Opinion No. 2
from the District Court of the Fourth Judicial District,
State of Idaho, Ada County. Hon. Steven J. Hippler, District
of conviction for two counts of robbery, with a deadly weapon
enhancement, and unlawful possession of a firearm, affirmed.
Glen Williams, Boise, pro se appellant.
Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen,
Deputy Attorney General, Boise, for respondent.
found Kent Glen Williams guilty of two counts of bank
robbery, one count of use of a firearm in the commission of a
robbery, and one count of unlawful possession of a firearm.
On appeal, Williams raises six issues: (1) that the district
court abused its discretion by denying Williams' motion
to sever the two robbery charges; (2) that the prosecutor
committed misconduct in closing argument amounting to
fundamental error; (3) that the district court deprived
Williams of his state constitutional right to hybrid
representation; (4) that the district court deprived Williams
of his Fifth and Fourteenth Amendment rights to a fair trial
and to be free from excessive restraints during pretrial
proceedings; (5) that the district court deprived Williams of
his Sixth Amendment right to self-representation; and (6)
that the district court erred in denying Williams'
motions to suppress the evidence obtained from Williams'
detention and from his hotel room. For the reasons provided
below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
2012, a Caucasian male wearing a maroon shirt, white baseball
cap, and large mirrored aviator sunglasses entered a bank in
Boise, minutes after opening. The man handed the teller a
note demanding money, and the man indicated that he had a gun
and would shoot. The teller described the robber, who did not
have a mask, as having an upturned nose. The suspect fled the
bank after receiving the money.
April 2015, a 5-foot-8-inch to 6-foot Caucasian male wearing
mirrored aviator sunglasses approached a teller at another
branch of the same bank, shortly after opening, and demanded
cash bills consisting of twenty, fifty, and one hundred
dollar bills. The man wore a long-sleeved maroon windbreaker
jacket, a maroon handkerchief-type mask that he snapped over
his mouth and nose, and a black baseball-style hat covering
his ears. He explicitly told the teller to retrieve money
from two specific tills, and the man did not want any die
packs or "bait." At no time did he display a
firearm or threaten to use a firearm. After receiving the
money, he left on foot. Contrary to the robber's demand,
the teller provided the man with bait money and one bill
affixed with a tracking device.
tracking device sent out a tone alert to law enforcement,
leading officers to an intersection where the bill, affixed
with the tracking device, lay in the middle of the street.
Officers then contacted a nearby HVAC business which had
outside video cameras recording the street where the bill was
located. The HVAC video contained footage of a Caucasian man
in a green compact sedan with a lime-green bumper sticker
centered on the trunk. The driver, who appeared to have no
facial hair and closely cropped hair, dropped something out
of the driver's side window. The driver's jacket and
bandana matched the description of the April 2015 robber. The
investigating officer determined the vehicle was a 1997 or
1998 Chevy Malibu with customized wheels and out-of-state
plates. Additionally, the investigating officer also noticed,
after reviewing internal surveillance videos from the bank, a
small, yet visible, raised bump the size of a pencil eraser
on the back side of the robber's left hand, located
between the third finger and the wrist.
2015, a Caucasian male, between 5 foot 8 inches and 6 foot,
entered the same bank, just after opening, as that in the
2012 robbery. The man wore a yellow long-sleeved jacket, a
yellow handkerchief mask, a dark-billed hat, and mirrored
aviator sunglasses. He demanded twenty, fifty, and one
hundred dollar bills from two particular drawers and
specifically asked for no trackers or die packs. As the
teller pulled money from the drawers, the robber noticed a
tracking device on one of the twenty dollar bills. After the
man grabbed the bill and felt the tracking device inside, he
lifted his shirt and pointed to a gun in his waistband.
