Opinion
No. 5-388 / 04-0753
Filed July 13, 2005
Appeal from the Iowa District Court for Clinton County, C.H. Pelton, Judge.
Defendant appeals from his conviction following a jury trial and sentence for sexual abuse in the third degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, Michael L. Wolf, County Attorney, and Gary Strausser, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
Defendant, David Michael Milton, Jr., appeals from his conviction following a jury trial and sentence for sexual abuse in the third degree. On appeal, defendant contends (1) the district court erred in allowing defendant to represent himself at trial, (2) the district court erred in ruling that defendant was required to produce evidence of prior false allegations of sexual abuse before allowing a hearing on the subject, (3) the district court erred in allowing certain hearsay testimony, and (4) defendant was provided ineffective assistance by trial counsel. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Defendant was convicted of sexual abuse in the third degree, following a jury trial, on April 8, 2004. The testimony of the victim at trial indicated that on the afternoon of September 27, 2003, defendant was at the home of his friend, Timothy Richardson, where he was doing household repairs. Also at the home that afternoon were Richardson's three children who were being cared for by their fourteen-year-old babysitter, N.K. At 3:00 p.m. defendant was to take N.K. home. Instead he asked N.K. to come inside the house while the children played outside. Once inside, defendant, according to N.K., attempted to seduce her, eventually pulling N.K. down on the couch with him, undressing her, pushing her legs apart and raping her. N.K. testified that nothing was said by the parties while defendant raped her and that she did not cry, as she was scared and in shock.
Defendant then drove N.K. home. On the drive home defendant asked N.K. if she would tell anyone what happened. She said she would not. Defendant then stated that if she did tell anyone he would act like he did not know who she was.
N.K. eventually reported the incident a few weeks later to her volleyball coach. About a week later, with the assistance of her coach, N.K. told her mother about the incident and the authorities were subsequently informed.
A trial information was filed on November 26, 2003, charging defendant with sexual abuse in the third degree, for performing a sex act by force or against the will of another person, in violation of Iowa Code section 709.4(1) (2003) and/or for performing a sex act upon a juvenile female who was not his spouse and was fourteen or fifteen years old where defendant was four or more years older, in violation of section 709.4(2)(c)(4).
Defendant's trial commenced on April 5, 2004. Before the trial began on April 5, defendant filed a motion in limine asking that the court not allow witnesses to testify about statements made by N.K. to others in the weeks after the alleged incident that did not fall under the excited utterance exception to the hearsay rule. The district court refused to rule on the motion, directing defendant to object to such testimony during the course of the trial.
The State also filed a motion in limine on the first day of trial. The State sought to prohibit defendant from offering evidence of N.K.'s prior sexual activity. The State's motion prompted defendant to request an evidentiary hearing in order to question N.K. about her assertion of prior sexual assaults. Defendant apparently suspected N.K. had made false claims about sexual abuse in the past. In her deposition, N.K. stated that this was the fourth time she had been raped and that one of the past claims had been dismissed. The district court, in response to defendant's request for a hearing, stated that if defendant could provide any evidence of past false claims it would probably afford defendant a hearing outside the presence of the jury to question N.K. about false claims. Defendant apparently never accumulated any such evidence to present to the district court because he did not renew his request for a hearing.
Additionally, on the first day of trial defendant informed the district court he had filed a complaint with the Iowa Supreme Court Board of Professional Ethics and Conduct against his court-appointed attorney. Defendant further informed the court he wanted to represent himself, but was not ready to do so immediately. Substantial discussion ensued, during which defendant asked that a new attorney be appointed to work on his case and he be granted a continuance. As the discussion continued, defendant changed his mind, and he declared to the court that the trial could proceed with his current court-appointed attorney representing him. The district court reached the conclusion that there was insufficient cause to substitute new counsel and it would be better, in the interests of prompt and efficient administration of justice, for the matter to proceed with defendant's current counsel or with defendant pro se. The trial did then proceed, with defendant's current court-appointed attorney continuing to represent him.
