State of Iowa v. Timothy Alan Griffin

IN THE COURT OF APPEALS OF IOWA

No. 23-0893
Filed April 23, 2025

STATE OF IOWA,
Plaintiff-Appellee,

vs.

TIMOTHY ALAN GRIFFIN,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Buena Vista County,

Nancy L. Whittenburg (pre-trial hearings) and Charles K. Borth (trial), Judges.

A defendant appeals his conviction for possession of methamphetamine,

third or subsequent offense, as a habitual offender. REVERSED AND

REMANDED FOR NEW TRIAL.

Martha J. Lucey, State Appellate Defender, and Theresa R. Wilson

(argued), Assistant Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Anagha Dixit (argued), Assistant

Attorney General, for appellee.

Heard at oral argument by Ahlers, P.J., and Badding and Buller, JJ.
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AHLERS, Presiding Judge.

Following a jury trial, the district court entered judgment and sentence

against Timothy Griffin for possession of methamphetamine, third or subsequent

offense, as a habitual offender. Griffin appeals.

I. Relevant Background Facts and Proceedings

During a traffic stop, police officers searched Griffin’s car after a K-9 alerted

to the presence of drugs. Officers found a plastic bag containing

methamphetamine tucked inside a sock on the floor of the car. As a result, the

State charged Griffin with possession of methamphetamine as a third offense and

as a habitual offender. At his arraignment, Griffin appeared without counsel and

stated he was “attending pro se.”1 Griffin failed to appear at two subsequent pre-

trial hearings and at a bail review hearing. The district court appointed standby

counsel in between the two pre-trial hearings. Standby counsel filed a series of

motions on behalf of Griffin. Standby counsel then filed a motion to withdraw,

which the district court granted.

The next time Griffin appeared before the district court for a motions

hearing, he again expressed his desire to represent himself. The court attempted

to go through a colloquy with Griffin to ensure his waiver of counsel was knowing,

voluntary, and intelligent. However, Griffin continued to interrupt the court,

expressed his confusion about the judicial process, and was not responsive to the

court’s questions. Then he explained that some of his interruptions were due to a

“recent head injury” and that he “had learning disabilities in school.” In the end,

1 The district court did not go through any colloquy regarding Griffin’s decision to

come before the court self-represented.
3

the court could not complete the colloquy given Griffin’s non-responsive answers.

The court then entered an order denying Griffin’s request to proceed pro se

because it could not conclude that Griffin’s waiver of counsel was knowing and

intelligent. The court, on its own motion, also set a probable cause hearing to

determine whether Griffin was competent to stand trial and stayed the

proceedings. Prior to the hearing, Griffin applied for appointed counsel, and

counsel was appointed for him.

Griffin appeared at the competency hearing with counsel. Defense counsel

explained that Griffin did not want to proceed with a competency evaluation and

that counsel had talked with Griffin and was satisfied that Griffin understood the

charges against him, the significance of those charges, and the importance of

crafting a defense. Counsel then questioned Griffin, asking him: “And you are

asking the court for an opportunity, either with court-appointed counsel or if I am

directed to serve as standby counsel, you would like to have an attorney assist you

in some way to present your defense at the time of trial; is that correct?” Griffin

responded, “That is correct.”

The prosecutor also questioned Griffin and inquired into the head injury

Griffin referred to during the prior hearing. Griffin explained that the injury occurred

at work in November 2019 and impacted his memory and ability to control his

actions. Griffin confirmed he required special education services while in school.

When asked about any mental-health diagnoses he had, Griffin explained, “I have

a bipolar. I have chronic anxiety and depression. I am PTSD. It’s not PTSD. It’s

adjustment, adjusting to my injuries and my mental status.”
4

After some of its own questions, the district court stated it was “confident

that [Griffin] underst[ood] the proceedings” and was “able to assist effectively with

[his] defense.” The court dismissed its motion for a competency evaluation and

reinstated the proceedings.

