STATE OF IOWA, Plaintiff-Appellee, vs. CENECA RONELE JOHNSON, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-592 / 06-1472
Filed December 12, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CENECA RONELE JOHNSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire,
Judge.
Defendant appeals from his conviction following a jury trial for robbery in
the second degree. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson and
James Tomka, Assistant Appellate Defenders, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, William E. Davis, County Attorney, and Amy K. Devine, Assistant
County Attorney, for appellee.
Heard by Vogel, P.J., and Mahan and Zimmer, JJ.
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ZIMMER, J.
Ceneca Romele Johnson appeals from his conviction following a jury trial
of robbery in the second degree. He claims the district court erred in finding his
motion to suppress evidence obtained from an allegedly invalid search warrant
was barred by the doctrine of res judicata. He further claims the district court
violated his Sixth Amendment right to counsel by limiting the involvement of his
standby counsel at trial. We affirm.
I. Background Facts and Proceedings.
On the morning of November 10, 2004, at about nine o’clock, Gary
Thompson was getting ready to let his dogs outside when he noticed a strange
car parked in front of his house. Thompson observed a man he later identified as
Johnson get out of the car and walk towards the Metrobank in Davenport.
Johnson was wearing a stocking cap and gloves, and he was carrying a white
plastic bag.
Thompson continued to watch the man because he “looked
nervous.” Thompson became suspicious, so he noted the description of the car
and wrote down the license plate number.
Johnson returned to the car from the direction of the bank a short time
later. Johnson and Thompson came “face-to-face” with one another near the
car. Johnson was carrying “two bags full” of what Thompson assumed to be
money. He pointed a weapon at Thompson and ordered him to turn around and
walk away. After Johnson drove away, Thompson flagged down a passing police
car. He reported what he had observed and gave the officer the license plate
number of the car Johnson was driving.
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The officer relayed the information given to him by Thompson to officers at
the scene of a robbery that had been reported at Metrobank. Three tellers and
the bank’s branch manager were in the bank at the time of the robbery. The
tellers observed a man they later identified as Johnson enter the bank at
approximately nine in the morning on November 10. Johnson approached one of
the tellers and told her to fill a white plastic bag he handed her with “fifties and
hundreds” while pointing a gun at her. The teller filled the bag with money and
gave it to Johnson, who walked out of the bank.
The police located a car matching the description given to them by
Thompson and arrested Johnson in a nearby apartment. The car was registered
to Lawrence Johnson, who informed the police “he was in the process of selling
[the car] to Ceneca Johnson.” Lawrence had last seen Johnson and his car the
night before the robbery. After obtaining a search warrant for the apartment, the
police discovered a BB pistol in the water tank of the toilet and a duffel bag
containing a large sum of money equaling that reported taken from the bank
during the robbery.
Johnson was charged with robbery in the first degree. He filed a motion to
suppress evidence claiming the search warrant was not supported by probable
cause. He argued the search warrant application failed to establish the credibility
of Lawrence Johnson and an unnamed informant.
Following a hearing, the
district court denied Johnson’s motion to suppress. The case proceeded to trial
where Johnson represented himself with the assistance of standby counsel. The
jury found Johnson guilty of robbery in the first degree, and he was sentenced to
an indeterminate term not to exceed twenty-five years. Johnson appealed. We
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reversed his conviction and remanded for a new trial based on our determination
he was prejudiced by an erroneous jury instruction. State v. Johnson, No. 050558 (Iowa Ct. App. May 10, 2006).
On remand, Johnson continued to represent himself with the assistance of
standby counsel. He filed a second motion to suppress evidence on August 3,
2006, again arguing the search warrant was not supported by probable cause
because the application failed to establish the credibility of Lawrence Johnson.
He also argued for the first time that he had standing to challenge the warrant as
an overnight guest in the apartment and that the search warrant affidavit
contained false statements. The district court denied Johnson’s second motion
to suppress on the basis of res judicata.
Johnson was found guilty of robbery in the second degree following his
second jury trial. During the trial, the district court told standby counsel he could
not assist Johnson unless Johnson requested him to do so. The district court
denied Johnson’s motion for a new trial and sentenced him to an indeterminate
term not to exceed ten years.
Johnson appeals.
He claims the district court erred in denying his
August 3, 2006 motion to suppress evidence obtained from an allegedly invalid
search warrant based on the doctrine of res judicata.
