time of the withdrawal hearing, the trial was scheduled for
December 2, six days after the hearing. But the trial was continued to
December 9, thirteen days after the hearing, due to a witness availability issue
and the speedy trial deadline was not until December 16—almost three weeks
after the withdrawal hearing. Thus, there was no “false choice” between waiving
20
his right to counsel or waiving his right to a speedy trial. “The purpose of a
colloquy is to provide fair notice of the obstacles inherent in self-representation
before an accused embarks on so perilous an endeavor.” Cooley, 608 N.W.2d at
16. The district court met that purpose both at the withdrawal hearing and
immediately prior to the start of Miller’s trial before concluding Miller knowingly,
intelligently, and voluntarily waived his right to counsel.
IV. Conclusion.
We affirm Miller’s convictions for the aforementioned reasons.
DECISION OF COURT OF APPEALS AND DISTRICT COURT JUDGMENT
AFFIRMED.
All justices concur. Appel, J., files a concurrence.
21
#20–0359, State v. Miller
APPEL, Justice (concurring).
I agree with the majority based on the specific facts of this case, but I write
separately to emphasize that there may be situations where a trial judge should
engage in at least a limited inquiry before permitting the withdrawal of counsel
on the eve of trial.
We do not know for sure why counsel declared he was required to withdraw
nineteen days prior to the speedy trial deadline in this case. If the withdrawal
was prompted by a determination of the client to commit perjury, the caselaw
provides at least two different approaches. Under the approach of the Colorado
Supreme Court in People v. Schultheis, the attorney must simply declare that
they have an “irreconcilable conflict” with the client, and that is the end of the
matter. 638 P.2d 8, 14 (Colo. 1981) (en banc). The approach in Schultheis is
consistent with comment 3 to Iowa Rule of Professional Conduct 32:1.16, which
states, “The lawyer’s statement that professional considerations require
termination of the representation ordinarily should be accepted as sufficient.”
(Emphasis added.)
Yet, in Witherspoon v. United States, the District of Columbia Court of
Appeals suggested that when an attorney seeks to withdraw, the trial court
should conduct a hearing on the matter. 557 A.2d 587, 588, 591–92 (D.C. 1989);
see id. at 591 n.2 (“In order to avoid the prejudice to appellant . . . the judge who
presides at appellant’s trial should be different from the judge who conducts the
conflict inquiry.”); see also Sanjit S. Shah, The Witherspoon Approach: How a
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Court Should Decide Defense Counsel’s Motion to Withdraw When the Accused
Insists Upon the Presentation of Perjurious Witness Testimony, 35 How. L.J. 155,
166–71 (1992) (arguing that the Witherspoon approach could better protect a
defendant’s Sixth Amendment right to representation than the Schultheis
approach). The posture in Witherspoon was different from the posture here in
that the record revealed the client wished to call witnesses whom counsel stated
would adversely affect his representation. 557 A.2d at 591.
Ordinarily, when counsel files a motion to withdraw well in advance of
trial, the Schultheis approach may be followed without harm to the client. New
counsel may simply be appointed and, perhaps, the problem will be resolved.
But when a motion to withdraw is filed close to the speedy trial deadline, the
criminal defendant may be forced to choose between representation by counsel
and their right to a speedy trial. In this setting, the case can be made that the
trial judge should engage in a more searching inquiry in an effort to avoid
requiring the defendant to choose between their right to counsel and their right
to a speedy trial. Of course, care should be made not to unnecessarily intrude in
attorney-client communications, but the district court can enquire about the
general nature of the conflict and probe to see if pragmatic alternatives are
available that avoid a surrender of the defendant’s rights to the assistance of
counsel and to speedy trial.
And there might be potential solutions available. For instance, if the
counsel’s concern is a client potentially committing perjury, the court could have
the client testify in the narrative. See Wilkins v. Scribner, 263 F. App’x 638, 639–
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40 (9th Cir 2008) (holding it was “constitutionally reasonable” to make use of
“the ‘free narrative’ option to avoid ethical problems”). Although Iowa has not yet
formally recognized this “free narrative” approach, comment 7 to Iowa Rule of
Professional Conduct 32:3.3 seems to suggest the use of free narrative. See Iowa
R. Prof’l Conduct 32:3.3 cmt. 7 (“An advocate’s obligation under the Iowa Rules
of Professional Conduct is subordinate to a court’s directive requiring counsel to
present the accused as a witness or to allow the accused to give a narrative
statement if the accused so desires.”). Additionally, this approach has been
identified by commentators as a possible permissible alternative. See 16 Gregory
C. Sisk & Mark S. Cady, Iowa Practice Series Lawyer & Judicial Ethics § 7:3(d)(1)
(2019) (noting that comment 7 to rule 32:3.3 “may indicate tentative acceptance
of or at least openness to the [free] narrative approach” and that although the
free narrative approach might not be perfect, it is within the trial court’s
discretion when facing an “impossible situation” in a criminal case).
