State of Minnesota, Respondent, vs. James Earl Chairse, Appellant.

State of Minnesota, Respondent, vs. James Earl Chairse, Appellant. A05-1235, Court of Appeals Unpublished, November 28, 2006.

This opinion will be unpublished and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

A05-1235

 

State of Minnesota,

Respondent,

 

vs.

 

James Earl Chairse,

Appellant.

 

Filed November 28, 2006

Affirmed

Randall, Judge

 

Crow Wing County District Court

File No. K3-04-1110

 

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

 

Donald F. Ryan, Crow Wing County Attorney, Rockwell J. Wells, Assistant County Attorney, 322 Laurel Street, Brainerd, MN  56401  (for respondent)

 

John M. Stuart, State Public Defender, Melissa Sheridan, Assistant Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN  55121 (for appellant)

            Considered and decided by Peterson, Presiding Judge; Randall, Judge; and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On appeal from conviction for felon in possession of a firearm, appellant argues that (a) the district court abused its discretion in denying him a continuance so he could hire a private attorney after the court had discharged the public defender at appellant's request; (b) the court abused its discretion in failing to appoint standby counsel; (c) the prosecutor committed prejudicial misconduct in closing argument by referring to the state's evidence as undisputed, thereby (appellant argues) drawing attention to appellant's failure to testify.  We affirm.

FACTS

            Appellant James Chairse was charged with two counts of ineligible person in possession of a firearm, one count of furnishing a dangerous weapon to a minor, one count of possession of a firearm with a removed serial number, one count of reckless use of a firearm, and one count of carrying a weapon without a permit.  Appellant was appointed a public defender, and an omnibus hearing was held on May 24, 2004.  At the omnibus hearing, appellant appeared with his public defender and asked the district court to modify bond or bail.  A contested omnibus hearing was requested.   

            A hearing was held on June 1, 2004, where the district court reduced appellant's bond and bail.  A few days later, a contested omnibus hearing was held where appellant advised the court that his family was in the process of hiring a new attorney.  At appellant's request, the omnibus hearing was continued until June 28, 2004.  On that date, neither appellant nor his public defender appeared; the matter was rescheduled to July 1, 2004.  The matter was eventually heard on July 12, 2004, at which time appellant informed the district court that he wanted to discharge the public defender's officer.  Appellant also asked the court to continue the case for about three months so that he could obtain the money he needed to hire a private attorney.  According to appellant, he needed the extra time because all of his money had been stolen from his bank account and the bank was in the process of replacing his stolen funds.  The district court agreed to continue the matter for six weeks, but refused to discharge the public defender until appellant was able to assure the court that he had arranged for counsel to represent him or that he was choosing to represent himself.  The district court advised appellant that representing himself "would be most unwise."

            An omnibus hearing was started on August 30, 2004.  Appellant reiterated his financial situation to the district court and requested another continuance of approximately four weeks to allow him more time to hire an attorney.  The district court reset the matter for October 4, 2004, and, at the specific request of appellant, discharged the public defender's office.

            By the end of September, appellant had retained private counsel, and, at the October 4, 2004 omnibus hearing, the parties again agreed to continue the matter.  On November 1, 2004, appellant appeared with counsel and advised the district court that he was prepared to waive his right to an omnibus hearing and enter a plea of not guilty to all counts of the complaint.  A jury trial calendar call was held on December 8, 2004, where appellant now advised the district court that "he wanted to discharge his attorney."  According to appellant, he wanted to discharge his attorney because he claimed she could not help him.  Appellant's counsel informed the court that she had thoroughly discussed the case with appellant.  The district court discussed the situation with appellant.  The court explained to appellant that if he discharged his attorney and his case came up for trial, either appellant must have hired an attorney to try the case, or else appellant would have to try the case himself.  The district court told appellant that it would not allow any more continuances simply because appellant kept discharging lawyers.  The district court then allowed appellant to discharge this attorney.

            Appellant appeared before the court without a lawyer on December 14, 2004.  When asked whether he had an attorney, appellant replied that he had made some calls, but nobody had responded.  The district court informed appellant that trial would start the next day regardless of whether appellant had an attorney.  When appellant insisted that he was trying to get an attorney and that he did not want to try the case himself, the district court reminded appellant that the judge presiding over the December 8 hearing had told appellant that the trial would go forward even if appellant had not retained legal counsel.  The district court explained the various stages of a jury trial to appellant and informed appellant that he had the option of waiving a jury and trying the case to the court.  In addition, the district court and the prosecutor discussed a possible plea agreement with appellant. 