He further claims the
district court violated his Sixth Amendment right to counsel by limiting the
involvement of his standby counsel at trial.
II. Scope and Standards of Review.
Our review of the district court’s denial of Johnson’s motion to suppress
evidence obtained from an allegedly invalid search warrant in violation of the
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Fourth Amendment is de novo. State v. Seager, 571 N.W.2d 204, 207 (Iowa
1997).
We review the district court’s limitations on standby counsel’s involvement
at trial for an abuse of discretion. State v. Cooley, 468 N.W.2d 833, 837 (Iowa
Ct. App. 1991); cf. State v. Rater, 568 N.W.2d 655, 657 (Iowa 1997) (conducting
a de novo review of defendant’s Sixth Amendment right to counsel and selfrepresentation claims).
III. Discussion.
A. Motion to Suppress.
Johnson claims the district court erred in applying the doctrine of res
judicata to deny his motion to suppress at his second trial. The State, on the
other hand, argues Johnson was not prejudiced by the court’s error, if any, in
denying the motion on the basis of res judicata because the motion was without
merit. 1
Assuming, arguendo, that the district court incorrectly applied the
doctrine of res judicata in denying Johnson’s motion to suppress, we find upon
our de novo review that the search warrant was valid.
Under the Fourth Amendment of the United States Constitution, a search
warrant must be supported by probable cause. State v. Gogg, 561 N.W.2d 360,
363 (Iowa 1997). A totality of the circumstances standard is used to determine
whether probable cause has been established. State v. Davis, 679 N.W.2d 651,
656 (Iowa 2004). “The existence of probable cause to search a particular area
1
Although not raised as an argument in its brief, the State asserted at oral argument that
Johnson did not have standing as an overnight guest to challenge the search warrant.
We need not and do not address the State’s argument in this regard due to our
conclusion that Johnson’s challenges to the search warrant are without merit.
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depends on whether a person of reasonable prudence would believe that
evidence of a crime might be located on the premises to be searched.” Id. The
judge issuing the warrant must make a “‘practical, common-sense decision,
whether, given all the circumstances set forth in the affidavit before him, including
the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information,’
probable cause exists.” Gogg, 561 N.W.2d at 363 (quoting Illinois v. Gates, 462
U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983)).
“In
reviewing the court’s determination, we draw all reasonable inferences to support
a court’s finding of probable cause.” Davis, 679 N.W.2d at 656. Due to our
preference for warrants, any doubts are resolved in favor of their validity. State
v. Weir, 414 N.W.2d 327, 330 (Iowa 1987).
In Johnson’s August 3, 2006 motion to suppress, he argued Detective
William Thomas made a “misleading statement in his affidavit which suggests
that . . . Gary Thompson, saw the alleged perpetrator enter a bank” in violation of
Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). In
order to succeed on this ground, Johnson must establish Detective Thomas
made “deliberately false statements in the warrant application or acted in
reckless disregard for the truth.” State v. Green, 540 N.W.2d 649, 656 (Iowa
1995).
Johnson does not argue Detective Thomas made deliberately false
statements in the warrant application.
Instead, he contends the detective’s
statement that “[t]he witness [Thompson] watched the suspect walk towards the
Metro Bank” was made with reckless disregard for the truth because it suggested
Thompson actually saw Johnson enter the bank. First, we do not believe the
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statement misleadingly indicates that Thompson saw Johnson enter the bank.
Rather, the statement accurately conveys what Thompson testified that he
witnessed: “I . . . noticed him walking down the street towards the bank.”
Second, in order to prove Detective Thomas made the statement with
reckless disregard for the truth, Johnson must show the detective had serious
doubts as to the veracity of the informant’s statement or the circumstances
evince obvious reasons to doubt the veracity of the allegations.
State v.
Niehaus, 452 N.W.2d 184, 187 (Iowa 1990). Nothing in the record suggests that
Detective Thomas entertained doubts as to the veracity of Thompson’s
statement, or that the detective should have deduced the statement was possibly
untruthful. Moreover, Johnson appears to be claiming the statement was simply
“misleading” rather than untruthful. We find Johnson has not met his burden to
prove Detective Thomas made statements in support of his warrant application in
reckless disregard of the truth.
Johnson’s motion to suppress also asserts the magistrate failed to
establish the credibility of Lawrence Johnson before issuing the search warrant.