On the day of trial, Griffin expressed his dissatisfaction with his counsel.

When asked if he was requesting to proceed without an attorney or requesting new

counsel, Griffin responded that he would be happy if he could be represented by

the attorney who previously served as standby counsel. The court denied Griffin’s

request for different counsel, noting it would delay trial and that defense counsel

was “one of the preeminent attorneys in northwest Iowa.” Griffin then stated, “I will

do my own, then. I will represent myself, then.” The court denied that request.

Following a recess, defense counsel alerted the court that Griffin wished to

not be present during jury selection or any other stage of the proceeding. Griffin

then clarified that he just did not want to be present for jury selection. But when

told he would need to stay in the courthouse should he decide to be absent from

jury selection, Griffin decided to be present for jury selection.

Part way through jury selection, defense counsel informed the court that

Griffin wished to excuse himself from the remainder of jury selection and “would

like to make a claim that [defense counsel] threatened him in some way.” Griffin,

defense counsel, and the prosecutor then explained what each believed transpired

between Griffin and defense counsel. Defense counsel reassured the court that

he was “happy to represent” Griffin and had “no bias” against him.

The court then informed Griffin,
5

The next record we make about you requesting to have [defense
counsel] removed will be the last because I’ll remove him, and then
you’ll be representing yourself without the assistance of me or the
county attorney or anybody. And I’m just concerned that you don’t
have the legal knowledge to do that, that there are defenses that you
might not even know exist, so then you wouldn’t be able to present
them.
But if you choose to represent yourself, you’d be doing so at
your own peril. But I’m not going to continue to make that record.
So the next time we make that record will be the last because I’m
going to grant it and we’re just going to have to plow forward.

Griffin began to complain about counsel again. The court asked Griffin if he wanted

to represent himself, and Griffin responded, “I—I—I don’t but I don’t want this man

as—representing me. I—I—I don’t.” The court then informed Griffin of the

potential sentence if he were to be convicted and confirmed that Griffin was not a

lawyer himself. It went on to explain that an attorney might know more potential

defenses than Griffin knew and that the court cannot provide a defendant with

advice.

Griffin then stated that if he could not have a different attorney, then he still

did not want defense counsel to represent him. The court excused defense

counsel from any further representation of Griffin. The proceedings continued with

Griffin representing himself through the first day of trial.

On the second day of trial, Griffin once again represented himself. However,

following the lunch break, Griffin did not return to the courtroom. Griffin’s brother

informed court staff that Griffin had gone to the emergency room and “would not

be participating in the rest of the trial.” Officers checked the nearby emergency

rooms and confirmed that Griffin was not at any of them. The court determined

that Griffin was voluntarily absent and proceeded with the remainder of the trial in

his absence.
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Following the jury’s return of a guilty verdict, the district court immediately

proceeded with the second stage of the proceedings to determine whether Griffin

had been previously convicted of drug-related offenses and had two prior felony

convictions for the habitual-offender enhancement. Griffin was not present for that

proceeding either. The jury determined that Griffin had been previously convicted

of possession of marijuana with intent to deliver, possession of a controlled

substance, possession of 42.5 or more grams of marijuana without affixing a drug

tax stamp, possession of precursors with the intent to manufacture

methamphetamine, and possession of marijuana.

Following a sentencing hearing, the district court entered judgment and

sentence against Griffin for possession of methamphetamine, third or subsequent

offense, as a habitual offender. Griffin received a sentence of up fifteen years in

prison with a three-year mandatory minimum.

Griffin, now represented by counsel, appeals. Griffin argues the “district

court failed to conduct both an adequate inquiry into Griffin’s decision to waive his

constitutional right to counsel and his competency to do so.” He urges that his

“decision to proceed pro se was not knowing, voluntary, or competent” and

requests a new trial. Griffin also contends that the “district court erred in

proceeding with the enhancement trial after determining Griffin voluntarily

absented himself from the trial on the underlying offense.”

