State of Minnesota, Respondent, vs. Luanyo Alomo Duangi, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-02-1432

 

State of Minnesota,
Respondent,
 
vs.
 
Luanyo Alomo Duangi,
Appellant.

 

Filed July 29, 2003

Affirmed

Peterson, Judge

 

Mower County District Court

File No. K401818

 

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Patrick Flanagan, Mower County Attorney, Mower County Courthouse, 201 First Street Northeast, Austin, MN  55912 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

 

            Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

 

In this appeal from convictions of three counts of second-degree assault with a dangerous weapon, one count of making terroristic threats, and one count of fourth-degree assault against a police officer, appellant Luanyo Alomo Duangi argues that the district court (1) erred in denying his request to represent himself; and (2) abused its discretion by refusing to grant a longer continuance to secure the appearance of a subpoenaed witness who left the courthouse without testifying.  We affirm.

FACTS

 

The victim pulled into a parking stall adjacent to the apartment complex where he lived and got out of his car.  Appellant approached the victim, and the victim asked appellant what he wanted.  Appellant, who was holding a large knife by his side, stated, "I am going to kill you."  The victim ran away and reported the incident to the police.

Police went to appellant's apartment to investigate the incident.  When appellant answered the door, he stood just inside the threshold, approximately three to four feet from the officers, holding a large butcher knife above his head.  The officers drew their weapons and repeatedly ordered appellant to drop the knife and lie face down.  After several seconds, appellant complied, and the officers arrested him.  As the officers escorted appellant down the hallway of the building, he began to struggle.  Appellant head-butted one of the officers under his jaw and knocked him against the wall.

Before trial, appellant asked the court to allow him to represent himself.  The court questioned appellant about the charges, the possible punishments, and the elements of second-degree assault.  Following this inquiry, the court found that appellant did not sufficiently understand the charges against him and denied appellant's request to represent himself.

            At trial, appellant testified that the victim approached him in the parking lot, and after appellant asked the victim what he wanted, the victim punched him in the face.  Appellant denied having a knife and testified that after the incident, he went to a friend's house and told a witness what the victim had done.  Appellant subpoenaed the witness to testify at trial, but before being called to testify, the witness apparently left the courthouse and did not return.  The district court granted a short continuance to allow appellant to secure the witness's appearance.  When court reconvened, defense counsel stated that there were no additional witnesses, and the court began instructing the jury.

D E C I S I O N

 

1.  Waiver of right to counsel

Under the Sixth and Fourteenth Amendments to the United States Constitution, a defendant has a constitutional right to represent himself in a state criminal proceeding.  Faretta v. California, 422 U.S. 806, 836, 95 S. Ct. 2525, 2541 (1975); State v. Richards, 456 N.W.2d 260, 263 (Minn. 1990).

A defendant who intelligently and knowingly waives his right to the assistance of counsel must be allowed to represent himself despite his lack of the legal ability to conduct a good defense * * * .

State v. Thornblad, 513 N.W.2d 260, 262 (Minn. App. 1994) (citing Richards, 456 N.W.2d at 264-66).  Appellate courts apply the clearly-erroneous standard when reviewing a district court's denial of a defendant's request to proceed pro se.  State v. Christian, 657 N.W.2d 186, 190 (Minn. 2003).  Violation of a defendant's constitutional right to represent himself requires a new trial.  Richards, 456 N.W.2d at 263.

            The Minnesota Supreme Court has adopted the two-pronged inquiry established by the United States Supreme Court in Godinez v. Moran, 509 U.S. 389, 400, 113 S. Ct. 2680, 2687 (1993), as a predicate to waiving the right to counsel.  State v. Camacho, 561 N.W.2d 160, 171-73 (Minn. 1997).

First, if a court has reason to doubt the defendant's competence, the court must make "a finding that the defendant is competent to stand trial."  Second, the court must "satisfy itself that the [defendant's] waiver of his constitutional rights is knowing and voluntary."

