                  IN THE SUPREME COURT OF IOWA

                           No. 109 / 06–1472

                        Filed September 26, 2008

STATE OF IOWA,

      Appellee,

vs.

CENECA ROMELE JOHNSON,

      Appellant.
________________________________________________________________________
      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Scott County, J. Hobart

Darbyshire, Judge.



      Appellant challenges district court’s denial of his motion to

suppress on grounds of res judicata and the district court’s limitation on

the participation of standby counsel.       DECISION OF COURT OF

APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant

Attorney General, William E. Davis, County Attorney, and Amy K. Devine,

Assistant County Attorney, for appellee.
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STREIT, Justice.

      Ceneca Johnson was arrested for robbery. He waived his right to

counsel and elected to represent himself. The district court appointed

standby counsel for Johnson. At the trial, the district court repeatedly

told standby counsel he could not assist Johnson unless Johnson asked

standby counsel for assistance.      Because the trial court exercised

reasonable discretion, we hold the district court properly limited standby

counsel’s participation.    We also conclude a motion to suppress,

challenging the validity of a search warrant, was without merit.

      I. Background Facts and Prior Proceedings.

      On November 10, 2004, Ceneca Johnson robbed the Metrobank in

Davenport.     Gary Thompson, who lived nearby, witnessed Johnson

walking towards the bank, with white bags in his pocket and a black

stocking cap on his head.     Thompson copied down the license plate

number of Johnson’s vehicle.      In the time it takes to rob a bank,

Thompson saw Johnson again, carrying a gun and white bags full of

something to his vehicle.   Thompson gave the police the license plate

number.      The car was registered to a Lawrence Johnson, who told

officers his second cousin Ceneca Johnson was in the process of buying

his car.   After receiving a report the car was parked at an apartment

(where Ceneca Johnson’s grandmother lived), officers found Johnson

there and arrested him. Using a search warrant, officers searched the

apartment and discovered a duffle bag containing money matching the

amount stolen from the bank and a BB pistol.

      Johnson was charged with robbery in the first degree. He waived

his right to counsel and elected to represent himself. The district court

appointed standby counsel for Johnson.      During the first trial of this
                                       3


matter, Johnson filed a motion to suppress evidence challenging the

validity of the search warrant. His motion was denied on grounds he had

no standing. Johnson was found guilty and appealed, arguing, among

other things, the district court erred in instructing the jury a BB gun was

a dangerous weapon and in denying his motion to suppress.               Only

addressing the issue of the jury instruction, the court of appeals reversed

and remanded for a new trial. At the second trial, Johnson again filed a

motion to suppress evidence challenging the validity of the search

warrant, which the court overruled on the grounds of res judicata.

         During this second trial, the district court told standby counsel he

could not assist Johnson unless Johnson asked standby counsel for

assistance.     Johnson, on the other hand, wanted standby counsel to

readily volunteer information and make suggestions during the trial if he

noticed anything Johnson had overlooked.            The court admonished

standby counsel against offering advice without Johnson’s direct request.

Johnson was found guilty and sentenced to ten years imprisonment.

Johnson challenges the court’s denial of his motion to suppress and the

constitutionality of the district court’s limitations on the involvement of

his standby counsel.

         The court of appeals did not address the issue of res judicata,

instead reviewing the merits of the motion to suppress de novo. Finding

the search warrant valid (there was sufficient probable cause to issue it),

the court of appeals affirmed the district court’s order denying Johnson’s

motion to suppress. Further, the court of appeals held the district court

did not abuse its discretion in limiting standby counsel’s participation at

trial.
                                     4


      II. Scope of Review.

      We review questions of a constitutional dimension de novo, based

on the totality of the circumstances. State v. Bumpus, 459 N.W.2d 619,

622 (Iowa 1990).        However, we do not make an independent

determination of probable cause; rather, we determine whether the

issuing judge or magistrate had a substantial basis for concluding

probable cause existed. State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997).

In our analysis, we examine only the information actually presented to

the judge or magistrate. Id.

      We conduct a de novo review when the defendant’s Sixth

Amendment right to counsel or self-representation is at issue. State v.

Rater, 568 N.W.2d 655, 657 (Iowa 1997). We review the district court’s

limitations on standby counsel’s participation at trial for an abuse of

discretion. State v. Cooley, 468 N.W.2d 833, 837 (Iowa Ct. App. 1991).

