IN THE COURT OF APPEALS OF IOWA
No. 14-1717
Filed April 27, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TAJH ROSS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Patrick R. Grady
(motion to withdraw) and Robert E. Sosalla (trial), Judges.
Tajh Ross appeals his convictions for murder in the first degree,
intimidation with a dangerous weapon, and going armed with intent. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee.
Heard by Vogel, P.J., and Doyle and Tabor, JJ.
2
VOGEL, Presiding Judge.
Tajh Ross appeals his convictions for murder in the first degree,
intimidation with a dangerous weapon, and going armed with intent. He asserts
the district court erred when it denied defense counsel’s motions to withdraw;
furthermore, by denying his request to proceed pro se, Ross claims the court
violated his Sixth Amendment right to represent himself. He also claims
insufficient evidence supports his conviction for murder in the first degree and
that he proved the defense of justification.
We conclude the district court properly denied the motions to withdraw
and proceed pro se because no valid waiver of Ross’s right to counsel took
place; furthermore, the court did not abuse its discretion when it denied defense
counsel’s motions to withdraw. Additionally, sufficient evidence supports the
first-degree murder conviction, and Ross did not establish facts showing a
defense of justification was warranted. Consequently, we affirm Ross’s
convictions.
I. Factual and Procedural Background
At approximately 9:30 p.m. on September 22, 2012, Haley McConnell,
Neil Clark, and Latasha Roundtree were going to a party in Cedar Rapids.
McConnell was driving, Roundtree was sitting in the passenger’s seat, and Clark
was sitting in the back. The address of the house was 649 16th Avenue SW.
The streets were not well lit, and being unable to locate the residence, they drove
around the neighborhood slowly at approximately five to ten miles per hour.
After driving past the house at 649 16th Avenue SW, the passenger
window shattered, and Roundtree fell over, having suffered a gunshot wound to
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the head. After Roundtree was shot, McConnell sped away and heard gunshots
as she drove further down the street. Clark urged McConnell to drive to a local
hospital, and following emergency treatment there, Roundtree was transported to
University Hospitals in Iowa City but died shortly thereafter.
The house located at 649 16th Avenue has two rental units, one upstairs
and one downstairs.1 Amber Houston and her cousins, Jeremiah Ellis and
Frederick Hanson, lived in the downstairs unit. Earlier in the day on September
22, Ellis’s girlfriend, Alleigha Church-Greene, informed Ellis she had heard of
plans that Davonte Safforld intended to “shoot up” Ellis’s residence. The district
court noted, “There was bad blood between Ellis and Safforld for reasons
unexplored in the testimony.” It was agreed the threat was not serious, and the
party was not cancelled.
Those invited to the party were Liban Muhidin (Liban), Yasin Muhidin
(Yasin), Adrian Kenney, Alexus Omar, Church-Greene, and Ross. All had
arrived at the residence by approximately 9:00 p.m. Shortly thereafter, Ellis and
Hanson began discussing the threat posed by Safforld, and everyone at the
house became aware of it. Yasin and Kenney then left so Yasin could change
clothes. The others were gathered outside the residence.
A green car passed by the house, which the parties believed could contain
Safforld because Safforld’s girlfriend drove a green vehicle. Ellis went to the
corner and watched it drive away. Meanwhile, Liban called Yasin and told him to
retrieve Liban’s guns from his residence. Yasin returned with an AK-47 and a .40
caliber handgun in the trunk of Liban’s car. Liban placed the AK-47 in an empty
1
The second unit bore the address of 651 16th Avenue SW.
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trashcan across the street, while Yasin and Ross argued over who should hold
the handgun. Ross took the handgun, telling Yasin he was too little to operate it.
Ellis was also armed with his own .22 caliber handgun.
After the guns were distributed and most of the group had crossed the
street to an abandoned house, the parties observed McConnell’s car (a white
vehicle) drive slowly past. Ellis raised his handgun but was prevented by Yasin
from firing. The second time the car approached the house, Liban ran across the
street to the 649 residence so the vehicle would decrease its speed. After Liban
reached the property, Ross cycled the gun, told Liban to “look out,” and fired the
gun in the direction of the vehicle. Ellis ran into the street and fired five shots at
the vehicle, and Ross ran down the alley, firing six more times at the car. The
bullet that killed Roundtree was later matched to the .40 caliber handgun Ross
had used.