            The next day, a possible plea agreement was again discussed on the record before the trial started.  Appellant rejected the proposed plea agreement and agreed to proceed with the trial.  After voir dire, a discussion was held on the record but outside the presence of the jury regarding appellant's objection to the court's statement that appellant had entered a plea of not guilty.  Appellant told the court that "I've been trying to get an attorney to represent me - - I'm not entering a plea.  I'm not ready to enter a plea ‘cause I do not have an attorney."  The district court responded that appellant had fired his private attorney.  The district court further stated that the court had advised him on December 8, 2004 that:

you had discharged two attorneys, that his matter was set for jury trial.  It was number 5 and was going to be tried in its proper order.  And it was up to you to have an attorney at that time or you would have to go without an attorney.  Those were [the court's] instructions.

 

            Before trial, the state dismissed three of the charges and proceeded to trial on one count of ineligible person in possession of a firearm and one count of possession of a firearm with a removed serial number.  At trial, the state presented witness testimony that appellant gave a 9mm pistol to a young person seated in the back seat of a car, and later returned to retrieve the pistol.  Another witness testified that she called 911 after she was shown the gun.  One of the arresting officers testified that appellant was apprehended nearby and that appellant had in his possession a 9mm pistol with a serial number that had been scratched off.  When the state attempted to admit the pistol into evidence, appellant objected stating "[t]hat's not the gun I had.  The gun I had was a ten-shot; that is not it."  The district court overruled appellant's objection, and the pistol was received into evidence.  A certified copy of appellant's 1991 conviction for aggravated assault was also received into evidence.  

            The jury returned guilty verdicts on both charges, and appellant was sentenced to 60 months in prison on the charge of ineligible person in possession of a firearm.  The charge of removal or alteration of a serial number was dismissed.  This appeal followed. 

D E C I S I O N

I.

            Appellant argues that, by denying his motion for a continuance, the district court deprived him of his constitutional right to the assistance of counsel and forced him to represent himself without obtaining a valid waiver of the right to counsel.  This court reviews the district court's ruling on a defendant's request for a continuance for abuse of discretion.  State v. Courtney, 696 N.W.2d 73, 81 (Minn. 2005).  "A defendant must show that he was prejudiced to justify reversal."  Id.  We find no abuse of discretion.

            A criminal defendant has the right to assistance of counsel in his defense.  U.S. Const. amend. VI; Minn. Const. art. I, § 6.  But, "[a] defendant may not obtain a continuance by discharging his counsel for purposes of delay or by arbitrarily choosing to substitute counsel at the time of trial."  State v. Fagerstrom, 286 Minn. 295, 299, 176 N.W.2d 261, 264 (1970).  "The matter of continuance to permit substitution of counsel is traditionally within the discretion of the trial judge; his decision is to be based on the facts and circumstances surrounding the request."  Id.  A motion for a continuance is properly denied when the defendant has not been diligent in procuring counsel or in preparing for trial.  See id. at 297-99, 176 N.W.2d at 263-64 (holding that the trial court properly denied the defendant's motion for continuance when the defendant expressed a desire to secure an attorney through the Bureau of Indian Affairs, but produced no evidence that he could have done so or that he was dissatisfied with his former attorney).

            Here, the record reflects that appellant was appointed a public defender, whom he subsequently discharged so that he could hire a private attorney.  After numerous continuances, appellant eventually hired a private attorney, whom he then also discharged.  Throughout this time-frame, the district court repeatedly granted appellant's requests for continuances, until the district court told appellant at the December 8 hearing that no more continuances would be allowed and that if appellant's case number was called on December 14, the case would go to trial regardless of whether appellant had a lawyer.  The record reflects that appellant was fully aware of the circumstances and still chose to discharge his attorney.  Based on the facts and circumstances of the case, the district court did not abuse its discretion by denying appellant's request for a continuance.  Appellant was accorded a full and fair opportunity to use a public defender or hire an attorney of his own choosing.  The district court went out of its way to accommodate
appellant.  Appellant finally ended up going pro se, but he cannot maintain that public or private representation was not available to him.

            The record reflects that the evidence against appellant was strong.  Two witnesses testified that appellant had a gun, and a third witness testified that she saw the gun.  Two police officers testified that appellant admitted he had a gun and that a 9mm handgun was removed from the waistband of appellant's pants.  The 9mm handgun was received into evidence, along with a certified copy of appellant's prior conviction.  Appellant's "defense" was that he had a gun but it was not the gun the state offered in evidence. 

