State of Minnesota, Respondent, vs. James Lee King, Appellant.

State of Minnesota, Respondent, vs. James Lee King, Appellant. A05-35, Court of Appeals Unpublished, April 18, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-35

 

State of Minnesota,

Respondent,

 

vs.

 

James Lee King,

Appellant.

 

Filed April 18, 2006

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. 04001602

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Minge, Judge; and Collins, Judge.*

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant James Lee King challenges his conviction of first-degree aggravated robbery arguing that the evidence was insufficient to support his conviction.  In addition, in his pro se brief, appellant contends that the district court committed reversible error by (1) refraining from appointing advisory counsel during certain pretrial matters; (2) ordering advisory counsel to sit in the back of the courtroom; and (3) denying appellant's request to consult with advisory counsel during trial.  We affirm.

D E C I S I O N

 

I.

 

            Appellant argues that the evidence was not legally sufficient to support his conviction of first-degree robbery, which required a finding that he used force, because he used force to escape rather than to take property and complete the robbery.  We disagree. 

            In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We must assume that the jury believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

            A defendant is guilty of simple robbery if he,

having knowledge of not being entitled thereto, takes personal property from the person or in the presence of another and uses or threatens the imminent use of force against any person to overcome the person's resistance or powers of resistance to, or to compel acquiescence in, the taking or carrying away of the property . . . .

 

Minn. Stat. § 609.24 (2002) (emphasis added).  The robbery crime is elevated to aggravated first-degree robbery if the defendant, "while committing a robbery, is armed with a dangerous weapon . . . or inflicts bodily harm upon another."  Minn. Stat. § 609.245, subd. 1 (2002).

            Although "one must do more than merely use force to escape with stolen property to commit a robbery," the plain language of the aggravated robbery statute does not require that the use of force precede or accompany the taking.  State v. Kvale, 302 N.W.2d 650, 652-53 (Minn. 1981); see also Minn. Stat. §§ 609.24, 609.245, subd. 1.  Instead, the statute only requires that the use of force or threats precede or accompany either the taking or carrying away of the property and that the defendant uses force to overcome the victim's resistance or compel her acquiescence in the carrying away of property.  Minn. Stat. § 609.24; Kvale, 302 N.W.2d at 653.  Thus, this court has concluded that the evidence is sufficient to sustain a robbery conviction when the victim immediately chases the defendant to stop him from carrying away the property, and the defendant then uses force against the victim.   See, e.g., State v. Brown, 597 N.W.2d 299, 304 (Minn. App. 1999), review denied (Minn. Sept. 14, 1999); State v. Burrell, 506 N.W.2d 34, 36 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993).

            Here, appellant found the victim in the basement of a restaurant counting money and took the money from her.  Appellant ran toward the exit of the building, and the victim immediately chased after him.  When the victim grabbed appellant to prevent his escape, appellant hit her.  Only 35 to 40 seconds elapsed from the time that appellant took the money until the time that appellant hit the victim while still in the building.  See Burrell, 506 N.W.2d at 36 (upholding conviction where defendant used force after taking the property and the entire confrontation took less than one minute).  Thus, on these facts, a jury could reasonably conclude that appellant's use of force accompanied the carrying away of the money and was intended to overcome the victim's continued resistance to the robbery.  We therefore conclude that the evidence is sufficient to sustain the conviction of first-degree aggravated robbery.

II.

 

            In his pro se brief appellant argues that the district court violated his right to counsel because (1) the court did not appoint advisory counsel for certain pretrial matters; (2) advisory counsel sat in the back of the courtroom during trial; and (3) the court denied appellant's request to consult with advisory counsel.

            This court reviews issues of constitutional interpretation de novo.  Star Tribune Co. v. Univ. of Minn. Bd. of Regents, 683 N.W.2d 274, 283 (Minn. 2004).  A criminal defendant has a constitutional right to assistance of counsel in his defense.  U.S. Const. amend. VI; Minn. Const. art. I, § 6.  But a defendant may waive his right to counsel if his waiver is knowing, voluntary, and intelligent.  State v. Worthy, 583 N.W.2d 270, 276 (Minn. 1998); see also Minn. R. Crim. P. 5.02, subd. 1(4) (stating requirements for waiving right to counsel).  When a defendant voluntarily and intelligently waives his right to counsel, "[t]he court may appoint advisory counsel."  Minn. R. Crim. P. 5.02, subd. 2 (quotation marks omitted).