II. Discussion

We begin with Griffin’s claim that he did not knowingly and voluntarily waive

his right to trial counsel. As this claim is based on a constitutional guarantee, our

review is de novo. See State v. Johnson, 756 N.W.2d 682, 686 (Iowa 2008). “The
7

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). It also guarantees a defendant the right to self-representation.

Farretta v. California, 422 U.S. 806, 807 (1975). The constitutional right to counsel

is effective until waived by a defendant. Hannon v. State, 732 N.W.2d 45, 52 (Iowa

2007). “In other words, before the right to self-representation attaches, defendants

must elect to proceed without counsel by a knowing, intelligent, and voluntary

waiver of their right to counsel.” State v. Jones, No. 19-0494, 2020 WL 3264377,

at *3 (Iowa Ct. App. June 17, 2020) (citing Faretta, 422 U.S. at 835–36).

A defendant’s waiver of the right to counsel “must be made with an

apprehension of 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.” State v. Cooley, 608 N.W.2d 9, 15 (Iowa

2000) (quoting Von Moltke v. Gillies, 332 U.S. 708, 724 (1948)). Such is necessary

to ensure that the waiver is knowing. Id. The defendant must also be “admonished

as to the usefulness of an attorney at that particular proceeding, and made

cognizant of the danger in continuing without counsel.” Id. A waiver that does not

meet these criteria cannot be considered voluntary and intelligent. Id.

To ensure that a defendant has such understanding, the district court must

engage in an extensive colloquy. Our supreme court has endorsed the colloquy

outlined in Spencer v. Ault, 941 F. Supp. 832, 843–44 (N.D. Iowa 1996), to ensure

a defendant wishing to proceed pro se appreciates the impact of waiving the right
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to counsel. State v. Martin, 608 N.W.2d 445, 450 (Iowa 2000). That model

colloquy includes the following questions:

(a) Have you ever studied law?
(b) Have you ever represented yourself or any other
defendant in a criminal action?
(c) You realize, do you not, that you are charged with these
crimes: (Here state the crimes with which the defendant is charged.)
(d) You realize, do you not, that if you are found guilty of the
crime charged in Count I the court . . . could sentence you to as much
as __ years in prison and fine you as much as $__? (Then ask him
a similar question with respect to each other crime with which he may
be charged in the indictment or information.)
(e) You realize, do you not, that if you are found guilty of more
than one of those crimes this court can order that the sentences be
served consecutively, that is, one after another?
(f) You realize, do you not, that if you represent yourself, you
are on your own? I cannot tell you how you should try your case or
even advise you as to how to try your case.
(g) Are you familiar with the [Iowa] Rules of Evidence?
(h) You realize, do you not, that the [Iowa] Rules of Evidence
govern what evidence may or may not be introduced at trial and, in
representing yourself, you must abide by those rules?
(i) Are you familiar with the [Iowa] Rules of Criminal
Procedure?
(j) You realize, do you not, that those rules govern the way
in which a criminal action is tried in [this] court?
(k) You realize, do you not, that if you decide to take the
witness stand, you must present your testimony by asking questions
of yourself? You cannot just take the stand and tell your story. You
must proceed question by question through your testimony.
(l) (Then say to the defendant something to this effect): I
must advise you that in my opinion you would be far better defended
by a trained lawyer than you can be by yourself. I think it is unwise
of you to try to represent yourself. You are not familiar with the law.
You are not familiar with court procedure. You are not familiar with
the rules of evidence. I would strongly urge you not to try to represent
yourself.
(m) Now, in light of the penalty that you might suffer if you are
found guilty and in light of all of the difficulties of representing
yourself, is it still your desire to represent yourself and to give up your
right to be represented by a lawyer?
(n) Is your decision entirely voluntary on your part?
(o) If the answers to the two preceding questions are in the
affirmative, you should then say something to the following effect: “I
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find that the defendant has knowingly and voluntarily waived his right
to counsel. I will therefore permit him to represent himself.”
(p) You should consider the appointment of standby counsel
to assist the defendant and to replace him if the court should
determine during trial that the defendant can no longer be permitted
to represent himself.