The State rested its case near the end of the first day of trial. At the beginning of the trial's second day, defendant again requested that his court-appointed counsel be replaced or that he be allowed to represent himself. Defendant was dissatisfied with the performance of his attorney. The district court responded by explaining that defendant had the constitutional right to counsel and also the constitutional right to represent himself. The district court also explained that defendant could choose to represent himself but still retain standby counsel that could advise him on certain matters. Following a lengthy discussion, defendant decided he would proceed with the trial representing himself and he would have his former attorney serve as standby counsel. Defendant signed a waiver of counsel form prepared by the court.
Defendant proceeded to represent himself for the remainder of the trial. He was convicted by the jury, which found him to be guilty of both alternative ways of committing sexual abuse in the third degree. The offenses were merged for purposes of sentencing and defendant was sentenced to a term of imprisonment not to exceed ten years.
II. ANALYSIS. A. Sixth Amendment Waiver of Right to Counsel.
Defendant claims the district court erred in allowing him to represent himself. Our review on this issue is de novo. State v. Martin, 608 N.W.2d 445, 449 (Iowa 2000). The State has the burden of proving the waiver was valid. Michigan v. Jackson, 475 U.S. 625, 633, 106 S. Ct. 1404, 1409, 89 L. Ed. 2d 631, 640 (1986); State v. Rater, 568 N.W.2d 655, 660 (Iowa 1997).
The Sixth Amendment to the United States Constitution guarantees that "in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. The Fourteenth Amendment to the United States Constitution makes this right binding on the states. Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 2527, 45 L. Ed. 2d 562, 566 (1975). The Sixth Amendment "does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense." Id. at 819, 95 S. Ct. at 2533, 45 L. Ed. 2d at 572.
A defendant's Sixth Amendment right to counsel is in effect until waived. Rater, 568 N.W.2d at 658. A defendant's Sixth Amendment right to self-representation is not effective until asserted. Id. Before a defendant's right to self-representation attaches, the defendant must elect to proceed without counsel by knowingly, intelligently, and voluntarily waiving his or her Sixth Amendment right to counsel. Faretta, 422 U.S. at 835-36, 95 S. Ct. at 2541, 45 L. Ed. 2d at 582; Martin, 608 N.W.2d at 449. The request to proceed without counsel must be "clear and unequivocal." Id. The State has the burden of proving the waiver was valid. Rater, 568 N.W.2d at 658. Additionally, "courts `indulge every reasonable presumption against waiver' of fundamental constitutional rights. . . ." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 1466 (1938) (footnotes omitted) (quoting Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S. Ct. 809, 811, 81 L. Ed. 1177, 1180 (1937)).
To determine whether a defendant is knowingly, intelligently, and voluntarily waiving his right to counsel the district court should engage in a colloquy with a defendant to "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). In State v. Spencer , 519 N.W.2d 357, 360 n. 1 (Iowa 1994), the court pointed to a suggested colloquy in 1 Bench Book for United States District Judges 1.02-2 (3d ed. 1986) and United States v. McDowell, 814 F.2d 245, 251-52 (6th Cir. 1987).
The suggested colloquy recommends an inquiry be made to determine whether the defendant: (1) has ever studied law, (2) has ever represented himself or any other defendant in a criminal action, (3) knows the crimes with which he has been charged, (4) knows the penalties associated with the charged crimes, (5) realizes potential prison terms can be imposed consecutively, (6) realizes the judge cannot instruct or advise him on how to try the case, (7) is familiar with the applicable rules of evidence, (8) realizes the rules of evidence govern what evidence may or may not be introduced at trial and those rules must be followed, (9) is familiar with the applicable rules of criminal procedure, (10) realizes that those rules govern the way in which a criminal action is tried, and (11) realizes that if he decides to take the witness stand, he must present his testimony by asking questions of himself, rather than simply telling his story. McDowell, 814 F.2d at 251-52.
The district court should also advise defendant something to the 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.
Id.