Ross was arrested on February 27, 2013. He was charged with murder in
the first degree, in violation of Iowa Code sections 707.1 and 707.2(1) (2011),
intimidation with a dangerous weapon, in violation of Iowa Code section 708.6,
conspiracy to commit a forcible felony, in violation of Iowa Code sections 706.1,
706.3, and 708.6, and going armed with intent, in violation of Iowa Code section
708.8. He pled not guilty, and trial on the matter was set.
On June 7, 2013, defense counsel, Douglas Q. Davis II from the Linn
County Public Defender, moved to withdraw, citing a breakdown in the attorney-
client relationship.2 A hearing was held on June 28, 2013. The hearing began
2
Ross also filed several pro se motions and sent the district court letters. Among other
statements, Ross indicated his dissatisfaction with trial counsel and requested he be
5
with defense counsel explaining the lack of communication with his client and the
need for him to withdraw from representation. The district court then attempted
to engage Ross in a colloquy showing he understood the rights he was
relinquishing by proceeding pro se; however, Ross did not answer the questions,
cited the Uniform Commercial Code, and responded to most questions by saying
“rights to notice.” After several attempts to engage Ross, the district court stated:
Given the defendant’s total lack of cooperation with Mr. Davis and
with the court, he has shown he is not competent to represent
himself in these proceedings, that he is refusing to recognize the
position of the court and the court’s desire to recognize and give
him the opportunity to assert his rights. He is not doing so.
Therefore, he is not adequately waiving his right to counsel.
In a written ruling, the district court denied the motion without prejudice, finding
Ross could not represent himself unless he engaged in the colloquy.
Counsel moved to withdraw again and further requested a competency
evaluation. Another hearing was held on the motion to withdraw, and though
Ross answered some questions posed by the district court, when asked if he
understood the charges against him, he responded that he did not. He then
attempted to challenge the district court’s jurisdiction, and when asked to explain
his arguments, Ross stated:
I am not here to cause any controversy or any conflict. I am here to
challenge subject matter jurisdiction. I am prepared generally and
not generally and I object to your reference to me as the Defendant
or Tajh Ross. I am not a corporation. I’m the sole reflection of
blood, born sovereign and free to a God-promised land. In
agreement with this court hearing, you are not working with clean
hands and you are acting in bad faith and not with authority of your
allowed to proceed pro se. His last letter to the court was dated February 14, 2014, in
which he declared himself a “sovereign flesh and blood human being” and stated he
would not contract with the State or the county and he had not “joined in the above
captioned suit”; however, he made no request to proceed pro se in that letter.
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office and also representation/counsel appointed, violating my
rights to proceed as a jurist as desired. I also want you to
acknowledge that you are acting outside the bench of threats to
end this court hearing and not allow me to object. I am guaranteed
rights and I am guaranteed to be heard in court, Your Honor. With
all due respect, sir, am I to understand that you are impersonating a
judge?
The court issued a second written order denying Ross’s motion to proceed
pro se, finding he failed to “show a knowing, intelligent, and voluntary waiver of
his right to be represented by counsel.” It further ordered that a competency
evaluation be completed, which was done the following February. During the
evaluation, Ross stated he understood his attorney’s job was to protect him and
that defense counsel was “on his side”; subsequently, he was found to be
competent to stand trial. Although a third motion to withdraw was filed, it was
never ruled on. A bench trial was held on August 8, 2014, in which Ross was
represented by two defense attorneys. The court subsequently found Ross guilty
on all counts except for the charge of conspiracy to commit a forcible felony.
Ross appeals.
II. Standard of Review
We review rulings on a motion to proceed pro se, which implicates
constitutional rights, de novo. State v. Spencer, 519 N.W.2d 357, 359 (Iowa
1994). Our review of an order regarding defense counsel’s motion to withdraw is
for an abuse of discretion. State v. Lopez, 633 N.W.2d 774, 778 (Iowa 2001).
We review challenges to the sufficiency of the evidence for correction of errors at
law. State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005).
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III. Motions to Withdraw and Proceed Pro Se
Ross first claims the district court erred in denying defense counsel’s
motions to withdraw. He further asserts the court violated his constitutional right
to self-representation by failing to allow him to proceed pro se.
A criminal defendant has a Sixth Amendment right to represent himself;
however, the waiver of his right to court-appointed counsel must be knowing and
intelligent. Faretta v. California, 422 U.S. 806, 819–20 (1975). “The defendant’s
request to proceed without counsel must be clear and unequivocal” and courts
must “indulge every reasonable presumption against waiver of” the defendant’s
right to counsel. State v. Martin, 608 N.W.2d 445, 450 (Iowa 2000) (citation
omitted). In the context of the Sixth Amendment, the defendant must understand
the rights he is giving up and unequivocally request he be allowed to proceed pro
se. See Bilauski v. Steele, 754 F.3d 519, 523 (8th Cir. 2014).