Spencer, 941 F. Supp. at 843–44 (quoting 1 Bench Book for United States District

Judges 1.02-2 to 1.02-5 (3d ed. 1986)). Certainly, these questions serve only as

a model, and exacting repetition of them is not required. But they generally inform

us of what information must be gathered and considered by the district court before

it can determine whether a defendant’s waiver of counsel is knowing, intelligent,

and voluntary.

As the dissent points out, when conducting our review of the district court’s

waiver-of-counsel colloquy, the majority of a panel of this court has recognized that

we may consider multiple colloquies in aggregate when determining whether the

district court conducted an adequate inquiry to ensure that the defendant’s waiver

was knowing, intelligent, and voluntary. See State v. Baker, No. 11-0068, 2013 WL

751286, at *3–4 (Iowa Ct. App. Feb. 27, 2013). But we decline to take that

approach in this case for two key reasons. First, the gap between the two

colloquies is significantly longer here (eight weeks) than it was in State v. Baker

(three weeks). See id. at *3. Second, there is no indication in Baker that the

defendant had any mental-health issues. In contrast, Griffin informed the district

court of his mental-health struggles when it first attempted to go through the

waiver-of-counsel colloquy, and his answers to questions during that colloquy were

so non-responsive that the district court had concerns about Griffin’s competency.

Given the mental-health issues raised here, the significance of which are
10

compounded by the length of time between the two colloquies, we find this case

distinguishable from Baker and decline to treat the two colloquies as if they were

one. As such, we look only to the second waiver-of-counsel colloquy, from the day

of trial, to determine whether Griffin’s waiver was knowing, intelligent, and

voluntary.

The district court did a good job of warning Griffin of the likely pitfalls of self-

representation, the possible penalties he could face if convicted, and the fact that

the court could not provide him guidance or assistance. But it did not inquire into

Griffin’s knowledge of any of our court rules, his understanding that he would be

required to comply with those rules, his experience with the legal system, or his

level of education. It did not explain to Griffin that he would not be able to simply

get on the stand and tell his story. Nor did the court inquire whether Griffin’s waiver

of the right to representation was voluntary to confirm Griffin was not coerced or

felt pressured into self-representation. The closest the court got to that inquiry was

when it asked if Griffin wanted to represent himself as he had early on in the

proceedings. Griffin responded, “I—I—I don’t.”

Moreover, the court had information that Griffin had suffered from a head

injury in recent years that he claimed impacted his memory and ability to focus,

which was borne out by Griffin’s conduct before the district court. Griffin stated

several times that he was slow and had been in special education classes. And

Griffin had also told the court the day of trial that he was “having an extreme anxiety

and panic attack” and that he didn’t have his medication with him to take, to which

the court admonished him for not bringing it. The court asked no questions relating
11

to these facts to determine how they might impact Griffin’s ability to represent

himself or his ability to invoke his right to self-representation.

Lastly, we highlight the district court’s careful-what-you-wish-for warning to

Griffin:

And, Mr. Griffin, I’ll tell you this: The next record we make
about you requesting to have [defense counsel] removed will be the
last because I’ll remove him, and then you’ll be representing yourself
without the assistance of me or the county attorney or anybody. And
I’m just concerned that you don’t have the legal knowledge to do that,
that there are defenses that you might not even know exist, so then
you wouldn't be able to present them.
But if you choose to represent yourself, you’d be doing so at
your own peril. But I’m not going to continue to make that record.
So the next time we make that record will be the last because I’m
going to grant it and we’re just going to have to plow forward.

(Emphasis added.) This warning makes clear that the district court had reached a

point of frustration, which is entirely understandable given Griffin’s conduct and

unrelenting attempts to stonewall the proceedings. And we recognize that Griffin’s

difficult conduct put the district court in the tough spot of being accused of

committing error whichever way it went—accused of violating Griffin’s right to self-

representation if it required him to proceed with counsel and accused of violating

Griffin’s right to counsel if it let Griffin proceed with self-representation. But even

the most difficult defendants are entitled to constitutional protections and process.