            Appellant argues that the district court violated his right to counsel when it required him to represent himself at trial without obtaining a knowing and intelligent waiver of his right to counsel.  The right to an attorney may be waived if the waiver is competent and intelligent.  State v. Worthy, 583 N.W.2d 270, 275 (Minn. 1998).  "It is the duty of the trial court to ensure a knowing and intelligent waiver of the right to counsel."  State v. Krejci, 458 N.W.2d 407, 412 (Minn. 1990).  Minn. Stat. § 611.19 (2004) requires that "[w]here counsel is waived by a defendant, the waiver shall in all instances be made in writing, signed by the defendant, except that in such situation if the defendant refuses to sign the written waiver, then the court shall make a record evidencing such refusal of counsel."

            Here, the record does not contain a "written" waiver of counsel signed by appellant, but there is a transcript from the court hearing.  All surrounding circumstances show that appellant was aware of the consequences of proceeding pro se.  See Krejci, 458 N.W.2d at 412-13.  In Krejci, the supreme court held that the defendant's waiver was constitutionally valid even though the trial court did not make the preferred comprehensive examination of the defendant.  458 N.W.2d at 413.  The supreme court stated:

In the instant case, while the trial court . . . did not make the full, on-the-record inquiry which is normally required to ensure a valid waiver, it is clear from the surrounding circumstances . . . that the defendant was fully aware of the consequences of proceeding pro se.  In addition, the record reflects that the trial court and counsel explained to the defendant the nature of the charges, the possible punishments, and the options available to him as a defendant.  These explanations, although not given in the context of defendant's waiver of his right to counsel, provide ample evidence to support a determination that defendant made the waiver knowingly and intelligently.  Beyond that, the fact that defendant refused to proceed with the public defender when he could not retain private counsel did not make the waiver involuntary.

             . . . .

In sum, although it would have been preferable for the trial court to have made a more comprehensive examination into defendant's desire to represent himself, it is clear from the record that defendant understood the consequences of proceeding pro se. . . .  We hold that defendant validly waived his right to counsel.

Id. at 412-13 (emphasis added) (citation omitted).

 

            In State v. Savior, 480 N.W.2d 693, 694 (Minn. App. 1992), this court held that the trial court finding of a valid waiver was not clearly erroneous because "[a]ppellant was made aware that he did not have a choice of public defender, was reminded of his right to an attorney, and was clearly informed of the nature of his crime and possible punishment."  See also State v. Richards, 456 N.W.2d 260, 265 (Minn. 1990) (despite absence of extensive inquiry by trial court, defendant made informed decision to waive counsel when he understood the gravity of the charges and was aware of the possible dangers).

            The record reflects that appellant was given more than enough time to retain an attorney of his own choice, or the services of a court-appointed public defender.  When appellant informed the district court at the December 8 hearing that he wanted to discharge his private attorney, the district court told appellant that, finally, no more continuances would be allowed.  The record reflects that both the district court and counsel explained to appellant the nature of the charges, the possible punishments, and the options available to him as the defendant.  Appellant acknowledged that he understood the situation, so the district court granted appellant's request to discharge his attorney.  The circumstances of the case demonstrate that appellant waived his right to counsel.  See Krejci, 458 N.W.2d at 412.  

II.

            Appellant argues that the Minnesota Constitution requires that he be appointed standby counsel, and, therefore, the district court erred by not appointing him standby counsel for his trial.  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).

            "Minnesota has a long tradition of assuring the right to counsel."  Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828, 831 (Minn. 1991); see also Minn. Const. art. I, § 6 (providing that "[i]n all criminal prosecutions the accused shall enjoy the right . . . to have the assistance of counsel in his defense").  The purpose of the right to counsel is to protect the layperson who lacks the skill and knowledge for self-representation.  Friedman, 473 N.W.2d at 833.  In Minnesota, this right has been expanded beyond criminal prosecution to those contexts that "present[] the same dangers that gave birth initially to the right itself."  Id.  (quotation omitted).  For example, the right to counsel extends to proceedings such as police interrogations, State v. Schabert, 218 Minn. 1, 9, 15 N.W.2d 585, 589 (1944), and circumstances in which a driver has been asked to submit to a chemical test under the implied-consent law.  Friedman, 473 N.W.2d at 833.

            However, the Minnesota Constitution has not been interpreted to establish a right to advisory counsel when a defendant exercises the right to self-representation.  See State v. Clark, __ N.W.2d __, __, 2006 WL 2884169, at *5 (Minn. Oct. 12, 2006).  In Clark,
the defendant argued that Minn. Const. art. I, § 6, should be interpreted to establish the right of advisory counsel.  Id.  In rejecting this argument, the supreme court provided that:

            We have stated that "[i]t is our responsibility as Minnesota's highest courts to independently safeguard for the people of Minnesota the protections embodied in our constitution.  However, "in independently safeguarding these protections ‘we will [not] cavalierly construe our constitution more expansively than the United States Supreme Court has construed the federal constitution.'"  This court will not lightly reject a Supreme Court interpretation of identical or substantially similar language.  Here, the language of the Minnesota Constitution is substantially similar to that of the United States Constitution, and we see no reason to construe the Minnesota Constitution more broadly than the United States Constitution.  We therefore decline to read the Minnesota Constitution as guaranteeing advisory counsel for pro se defendants.

