Full Opinion (html_with_citations)

                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1312
                            Filed December 24, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRYAN KEITH BEY,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Pottawattamie County, James

Heckerman (hearing) and Kathleen Kilnoski (trial.)



      Bryan Bey appeals from his conviction for first-degree and second-degree

kidnapping. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney

General, Matthew Wilber, County Attorney, and Jon Jacobmeier, Assistant

County Attorney, for appellee.



      Considered by Potterfield, P.J., and Tabor and Mullins, JJ.
                                          2



MULLINS, J.

       Bryan Bey appeals from a jury verdict finding him guilty of kidnapping in

the first degree and kidnapping in the second degree. He contends the district

court erred by engaging in an inadequate colloquy wherein Bey waived his right

to counsel and chose to represent himself, rendering his waiver not knowing,

intelligent, and voluntary.    He further contends the court erred, when the

deliberating jury asked whether a hand or foot is considered a dangerous

weapon, by instructing the jury to reread the instruction on what constitutes a

dangerous weapon. We affirm.

I.     BACKGROUND FACTS AND PROCEEDINGS.

       On May 30, 2012, at about 5:00 p.m., law enforcement officers discovered

a woman, later identified as Tabitha Proplesch, severely beaten in a truck by the

side of the road in Pottawattamie County.          A nearby witness advised law

enforcement officers that a man, later identified as Bey, drove his truck to the

area, ran out of gas, left the truck, and hitched a ride away.

       At trial, Proplesch testified that on May 29th, she and Bey were in a

friend’s apartment smoking methamphetamine. Bey took away her keys and

phone and repeatedly punched her in the face and body. Following an extended

physical attack, Proplesch escaped out a bedroom window. Bey caught up with

Proplesch and kicked her in the head multiple times. Bey then placed his hand

over Proplesch’s mouth until she passed out. She woke up in the backseat of a

vehicle. Bey handcuffed her and stabbed her in the knee with something sharp

that looked like a letter opener. Proplesch then fell in and out of consciousness
                                         3



for some time but was aware the vehicle was moving. Eventually the vehicle

stopped, and Proplesch next saw the law enforcement officers approaching. The

State charged Bey with kidnapping in the first degree and second degree.

       The trial court initially appointed Jennifer Solberg to represent Bey but she

had to withdraw, and the court appointed Michael Williams of the Sioux City

office of the State Public Defender. Bey was unhappy with Williams and filed a

motion to dismiss counsel, a motion to proceed “pro se and without counsel,” an

ethics complaint against Williams, and a motion for a protective order against

Williams. The court appointed Greg Jones, supervisor of the Sioux City office of

the State Public Defender. Bey maintained he wished to proceed to trial pro se.

The court held a hearing and conducted a colloquy to secure a waiver of Bey’s

right to trial counsel.   Granting Bey’s motion to proceed pro se, the court

appointed Greg Jones as standby counsel. Bey then filed a motion to dismiss

standby counsel, asserting various complaints against Jones. The court held

another hearing and denied the motion. Bey then filed a motion for appointment

of “hybrid counsel,” which the court denied.

       The jury trial began on April 23. Bey made a motion for judgment of

acquittal, which the court denied. During deliberations, the jury presented the

court with the following questions: “Can a part of your body (i.e. hand, foot) be

considered a dangerous weapon? Can a body part be considered an instrument

or device?” After conferring with the parties, the court instructed the jury to

reread the instructions. The jury returned verdicts of guilty on both counts.
                                         4



       On appeal, Bey contends the court’s colloquy in which he waived his right

to counsel was inadequate and consequently his waiver of the right to counsel

was not knowing, voluntary, and intelligent. He further contends the court erred

in instructing the jury to reread the instruction and should have instructed the jury

that a hand or foot is not a dangerous weapon.

II.    STANDARDS OF REVIEW.

       We review constitutional issues related to right to counsel or self-

representation de novo. State v. Johnson,
756 N.W.2d 682, 686
 (Iowa 2008).