            1.         Pretrial matters

            Appellant first argues that the district court violated his constitutional right to assistance of counsel when it did not appoint advisory counsel for pretrial proceedings.  But courts have not interpreted either the United States or Minnesota Constitutions to establish a right to advisory counsel when a defendant exercises the right to self-representation.  State v. Clark, 698 N.W.2d 173, 179-80 (Minn. App. 2005), review granted (Minn. Sept. 20, 2005); see also United States v. Einfeldt, 138 F.3d 373, 378 (8th Cir. 1998) (noting that the United States Constitution does not provide for a right to advisory counsel).  Furthermore, the Minnesota Rules of Criminal Procedure provide that courts have discretion to appoint advisory counsel to defendants who have waived their right to counsel.  See Minn. R. Crim. P. 5.02, subd. 2 ("The court may appoint ‘advisory counsel' to assist the accused who voluntarily and intelligently waives the right to counsel.").

            Here, appellant asked the district court to discharge his public defender on March 31, 2004, so that appellant could proceed pro se.  The district court asked appellant several questions to ensure that appellant's waiver was voluntary and intelligent.  The court emphasized that appellant would be at a serious disadvantage if he represented himself and that the court was not able to appoint advisory counsel at that time.  Appellant indicated that he understood and that he still intended to proceed pro se.  The court then granted appellant's request.  When the district court later offered to appoint advisory counsel, appellant declined the court's offer.

            Because appellant knowingly, voluntarily, and intelligently waived his right to counsel and then declined advisory counsel, we conclude that the district court did not violate appellant's right to counsel by failing to appoint advisory counsel for pretrial matters.

            2.         Seating arrangement

            Next, appellant contends that the district court violated his constitutional right to assistance of counsel by ordering advisory counsel to sit in the back of the courtroom.  But appellant did not object to the seating arrangement until after the trial and therefore has waived this issue.  See State v. Coleman, 373 N.W.2d 777, 783 (Minn. 1985) (stating that a defendant waives the right to have issues considered on appeal if he fails to object).  Moreover, this court has stated that "the preferred practice is to have [advisory] counsel in the back of the courtroom."  State v. Parson, 457 N.W.2d 261, 263 (Minn. App. 1990) (quotation omitted), review denied (Minn. July 31, 1990).  Thus, we conclude that the district court did not violate appellant's right to counsel by having advisory counsel sit in the back of the courtroom.

            3.         Right to consult with advisory counsel

            Finally, appellant argues that the district court violated his constitutional right to assistance of counsel by denying appellant's request to consult with advisory counsel during trial.  We disagree.

            Under Minn. R. Crim. P. 5.02, subd. 2(1), "[t]he court shall . . . advise the defendant and [advisory] counsel . . . that the defendant retains the right to decide when and how the defendant chooses to make use of advisory counsel . . . ."  But the Minnesota Supreme Court has also concluded that a defendant does not have an unlimited right to consult with advisory counsel.  See State v. Richards, 495 N.W.2d 187, 196 (Minn. 1992) (concluding that the district court did not unreasonably restrict the defendant's right to consultation when the court did not allow the defendant to consult with advisory counsel at length after every question).  And even when the district court unreasonably restricts a defendant's right to consult with counsel, we will not reverse unless the error prejudiced the defendant.  Parson, 457 N.W.2d at 264 (ruling that harmless error relating to standby counsel does not require reversal).

            Here, appellant requested advice from advisory counsel during cross-examination of a witness.  The judge responded, "Not right now.  During a recess, if you want."  The judge then gave appellant an opportunity to speak with advisory counsel during the recess before excusing the witness.  Appellant declined the court's offer.  Because the court reasonably honored appellant's request to speak with counsel, and appellant then declined to speak with counsel, we conclude that any restriction on appellant's access to advisory counsel was not error and did not prejudice appellant.

            Affirmed.

*  Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.