Only when a court exercises discretion “on grounds or for reasons clearly

untenable or to an extent clearly unreasonable” does a court abuse its

discretion. State v. Blackwell, 238 N.W.2d 131, 138 (Iowa 1976).

      III. Merits.

      A.    Motion to suppress.          The doctrine of res judicata is

inapplicable in this case. When Johnson appealed his first conviction,

he argued the district court erred not only in its jury instruction but also

in denying his motion to suppress evidence. State v. Johnson, No. 05-

0558, 2006 WL 1279119, at *1 (Iowa Ct. App. May 10, 2006).               In

reversing and remanding, the court of appeals addressed only the jury

instruction issue, declining to address the other issues raised by

Johnson. Id. at *3.
                                   5


      As Johnson appealed the denial of his motion to suppress and the

court of appeals did not address the issue, res judicata does not apply.

Spiker v. Spiker, 708 N.W.2d 347, 353 (Iowa 2006).       Since Johnson

preserved the issue of the denial of his motion to suppress on his first

appeal, he should not be foreclosed from litigating it again on the

grounds of res judicata.   To hold otherwise would require Johnson to

argue in this second appeal the matters urged in his first appeal (with

the record for that appeal) but not ruled upon by the appellate court.

This procedure would be needlessly confusing.

      However, the district court’s failure to rule on the motion to

suppress in Johnson’s second trial was harmless.       Upon a de novo

review, the search warrant Johnson challenges is valid.       Under the

Fourth Amendment, search warrants must be supported by probable

cause, which is determined by the totality of the circumstances. Gogg,

561 N.W.2d at 363.

      Based on the totality of the circumstances, the issuing magistrate

had a substantial basis for concluding probable cause existed. Id. He

was presented with more than enough evidence to issue a valid search

warrant.   The officer’s affidavit accompanying the search warrant

application included the following information:    witness Thompson’s

account of seeing Johnson walk towards the bank and then walk back a

short while later with a gun and a bag of something; the license plate

number of the getaway vehicle; officers located the car in front of the

apartment building in question; Lawrence Johnson told officers Ceneca

Johnson was in possession of the car; Ceneca Johnson’s grandmother

lived in that apartment; and the identification of Ceneca Johnson out of

a photo line-up by four out of five witnesses.    This affidavit provides
                                            6


sufficient probable cause to issue a warrant to search the apartment.

Thus, even if the judge in the second trial had reviewed Johnson’s

motion to suppress, the motion would have been denied since there was

sufficient probable cause for the warrant’s issuance.1

        B. Standby counsel. The Sixth Amendment guarantees the right

to self-representation as well as the right to counsel.                       Faretta v.

California, 422 U.S. 806, 821, 95 S. Ct. 2525, 2534, 45 L. Ed. 2d 562,

574 (1975). These rights are mutually exclusive; a “[d]efendant does not

have an absolute right to both self-representation and assistance of

counsel.” State v. Hutchinson, 341 N.W.2d 33, 41 (Iowa 1983). However,

when an individual exercises his or her right to self-representation, “a

trial court may appoint ‘standby counsel’ to assist the pro se defendant

in his defense.” McKaskle v. Wiggins, 465 U.S. 168, 170, 104 S. Ct. 944,

947, 79 L. Ed. 2d 122, 128 (1984); accord Rater, 568 N.W.2d at 658.

Although “[p]articipation by counsel with a pro se defendant’s approval is

.   .   .   constitutionally     unobjectionable,”       the    trial   court    is   not

constitutionally required to appoint standby counsel.                   McKaskle, 465

U.S. at 182–83, 104 S. Ct. at 953, 79 L. Ed. 2d at 136. In balancing the

roles of the pro se defendant and standby counsel, the trial court must

ensure “the pro se defendant is entitled to preserve actual control over

the case he chooses to present to the jury” and participation by standby

counsel does not “destroy the jury's perception that the defendant is

representing himself.” Id. at 178, 104 S. Ct. at 951, 79 L. Ed. 2d at 133.



         1Johnson’s second motion to suppress also included two claims not included in

his first motion to suppress: (1) the officer made a misleading statement in his affidavit,
and (2) the magistrate failed to establish the credibility of Lawrence Johnson. We agree
with the analysis of the court of appeals that neither claim has merit. Johnson, 2007
WL 4322062, at *3.
                                           7


Today we decide what limitations a trial court may place on standby

counsel.