 

Camacho, 561 N.W.2d at 171 (alteration in original) (quoting Godinez, 509 U.S. at 400, 113 S. Ct. at 2687) (footnote omitted).

Because appellant's competency to stand trial was never questioned and there is no evidence in the record to suggest that he was not competent to stand trial, a competency determination was not necessary.  Godinez, 509 U.S. at 401 n.13, 113 S. Ct. at 2688 n.13.

            The second prong requires that the district court become satisfied that the waiver of counsel is knowing and voluntary by conducting

a comprehensive examination of the defendant regarding his comprehension of the charges against him, the possible punishments, the defenses, mitigating circumstances, and any other facts relevant to an understanding of the consequences of the waiver.

 

State v. Krejci, 458 N.W.2d 407, 412 (Minn. 1990) (citing Burt v. State, 256 N.W.2d 633, 634-35 (Minn. 1977)) (quotation omitted).  The examination depends "in each case, upon the particular facts and circumstances surrounding that case," including the defendant's background, experience, and conduct.  Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938).  The purpose of the inquiry "is to determine whether the defendant actually does understand the significance and consequences" of his decision and "whether the decision is uncoerced."  Godinez, 509 U.S. at 401, n.12, 113 S. Ct. at 2687, n.12 (citations omitted).

[A] judge must investigate as long and as thoroughly as the circumstances of the case before him demand.  The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge's responsibility.  To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a [waiver] is tendered.

 

Burt, 256 N.W.2d at 635 (first alteration in original) (quoting Von Moltke v. Gillies, 332 U.S. 708, 723-24, 68 S. Ct. 316, 323 (1948)); see Minn. R. Crim. P. 5.02 cmt. (stating that rule 5.02 establishes a minimum list of factors to be considered when defendant waives counsel at initial appearance and citing Von Moltke).  The court should also advise the defendant of the dangers of self-representation so that if the defendant persists in proceeding pro se, the record will establish that he did so "‘with eyes open.'"  Camacho, 561 N.W.2d at 173 (quoting Faretta, 422 U.S. at 835, 95 S. Ct. at 2541); see Wayne R. LaFave, et al., 3 Criminal Procedure § 11.5(c) (2d ed. 1999) (stating initially trial court should ascertain defendant is aware of matters noted in Von Moltke; then court should advise defendant of the pitfalls of self-representation; if defendant persists in proceeding pro se, court should ascertain defendant understands disadvantages and possible consequence via "penetrating and comprehensive inquiry").

            The court conducted the following examination of appellant:

            THE COURT:  * * * [B]efore we proceed, the Court is required to make certain inquiries of you to determine, number one, whether or not you are prepared to represent yourself; and number two, whether or not you are capable of representing yourself.  I have to make an independent decision of that.  If I feel that you are, you will be allowed to proceed to represent yourself.  [In such an instance, appointed counsel] will be seated at counsel table to act as a resource person, but he will take no affirmative action unless directed by the Court.  Do you understand that?

[Appellant]:    Yes.

 

            * * * *

 

THE COURT:  Do you understand what the charges are against you?

 

            [Appellant]:  Yes, I do.

 

            THE COURT:  What are those charges?

 

            [Appellant]:  That I threatened someone that I tried to kill them, which I did not do.

 

            THE COURT:  Do you understand that there are three separate charges of Second Degree Assault?

 

            [Appellant]:  Yes, there are.  Those are the written ones, but I never did them.

 

            * * * *

 

            THE COURT:  * * * Do you understand that there is a fifth count?

 

            [Appellant]:  Yes.

 

            THE COURT:  What is that count?

 

            [Appellant]:  A terrorist threat, sir.

 

            THE COURT:  No.  There is a count that you assaulted a police officer, Fourth Degree Assault.

 

            [Appellant]:  I do understand, but I did not.

 

            * * * *

 

            THE COURT:  Do you understand what the maximum penalty is for Second Degree Assault?

 

            [Appellant]:  A total that reach 35 years that was what was written down, sir.  That's what I understand.

