At page 1155 Right to self-representation subject to trial court discretion18 citing cases“once trial commences, that right is subject to the trial court's discretion which requires a balancing of the defendant's legitimate interests in representing himself and the potential disruption and possible delay of proceedings already in progress.”
- John F. Mosley v. State of Florida, 349 So. 3d 861 (Fla. 2022).publishedCf. United States v. Bankoff, 613 F.3d 358, 373 (3d Cir. 2010) (“[D]istrict courts have discretion to deny an untimely request to proceed pro se after weighing the ‘prejudice to the legitimate interests of the defendant against the potenti…
- Buford v. Cassady, No. 4:17-cv-02506 (E.D. Mo. Oct. 15, 2021). United States v. Wesley, 798 F.2d 1155, 1155 (8th Cir. 1986).
- United States v. Roman Harlan, 960 F.3d 1089 (8th Cir. 2020).published“Once trial commences, that right is subject to the trial court’s discretion which requires a balancing of the defendant’s legitimate interests in representing himself and the potential disruption and possible delay of proceedings already…
- United States v. Bradley Prucha, 856 F.3d 1184 (8th Cir. 2017).publishedUnited States v. Edelmann, 458 F.3d 791, 808 (8th Cir. 2006). “ ‘Once the defendant makes a clear and unequivocal request to represent himself, a court may nonetheless deny the request in certain circumstances,’ such as when the request is…
- State of Iowa v. Brett Anthony Ford, No. 15-0569 (Iowa Ct. App. June 15, 2016).publishedSee State v. Wehr, 852 N.W.2d 495, 501 (Iowa Ct. App. 2014) (stating request to proceed pro se made prior to the impaneling of the jury would be timely unless the request was made for purposes of delaying the proceedings); see also United…
- State of Iowa v. James Allen Wehr, 852 N.W.2d 495 (Iowa Ct. App. 2014).publishedOnce trial commences, that right is subject to the trial court’s discretion which requires a balancing of the defendant’s legitimate interests in representing himself and the potential disruption and possible delay of proceedings already i…
- State v. Winkler, 698 S.E.2d 596 (S.C. 2010).published“Once trial commences, that right [to proceed pro se] is subject to the trial court’s discretion which requires a balancing of the defendant’s legitimate interests in representing himself and the potential disruption and possible delay of…
- State v. Flanagan, 978 A.2d 64 (Conn. 2009).published([o]nce trial commences, [the right to self-representation] is subject to the trial court’s discretion which requires a balancing of the defendant’s legitimate interests in representing himself and the potential disrupt…)
- State v. Clark, 722 N.W.2d 460 (Minn. 2006).published First, because Clark's request was not made until after the Rasmussen hearing had been completed and jury selection had commenced, Clark's right to defend himself was not "unqualified," but was "`subject to the trial court's discretion whi…
- Lambert v. State, 864 So. 2d 17 (Fla. 2d DCA 2003).published(holding that after trial begins, the right of self-representation is subject to the trial court’s discretion, which requires balancing test)
Show 7 more citing cases
- United States v. Keith James Prost, No. 99-3689 (8th Cir. Sept. 5, 2000).unpublishedAs to his argument that the district court erroneously refused to let him represent himself, not only is the Sixth Amendment inapplicable to civil proceedings, see Austin v. United States, 509 U.S. 602, 608 (1993), but here Prost’s signatu…
- United States v. George A. Webster, Jr., 84 F.3d 1056 (8th Cir. 1996).published Once trial commences, that right is subject t<3 the trial court’s discretion which requires a balancing of the defendant’s legitimate interests. in representing himself and the potential disruption and possible delay of proceedings already…
- State v. Buhl, 635 A.2d 562 (N.J. Super. Ct. App. Div. 1994).publishedSee, e.g., Savage v. Estelle, 924 F. 2d 1459 , 1463 n. 7 (9th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2900 , 115 L.Ed. 2d 1064 (1991); United States v. Wesley, 798 F. 2d 1155, 1155-56 (8th Cir.1986); United States v. Gillis, 773 F…
- United States v. Robert Larry Mayes, & Dallas Earl Scott, 917 F.2d 457 (10th Cir. 1990).published“It is fundamental, however, that the right to self-representation is unqualified only if demanded before trial.” United States v. Wesley, 798 F.2d 1155, 1155 (8th Cir.1986) (emphasis added); accord, e.g., United States v. Brown, 744 F.2d…
- United States Ex Rel. Silagy v. Peters, 713 F. Supp. 1246 (C.D. Ill. 1989).publishedUnited *1257 States v. Brown, 744 F.2d at 908 ; United States v. Wesley, 798 F.2d 1155, 1155 (8th Cir.1986).