 

Id. (quotations and citations omitted).  

            It is true that court-appointed standby counsel is sometimes used and in certain jurisdictions even encouraged).  This does not change the fact that appellant has no constitutional right under either the United States or the Minnesota Constitution to the appointment of standby counsel.  See id. 

            Appellant argues that even if not constitutionally required, the district court committed reversible error by not exercising its discretion to decide whether to appoint standby or advisory counsel.  We disagree.  Appellant did not even request standby or advisory counsel.  The district court had no obligation to ex parte appoint standby or advisory counsel to appellant. See Minn. R. Crim. P. 5.02, subd. 2 (stating "[t]he court
may appoint ‘advisory counsel' to assist the accused who voluntarily and intelligently waives the right to counsel" (emphasis added)).

III.

            This court will reverse a conviction due to prosecutorial misconduct at trial if the misconduct, "when considered in light of the whole trial, impaired the defendant's right to a fair trial."  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).  Except in cases involving unusually serious misconduct, reversal is only required when the misconduct substantially influenced the verdict.  State v. Steward, 645 N.W.2d 115, 121 (Minn. 2002).  Appellate courts look "at the closing argument as a whole, rather than just selective phrases or remarks that may be taken out of context or given undue prominence."  State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).

            Appellant argues that the prosecutor committed misconduct during his closing argument by referring to the state's case as undisputed.  Specifically, the prosecutor stated in closing arguments that "there's no dispute that [appellant] gave this firearm to a person that was seated within that vehicle."  Shortly thereafter, the prosecutor added that:

            The State submits that there really is no doubt whatsoever that [appellant] possessed a firearm on April 23rd of this year over at the Holiday Station here in Brainerd, Crow Wing County.  There's also no question that firearm had an altered or removed or obliterated serial number, no question really at all.

 

            The Minnesota Supreme Court has cautioned against characterizing the state's evidence as undisputed because such characterization could erroneously suggest to the jury that the defendant has an obligation to testify or call witnesses.  State v. Schneider, 311 Minn. 566, 567, 249 N.W.2d 720, 722 (1977); State v. Jensen, 308 Minn. 377, 379, 242 N.W.2d 109, 110-11 (1976).  Repeatedly referring to evidence as undisputed can constitute misconduct, particularly when the defendant does not testify at trial.  See State v. Streeter, 377 N.W.2d 498, 501-03 (Minn. App. 1985) (holding that the prosecutor's closing argument deprived the defendant of a fair trial when the state characterized the evidence as "undisputed" or "uncontradicted" at least eight times, focusing on defendant's failure to testify).  But a single reference, although unwise, is not likely misconduct because it does not suggest that the defendant had any obligation to call witnesses.  State v. DeVere, 261 N.W.2d 604, 606 (Minn. 1977).

            Here, appellant appeared pro se and did not testify at trial.  Appellant failed to object to the prosecutor's comments during trial.  Generally, a party waives any challenge to the alleged misconduct on appeal by failing to object or seek a cautionary instruction.  State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984).  In that situation, appellate courts use the plain error doctrine when examining unobjected-to prosecutorial misconduct.  State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006).  Under the approach recently adopted in Ramey, the defendant has the burden of showing that there was error that was plain, and
the state then has burden of showing that the error did not affect the defendant's substantial rights.  Id. at 302. 

            Appellant has established plain-error based on the prosecutor's misconduct.  But the state has met its burden of showing that the error did not affect substantial rights.  The state's case against appellant was strong.  Appellant admitted that he possessed a gun, but claims it was not the gun the state offered in evidence.  The charge did not involve a unique caliber within its definition.  It merely required a gun.  Since appellant agreed he possessed one, even if he is right that the state produced another weapon, it is difficult to find the true prejudice, the substantial prejudice needed to warrant reversal. 

IV.

            Appellant makes a number of assertions in his pro se brief, primarily challenging the evidence against him and the credibility of the witnesses.  We are not persuaded.  The jury is the exclusive judge of witness credibility and determines the weight of the evidence, and this court assumes that the jury believed the evidence supporting the state's case and disbelieved contrary evidence.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  Other issues raised by appellant lack merit because they are unsupported by the record. 

            Affirmed.