         Standby counsel is a type of advisory counsel2 and serves two

main purposes:        (1) “to act as a safety net to ensure that the litigant

receives a fair hearing of his claims,” and (2) “to allow the trial to proceed

without the undue delays likely to arise when a layman presents his own

case.”        Rater, 568 N.W.2d at 658.         Standby counsel is particularly

important

         to relieve the judge of the need to explain and enforce basic
         rules of courtroom protocol or to assist the defendant in
         overcoming routine obstacles that stand in the way of the
         defendant’s achievement of his own clearly indicated goals.

McKaskle, 465 U.S. at 184, 104 S. Ct. at 955, 79 L. Ed. 2d at 137.

Standby counsel is not the same as co-counsel3 and does not enjoy the

same privileges and obligations as a lawyer who is appointed to represent

the defendant as counsel or co-counsel. The Ninth Circuit has explained

the differences between advisory counsel (or standby counsel) and co-

counsel:


         2“
         ‘Standby’ counsel refers to the situation where a pro se defendant is given the
assistance of advisory counsel who may take over the defense if for some reason the
defendant becomes unable to continue.” Locks v. Sumner, 703 F.2d 403, 407 n.3 (9th
Cir. 1983).
         3The  term “hybrid representation” encompasses both standby counsel and a
lawyer appointed as co-counsel with the defendant. Commonwealth v. Molino, 580
N.E.2d 383, 385 n.5 (Mass. 1991). There are a few cases where the defendant served as
co-counsel. In United States v. Nivica, 887 F.2d 1110, 1121–22 (1st Cir. 1989), cert.
denied, 494 U.S. 1005 (1990), the trial court allowed defendant Wellington to serve as
co-counsel, with his appointed attorney as lead counsel. The court later permitted
Wellington to serve as lead counsel, with his appointed attorney as co-counsel. Nivica,
887 F.2d at 1122. In United States v. Williams, 534 F.2d 119, 123 (8th Cir. 1976), the
trial court treated the defendant and his counsel as co-counsel, and the circuit court of
appeals did not find that the trial court abused its discretion when it placed limits on
defendant’s participation as co-counsel.
                                       8

      Advisory counsel is generally used to describe the situation
      when a pro se defendant is given technical assistance by an
      attorney in the courtroom, but the attorney does not
      participate in the actual conduct of the trial. In the co-
      counsel situation, the attorney may participate directly in
      the trial proceedings with the defendant (examining
      witnesses, objecting to evidence, etc.).

Locks v. Sumner, 703 F.2d 403, 407 (9th Cir. 1983).

      Johnson argues the pro se defendant has the right to define the

role of his standby counsel, and any limitations placed on standby

counsel’s participation contravene his right to defend himself.             The

relationship between standby counsel and a pro se defendant is

markedly different from the relationship between a defendant and his

lawyer.    Here, Johnson’s counsel was standby counsel and not co-

counsel.4 Johnson acted as his own lawyer and knowingly took on the

risks associated with pro se representation. See Faretta, 422 U.S. at 834

n.46, 95 S. Ct. at 2541 n.46, 45 L. Ed. 2d at 581 n.46 (“[A] defendant

who elects to represent himself cannot thereafter complain that the

quality of his own defense amounted to a denial of ‘effective assistance of

counsel.’ ”).

      Limitations placed on standby counsel do not interfere with a pro

se defendant’s constitutional right to self-representation. Since standby

counsel is not constitutionally required, it seems only logical limitations

on standby counsel are not unconstitutional. Although the United States

Supreme Court has not ruled on the issue of limiting standby counsel,

federal appellate courts and the Iowa Court of Appeals have.             United

States v. Nivica, 887 F.2d 1110 (1st Cir. 1989), cert. denied, 494 U.S.