If the counsel’s concern stems from a conflict of interest, the confidential
dimension is likely to be significantly less worrisome than in the context of
potential client perjury. In State v. McKinley, we held that the court must
“independently evaluate whether the circumstances show an actual conflict or
serious potential for conflict before disqualifying defense counsels.” 860 N.W.2d
874, 880 (Iowa 2015) (“A conflict does not exist just because one party asserts it
does.”). Granted, in McKinley it was the defense counsel who requested a hearing
on the matter, but the point is we did not stop our inquiry once a potential
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conflict of interest has been identified. See id. at 877. Instead, we held that the
district court must dive deeper.
Another possibility is that withdrawal was based on an irresolvable conflict
with the client. In an irresolvable conflict setting, a generalized judicial inquiry
to ensure that there is no realistic alternative to withdrawal may be appropriate
if withdrawal at the eleventh hour means the defendant must choose between
his right to counsel and his right to a speedy trial.
Here, we do not know the basis for the motion to withdraw. It could have
been client perjury, a conflict of interest, an irresolvable conflict over strategy, or
perhaps some other reason. But the motion to withdraw occurred nineteen days
before the expiration of the speedy trial deadline. Although the timing was close,
Miller could have had new counsel appointed and proceeded to trial within his
speedy trial timeframe. Instead, he voluntarily chose to proceed pro se with the
assistance of standby counsel rather than have new counsel appointed for him.
In a situation where defense counsel seeks to withdraw on the eve of trial
and where there is no possibility of appointing new counsel prior to the
expiration of the speedy trial deadline, we would have a different scenario. At
that point, because of the constitutional interests at stake, the district court
would be well advised to use a Witherspoon-type inquiry to determine whether it
is possible to avoid requiring the criminal defendant to choose between his
constitutional rights of representation by counsel and speedy trial.
There is, however, one troubling case that is somewhat similar to our
present situation, Howell v. State, 443 A.2d 103 (Md. 1982). In Howell, the
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defendant was charged with conspiracy and second-degree murder. Id. at 104.
The defendant’s privately retained counsel moved to withdraw twenty days prior
to the trial date on the grounds of nonpayment of fees and because of the
possibility that counsel might be called as a witness in a suppression hearing
and at trial. Id. at 104. The public defender “refused to represent the accused
unless he agreed to a postponement.” Id. at 105.
At a hearing, the trial court advised the defendant that the public defender
would not represent him without a postponement and that the trial court did not
have the authority or funds to appoint another lawyer who, in any event, would
also be unable to prepare for trial on such short notice. Id. But the defendant
insisted on both his right to counsel and his right to a speedy trial. The trial
court responded that the defendant had to choose between his right to a speedy
trial and his right to counsel. Id. at 106 (“[Y]ou can’t have your cake and eat it
in this case. You can either have your trial in 120 days, 180 days or, without
counsel, or you can have, wait a little while and have counsel appointed for
you who will represent you.”).
The trial court ultimately determined that the defendant’s refusal to agree
to a postponement was a knowing and voluntary waiver of the right to counsel.
Id. The defendant was without counsel at multiple pretrial hearings, including a
suppression hearing, and eventually was unrepresented at a four-day trial where
a jury convicted him of conspiracy and second-degree murder. Id.
On appeal, the Maryland Court of Appeals reversed the conviction. Id. at
107. It held that the defendant, under the circumstances, did not waive his right
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to counsel. Id. The court noted that private counsel’s motion to withdraw could
have been denied. Id. at 107–08. And, the trial court could have appointed other
counsel. Id. at 108. Or, the speedy trial deadline could have been extended for
good cause shown. Id.
Here, however, the facts are somewhat different. First, the district court
did not advise the defendant that he had to choose between his right to a speedy
trial and his right to assistance of counsel. Instead, the district court offered the
defendant the appointment of another lawyer, which the defendant declined. At
that time, the speedy trial deadline was almost three weeks away. The record
does not establish that new counsel was not available to be prepared for trial
within the speedy trial deadline. Thus, unlike Howell, in this case, there was no
showing that the defendant was actually forced to choose between speedy trial
and his right to counsel.
In the end, I agree with the result in this case on the narrow facts
presented and claims made on appeal. I concur because, as they say in the
movies, “it’s complicated.”