 

            THE COURT:  Do you understand the elements of Second Degree Assault, what the State is required to prove?

 

            [Appellant]:  I don't know what they have to prove, but they have to prove that I have assaulted a person.

 

            THE COURT:  Do you know what the elements of assault are?

 

            [Appellant]:  There had to be a part of the body that is assaulted.

 

            THE COURT:  No, unfortunately that is correct [sic].

 

            [Appellant]:  That is correct.  That would have to be correct.  That's evidence.  That has to be the evidence, and

 

            THE COURT:  The court is satisfied at this point in time that [appellant] does not understand the law sufficiently to be able to represent himself in this matter.

 

            * * * [I]t is clear that you do not have a full understanding of the offenses or the elements of the offenses against you; and, as such, this Court would be highly remiss in allowing you to represent yourself without having competent legal counsel.

 

Appellant argues that in denying his request to waive counsel and represent himself, the district court used the wrong standard and determined whether he possessed the skills and knowledge of a lawyer.  Appellant argues that the district court's inquiry failed to address the constitutionally dispositive issue, which was whether he understood the significance and consequences of representing himself and could make a knowing and intelligent waiver of counsel.  Appellant is correct that a defendant's lack of ability to conduct his own legal defense does not invalidate a knowing and intelligent waiver.  Richards, 456 N.W.2d at 264-65.  But in making this argument, appellant acknowledges only a portion of the district court's explanation for its decision.

The district court stated, "[Appellant] does not understand the law sufficiently to be able to represent himself in this matter."  But the court went on to explain further to appellant,  "[I]t is clear that you do not have a full understanding of the offenses or the elements of the offenses against you."  A valid waiver requires that a defendant comprehend the nature of the charges against him. Krejci, 458 N.W.2d at 412.  The court's examination of appellant revealed that appellant did not understand the nature of the second-degree assault charges against him:  Appellant erroneously believed that he could not be convicted of second-degree assault unless he inflicted bodily harm on the victim.  See Minn. Stat. §§ 609.02, subd. 10 (2000) (defining assault), .222 (second-degree-assault elements).  Because the record supports the district court's finding that appellant did not comprehend the nature of the charges against him, its finding that appellant's waiver was not knowing and intelligent is not clearly erroneous.

Appellant also argues that, as in State v. Thornblad, the district court's limited examination is insufficient to sustain a finding that he did not make a knowing and intelligent waiver of his right to counsel.  513 N.W.2d at 263.  But the district court's inquiry here differed significantly from the inquiry in Thornblad, which the Thornblad court described as follows:

At the hearing on Thornblad's motion [to waive his right to counsel and to proceed pro se], the district court questioned [Thornblad] about his education and legal training. Thornblad said that he quit high school during the tenth grade but that he had some experience with the criminal justice system and law libraries.  The court next asked if Thornblad knew with what crime he was charged.  Thornblad answered correctly.  The court then asked Thornblad's attorney about Thornblad's competency.  The attorney said that he did not think Thornblad was competent to stand trial.  At that point, Thornblad interrupted, told his attorney to sit down, and said that a competency examination had found him competent to represent himself.

 

Id. at 262.  Here, the district court conducted a more comprehensive inquiry into whether appellant understood the charges against him.  See State v. Rubin, 409 N.W.2d 504, 506 (Minn. 1987) (stating courts should conduct a "penetrating and comprehensive examination" of defendant).  And the court's inquiry revealed that appellant did not understand the nature of the charges against him.  When this misunderstanding was revealed, it was not necessary for the court to continue the inquiry. 

Finally, appellant argues that the district court failed to comply with the requirements of Minn. R. Crim. P. 5.02, subd. 1(4), when it failed to advise him, rather than inquire of him, about the nature of the charges and the range of allowable punishments.  Minn. R. Crim. P. 5.02, subd. 1(4), states:

If a defendant appearing without counsel charged with a felony or gross misdemeanor does not request counsel and wishes to represent himself or herself, the court shall ensure that a voluntary and intelligent written waiver of the right to counsel is entered in the record. * * * Prior to accepting any waiver, the trial court shall advise the defendant of the following:  the nature of the charges, the statutory offenses included within the charges, the range of allowable punishments, that there may be defenses, that there may be mitigating circumstances, and all other facts essential to a broad understanding of the consequences of the waiver of the right to counsel, including the advantages and disadvantages of the decision to waive counsel.