The court should then determine (1) whether, in light of the penalty that defendant might suffer if found guilty and in light of all of the difficulties of representing himself, it is still defendant's desire to represent himself and to give up his right to be represented by a lawyer, and (2) whether defendant's decision is entirely voluntary. Id. If the answers to these two preceding inquiries are in the affirmative, and in the district court's opinion the waiver of counsel is knowing and voluntary, the district court should say something to the following effect: "I find that the defendant has knowingly and voluntarily waived his right to counsel. I will therefore permit him to represent himself." Id.
Furthermore, the district court 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. Id. This suggested colloquy is not mandatory. See Martin, 608 N.W.2d at 450; see also Spencer , 519 N.W.2d at 360.
In the present case, the district court addressed a number of the aspects found in the suggested colloquy.
(1) The district court inquired about defendant's legal studies background. Defendant informed the court that he had an eleventh grade education.
(2) The district court inquired about defendant's experience with trials. Defendant asserted that he had been through four jury trials with the assistance of counsel and had represented himself before the Michigan Court of Appeals and in a petition to the United States Supreme Court.
(3) The district court inquired as to whether defendant understood the charges against him. Defendant responded that he did. The court went on to explain to defendant that he was facing a charge of sexual abuse in the third degree, which was being alleged on two alternative bases. The district court further explained the elements of the charged crime.
(4) The district court inquired as to whether the defendant knew the penalties associated with the charged crime. Defendant responded that he did. The district court went on to explain the penalty of an indeterminate term not to exceed ten years.
(5) There was no potential for consecutive sentences in this case, so that issue was not discussed.
(6) The district court advised the defendant that he could not help the defendant try the case once they returned to the courtroom. Specifically, the court stated, "[O]nce we get back in the courtroom, when you represent yourself, I can't help you."
(7) The district court did not specifically inquire into defendant's familiarity with the rules of evidence, although the court did appear to understand that defendant was familiar with some rules but not others.
(8) The district court informed defendant that the Iowa Rules of Evidence would govern. Specifically, the court stated, "I'm going to apply the same Rules of Evidence to you that we apply to the State, and so that puts you at a substantial disadvantage because you don't know all of those Rules."
(9) The district court did not specifically inquire into defendant's familiarity with the rules of criminal procedure.
(10) The district court did inform defendant that certain procedural rules would govern his case and that if he chose to represent himself he would be on his own but could potentially seek advice from standby counsel.
(11) The district court instructed defendant about the procedure for him to testify. The district court further informed defendant that the State could attempt to impeach his testimony.
The district court told defendant, "I'm going to explain to you all of the risks and dangers involved in representing yourself, because you are not legally trained . . ." Also, the district court stated, "I'm going to apply the same Rules of Evidence to you that we apply to the State, and so that puts you at a substantial disadvantage because you don't know all of those Rules."
After a lengthy discussion with the district court about the perils of representing himself, defendant went forward with his desire to represent himself and signed a waiver of counsel form, which stated in part:
I have now chosen to release my lawyer, Neill Kroeger, and represent myself. I acknowledge that the Court has advised me on the record of what this means to me and the risks involved.
After considering all of the problems involved, I hereby knowingly and intelligently waive my right to counsel and elect to proceed with the trial representing myself.
The district court did not specifically inquire as to whether defendant's decision to represent himself was voluntary. However, looking to the record, there appears to be no suggestion that there was an outside force compelling defendant to represent himself. Defendant initiated the meeting with the judge, during which defendant asserted, "I want to fire him [referring to his attorney] . . . I'm ready to represent myself."
After the lengthy discussion with defendant regarding the perils of self-representation, the district court stated on the record, "[T]he Court is going to make a finding that Mr. Milton is knowingly and intelligently waiving his right to counsel . . ." Additionally, the district court appointed standby counsel to assist the defendant.
A review of the record indicates that the district court substantially complied with inquiries found in the suggested colloquy. In addition to the above, the district court inquired as to the mental and medical health of defendant as well as whether defendant had problems with substance abuse. Defendant responded that he had no such problems.