investigation, which included the internal surveillance
videos from the banks, the investigating officer suspected,
due to noteworthy similarities, that the same individual
committed all three robberies. Based on the HVAC video
footage from the April 2015 robbery and still shots of the
suspect from the banks' video footage during the three
robberies, the investigating officer issued a bulletin to
news and local police departments requesting any information
on the suspect. That same day, a detective notified the
investigating officer that a vehicle matching that described
in the bulletin was parked at a nearby hotel. The detective
took and sent pictures of the vehicle to confirm. The
investigating officer requested that the detective, who was
in plain clothes and an unmarked car, remain with the
vehicle. The vehicle was a green, 1999 Chevy Malibu with
wheels consistent with the images from the April 2015 HVAC
footage. On the trunk there was a section of a bumper sticker
which matched the same shape and size of the bumper sticker
from the April 2015 footage. In addition, there was an
adhesive residue with a greenish tint which was also
consistent with the lime-green bumper sticker location seen
in the April HVAC 2015 footage. The license plate also
matched the April 2015 footage; a white and blue out-of-state
license plate. Additionally, the rims on the wheels matched
those depicted in the April 2015 HVAC photographs. Another
detective confirmed with the hotel's manager that
according to the hotel's records, the vehicle was
registered in Williams' name and that Williams had been
residing at the hotel in the same room for two weeks. Hotel
staff also confirmed that Williams was the only occupant of
vehicle's license number was run through the Washington
Bureau of Licensing. The report confirmed Williams was the
sole registered owner and had been since prior to the April
2015 robbery. The investigating officer also confirmed
Williams' date of birth, height, and Washington address.
Williams' DMV photograph, received by the investigating
officer, revealed an upturned nose and closely cropped hair,
consistent with the photograph and description of the suspect
from the 2012 robbery. Moreover, another detective indicated
that he believed, after observing Williams entering and
leaving the room registered to Williams, that Williams was
the same individual on the bulletin.
order to determine whether Williams had an identifying bump
on the back of his left hand, matching that of the suspected
robber, an officer dressed as a tow truck operator stood near
a tow truck as it backed up to Williams' sedan. Williams
exited his room and approached the tow truck. When the
officer showed Williams his badge, Williams turned away and
refused to speak.
enforcement then placed Williams in handcuffs. The
investigating officer confirmed that Williams' nose was
similar to the description given by the witness in the 2012
robbery. Then, the investigating officer rolled Williams'
left hand to the side and observed a visible bump, consistent
with the one seen in the bank surveillance video. The
investigating officer, believing that Williams was very
likely the suspect wanted for the robberies, had a patrol car
dispatched to the scene, and law enforcement placed Williams
inside. The investigating officer testified that at this
point he placed Williams under arrest.
peering through Williams' hotel room window and noticing
two backpacks, the investigating officer applied for a search
warrant for the vehicle and hotel room. In his affidavit, the
investigating officer set out his investigation, including a
description of the similarities between the three robberies
and his corroborations regarding the vehicle; Williams'
unique nose; and the similar bump on his left hand.
Additionally, the investigating officer noted he had eighteen
years of experience as a police officer in Idaho, serving as
a detective for the violent crimes robbery unit for the last
eight of those years. He also included photos from his
investigation, including still shots from each of the three
bank robberies; photos of the vehicle (both from the HVAC
video and from the hotel parking lot); and Williams' DMV
photo. A search warrant was issued for Williams' hotel
room and the vehicle.
the search of a backpack inside the hotel room, the
investigating officer found a green lightweight coat with a
green piece of sewn triangular cloth, sewing needles, a
handgun, and magazines. Inside the vehicle, the investigating
officer found a blue and green coat with a blue and green
acid washed cloth and several large mirrored
"aviator" sunglasses in the jacket's center
also found nearly $7, 000, with some of the bills bearing
sequential serial numbers. Williams was indicted for one
count of robbery and one count of a felon in possession of a
firearm. Williams pled not guilty. Four months later, the
State indicted Williams for an additional count of robbery
with a firearm enhancement.
to trial, Williams made several motions, including a motion
to sever the two robbery charges and two motions to suppress
evidence. Williams also requested (1) to be released from the
"black box handcuffs" during his pretrial
proceedings; (2) to have substitute counsel because he was
dissatisfied with his counsel's tactical decisions; (3)
to have trial counsel perform voir dire, while Williams
conducted the remainder of the trial pro se; and (4) to be
free of restraints while representing himself during trial.
The district court, after conducting hearings, denied
Williams' motions. The district court determined that due
to safety concerns Williams would wear the black box during
pretrial proceedings. Further, the court instructed Williams
he could either represent himself or have counsel, not both.
Additionally, after being instructed that he would wear a leg
tether during trial, Williams withdrew his request to
found Williams guilty of two counts of robbery, one count of
a firearm enhancement, and one count of a felon in possession
of a firearm. The district court entered a judgment of
conviction. Williams timely appeals.
Motion to Sever
first argues the district court erred in denying his motion
to sever the two robbery charges. Williams argues the
evidence of the two separate robbery charges would be
inadmissible character evidence and that neither demonstrated
a common plan, scheme, or identity. Alternatively, Williams
argues that even if the evidence was admissible, the charges
should have been severed because the probative value of the
evidence of each offense was substantially outweighed by the
prejudicial effect. The State argues the evidence revealed a
common plan or scheme. Further, the State argues the evidence
of each separate robbery was admissible to show identity.
review a district court's denial of a motion to sever
under an abuse of discretion standard. State v.