Iowa Code section 808.3 (2003) “requires the magistrate to make a finding that
the informant or the informant’s information appears credible for reasons
specified by the magistrate.” State v. Peck, 517 N.W.2d 230, 232 (Iowa Ct. App.
1994). However, our supreme court has held that the required findings of section
808.3 apply only to confidential informants.
Weir, 414 N.W.2d at 331.
A
magistrate is not obligated to make specific references to the credibility of a
named informant or the reliability of the information provided by that named
informant. Peck, 517 N.W.2d at 232. Furthermore, it is significant that Johnson
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does not argue the information provided by Lawrence Johnson is not truthful.
Thus, “requiring the magistrate to make express findings on the credibility of”
Lawrence Johnson or the information he provided would not have aided
Johnson. See Weir, 414 N.W.2d at 331.
Finally, our review of the totality of the circumstances surrounding the
warrant documents convinces us that a sufficient basis existed to support the
magistrate’s finding of probable cause to issue the search warrant.
See id.
(stating our inquiry does not end with the simple fact the informant in the affidavit
was named); State v. Groff, 323 N.W.2d 204, 206 (Iowa 1982) (stating the
remedy for a false statement in a warrant application is excision of the statement
and examination of the remaining contents to determine whether probable cause
exists). We therefore affirm the district court’s order overruling Johnson’s motion
to suppress.
B. Standby Counsel.
Johnson argues the trial court erred in limiting the participation of standby
counsel after he elected to represent himself at trial.
“In a state criminal trial, a defendant has a Sixth and Fourteenth
Amendment right under the United States Constitution to self-representation.”
Rater, 568 N.W.2d at 658 (citing Faretta v. California, 422 U.S. 806, 807, 95 S.
Ct. 2525, 2527, 45 L. Ed. 2d 562, 566 (1975)).
Before the right to self-
representation attaches, a defendant must voluntarily, clearly, and unequivocally
elect to proceed without counsel by knowingly and intelligently waiving his Sixth
Amendment right to counsel. Rater, 568 N.W.2d at 658. The trial court must
enlighten the defendant as to “‘the dangers and disadvantages of self-
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representation’” before accepting a defendant’s request to proceed pro se. Id.
(quoting Faretta, 422 U.S. at 835, 95 S. Ct. at 2532, 45 L. Ed. 2d at 572).
In order to help avoid the pitfalls associated with self-representation, the
trial court may appoint “standby counsel” to assist a pro se defendant in his
defense, even over the defendant’s objections. Faretta, 422 U.S. at 834 n.46, 95
S. Ct. at 2541 n.46, 45 L. Ed. 2d at 581 n.46. Although standby counsel is
recommended when a defendant elects to proceed pro se, provision of standby
counsel is not constitutionally required. Cooley, 468 N.W.2d at 836; see also
State v. Hutchison, 341 N.W.2d 33, 41 (Iowa 1983). The purpose of standby
counsel is to aid the defendant if and when he requests help, and to be available
to represent the defendant should he desire to terminate his self-representation.
Faretta, 422 U.S. at 834 n.46, 95 S. Ct. at 2541 n.46, 45 L. Ed. 2d at 581 n.46;
see also State v. Martin, 608 N.W.2d 445, 451 (Iowa 2000).
The Supreme Court in McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944,
79 L. Ed. 2d 122 (1984), outlined the limits that should be placed on unsolicited
participation by standby counsel in order to ensure that the Sixth Amendment
right to self-representation set forth in Faretta is upheld. However, the Court did
not address what limits, if any, could be placed on standby counsel’s desired
participation during the course of the trial. McKaskle, 465 U.S. at 182, 104 S. Ct.
at 953, 79 L. Ed. 2d at 135-36. 2
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The Court in McKaskle, 465 U.S. at 182, 104 S. Ct. at 953, 79 L. Ed. 2d at 136, did
state, “Participation by counsel with a pro se defendant’s express approval is, of course,
constitutionally unobjectionable.” The Court, however, was not approving unlimited
participation by standby counsel at trial. McKaskle, 465 U.S. at 182, 104 S. Ct. at 953,
79 L. Ed. 2d at 136. Instead, the Court explained that a defendant who invites the
participation of counsel may not later claim that counsel improperly interfered with the
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In this case, the district court repeatedly admonished standby counsel to
stop prompting questions during the questioning of witnesses and limited his
participation during argument. Johnson contends he gave his standby counsel a
standing request for legal advice, and he argues the “district court had no right to
limit standby counsel’s” solicited involvement at his trial. For the reasons that
follow, we do not agree.