- Laramee v. State, 90 So. 3d 341 (Fla. 5th DCA 2012).published(holding that after trial begins, right of self-representation is subject to trial court’s discretion, which requires balancing test)
- State v. Christian, 657 N.W.2d 186 (Minn. 2003).published See, e.g., United States v. Wesley, 798 F.2d 1155, 1155 (8th Cir.1986).
At page 1156 Trial court discretion in controlling closing arguments13 citing casesfinding no error in district court’s denial of mid-trial request for defendant to proceed pro se based on the disruption to the trial it would cause
- Robin Bowles v. United States, 113 A.3d 577 (D.C. 2015).published In United States v. Wesley, 798 F.2d 1155, 1156-57 (8th Cir.1986), the Eighth Circuit affirmed two assault convictions — rejecting an argument that the defendant was “engaged in a constant struggle which can only be characterized as a sing…
- State v. Torkelsen, 2008 ND 141, 752 N.W.2d 640.published Wesley , at 1156. [¶ 44] In this case, Torkelsen’s attorney moved to withdraw as counsel prior to trial, but Torkelsen • did not request to represent himself prior to trial.
- United States v. Johnson, 403 F. Supp. 2d 721 (N.D. Iowa 2005).publishedJust as trial courts have “broad discretion” to admit evidence, “[t]rial courts have broad discretion in controlling closing arguments, and they will only be reversed if there has been a clear abuse of that discretion.” United States v. Da…
- United States v. Richard Lawrence Davis, 417 F.3d 909 (8th Cir. 2005).published United States v. Wesley, 798 F.2d 1155, 1156 (8th Cir. 1986).3 A conviction will be overturned on the basis of inappropriate prosecutorial comments only if they have affected the overall fairness of the defendant's trial.
- United States v. Roman Kosmel, 272 F.3d 501 (7th Cir. 2001).publishedSee Oakey, 853 F.2d at 553 ; United *507 States v. Noah, 130 F.3d 490, 498 (1st Cir.1997); United States v. Stevens, 83 F.3d 60, 66 (2d Cir.1996); United States v. Wesley, 798 F.2d 1155, 1156 (8th Cir.1986).
- United States v. Kosmel, Roman, No. 00-4294 (7th Cir. Nov. 29, 2001).publishedSee Oakey, 853 F.2d at 553 ; United States v. Noah, 130 F.3d 490, 498 (1st Cir. 1997); United States v. Stevens, 83 F.3d 60, 66 (2d Cir. 1996); United States v. Wesley, 798 F.2d 1155, 1156 (8th Cir. 1986).
- United States v. Charles Franklin, 250 F.3d 653 (8th Cir. 2001).published In support of his argument, Appellant cites United States v. Nelson, 988 F.2d 798, 807 (8th Cir.1993) in which this Court stated that “Prosecutors should refrain from personal attacks on defense counsel.” Appellant fails to note, however,…
- United States v. Robert August Nelson, United States of Am. v. Jeffrey Jon Heinen, United States of Am. v. David Daniel Heinen & Data Hardware, Inc., United States of Am. v. David D. Heinen, 988 F.2d 798 (8th Cir. 1993).published"The trial court has broad discretion in controlling closing arguments and without a clear showing of abuse, that discretion will not be overturned." United States v. Wesley, 798 F.2d 1155, 1156 (8th Cir.1986) (quoting United States v. Lew…
- United States v. Nelson, 988 F.2d 798 (8th Cir. 1993).published“The trial court has broad discretion in controlling closing arguments and without a clear showing of abuse, that discretion will not be overturned.” United States v. Wesley, 798 F.2d 1155, 1156 (8th Cir.1986) (quoting United States v. Lew…
- United States v. Raul Rivera Ramos, A/K/A Raulito, 856 F.2d 420 (1st Cir. 1988).published Given the Court’s interpretation of section 111, the question in evaluating defendant’s claim of multiplicity is “whether there is more than one act causing injury, not whether more than one officer is injured by the same act.” United Stat…
Show 1 more citing case
- United States v. Robert Maloney, 102 F.4th 904 (8th Cir. 2024).published(finding no error in district court’s denial of mid-trial request for defendant to proceed pro se based on the disruption to the trial it would cause)
At page 1157 Determining separate acts of assault and sufficiency of evidence4 citing casesdefendant engaged in two separate acts of assault when he struck one guard and moments later struck another guard
- United States v. Eddie Lee Cabbell, United States of Am. v. Loren Martin Craig, Also Known as Marty Cabbell, 35 F.3d 1255 (8th Cir. 1994).publishedUnited States v. Wesley, 798 F.2d 1155, 1157 (8th Cir.1986).