The district court’s warning suggests it did not intend to engage Griffin in a

meaningful colloquy about his waiver of his right to counsel. And that’s what

occurred. The district court failed to make the necessary meaningful inquiry of

Griffin to determine that he knowingly and voluntarily waived his right to counsel.

As a result, we conclude that Griffin did not knowingly and voluntarily waive his

right to counsel. “A defendant who has not knowingly, intelligently, and voluntarily
12

waived the right to counsel has effectively been denied representation. The denial

of an attorney during the critical stages of a trial can never be construed as

harmless error.” Cooley, 608 N.W.2d at 18. As such, we reverse Griffin’s

conviction and remand for a new trial. Based on this resolution, it is unnecessary

to address Griffin’s challenge to the court proceeding to the enhancement phase

of the trial in his absence.

REVERSED AND REMANDED FOR NEW TRIAL.

Badding, J., concurs; Buller, J., dissents.
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BULLER, Judge (dissenting).

I’ve never had an experience like this in nineteen years that
I’ve been doing this, never. I’ve had some difficult folks, but nobody
that couldn’t be reasonable and I couldn’t communicate with; that we
couldn’t get on the same communication wavelength.

That’s how an experienced district judge described her attempts to advise Timothy

Griffin on the perils of self-represenation when he sought to proceed pro se before

trial. And another experienced district judge had a similar frustrating colloquy with

Griffin at trial before Griffin ultimately absconded and was tried in absentia.

Difficult defendants like Griffin put district courts in a Catch-22: if the court

accepts a difficult defendant’s request to be relieved of counsel, the court risks

reversal as outlined in the majority opinion; and if the court went the other direction

and saddled a defendant with counsel despite his “Sovereign Citizen”-style2

complaints, the court would risk reversal for violating the right to

self-representation. See Fields v. Murray, 49 F.3d 1024, 1029 (4th Cir. 1995) (on

the fine line district courts walk in facing this dilemma). Although it’s easy to nitpick

and second-guess from the comfort of appellate review, I do not find any material

deficiencies in the record made by the district court below. I therefore dissent from

granting a new trial.

In reviewing self-representation colloquies, the United States Supreme

Court has instructed courts to take a “pragmatic approach” and allow flexibility in

2 Sovereign citizens “believe they are not subject to the jurisdiction of the courts

and . . . frequently deny that they are the defendants in the action, instead referring
to themselves as third-party intervenors . . . . Courts have been confronted
repeatedly by their attempts to delay judicial proceedings and have summarily
rejected their legal theories as frivolous.” United States v. Sterling, 738 F.3d 228,
233 n.1 (11th Cir. 2013). See generally Leslie R. Masterson, “Sovereign Citizens”:
Fringe in the Courtroom, Am. Bankr. Inst. J., Mar. 2011, at 1, 66–67.
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“the type of warnings and procedures that should be required before a waiver of

that right will be recognized.” Patterson v. Illinois, 487 U.S. 285, 298 (1988). The

purpose of the colloquy is to ensure a defendant “knows what he is doing and his

choice is made with eyes open.” Adams v. United States, 317 U.S. 269, 279

(1942). Or, as our supreme court put it, the colloquy must “provide fair notice of

the obstacles inherent in self-representation before an accused embarks on so

perilous an endeavor.” State v. Cooley, 608 N.W.2d 9, 16 (Iowa 2000). Also as

part of our review, a panel of our court previously recognized that colloquies from

separate hearings may be considered in the aggregate when evaluating whether

a defendant was adequately advised. See State v. Baker, No. 11-0068, 2013 WL

751286, at *3–4 (Iowa Ct. App. Feb. 27, 2013).