The district court began its attempted colloquy with Ross in the first
motion-to-withdraw hearing by stating, “[t]here’s a number of questions that I’m
required to take you through and some that I’m going to add in as well, given the
serious nature of the charges against you and the complicated nature of the case
against you.” On appeal, Ross claims the court failed to engage in a meaningful
colloquy as to whether Ross’s request to waive his right to counsel and proceed
pro se was knowing and voluntary. However, during both hearings, Ross failed
to respond to the majority of the court’s questions; the very questions that were
designed to ensure Ross’s waiver of his right to counsel was knowing and
voluntary. Though the court informed Ross he would only be allowed to
8
represent himself if he engaged in the colloquy, Ross continually refused to give
any meaningful answers.
Moreover, Ross did not establish he understood the proceedings such that
he was voluntarily exercising his informed free will. See Faretta, 422 U.S. at 835
(“The record affirmatively shows that [the defendant] was literate, competent, and
understanding, and that he was voluntarily exercising his informed free will.”);
see also Indiana v. Edwards, 554 U.S. 156, 175–76 (2008) (noting the
defendant’s competency to proceed pro se versus his competency to stand trial
are different, inasmuch as a defendant may be competent to assist in his own
defense but may nonetheless be “unable to carry out the basic tasks needed to
present his own defense without the help of counsel”).
As the Supreme Court has noted in the context of a defendant’s waiver of
counsel:
To be valid such waiver 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.
Von Moltke v. Gillies, 332 U.S. 708, 724 (1948); see also State v. Rater, 568
N.W.2d 655, 662 (Iowa 1997) (holding that, because the district court failed to
conduct an in-depth colloquy to ensure the defendant’s waiver of his right to
counsel was knowing and voluntary, his Sixth Amendment right to representation
was violated).
When asked if he understood the nature of the charges against him, Ross
proceeded to make disjointed and rambling statements, demonstrating he did not
understand the underlying legal proceedings or what he was required to do so as
9
to be able to represent himself. Consequently, we agree with the court’s
conclusion Ross’s waiver of his right to counsel was not knowing and voluntary,
as no valid waiver occurred. See Martin, 608 N.W.2d at 450; see also Raulerson
v. Wainwright, 732 F.2d 803, 808–09 (11th Cir. 1984) (holding that, because the
defendant did not unequivocally waive his right to counsel, the district court
properly denied his motion to proceed pro se); United States v. Ductan, 800 F.3d
642, 648 (4th Cir. 2015) (holding the defendant forfeited his right to proceed pro
se after failing to object to counsel’s continued representation of him).
Furthermore, the district court did not abuse its discretion when it denied
defense counsel’s motion to withdraw.3 Ross indicated multiple times that he did
not want any counsel, leading the district court to conclude Ross “would not
accept a substitute lawyer.” Prior to trial, an additional defense attorney—Todd
B. Weimer, also from the Linn County Public Defender’s office—was appointed to
represent Ross. Then, when it became apparent there could be a potential
conflict of interest because Weimer had represented Ellis in the past, Ross
signed a waiver-of-conflicts form. In that waiver Ross stated, “I want Todd B.
Weimer to represent me in this case.” In not substituting original defense
counsel but appointing additional co-counsel with Ross’s consent, as well as
engaging in a detailed colloquy with Ross as to Weimer’s representation, we find
no abuse of discretion. See Lopez, 633 N.W.2d at 780–81. Therefore, we
conclude no constitutional rights were violated, and the court properly denied
3
Counsel’s third motion to withdraw, filed on September 5, 2013, was never specifically
ruled on; however, at the hearing following the competency evaluation on February 25,
2014, counsel did not raise the issue, and a trial date was set. Counsel continued to
work on the case and did not reassert his request to withdraw at any point after the
September 5 motion.
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Ross’s motions. See Spencer, 519 N.W.2d at 360 (holding that, because the
defendant did not reassert his request to proceed pro se following his initial
request, “he waived and abandoned that right by acquiescing to [defense
counsel’s] full representation of his case”).
IV. Sufficiency of the Evidence
Ross further challenges the sufficiency of the evidence with regard to the
first-degree murder conviction. He asserts the court improperly found that he
acted willfully, deliberately, with premeditation, and with malice aforethought, as
the shooting was accidental. Additionally, he claims there was insufficient
evidence to counter his defense of justification; therefore, he asserts the district
court erred by adjudging him guilty.
With regard to sufficiency claims, we view the record in the light most
favorable to the State and make all legitimate inferences and presumptions that
may be reasonably deduced from the evidence. Quinn, 691 N.W.2d at 407. If
substantial evidence supports the verdict, we will affirm. Id. Evidence is
substantial if it would convince a reasonable trier of fact the defendant is guilty
beyond a reasonable doubt. Id.