Defendant's primary argument on appeal is that his ultimate desire in going to the judge and requesting to fire his attorney was that he wanted a new attorney appointed to his case, and if that could not be done he was "forced" to represent himself. Thus, defendant claims his decision was not voluntary. However, such a "forced choice" scenario does not necessarily make defendant's decision to represent himself involuntary. Martin, 608 N.W.2d at 449. Before putting the defendant to such a "forced choice," the district court must ensure defendant makes his choice "knowingly and intelligently, with an awareness of the dangers and disadvantages inherent in defending oneself." Id. We conclude the district court did ensure the decision was knowing and intelligent; therefore, putting defendant in a "forced choice" scenario did not make his decision to proceed pro se an involuntary decision.
Defendant contends State v. Rater, 568 N.W.2d at 655, supports the result he urges. Rater is distinguishable. In Rater, the State acknowledged there was essentially no colloquy between the court and the defendant advising defendant that he was entitled to counsel or warning defendant of the risks of self-representation. Rater, 568 N.W.2d at 659. Here, as discussed above, the district court substantially complied with the colloquy suggested in Spencer, 519 N.W. 2d at 360. Furthermore, in Rater the defendant never made a clear statement that he desired to represent himself, instead he repeatedly told the court he felt unqualified to represent himself. Id. at 661-62. Here, the defendant made clear statements that he wished to represent himself. The defendant stated at various times: "I want to fire him [referring to his attorney] . . . I'm ready to represent myself.", "I will represent myself.", "I'm saying I want to represent myself and have him standby.", "I know what needs to be done in this case . . .", "That's my favorite part [referring to making closing argument]."
B.N.K.'s Prior Allegations of Sexual Abuse.
Defendant claims the district court erred in ruling defendant was required to produce evidence that prior sexual abuse allegations were false before allowing an in-chambers hearing on the matter. The State filed a motion in limine on the morning of the day trial was to begin, seeking to prevent defendant from introducing evidence of prior sexual activity of the victim citing Iowa Rule of Evidence 5.412( c).
Defendant first asserts the State's motion was not timely. Motions in limine are to be filed as soon as the grounds reasonably appear but no later than nine days before the trial date. However, defendant failed to preserve error as this objection was not raised at trial. Consequently, we will not consider this argument on appeal. Meier v. Senecaut , 641 N.W.2d 532, 537 (Iowa 2002). ("It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal.")
Defendant next asserts the district court erred by instructing defendant that the court would grant a hearing as to N.K.'s alleged past false claims of sexual abuse only if defendant set forth evidence that there were past false claims. N.K. was asked during deposition about having made past allegations she was sexually abused. Apparently, one of the past claims had been dismissed. When defendant's attorney, who was representing him at that time, asked for an evidentiary hearing outside the presence of the jury to question N.K. about possible false allegations of sexual abuse, the following exchange between the district court and defense counsel occurred:
THE COURT: If you have any evidence it's a false claim — if Defendant has any evidence it's a false claim, I'll probably afford you a hearing. Would be inclined to. If — after direct examination, perhaps even cross, if it looks like there's evidence of a false claim, I think I'd get — I'd afford an evidentiary hearing out of the presence of the jury. Probably, this would come up after she testifies and before cross-examination, and if you think you have something, that would be the time to do it, unless you know something sooner. Other than that, I think I'll probably stay away from it.
MR. KROEGER: Well, we don't have any other knowledge than what we've already stated to the Court, so —
THE COURT: Okay. Okay. I'm going to follow the Rule as closely as I can, but I will afford you a hearing, if you want it, if it looks like it's all there.
The State argues that, based on the above exchange, the district court did not issue a final ruling on the State's motion in limine that had prompted defendant to request a hearing on the matter of N.K.'s past allegations of sexual abuse. We agree. Instead of making a final ruling on the issue, the district court reserved the issue for reconsideration during trial.
It is generally recognized that a motion in limine does not preserve error since error does not occur until the matter is presented at trial. An objection should be made at trial to preserve error. This rule, however, has an exception. A defendant is not required to object at trial if the prior ruling on the motion in limine amounts to an unequivocal holding concerning the issue raised.
State v. Delaney , 526 N.W.2d 170, 177 (Iowa Ct.App. 1994) (internal citation and quotation marks omitted). This rule applies to the present case and we conclude that the exception to the rule is not applicable. Error was not preserved. Defendant also raises this issue as a claim of ineffective assistance of counsel. That claim will be discussed below.