We reverse a discretionary decision only if there is an abuse of discretion. State

v. Watkins,
463 N.W.2d 15, 18
 (Iowa 1990).

III.   ANALYSIS.

       A.     Adequacy of the Court’s Colloquy in Securing Waiver of Right

              to Counsel.

       Bey maintains the district court’s colloquy during the hearing in which he

waived his right to counsel was constitutionally inadequate and his wavier was

not knowing, intelligent, and voluntary. “The Sixth Amendment safeguards to an

accused who faces incarceration the right to counsel at all critical stages of the

criminal process.” Iowa v. Tovar,
541 U.S. 77, 80-81
 (2004). The Sixth and

Fourteenth Amendments also guarantee the defendant the right to self-

representation. Farettta v. California,
422 U.S. 806, 807
 (1975). A defendant’s

constitutional right to counsel is effective until waived. Hannon v. State,
732 N.W.2d 45, 52
 (Iowa 2007). A waiver of the right to counsel must be voluntary,

knowing, and intelligent.
Id.
 In order for the defendant to waive the right to
                                        5



counsel, we require courts to engage in a colloquy to apprise the defendant of

the dangers and disadvantages inherent in self-representation.
Id. at 53
. The

burden is on the State to prove that a valid wavier exists.
Id.
 The sufficiency of

the colloquy is to be determined by the surrounding circumstances.
Id.

      Bey submits that under State v. Cooley,
608 N.W.2d 9, 15
 (Iowa 2000), for

a waiver colloquy to be sufficient, it must ensure the defendant fully understands

“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 matter as a whole.” Cooley,
608 N.W.2d at 15
 (quoting Von

Moltke v. Gillies,
332 U.S. 708, 723-24
 (1948)). Bey asserts, “In the present

case the court did not discuss the possible defenses and circumstances in

mitigation of the kidnapping offense, nor any other facts essential to Bey’s

understanding of the whole matter.” Our supreme court has stated repeatedly—

and reiterated in Cooley—that the degree of inquiry depends upon the facts and

circumstances of the specific case. See Hannon,
732 N.W.2d at 53
; Majerus,
722 N.W.2d 179, 182
 (Iowa 2006); Cooley,
608 N.W.2d at 15
; State v.

Stephenson,
608 N.W.2d 778, 782
 (Iowa 2000).          To the extent Bey asserts

Cooley establishes a mandatory warning for the waiver colloquy, we conclude

that discussing the possible defenses and mitigating circumstances may have

been necessary under the facts of Cooley (or rather the pre-Faretta case Von
                                            6



Moltke, which Cooley quotes for this language) but may not be necessary under

a different set of facts.1

       When a court conducts a colloquy allowing a criminal defendant to waive

his right to counsel, the court must inform the defendant about the “dangers and

disadvantages of self-representation, so that the record will establish that he

knows what he is doing and his choice is made with eyes open.” State v. Rater,
568 N.W.2d 655, 658
 (Iowa 1997) (internal quotations omitted).

       In this case, the court held a hearing on Bey’s motion to proceed pro se.

On our review of the transcript, we note the court recounted Bey’s extensive

experience in criminal justice system; recited the charges, their level of offense,

the lesser-included offenses, and the possible penalties; ascertained Bey’s lack

of experience with jury selection, trial procedure, rules of evidence, presentation

of evidence, and jury instructions; and the advantages involved with having a

trained attorney conduct the trial. Bey indicated to the court that he was studying

and learning the applicable law and rules. The judge inquired of Bey, “What

makes you feel that you are competent to represent yourself in this type of

proceeding?” to which Bey responded, “Because nobody can cross-examine the

State’s witnesses better than I.” The judge further explicitly stated that he was

not in favor of Bey representing himself and he strongly advised Bey against it.