A. Malice aforethought
To be guilty of first-degree murder, the defendant must kill the victim with
malice aforethought, as well as willfully, deliberately, and with premeditation.
Iowa Code §§ 707.1, 707.2. “Malice aforethought is a fixed purpose or design to
do some physical harm to another which exists before the act is committed. It
does not have to exist for any particular length of time.” State v. Bentley, 757
N.W.2d 257, 265 (Iowa 2008) (citation omitted).
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In its order, the district court concluded:
This series of events involved a number of deliberate acts that
Ross undertook. First, he decided to cross 16th Avenue from a
place of relative safety to a place of perceived relative danger.
Second, he positioned himself in an area out of view of the
oncoming white car. Third, he cycled his firearm, making sure it
was ready to fire. Fourth, he took deliberate aim at the car. Fifth,
he had the presence of mind to be sure his friend was out of the
way. Sixth, he squeezed off a round from his gun while it was
aimed at the car. Each of those decisions required some
deliberation on his part. Each reflects the presence of malice
aforethought and premeditation. Finally, Ross took each of these
actions intentionally, with a fixed purpose, and not accidentally . . . .
Ross chose to stand and fight the evening of September 22, 2012.
As a consequence of that decision he killed Roundtree with malice
aforethought, willfully, deliberately, premeditatedly, and with a
specific intent to kill.
The evidence supports the court’s conclusions. Ross and the others were
aware of a potential threat, and when they saw the first car—a green vehicle—
drive past, they armed themselves in response. Ross retained control over the
.40 caliber handgun, following an argument between him and Yasin over who
was going to use it. Then, when McConnell’s white car drove past the house,
Ross proceeded to cycle his gun and fire at the car a number of times. Viewing
the evidence in the light most favorable to the State, and making all legitimate
inferences in favor thereof, this did not amount to an accidental shooting. See
Quinn, 691 N.W.2d at 407. Thus, we agree with the district court Ross’s actions
the night of September 22 indicate he acted willfully, deliberately, with
premeditation, and with malice aforethought, therefore satisfying the elements of
murder in the first degree. See Bentley, 757 N.W.2d at 265.
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B. Justification
A defendant is justified in using force when he is in reasonable fear of
imminent death or injury. State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993).
For the State to establish there was no justification, it must show beyond a
reasonable doubt (1) the defendant started or continued the incident which
resulted in death, (2) an alternative course of action was available, (3) the
defendant did not believe he was in immediate danger of death or injury and the
use of force was not necessary to save him, (4) he did not have reasonable
grounds for the belief, or (5) the force used was unreasonable. Id.; see also
State v. Mayes, 286 N.W.2d 387, 392 (Iowa 1979).
In its order, the district court noted:
First, the evidence is clear that Ross started the incident that
resulted in Roundtree’s death. To be clear, the incident that
resulted in her death started when Ross fired the Smith and
Wesson .40 caliber handgun at the front passenger seat of the
white car. Prior to that, no one in the white car had done anything
remotely resembling or suggesting the imminent use of unlawful
force against Ross or anyone else present at 649 16th Avenue SW.
....
Further, it is clear from the evidence that Ross had
alternative courses of action available to him to avoid any danger.
And he had ample opportunity to elect an alternative course of
action. He could have simply walked away from the area after the
white car went past the first time and was thought to be a threat.
He could have called the police. He could have sought shelter in a
public area. Instead, Ross elected to stay and fight an unknown
entity.
Ross maintains he believed he and Liban were in imminent
danger of death or injury. He based this belief on his imagined
threat of the white car. For reasons previously listed, the evidence
shows that this belief simply was not reasonable. It existed only in
his imagination and the imagination of others at 649.
Finally, Ross’s use of deadly force under the circumstances
was not reasonable. All he can point to as a reason for firing is he
saw the back passenger side window start to go down before he
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shot. He saw no weapon. He saw no person. And he fired at the
front passenger whose window remained up.
We agree with the court’s ruling that Ross was not in imminent danger and
the defense of justification was not available to him. The people in the white car
in no way indicated they posed a threat to Ross or the other members of the
group, considering no weapons were brandished or any other threatening
behavior was involved. Furthermore, Ross was the one who opened fire on the
car, without any indication that it posed a danger, demonstrating his use of force
was unreasonable and there were alternative courses of action available.
Therefore, the State established the defense of justification was not available to
Ross such that he should not be held criminally liable for Roundtree’s death.
See Mayes, 286 N.W.2d at 392.
For these reasons, we affirm Ross’s convictions and sentence.
AFFIRMED.