State of Minnesota, Respondent, vs. Quinton Lamont Lavell Perry, Appellant.

State of Minnesota, Respondent, vs. Quinton Lamont Lavell Perry, Appellant. A05-1252, Court of Appeals Unpublished, August 8, 2006.

This opinion will be unpublished and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

A05-1252

 

State of Minnesota,

Respondent,

 

vs.

 

Quinton Lamont Lavell Perry,

Appellant.

 

Filed ­­­August 8, 2006

Affirmed

Dietzen, Judge

 

Goodhue County District Court

File No. K9-04-1053

 

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

 

Stephen N. Betcher, Goodhue County Attorney, Christopher J. Schrader, Assistant County Attorney, Goodhue County Justice Center, 454 West Sixth Street, Red Wing, MN 55066-2475 (for respondent)

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Dietzen, Presiding Judge; Klaphake, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges his convictions of first-degree aggravated robbery, simple robbery, two counts of second-degree assault with a dangerous weapon, two counts of terroristic threats, and knowingly possessing a firearm during the robbery, arguing that he was deprived of his constitutional right to legal counsel.  Because appellant's waiver of his constitutional right to counsel was knowingly and intelligently made, we affirm.

FACTS

 

            In July 2004, a gas station in Red Wing was the subject of an armed robbery, during which the perpetrator displayed a gun, took money from the cash register drawer, and ran.  A customer at the gas pump who observed the perpetrator run from the store pursued the perpetrator in his car.  But when the perpetrator fired a shot at his car, the customer terminated the chase.  Subsequently, police responded to a call that a black male, who was described as wearing a white tee-shirt, barefoot and sweaty, had entered a nearby apartment building.  As a result, the police detained three men leaving the building, including appellant Quinton Lamont Lavell Perry. 

When appellant was searched, several items were found in his possession, including $230 in cash and a cigar.  One of the other two individuals was holding a garbage bag, which contained a pair of dirty, bloody socks that matched the injuries on appellant's feet.  During a later search of the apartment, police found a white tee-shirt and a pair of jeans with a "Fat Albert" character patch.  Surveillance tapes of the store indicated that the perpetrator had been wearing jeans with a design on the left pant leg and had asked to buy a cigar.  Also discovered was a large-caliber revolver from which one round had been fired.

            Following the omnibus hearing, the district court granted appellant's motion to suppress his confession.  The public defender continued to represent appellant through jury selection, opening statements, and the testimony of 16 witnesses.  On the third day of trial, appellant stated to the court that he was dissatisfied with his public defender and complained that he would not "do some things," including calling certain witnesses to testify.  The court responded that it could not interfere with trial strategy or participate in the defense of the case.  Appellant then asked if he could have the public defender removed and stated that he would represent himself if necessary.  The court stated that appellant had the constitutional right to represent himself and that the court "can't deny [him] that right."  The court indicated that it would not appoint a substitute public defender and that appellant may want to discuss the matter with his public defender.  Appellant replied, "That's fine."  Following a short recess, the court asked appellant, "[I]s your decision at this point in time to discharge [the public defender] as your lawyer?"  Appellant replied, "It is, Your Honor." 

Appellant signed a written waiver that stated:

I [] understand that the matter(s) with which I am charged are serious and that it is usually advisable for a person charged with such an offense(s) to be represented by an attorney or at least consult with an attorney.

 

Despite the foregoing, I freely and voluntarily elect to represent myself in this matter.  I understand that at any time during the proceedings I may decide to hire an attorney or apply for a Public Defender.

 

The district court also advised appellant of his right to subpoena witnesses, ask questions of witnesses, and obtain evidence from the prosecutor.  The court told appellant that if at any point he was confused about the trial process, he should notify the court so that it could be discussed outside the presence of the jury.

            When the trial resumed, the court informed the jury that appellant would be representing himself for the remainder of the proceedings.  The state then called an investigator to testify, and appellant cross-examined that witness at some length.  Appellant called no witnesses on his behalf.

Following a jury verdict finding appellant guilty of all charges, appellant filed a motion for a new trial, which was denied.   This appeal follows.

D E C I S I O N

 

On appeal, appellant contends that he was deprived of his constitutional right to legal counsel.  A district court's finding that a defendant has validly waived his right to counsel will be reversed only if it is clearly erroneous.  State v. Worthy, 583 N.W.2d 270, 276 (Minn. 1998). 

The federal and state constitutions guarantee a criminal defendant the right to legal counsel.  U.S. Const. amend. VI; Minn. Const. art. I, § 6.  Reciprocally, a criminal defendant has the right to self-representation in a state criminal proceeding.  State v. Christian, 657 N.W.2d 186, 190 (Minn. 2003).  But the right to self-representation is unqualified only until trial begins.  Id. at 191; see also United States v. Wesley, 798 F.2d 1155, 1155 (8th Cir. 1986) ("It is fundamental . . . that the right to self-representation is unqualified only if demanded before trial.").  Upon the commencement of voir dire, the district court has discretion to balance the defendant's right of self-representation against the potential for disruption and delay.  Christian, 657 N.W.2d at 193.

