                    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.
                                           4


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
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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.
                                        6


      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).
                                         7


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.
                                          10

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.
                                          12


      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
                                       13


      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.