1
  We note that the Eighth Circuit Court of Appeals has rejected the argument that a
waiver colloquy must include a discussion of the possible defenses. See United States
v. Miller,
728 F. 3d 768, 773-74
 (8th Cir. 2013) (“[W]e have rejected the idea that a valid
waiver of the right to counsel must invariably be accompanied by specific warnings
about the range of possible punishments, possible defenses, and lesser included
offenses.”); United States v. Tschacher,
687 F. 3d 923, 932
 (8th Cir. 2012); United
States v. Kiderlen,
569 F. 3d 358, 364
 (8th Cir. 2009).
                                         7



Bey stated repeatedly he understood the court’s admonitions but insisted he

wished to proceed to trial representing himself.

       The court’s colloquy established the dangers and disadvantages in self-

representation more than adequately, and Bey repeatedly stated he understood

these and wished to proceed pro se.          Bey clearly is now unhappy with the

outcome of his decision, but the only deficiencies he alleges in the waiver

colloquy are that the court did not discuss “the possible defenses and mitigating

circumstances.” Even with the assistance of experienced appellate counsel, he

fails to identify one single defense or mitigating circumstance about which he

should have been apprised. On our review of the evidence, we are satisfied that

under the circumstances of this case the court engaged in an adequate

discussion with Bey, resulting in a waiver that, while unwise, was nonetheless

knowing, intelligent, and voluntary.

       B.     Whether the Court Erred in Instructing the Jury to Reread the

              Instruction.

              1.     Error Preservation.

       The State asserts Bey did not preserve this claim for review because he

never specifically requested that the jury be instructed that a hand or a foot

cannot be a dangerous weapon, and standby counsel, Jones, recommended the

court instruct the jury to reread the instruction. The court discussed the jury’s

questions with Bey, Jones, and the State. Bey insisted the law held a hand or

foot cannot be a dangerous weapon, specifically disagreeing with Jones’s

recommendation. We find he preserved the issue adequately.
                                          8



              2.      Standard of Review.

       Bey contends the court instructing the jury incorrectly constitutes a

violation of his due process rights and, because a constitutional issue is raised,

the standard of review is de novo. Bey cites State v. Fletcher,
525 A.2d 535, 538

(Conn 1987), however, in that case the Connecticut Supreme Court stated that

the defendant’s constitutional rights were implicated by the court failing to instruct

the jury when its inquiries “were directed to the law of self-defense and to the

requisite ‘beyond a reasonable doubt’ standard for conviction.”
525 A.2d at 538
.

We find no Iowa authority indicating delivery of an incorrect jury instruction is per

se a constitutional question. Bey does not cite any. Iowa Rule of Civil Procedure

1.925 (made applicable through Iowa Rule of Criminal Procedure 2.19(5)(f))

provides, “While the jury is deliberating, the court may in its discretion further

instruct the jury, in the presence of or after notice to counsel.”        (Emphasis

added.) Thus, on our review, we reverse only for an abuse of discretion. See

also Watkins,
463 N.W.2d at 18
 (“[A] discretionary ruling is presumptively correct,

and on appeal will be overturned only where an abuse of discretion has been

demonstrated.      An abuse is found only where the discretion is exercised on

grounds or for reasons clearly untenable.”).

              3.      Merits.

       The jury was instructed that to find Bey guilty of kidnapping in the second

degree, they had to find he was “armed with a dangerous weapon” at the time of

the confinement or removal. See
Iowa Code § 710.3
. The jury was further

instructed:
                                          9



      A “dangerous weapon” is any device or instrument designed
      primarily for use in inflicting death or injury, and when used in its
      designed manner is capable of inflicting death. It is also any sort of
      instrument or device which is actually used in such a way as to
      indicate the user intended to inflict death or serious injury, and
      when so used is capable of inflicting death.