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. 

 

Minn. R. Crim. P. 5.02, subd. 1(4).  Essentially, appellant makes two arguments in support of his contention that he was deprived of his right to legal counsel.

Waiver of Right to Counsel

Appellant argues that his waiver was not made knowingly, intelligently, and voluntarily.  A defendant may waive the right to counsel if the waiver is "knowing, voluntary, and intelligent."  Worthy, 583 N.W.2d at 276.  Notwithstanding Minn. R. Crim. P.  5.02, subd. 1(4), a district court's failure to follow "a particular procedure" does not automatically render a waiver invalid.  In re Welfare of G.L.H., 614 N.W.2d 718, 723 (Minn. 2000).  The surrounding circumstances may indicate an intelligent waiver of the right to counsel even without detailed on-the-record court inquiry.  Worthy, 583 N.W.2d at 276.  "A defendant's refusal, without good cause, to allow appointed counsel to continue representation may by itself be sufficient to find a valid waiver."  Id. at 277.

Here, the district court comprehensively examined appellant, cautioned appellant of the dangers of proceeding pro se, and then ordered a recess to allow appellant to consult with his public defender about the consequences of the waiver.  Minnesota law presumes that a represented criminal defendant has been advised of the consequences of his decision to waive counsel.  See id. at 276 (reversing the determination that waiver was invalid where the defendant was in fact given counsel and then "fired" counsel).  After the court-ordered recess, appellant stated his decision to waive his right to counsel on the record and signed a written waiver.  Because appellant had the benefit of counsel to discuss the implications of the decision, and the court duly warned appellant of the consequences of his decision, we conclude that appellant's waiver was knowing and intelligent.

Appellant further argues that had the court explored the issue further, it may have concluded that another public defender should have been appointed.  But the district court did consider this issue and informed appellant that no substitute counsel would be available if he chose to dismiss his public defender.  See State v. Camacho, 561 N.W.2d 160, 173 (Minn. 1997) (concluding that defendant's request for another attorney before choosing self-representation will not preclude a valid waiver, particularly when the defendant "is aware that he has no right to a different attorney and must proceed pro se upon rejection of the appointed attorney's assistance").  And there is no absolute requirement that the district court appoint substitute counsel once a trial has commenced.  See Christian, 657 N.W.2d at 193 (the district court has the discretion to balance the defendant's right of self-representation against the potential for disruption and delay once the trial has commenced).  Here, appellant's request came on the third day of jury trial after 16 witnesses had testified.  We observe that appointment of substitute counsel would have disrupted and delayed the jury trial while substitute counsel was informed of what had occurred during the trial; and the substitute representation may have been ill-informed as a result of appellant's late request.

Appellant also argues that allowing a "confused, uneducated defendant to begin representing himself in the middle of a jury trial would not produce fair results."  Essentially, appellant argues that he was not competent to waive his right to legal counsel.  A defendant is competent to stand trial if the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and "has a rational as well as factual understanding of the proceedings against him."  Camacho, 561 N.W.2d at 171 (quotations omitted).  "It is not necessary that defendant possess the skills and knowledge of a lawyer to waive the right to counsel and proceed pro se; these attributes are irrelevant to a determination of a knowing and intelligent waiver."  State v. Richards, 456 N.W.2d 260, 264 (Minn. 1990); see also State v. Bauer, 310 Minn. 103, 123 n.13, 245 N.W.2d 848, 859 n.13 (1976) (noting that, in terms of a valid waiver of the right to counsel, "[c]ompetence . . . does not refer to legal ability but rather the mental ability to make the waiver").

But appellant's competency to waive legal counsel was not in question at trial.  See Camacho, 561 N.W.2d at 171 n.3 (noting that "a competency determination is necessary only when a court has reason to doubt the defendant's competence").  And the court advised appellant that he could approach the bench at any time if he was confused.  On this record, the district court responded fairly and cautiously to appellant's request and did not abuse its discretion.

State Constitution Waiver Requirements

Finally, appellant argues that the Minnesota Constitution affords a "more expansive right to counsel" than the right set forth in the Sixth Amendment to the Constitution and requires a more "thorough colloquy" with the defendant before the right to counsel may be waived.  Respondent argues that the right to self-representation is guaranteed by the U.S. Constitution and that Minnesota appellate courts lack the authority to create a presumption that a criminal defendant may not waive the right to legal counsel. 

Appellant suggests that we make the waiver requirements more stringent.  Currently, Minnesota law provides that a defendant may waive his right to counsel if that waiver is "knowing, voluntary, and intelligent."  Worthy, 583 N.W.2d at 276.  "The function of the court of appeals is limited to identifying errors and then correcting them."  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  It is not the province of this court to "make . . . a dramatic change in the interpretation of the Minnesota Constitution" when the supreme court has not done so.  Minn. State Patrol Troopers Ass'n ex rel. Pince v. State Dep't of Pub. Safety, 437 N.W.2d 670, 676 (Minn. App. 1989) (quotation omitted), review denied (Minn. May 24, 1989).  Therefore, we decline appellant's invitation.

Affirmed.