Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris (October 2010 competency evaluation order), George L. Stigler (August 2011 competency evaluation order), Thomas N. Bower (November 2011 competency review hearing), Todd A. Geer (December 12, 2011 hearing allowing withdraw and substituting defense counsel), and Jon C. Fister (trial and sentencing), Judges.
Gary Russell Burke appeals from judgment entered on his convictions of first-degree harassment and first-degree burglary in violation of Iowa Code sections 708.7 and 713.1 (2009).
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Linda Fangman, Assistant County Attorney, for appellee.
Heard by Doyle, P.J., and Danilson and Mullins, JJ. Bower, J. takes no part.
Gary Russell Burke appeals from judgment entered on his convictions of first-degree burglary and first-degree harassment in violation of Iowa Code sections 708.7 and 713.1 (2009). Because the district court made no finding that Burke's waiver of counsel was intelligently and voluntarily made and we determine there was not a meaningful colloquy that resulted in Burke knowingly and intelligently waiving his right to counsel, we are unable to conclude that Burke was competent to represent himself. We reverse and remand for new trial.
I. Background Facts and Proceedings.
At about 3 a.m. on September 3, 2009, Christina Moses and Matthew Tierney awoke to a loud bang—the door to their apartment, which had been locked and secured with a chain, was broken in and a person was standing in their hallway yelling, "I knew you were making bombs, I'm going to kill you." Moses screamed and called 911. Tierney got out of bed, grabbed a pool cue, and confronted defendant, Gary Burke, who resided in the apartment directly above Moses and Tierney. Burke was wearing only boxer shorts and was brandishing what Tierney believed was a screwdriver in his fist. He refused Tierney's orders to leave, so Tierney struck Burke on the back with the pool cue and chased him out of the apartment. Tierney saw Burke go upstairs.
Police responded to Moses's 911 call and found the steel door to the apartment broken in and not capable of being secured. Moses and Tierney were distraught, scared, and upset. Moses and Tierney identified Burke as the intruder. They were taken to the police station for further statements. Moses and Tierney told police that they had prior problems with Burke.
Police knocked on Burke's door for several minutes and got no response. Sometime after 4:25 a.m., police gained entry to Burke's apartment and found him in his bedroom with his eyes closed. The police told Burke they were investigating a burglary. Burke said nothing, but held his hands out and together as if to be handcuffed.
Burke was charged with first-degree harassment and first-degree burglary. See Iowa Code §§ 708.7, 713.1 (2009).
On October 4, 2010, the district court ordered Burke to undergo a competency evaluation. An order was entered on December 9, 2010, providing that Burke was to be transported to the Iowa Medical and Classification Center (IMCC) for "a complete psychiatric and psychological evaluation." The evaluation was not conducted until July 2011. Burke underwent several hours of psychological testing and a two-hour interview with Tim Kockler, Ph.D.
Dr. Kockler reported:
Speech was normal with regards to volume, rate and tone. No auditory comprehension difficulties were apparent. Memory was grossly intact. The defendant's intellectual ability was estimated to be in the below average to average range. Frustration tolerance was adequate. Affect was broad. His mood was described as "slightly depressed." The defendant denied having both homicidal and suicidal ideation. His thought content was appropriate for the situation. Thought processes were intact and goal directed. There was no evidence of delusions. The defendant denied experiencing hallucinations. Judgment, reasoning and insight were fair.
Dr. Kockler found Burke did suffer from substantial mental illness, meeting the criteria for bipolar disorder NOS. Burke's Axis II diagnosis was "Personality Disorder NOS with Obsessive compulsive traits and schizoid and paranoid features." Dr. Kockler concluded:
Nevertheless, at the present time, the aforementioned diagnoses do not appear to be negatively impacting the defendant's competency status. On a standardized competency measure, the defendant demonstrated a rational and factual understanding of the proceeding against him and he has the ability to consult with counsel and to ...