- United States v. Troy Schnurstein, 977 F.2d 449 (8th Cir. 1992).publishedUnited States v. Wesley, 798 F.2d 1155, 1157 (8th Cir.1986).
- United States v. Jeffrey Allen Martin, 869 F.2d 1118 (8th Cir. 1989).publishedUnited States v. Wesley, 798 F.2d 1155, 1157 (8th Cir.1986).
- United States v. Raul Rivera Ramos, A/K/A Raulito, 856 F.2d 420 (1st Cir. 1988).published Given the Court’s interpretation of section 111, the question in evaluating defendant’s claim of multiplicity is “whether there is more than one act causing injury, not whether more than one officer is injured by the same act.” United Stat…
Other citing cases
- McConnell v. City of Mankato, 456 N.W.2d 278 (Minn. Ct. App. 1990).published
v.
Michael L. WESLEY, Appellant
This appeal arises out of an incident occurring at the United States Medical Center in Springfield, Missouri, on July 20, 1985. Wesley was temporarily transferred to Ward 10A, the psychiatric ward, due to overcrowding on his ward. Wesley objected to the transfer and he began to pound and kick his cell door. Upon his refusal to discontinue this disturbance, a physician ordered him to be placed in physical restraints. Five guards entered his cell and as a result of the physical contact which ensued, Wesley was indicted on two counts of assault within the meaning of 18 U.S.C. §§ 111, 1114 (1982).
Wesley was convicted on both counts. He now appeals alleging various grounds of error involving his request for self-representation, prejudicial remarks of the prosecutor, failure to strike the jury panel due to prejudicial statements made by a prospective juror, the multiplicity of the counts, and the insufficiency of the evidence to sustain Count II which alleges an assault against one of the guards.
Upon review of the record, we affirm the conviction.
Self-Representation
Wesley asserts that he was denied his right to self-representation. It is fundamental, however, that the right to self-representation is unqualified only if demanded before trial. United States v. Brown, 744 F.2d 905, 908 (2d Cir.), cert. denied, — U.S. —, 105 S.Ct. 599, 83 L.Ed.2d 708 (1984). Once trial commences, that right is subject to the trial court’s discretion which requires a balancing of the defendant’s legitimate interests in representing himself and the potential disruption[*1156] and possible delay of proceedings already in progress. United States ex. rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965), cert. denied, 384 U.S. 1007, 86 S.Ct. 1950, 16 L.Ed.2d 1020 (1966); see also Butler v. United States, 317 F.2d 249, 258 (8th Cir.), cert. denied, 375 U.S. 836, 84 S.Ct. 67, 11 L.Ed.2d 65 (1963).
In this case, the trial court refused Wesley’s mid-trial request to proceed pro se noting the disruption of the trial it would cause. The court did respond to Wesley’s main complaint by recalling two witnesses and allowing counsel to ask those questions which Wesley wanted asked. The court determined that Wesley was being represented adequately and exercised its discretion in denying his request. We find no abuse of discretion.
