State of Iowa v. Bryan Richard Carr

IN THE COURT OF APPEALS OF IOWA

No. 22-1582
Filed November 21, 2023

STATE OF IOWA,
Plaintiff-Appellee,

vs.

BRYAN RICHARD CARR,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Clinton County,

Kimberly K. Shepherd, District Associate Judge.

Bryan Carr appeals his conviction for driving while revoked. AFFIRMED.

Stuart G. Hoover, East Dubuque, Illinois, for appellant.

Brenna Bird, Attorney General, and Thomas J. Ogden, Assistant Attorney

General, for appellee.

Considered by Bower, C.J., Ahlers, J., and Mullins, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023).
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MULLINS, Senior Judge.

Bryan Carr appeals his conviction for driving a motor vehicle while his

license was revoked. Carr briefly testified on his own behalf at trial. On appeal,

he complains “the district court failed to enter into an appropriate colloquy on the

record with [him] in order to determine if he understood his waiver of the right to

remain silent at trial.” Because Carr raises this claim for the first time on appeal,

the State contests error preservation. We elect to bypass the error-preservation

concern and address the claim on the merits. See State v. Taylor, 596 N.W.2d 55,

56 (Iowa 1999).

On the merits, we summarily agree with the State’s position that “the district

court did not have a duty to make a record on Carr’s decision to testify.” As the

supreme court has explained:

[A] trial court has no constitutional or other duty to stop the trial
proceedings and determine that a criminal defendant who is
represented by legal counsel has validly exercised her Fifth
Amendment rights in a jury trial. The decision to testify is not at the
same level as that of a plea of guilty which deprives a defendant of
numerous rights. Also, a decision whether to testify is one that is
considered part of trial strategy. This is a matter that the trial court
should not be involved in and is better left to the criminal defendant
and his or her counsel.[1]

Schertz v. State, 380 N.W.2d 404, 415 (Iowa 1985); cf. State v. Reynolds, 670

N.W.2d 405, 413 (Iowa 2003) (concluding—except potentially in certain

circumstances—the district court has “no obligation to sua sponte confirm on the

1 The record indicates Carr’s decision to testify was indeed strategic.While he
admitted to driving while revoked, he submitted he was being “targeted” by the
police and then the prosecution due to some sort of involvement he had with the
military. He also stated he thought his license was only revoked for six months
instead of twelve.
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record that the defendant had knowingly and voluntarily waived his constitutional

right to testify”); State v. Klaassen, No. 99-0943, 2000 WL 1027284, at *5 (Iowa

Ct. App. July 26, 2000) (“The Constitution does not require the trial court to inquire

into whether a waiver of a defendant’s right to testify was knowing and voluntary.”).

While Carr recognizes Schertz “refused to impose a requirement” that the

district court weigh in on a defendant’s decision to testify or not, he submits a

colloquy was warranted under the circumstances of this case. He doesn’t

meaningfully explain why. While the supreme court has signaled that a colloquy

“might be warranted” when there is an apparent disagreement between the

defendant and counsel about the decision to testify, the defendant’s desire to

testify or not is thwarted by counsel, or the defendant is self-represented,

Reynolds, 670 N.W.2d at 413 (emphasis added), none of those circumstances are

present here. To the extent Carr argues his counsel was ineffective in relation to

his decision to testify or not, we are without authority to decide such a claim on

direct appeal. See Iowa Code § 814.7 (2022); State v. Tucker, 982 N.W.2d 645,

653 (Iowa 2022); see also Klaassen, 2000 WL 1027284, at *4 (“Trial counsel has

the obligation to advise the defendant of his or her right to testify or not in a manner

that would enable the defendant to make a knowing and intelligent choice.”).

Finally, even if a colloquy was constitutionally required, alleged

constitutional error does not entitle Carr to relief if we are “able to declare it

harmless beyond a reasonable doubt.” State v. Gibbs, 941 N.W.2d 888, 900

(Iowa 2020) (citation omitted). Even assuming a colloquy would have resulted in

Carr not testifying, the State presented evidence identical to what Carr complains

he testified about in his own defense. Because his testimony was “merely
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cumulative of basically identical evidence” presented by the State, we declare any

error was harmless beyond a reasonable doubt. See State v. Miller, No. 22-0832,

2023 WL 4759452, at *6 (Iowa Ct. App. July 26, 2023).

We affirm Carr’s conviction.

AFFIRMED.