      During deliberations, the jury presented the court with the following

questions: “Can a part of your body (i.e. hand, foot) be considered a dangerous

weapon? Can a body part be considered an instrument or device?” The court

reconvened the parties, including Jones serving as standby counsel.                The

prosecutor represented that it was his understanding a hand or foot by itself

cannot be a dangerous weapon, however, in appropriate circumstances, a shoe

can be. The State preferred the jury be instructed to reread the instructions. Bey

insisted a hand or foot cannot be a dangerous weapon. When the court asked

Jones for input, Jones stated instructing the jury specifically that hands and feet

are not dangerous weapons would lead the jury to conclude shoes could not be

dangerous weapons. He recommended the court instruct the jury to reread the

instruction. Bey objected to this recommendation, insisting again that the law

specifies hands and feet are not considered dangerous weapons.              The court

made the following statement:

              [T]he State’s thrust and argument regarding the weapon was
      not that the boot or shoe was being used as a weapon but that the
      dagger was the weapon.
              And, in fact, we specifically instructed the jury that a knife, by
      law, is a dangerous weapon, and while I think there could be some
      evidence in the record that would support a jury finding that Mr. Bey
      used a boot or a shoe to inflict—to kick the victim, I don’t really
      think that was the theory of the State’s case, so my preference is
      just to instruct the jury that they have received all of the instructions
      from the Court, and that they should review those instructions.
                                           10



Bey contends the court’s response to reread the instruction failed to resolve or

clarify the jurors’ confusion as to the meaning of “dangerous weapon.”              The

language of the dangerous weapon instruction is very close to the language of

Iowa Code section 702.7, which defines “dangerous weapon” as:

       any instrument or device designed primarily for use in inflicting
       death or injury upon a human being or animal, and which is capable
       of inflicting death upon a human being when used in the manner for
       which it was designed, except a bow and arrow when possessed
       and used for hunting or any other lawful purpose. Additionally, any
       instrument or device of any sort whatsoever which is actually used
       in such a manner as to indicate that the defendant intends to inflict
       death or serious injury upon the other, and which, when so used, is
       capable of inflicting death upon a human being, is a dangerous
       weapon. Dangerous weapons include but are not limited to any
       offensive weapon, pistol, revolver, or other firearm, dagger, razor,
       stiletto, switchblade knife, knife having a blade exceeding five
       inches in length, or any portable device or weapon directing an
       electric current, impulse, wave, or beam that produces a high-
       voltage pulse designed to immobilize a person.

Thus, section 702.7 lists “per se” dangerous weapons, including guns and

knives, and provides that an instrument or device may become a dangerous

weapon based on the manner of its use. See State v. Ortiz,
789 N.W.2d 761, 765-68
 (Iowa 2010). In a case that predates section 702.7, our supreme court

found hands to be dangerous weapons when the defendant strangled a child and

beat him to death. See State v. Heinz,
275 N.W. 10, 21
 (Iowa 1937).2

       We conclude the court did not abuse its discretion when it instructed the

jury to reread the dangerous weapon instruction. Under the evidence available in



2
 Our court has, as recently as January 2014, found the use of fists and strangulation
shows malice aforethought, citing approvingly the conclusion in Heinz that the
deliberate, violent use of a deadly weapon is evidence of malice and the finding that the
perpetrator’s hands and fists were deadly and dangerous weapons. See Martin v. State,
No. 12-2240,
2014 WL 69542
 (Iowa Ct. App. January 9, 2014).
                                         11



the record, the jury could have found the dagger or letter-opener to be a

dangerous weapon based on its use; it also could have found Bey’s use of his

hands and feet to punch and kick Proplesch rendered them dangerous weapons.

Either way, the instruction itself was sufficiently clear for the jury to reach a

conclusion, and the court was concerned if it gave a specific “yes” or “no”

answer, it could confuse the jury on whether shoes or boots could be considered

dangerous weapons. Under the circumstances, we do not believe the court’s

decision was clearly untenable. The court did not abuse its discretion.

IV.       CONCLUSION.

          We find Bey knowingly, intelligently, and voluntarily waived his right to

counsel and chose to represent himself. The court was not required to include

any particular warning in its colloquy during the waiver hearing and its colloquy

was, under the facts and circumstances, more than adequate. We further find

the court did not abuse its discretion in answering the deliberating jury’s

questions by instructing them to reread the already adequate instruction. We

affirm.

          AFFIRMED.