The majority seizes on three perceived deficiencies in the district court’s

colloquies to warrant reversal:

• “[N]ot inquir[ing] into Griffin’s knowledge of any of our court rules, his
understanding that he would be required to comply with those rules, his
experience with the legal system, or his level of education.”

• “[N]ot explain[ing] to Griffin that he would not be able to simply get on the
stand and tell his story.”

• “No[t . . .] inquir[ing] whether Griffin’s waiver of the right to representation
was voluntary to confirm Griffin was not coerced or felt pressured into
self-representation.

I am not persuaded any of these are a good reason to reverse.

As to the first criticism, regarding Griffin’s knowledge and education on

pitfalls of self-representation, I would find the district court discussed this issue

adequately across the two colloquies. In the first motions colloquy, the court

advised Griffin on the importance of counsel’s assistance in addressing specific
15

legal concepts like depositions, voir dire, legal defenses, mitigating factors,

motions in limine, opening statements and closing arguments, the offer of evidence

and objections to the same, cross-examination, and the difference between

counsel and standby counsel. The court’s attempt to explain these things to Griffin

and conduct a thorough colloquy was done with patience and perseverance over

the course of more than forty transcript pages, despite Griffin’s conduct—which

ranged from obstreperous to disruptive and personally insulting. When the court

(through a second judge) revisited the issue at trial, the court referenced the earlier

proceedings and emphasized that Griffin was not an attorney while his appointed

lawyer was; that the lawyer could spot defenses and other issues such that Griffin

might not “even know what [he was] missing”; and that the court could not give

legal advice. Despite this, Griffin turned down the continued involvement of his

attorney and elected to proceed without counsel until he absconded. In my view,

the court’s extended attempts to advise Griffin as to the pitfalls related to his lack

of legal knowledge were sufficient to open his eyes and give him fair notice of the

hazards attendant self-representation. See Adams, 317 U.S. at 279. That is all

our law requires—“some sort of meaningful colloquy.” Cooley, 608 N.W.2d at 15.

As to the second criticism—that the district court didn’t inform Griffin he

couldn’t “simply get on the stand and tell his story”—I am not convinced such an

advisory was required. The majority cites no legal authority requiring such an

instruction, nor does Griffin in his appellate brief. And I’m not aware of any case

so holding. Nor would I be inclined to adopt that rule, as it is neither reasonable

nor feasible to expect a district court to disabuse a “Sovereign Citizen” defendant

of every legally erroneous assumption he or she may bring to the courtroom.
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Taken to its logical conclusion, such a holding would require judges to explain the

fringe on the flag before allowing waiver of counsel.3 That would be absurd.

As to the third criticism levied by the majority—that the court didn’t do

enough to ensure Griffin was making a knowing and voluntary waiver—I find the

record sufficient. As the court recognized in the colloquy at trial, Griffin had already

attempted to represent himself earlier in the proceedings and understood the

difference between proceeding with counsel and without. And the forty-plus pages

of colloquy with the court at the earlier hearing included numerous questions by

the court geared at assessing whether Griffin was able to make a knowing and

voluntary waiver. Courts do not torture answers out of defendants, and no fault

lies with the district court for Griffin refusing to answer repeated colloquy questions.

I am not inclined to find a record insufficient when the alleged deficiency was

caused by behavior like the defendant responding to the court’s inquiry of “Are you

presently on any medication?” by asking the judge: “Are you?”

Last, I worry that the message sent to criminal defendants by the majority

opinion is that, if you are difficult enough, interrupt the judge enough, and refuse

to answer enough questions during a colloquy, there is a get-out-of-jail-free card

waiting for you on appeal. I do not condone such a message, find no reversible

error in this record, and believe the majority holding to be deeply fact-bound or a

misapplication of controlling precedent. I therefore dissent.

3 See, for example, Masterson, “Sovereign Citizens”: Fringe in the Courtroom, Am.

Bankr. Inst. J., at 67 (giving a quick primer on the fringed-flag claptrap).