Prosecutor’s Argument
Wesley also claims that he is entitled to a mistrial over certain statements made by the prosecutor. During the course of the opening and closing statements, the prosecutor made several references to his personal belief concerning the evidence and defendant’s credibility. [1]
We have previously stated: “A personal expression of defendant’s culpability, which inserts an extraneous and irrelevant issue before the jury, is particularly objectionable and highly improper when made by the prosecutor, whose position of public trust and experience in criminal trials may induce the jury to accord some unwarranted weight to the comment.” United States v. Splain, 545 F.2d 1131, 1135 (8th Cir.1976).
In this case, it appears that some of the prosecutor’s comments bordered on impropriety. A reversal is warranted, however, only if it can be shown that the improper remarks could have reasonably affected the jury’s determination. United States v. King, 616 F.2d 1034, 1040 (8th Cir.), cert. denied, 446 U.S. 969, 100 S.Ct. 2950, 64 L.Ed.2d 829 (1980). The trial court has broad discretion in controlling closing arguments and without a clear showing of abuse, that discretion will not be overturned. United States v. Lewis, 547 F.2d 1030, 1036 (8th Cir.1976), cert. denied, 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 566 (1977). We hold that although the prosecutor’s remarks were improper, they did not prejudice Wesley’s case. Accordingly, the trial court did not abuse its discretion in refusing to declare a mistrial.
Voir Dire
Although no objections were filed voicing the necessity of a new trial, Wesley now objects to the veniremen and the voir dire. Although Wesley’s claim is untimely, nonetheless we have thoroughly reviewed his objections. We find no prejudical error.
Multiplicity of Counts
Wesley argues that his struggle with the guards constituted only one assault instead of two. He says he was engaged in a constant struggle which can only be characterized as a single act. The test for determining whether an indictment is multiplicious is whether each count requires proof of an additional fact which the other does not. Ward v. United States, 694 F.2d 654, 661 (11th Cir.1983). Another way of evaluating it is whether there is more than one act causing injury, not whether more than one officer is injured by[*1157] the same act. United States v. Theriault, 531 F.2d 281, 285 (5th Cir.), cert. denied, 429 U.S. 898, 97 S.Ct. 262, 50 L.Ed.2d 182 (1976).
The present case is very similar to United States v. Hodges, 436 F.2d 676 (10th Cir.), cert. denied, 403 U.S. 908, 91 S.Ct. 2214, 29 L.Ed.2d 684 (1971). The defendant, who had been involved in a prison altercation broken up by guards, kicked one guard in the ribs and moments later kicked another guard in the back of the head, then hit a third guard in the chest. On his way to the cell house he hit two more guards. The court held he was properly charged with five counts of assault. Id. at 678.
The evidence shows that Wesley struck the first guard in the groin and moments later the second was injured on the corner of the bed. Given the fact that both officers were assaulted, it follows that the assaults had to be effected by separate acts.
Sufficiency of Evidence on Count II
Wesley finally contends that the evidence was insufficient to convict him of an assault on the second guard. The standard of review is whether, viewing the evidence in the light most favorable to the government, there is substantial evidence to support the jury’s verdict. United States v. Lee, 743 F.2d 1240, 1250 (8th Cir.1984). In this case, given the testimony of the second guard, as well as the others involved in the altercation, a reasonable person could find that Wesley assaulted both guards.
We affirm the judgment of conviction.
. In his closing argument, the prosecutor expressed his opinion in the following ways:
* * * I think the evidence is just overwhelming in this case.
* * * Just look at who’s got the most to lose; just look at who’s lying here.
* * * I think it’s clear beyond a reasonable doubt * * * the defendant struggled with and fought with these officers.
* * * Now, the defendant’s story, I think, ladies and gentlemen, is just patently absurd.
Wesley made no objections to these comments.
Only one statement was objected to by Wesley. The prosecutor said: "Put yourself in Carr's place. These men need to be protected out there." Wesley made an immediate objection and motion for a mistrial. The objection was sustained but the motion denied. The court then instructed the jury to disregard any suggestion that they return a guilty verdict in order to protect the guards. The general rule is that unless calculated to inflame the jury, an appeal to them to act as the conscience of the community is not impermissible. United States v. Lewis, 547 F.2d 1030, 1037 (8th Cir.1976), cert. denied, 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 566 (1977).