C. Admission of Hearsay Testimony.
Defendant filed a motion in limine on the morning of the day trial was to begin, seeking to prevent witnesses from testifying about statements made by N.K. to others in the weeks after the alleged incident that did not fall under the excited utterance exception to the hearsay rule. Specifically, defendant argues that the testimony of Sheila Huizenga, N.K.'s volleyball coach was improper. Defendant argues error was preserved as to this issue by defendant's motion in limine and oral argument before the district court. With regard to defendant's motion in limine, the district court made the following statement:
THE COURT: It's a motion in limine. You'll [referring to defendant] still have to make your objection. My preliminary ruling is it's going to be — well, it will be sustained if he gets into the facts, to prove the truth of the matter asserted. It will be overruled if he doesn't. And it's a real careful line to follow. Okay. Possibly an exception of the excited utterance on the person that — right afterwards, but that's dangerous too for both of you if you get into the details of that.
We, again, apply the error preservation rule found in State v. Delaney, 526 N.W.2d at 177. The district court did not issue a final ruling on defendant's motion in limine, nor did the district court make an unequivocal holding concerning the issue raised. Instead, the district court reserved the issue for reconsideration during trial. At trial, defendant failed to object to the questions the State asked Huizenga or the testimony of Huizenga at the time it was given. Therefore, error was not preserved. Defendant also raises this issue as a claim of ineffective assistance of counsel. That claim will be discussed below.
D. Ineffective Assistance of Counsel.
Finally, defendant makes three claims that defense counsel provided ineffective assistance. Defendant claims counsel was ineffective for (1) failing to object to the district court's ruling with regard to the admissibility of past false sexual abuse claims by N.K. and failing to properly investigate and discover possible evidence of past false sexual abuse reports by N.K., and (2) failing to object in a timely and proper manner to improper hearsay testimony of Huizenga, and (3) failing to object, as standby counsel, to improperly admitted business records.
Because a claim of ineffective assistance of counsel implicates constitutional rights, our review is de novo. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999).
To establish an ineffective assistance of counsel claim, the defendant must show (1) counsel failed to perform an essential duty, and (2) this failure resulted in prejudice. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999); State v. Miles, 344 N.W.2d 231, 233-34 (Iowa 1984).
Ineffective assistance claims are generally preserved for postconviction relief actions; however, we will resolve them on a direct appeal of the criminal conviction in two situations:
If the record on appeal shows . . . that the defendant cannot prevail on such a claim as a matter of law, we will affirm the defendant's conviction without preserving the ineffective-assistance-of-counsel claims. Conversely, if the record on appeal establishes both elements of an ineffective-assistance claim and an evidentiary hearing would not alter this conclusion, we will reverse the defendant's conviction and remand for a new trial.
State v. Martinez, 679 N.W.2d 620, 625-26 (Iowa 2004) (citations and internal quotation marks omitted).
The defendant must show counsel's performance fell below an objective standard of reasonableness so that counsel failed to fulfill the role in the adversary process the Sixth Amendment envisions. Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). A strong presumption exists that counsel's performance falls within the wide range of reasonable professional assistance. Wemark, 602 N.W.2d at 814. The defendant has the burden of proving by a preponderance of the evidence both elements of a claim of ineffective assistance. State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996); Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989).
Defendant first alleges defense counsel was ineffective for failing to properly argue and object to the court's ruling with regard to the admissibility of past false sexual abuse claims by N.K., which issue was discussed above. Defendant further argues that his trial counsel was ineffective for failing to properly investigate and discover possible evidence of past false sexual abuse reports by N.K. Defendant argues that his trial counsel should have investigated further, should have objected to the burden imposed by the district court, and should have argued that he was entitled to question the victim without providing additional evidence. At the hearing on the matter, defense counsel did inform the district court that he tried to investigate the past claim by N.K. that was apparently dismissed, but he was unable to locate the court records because, with N.K. being a minor, confidentiality rules applied to the case, so he could not search for the records using N.K.'s name. Additionally, he did not know the name of the alleged perpetrator so he could not search for the records using that name. Defense counsel does have a duty to investigate. See Schrier v. State , 347 N.W.2d 657, 662 (Iowa 1984); Foster v. State, 378 N.W.2d 713, 721 (Iowa Ct.App. 1988). Evidence of past false claims of sexual abuse is not barred by the rape-shield law. See Iowa R. Evid. 5.412( b); see also State v. Baker, 679 N.W.2d 7, 10 (Iowa 2004); State v. Zaehringer, 280 N.W.2d 416, 420 (Iowa 1979).
