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State v. Franklin

Court of Appeals of Iowa

December 20, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
DON N. FRANKLIN, Defendant-Appellant.

         Appeal from the Iowa District Court for Dubuque County, Mark Hostager, District Associate Judge.

         Don Franklin appeals following a bench trial after which he was found guilty of one count of interference with official acts and two counts of assault upon a police officer.

          Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.

          Thomas J. Miller, Attorney General, and Kelly Huser, Assistant Attorney General, for appellee State.

          Considered by Danilson, C.J., Doyle, J., and Mahan, S.J. [*]

          MAHAN, SENIOR JUDGE.

         Don Franklin appeals following a bench trial after which he was found guilty of one count of interference with official acts and two counts of assault upon a police officer. Franklin asserts he was denied his right to self- representation and there is insufficient evidence to sustain the assault convictions. We find sufficient evidence to support the assault convictions. But because Franklin's right to self-representation was improperly denied after he reasserted his right, we reverse and remand for a new trial.

         I. Background Facts.

         Viewing the evidence in the light most favorable to the State, the record shows the following. On July 23, 2015, Franklin and a friend were sitting at a bar in Dubuque. The friend was smoking a cigarette inside the bar, which is prohibited. The owner of the bar, David Lorenz, walked up to the friend, took the cigarette, and threw it out. A verbal argument between the owner, Franklin's friend, and Franklin ensued. Lorenz went outside the bar and, using a flashlight, flagged down a patrol officer who was in his vehicle across the street.

         Officer Jonathan Brokens pulled across the street-going the wrong way on the one-way street-and stopped his vehicle in front of the bar. He exited the vehicle and was approached by Lorenz, who was followed by Franklin. The officer told Franklin to get off the street. When Franklin did not do so, Officer Brokens placed his hands on Franklin and directed him off the street. Franklin swatted the officer's hand away moved toward the sidewalk. Officer Brokens pulled out his pepper spray and sprayed Franklin's face. Two other officers, Corporal Deutsch and Officer Scott, arrived on the scene. Officer Brokens told Franklin he was under arrest. All three officers were yelling at Franklin to go to the ground. Franklin did not get on the ground and asked repeatedly why he was being arrested. Officers Scott and Brokens tried to grab Franklin. Franklin pushed the officers away, causing Officer Brokens to fall to the ground, scraping his knuckle as a result. Both Corporal Deutsch and Officer Scott then sprayed more pepper spray at Franklin. The officers said Franklin was "taking a stance" and Officer Brokens then struck Franklin on the legs with his asp and Officer Scott tackled Franklin to the ground. As a result of the tackle, Officer Scott scraped his right elbow.

         On July 24, 2015 the State filed a trial information officially charging Franklin with interference with official acts, and two counts of assault against a peace officer.[1] Franklin appeared for arraignment on August 11 and indicated he wished to represent himself. The district court found Franklin knowingly and voluntarily waived his right to counsel.

         On October 19, the parties appeared for trial. Franklin refused to sit at counsel table and remained seated in the back of the courtroom.[2] He refused to stand when directed to do so by the court. The court addressed Franklin on the record and indicated it was the court's position Franklin had been extremely disruptive. The court further warned Franklin that if he did not sit at the counsel table, the court would remove Franklin from representing himself and instead appoint stand-by counsel. The court then adjourned at 9:23 a.m. and indicated trial would commence at 9:30 a.m.

         When trial commenced, Franklin indicated he believed he was being held under duress but did sit at counsel table. The parties then began jury selection. The State's voir dire was completed largely without an incident. However, during Franklin's voir dire, he made several attempts to strike for cause potential jurors who knew his stand-by counsel, Les Blair. In addition, on multiple occasions Franklin expressed his position that the court did not hold any jurisdiction over him. Eventually, Franklin indicated he would leave because he did not believe the district court was following the law. The court responded it would find Franklin in contempt and issue a warrant for his arrest if he left the courtroom. Franklin responded that he would no longer participate so the court "might as well" arrest him. The court then found Franklin in contempt and ordered his arrest. These events occurred in the presence of the prospective jurors.

         Following the removal of the prospective jurors, the State moved for a mistrial. The court declared Franklin had by his actions waived his right to represent himself. The court elevated attorney Blair from stand-by counsel to defense counsel. The court thereafter granted the motion for mistrial ...


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