Orellana-Castro, 158 Idaho 757, 760, 351 P.3d 1215, 1218
(2015); State v. Eguilior, 137 Idaho 903, 907, 55
P.3d 896, 900 (Ct. App. 2002). When a trial court's
discretionary decision is reviewed on appeal, the appellate
court conducts a multi-tiered inquiry to determine whether
the lower court correctly perceived the issue as one of
discretion, acted within the boundaries of such discretion
and consistently with any legal standards applicable to the
specific choices before it, and reached its decision by an
exercise of reason. State v. Hedger, 115 Idaho 598,
600, 768 P.2d 1331, 1333 (1989).
determining whether to grant or deny a motion to sever, the
antecedent issue for the district court is whether joinder
was permissible under Idaho Criminal Rule 8.
Orellana-Castro, 158 Idaho at 760, 351 P.3d at 1218.
Joinder of offenses is permissible "if the offenses
charged, whether felonies or misdemeanors or both, are based
on the same act or transaction or on two (2) or more acts or
transactions connected together or constituting parts of a
common scheme or plan." I.C.R. 8(a).
commonality requirement is met, the defendant may still
obtain relief pursuant to I.C.R. 14 by showing that joinder
would result in unfair prejudice. State v. Wilske,
158 Idaho 643, 644-45, 350 P.3d 344, 345-46 (Ct. App. 2015).
Idaho Criminal Rule 14 provides that upon the showing of
unfair prejudice, the court "may order the state to
elect between counts, grant separate trials of counts, grant
a severance of defendants, or provide whatever other relief
are three potential sources of prejudice for a court to
consider when considering a motion to sever based on I.C.R.
(1) the jury may confuse and cumulate the evidence, and
convict the defendant of one or both crimes when it would not
convict him of either if it could keep evidence properly
segregated; (2) the defendant may be confounded in presenting
defenses, as where he desires to assert his privilege against
self-incrimination with respect to one crime but not to the
other; or (3) the jury may conclude that the defendant is
guilty of one crime and then find him guilty of the other
because of his criminal disposition.
State v. Abel, 104 Idaho 865, 867-68, 664 P.2d 772,
774-75 (1983). On appeal, Williams focuses on the third
potential prejudice; where the jury could find guilt based on
a perceived criminal disposition. Thus, Williams argues, the
robbery charges should have been severed because evidence
pertaining to one robbery led the jury to find him guilty of
the other robbery based solely on a perceived disposition of
considering whether to grant a motion to sever based on the
third potential prejudice, the court must first determine
whether the evidence of the multiple alleged offenses could
have been admitted in the different trials had the counts
been tried separately. Id. at 868, 664 P.2d at 775.
If the answer is yes, there is no prejudice and a court may
properly deny the motion. Id. In such a
circumstance, "the analysis is the same as to whether
the offenses are part of a common scheme or plan permitting
joinder under Criminal Rule 8(a) and whether the defendant
would be prejudiced by joinder because the offenses were not
part of a common scheme or plan under Evidence Rule
404(b)." Orellana-Castro, 158 Idaho at 760, 351
P.3d at 1218. As stated in Orellana-Castro,
"The events must be linked by common characteristics
that go beyond merely showing a criminal propensity and
instead must objectively tend to establish that the same
person committed all the acts." Id. at 762, 351
P.3d at 1220 (quoting State v. Johnson, 148 Idaho
664, 668, 227 P.3d 918, 922 (2010)).
case, the district court found that the evidence was
sufficient to show a common scheme or plan because: (a) the
April 2015 and July 2015 robberies were relatively close in
time; (b) both locations were local branches of the same
bank; (c) the robberies occurred shortly after opening; (d)
the perpetrator in each was a Caucasian male between 5 foot 8
inches and 6 foot, or just over 6 foot; (e) he was described
as having a similar general appearance; (f) in both, he wore
a dark-billed cap with a long-sleeved jacket; (g) in both, he
pulled a handkerchief up over his mouth and nose upon
entering the bank; (h) the jacket and handkerchief in both
robberies were "color-coordinated;" (i) he wore
similar mirrored aviator sunglasses in each robbery; (j) he
appeared to have knowledge of this particular bank's
layout; (k) he demanded cash from two particular drawers,
which were hidden from customer view; (1) in both he asked