We cannot resolve these claims of ineffective assistance of counsel on direct appeal, and we preserve them for possible postconviction relief proceedings. Without knowing more about whether N.K. made past false claims, we cannot determine whether defendant was prejudiced by the alleged errors of defense counsel; therefore, we preserve the claims for possible post conviction proceedings. See Martinez, 679 N.W.2d at 625-26; see also Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999).
Defendant next argues defense counsel was ineffective for failing to object in a timely and proper manner to hearsay testimony of Huizenga, N.K.'s volleyball coach. Defendant's motion in limine concerning admission of certain hearsay testimony was not timely filed. However, the district court considered defendant's motion; therefore, there was no prejudice caused by the late filing.
In ruling on the motion in limine, the district court informed defendant he would have to object to any hearsay testimony that he believed to be inappropriate at the time it was made. Defense counsel did not object to any such testimony at trial. Defendant now claims defense counsel should have objected to the testimony of Huizenga and that defense counsel was ineffective for failing to do so. After Huizenga testified N.K. "was not herself," the following question and answer exchange took place between Huizenga and the assistant county attorney:
Q. Did you talk to her about the way that she was acting that day? A. Yes.
Q. And again, I'm looking for a yes-or-no answer. Was she in any way reluctant to talk to you? A. Yes
Q. Okay. Would it be fair to say that she eventually reported to you the incident that brings us to court here today? A. Yes
Q. All right. And did you then report it to either her parents or law enforcement right away? A. No.
Q. About how long did you wait? A. About a week.
Q. Okay. And that was — was that consistent with her desires or something you decided on you own? A. It was her desire.
Q. All right. And — so I can be clear, concerning you, would it be fair to say that you wanted her to be the one to tell her family? A. Yes, that's correct.
The State argues this testimony was not elicited for the truth of the matter asserted, but was obtained to corroborate N.K's testimony regarding the delay in reporting the incident.
Testimony by a witness concerning a complaint made by a victim in a sexual assault case is generally admissible when offered to corroborate the victim. The justification for admitting such statements is to thwart the natural assumption that the offense did not occur in the absence of a complaint.
State v. Wells, 522 N.W.2d 304, 308 (Iowa Ct.App. 1994) (internal citations omitted). "It is natural to expect that the victim of such a crime would complain of it, and the prosecution can show the fact of complaint to forestall the assumption that none was made and that therefore the offense did not occur." State v. Grady, 183 N.W.2d 707, 713 (Iowa 1971) (quoting People v. Burton, 55 Cal.2d 328, 333 (1961)). Abiding by this case law, we conclude that the testimony at issue was admissible. Thus, the claim that defense counsel was ineffective for failing to object is without merit.
Finally, defendant argues defense counsel was ineffective for failing to object, as standby counsel, to improperly admitted business records, including a telephone bill and school records. The records were used to impeach defendant's alibi witness. The records suggested that defendant's alibi witness was not in the State of Iowa with defendant on the day that she testified that she was. Defendant argues the records were not admitted in the manner required by Iowa Rule of Evidence 5.803(6). The record indicates that defendant, after deciding to represent himself, was given a copy the Iowa Rules of Evidence. The district court informed defendant he would be responsible for the rules upon taking over his own representation. "The defendant cannot knowingly and intelligently make an election to proceed pro se and then, having lost his trial on the merits, seek a reversal on appeal by claiming ineffective assistance of [standby] counsel." State v. Hutchison , 341 N.W.2d 33, 42 (Iowa 1983). Therefore, defendant's claim that standby counsel should have objected is without merit.