The district court told standby counsel, Murray Bell, “If [the defendant]
asks you for assistance, you give it to him. If he does not ask you for assistance
you say nothing.” The court’s initial admonishment came after Bell prompted
Johnson to make objections during the State’s opening remarks. Bell objected to
the district court’s limitation on his participation at trial because Johnson had
requested Bell’s “assistance at any point I see a problem.” Bell stated he had
“merely been telling Mr. Johnson things I think he should consider doing or not
doing during the course of this trial.”
Upon review of the record in this case, we cannot say the district court
abused its discretion in limiting standby counsel’s participation in such a manner.
The Court in McKaskle recognized that a trial judge is not required to permit
“hybrid” representation, whereby both the pro se defendant and standby counsel
are actively participating as defense counsel at trial. McKaskle, 465 U.S. at 183,
104 S. Ct. at 953, 79 L. Ed. 2d at 136; see also Hutchison, 341 N.W.2d at 41
(stating a defendant does not have an absolute right to both self-representation
and assistance of counsel).
Because a trial court has discretion in deciding
defendant’s Sixth Amendment right to self-representation. Id.; see also Martin, 608
N.W.2d at 452. Johnson is not making such a claim in this case.
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whether to appoint standby counsel, the court must also necessarily have
discretion “to place reasonable limitations and conditions upon the arrangement.”
Cooley, 468 N.W.2d at 837 (finding the trial court did not abuse its discretion in
denying defendant’s request that standby counsel be allowed to argue a motion
in limine); see also McKaskle, 465 U.S. at 183, 104 S. Ct. at 953, 79 L. Ed. 2d at
136 (“A defendant does not have a constitutional right to choreograph special
appearances by counsel.”). We therefore reject Johnson’s claim that the “district
court had no right to limit standby counsel’s role.”
The trial court was consequently not required to allow Bell to interject
whenever “he [saw] anything that [Johnson] may have overlooked” during the
course of the trial. In fact, Johnson’s desired expanded role for standby counsel
at trial “could very well have created procedural complications and the potential
for jury confusion as to counsel’s status.” Cooley, 468 N.W.2d at 837. The
court’s reasonable limitation on standby counsel’s involvement during the course
of the trial allowed counsel to fulfill his dual purpose “to act as a safety net to
ensure that the litigant receives a fair hearing of his claim and to allow the trial to
proceed without the undue delays likely to arise when a layman presents his own
case,” Rater, 568 N.W.2d at 658, while at the same time preserving “the jury’s
perception that the defendant is representing himself.” McKaskle, 465 U.S. at
178, 104 S. Ct. at 951, 79 L. Ed. 2d at 133; see also United States v. Einfeldt,
138 F.3d 373, 378 (8th Cir. 1998) (stating the trial court’s limitations on standby
counsel’s solicited involvement at trial was “a commendable effort to honor [the
defendant’s] decision to represent himself while providing him meaningful
assistance of standby counsel”).
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We note the trial court did not prohibit Bell from assisting Johnson in
“overcoming routine procedural or evidentiary obstacles to the completion of
some specific task, such as introducing evidence or objecting to testimony.”
McKaskle, 465 U.S. at 183, 104 S. Ct. at 953, 79 L. Ed. 2d at 136. Nor did the
court restrict Bell from “ensur[ing] the defendant’s compliance with basic rules of
courtroom protocol and procedure.” Id.; see also Spencer v. Ault, 941 F.Supp.
832, 841 n.8 (N.D. Iowa 1996) (setting forth four functions standby counsel can
serve). Instead, the court’s admonishments to standby counsel were aimed
towards ensuring the trial was conducted in an orderly manner. “[T]rial courts are
given considerable latitude and freedom of action to control and ensure orderly
process at trial.” Hutchison, 341 N.W.2d at 42. Thus, in light of the foregoing,
we cannot say the district court abused its discretion in limiting standby counsel’s
participation at trial. Cooley, 468 N.W.2d at 837.
IV. Conclusion.
Upon our de novo review, we reject Johnson’s argument that the district
court erred in denying his motion to suppress. We further conclude the district
court did not abuse its discretion in placing restrictions on standby counsel’s
participation during the course of the jury trial. We therefore affirm Johnson’s
conviction.
AFFIRMED.
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