 

But the district court's responsibility in determining whether a waiver is knowing and intelligent goes beyond advising a defendant.  The district court has a duty to ensure that a defendant's waiver of his right to counsel is knowing and intelligent.  Krejci, 458 N.W.2d at 412.  The comment to rule 5.02 states that

the court must ensure that the defendant makes a voluntary and intelligent waiver of counsel by conducting a penetrating and comprehensive examination of the defendant's understanding of the factors involved in this decision.  [Minn. R. Crim. P. 5.02, subd. 1(4),] sets forth a minimum list of the factors to be considered.

 

The record establishes that the district court complied with Minn. R. Crim. P. 5.02, subd. 1(4).

2.  Continuance to secure appearance of subpoenaed witness

Appellant argues that the district court abused its discretion by granting only a short continuance to secure the testimony of a subpoenaed defense witness who left the courthouse before testifying.

"The decision to grant or deny a motion for a continuance lies within the sound discretion of the trial court and will only be reversed upon * * * abuse of discretion. * * * The reviewing court must examine the circumstances before the trial court at the time the motion was made to determine whether the trial court's decision prejudiced defendant by materially affecting the outcome of the trial. "

 

State v. King, 414 N.W.2d 214, 220 (Minn. App. 1987) (second omission in original) (quoting State v. Turnipseed, 297 N.W.2d 308, 311 (Minn. 1980)) (citation omitted), review denied (Minn. Jan. 15, 1988). 

            When appellant's counsel informed the court that the witness was not present, the court asked counsel what he was requesting of the court, and counsel said only that he had a subpoena for the witness to be there.  The court responded that it did not know what additional relief counsel could get at that point in time unless counsel could claim that the witness would be available after a short continuance.  The prosecutor then stated that he would not object to a very brief continuance to see if the witness could be found in the courthouse, and the court stated:

At this point in time I will give counsel a short continuance to see if you can secure [the witness's] presence. Beyond that, obviously, the matter is scheduled to be tried today.  If he [is] under subpoena and he doesn't show, he doesn't show. 

 

I think I will continue the matter to 2:30 at this point in time.  If you need additional time and think that you may be able to secure his appearance, I would extend that, but I am not going to continue it indefinitely in the hopes that he is going to show up.

 

(Emphasis added.)  When court reconvened and the court asked if the defense had any additional witnesses, defense counsel replied, "No, Your Honor."  Counsel did not request any additional time to secure the appearance of the witness.

            Appellant argues that the short continuance the court granted was unreasonable.  Appellant contends that when the district court learned that the witness had violated the subpoena ordering him to appear at court, the court should have ordered law enforcement to go out and bring the witness into court or jail.  But at the time that the district court granted the continuance, appellant's counsel had told the court that the witness had been in the courtroom earlier but had left.  There was no reason for the court to believe that anything more than a short continuance was needed to locate a witness that had been in the courtroom.  Under these circumstances, the district court did not abuse its discretion by granting only a short continuance.

When court convened after the continuance and the court asked if the defense had any additional witnesses, defense counsel said no, without asking for any additional time to secure the witness.  Absent any request for additional time, the district court did not abuse its discretion by not extending the continuance.  Appellant argues that the conditions the court required for any longer continuance were unreasonable under the circumstances and did not offer any meaningful hope that a reasonable continuance would be granted.  But the only condition the court required was that appellant think that he may be able to secure the witness's appearance.  Apparently, appellant understands this condition to mean that he needed to be able to secure the appearance without assistance from law-enforcement personnel.  But because appellant did not request any assistance from the court to secure the appearance, we can only speculate that that is what the court meant.

Affirmed.