      4Although  the judge allowed standby counsel to make legal motions, Johnson
never asked for standby counsel to be elevated to co-counsel. The record reveals
Johnson wished to maintain his pro se status throughout the trial.
                                       9


1005 (1990); Cooley, 468 N.W.2d at 833.          According to the Court of

Appeals for the First Circuit, “if the district court had discretion to deny

hybrid representation outright, it had discretion, in granting defendant’s

request for hybrid representation, to place reasonable limitations and

conditions upon the arrangement.” Nivica, 887 F.2d at 1121. Similarly,

in Cooley, the court of appeals recognized the district court’s ability to

place reasonable limitations on standby counsel and applied an abuse of

discretion   standard      to   determine   whether   the   limitations   were

reasonable. Cooley, 468 N.W.2d at 837. The court explained,

      [t]he trial court is given considerable latitude and freedom of
      action to control and ensure orderly process at trial, . . . and
      an expanded role by standby counsel could very well have
      created procedural complications and the potential for jury
      confusion as to counsel’s status.

Id. (citations omitted).

      It is well established trial judges have considerable discretion over

matters related to the orderly conduct of trial.       State v. Harris, 222

N.W.2d 462, 464–65 (Iowa 1974). As we have explained, “[a] trial court

has the duty to control and conduct its court in an orderly, dignified and
proper manner.” Schroedl v. McTague, 169 N.W.2d 860, 867 (Iowa 1969).

Further, “[t]he right of self-representation is not a license to abuse the

dignity of the courtroom.” Faretta, 422 U.S. at 834 n.46, 95 S. Ct. at

2541 n.46, 45 L. Ed. 2d at 581 n.46. Given the interest in the orderly

administration of trial and the fact appointing standby counsel is not

constitutionally required, we find a trial court has the discretion to limit

standby counsel so long as those limitations are reasonable.

      Here, the district court asked Johnson’s standby counsel to refrain

from offering legal advice unless expressly requested by Johnson.
                                      10


Standby counsel made repeated objections to the limit on interjections.

The court explained limiting standby counsel’s participation was

necessary to maintain control over the courtroom and the trial.         The

district court correctly explained standby counsel was different than co-

counsel:   “There’s a different relationship here right now between you

and Mr. Johnson and co-counsel who might be representing another

defendant. You are in this trial only here as standby counsel.” Then the

district court clarified its reasoning for admonishing standby counsel

from interjecting during the trial:

      If you want to [offer your advice], you can wait until a recess
      and you can give him a note, but I will not—this whole
      process of you sitting there, it’s just like you’re the
      ventriloquist and Mr. Johnson is the dummy. And that was
      exactly what it looked like to me, you tugging on his sleeve
      every two seconds telling him to do something. First of all,
      oftentimes he doesn’t understand what it is because you
      have the legal expertise and he doesn’t, and so he bumbles it
      and I end up having to let something come in evidence that I
      wouldn’t have if you were representing him. . . . [I]t extends
      and prolongs the proceedings and makes it just that much
      messier.

      ....

      [I]f Mr. Johnson wants to ask you a question about what to
      do, he can ask that question in open court. Otherwise, if
      you have things you want to suggest to him . . . you make a
      note of them and give them to him at the next break, but
      we’re not going to have a situation here where it’s simply you
      trying the case through Mr. Johnson.               He has a
      constitutional right to defend himself.         It’s perfectly
      appropriate for him to do that.

The court’s admonitions were directed at asserting logistical control over

the courtroom, not at interfering with Johnson’s ability to consult with

standby counsel. The court even instructed Johnson on how he could

appropriately consult with standby counsel without disrupting the trial.
                                    11

      You can turn to [standby counsel] at the point where you’re
      ready to stop cross-examining a witness and say to [standby
      counsel], Is there something else I should ask? I would not
      for a minute restrict your right to do that, Mr. Johnson.

Limiting standby counsel’s participation to ensure the trial progressed in

an orderly manner is not “clearly untenable or to an extent clearly

unreasonable.” Blackwell, 238 N.W.2d at 138. The district court did not

abuse its discretion in limiting the participation of standby counsel.

      IV. Conclusion.

      Although the doctrine of res judicata is not applicable to the denial

of Johnson’s motion to suppress in his second trial since he preserved

the issue on appeal, failing to allow him to relitigate the issue was

harmless error as the search warrant was valid. The issuing magistrate

had a substantial basis for concluding probable cause existed. Further,

the trial court did not abuse its discretion when it limited the

participation of Johnson’s standby counsel.           Since there is no

constitutional right to standby counsel when a defendant is proceeding

pro se, and the court’s limitations were directed at ensuring the trial

progressed in an orderly manner, limiting standby counsel’s participation

did not infringe on Johnson’s Sixth Amendment rights.

      DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.

      All justices concur except Baker, J., who takes no part.
