State of Minnesota, Respondent, vs. Michael (NMN) Newell, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-00-460

 

State of Minnesota,
Respondent,
 
vs.
 
Michael (NMN) Newell,
Appellant.

 

Filed

Affirmed

Mulally, Judge*

 

Hennepin County District Court

File No. 99031975

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and

 

Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Mulally, Judge.

U N P U B L I S H E D   O P I N I O N

MULALLY, Judge

Appellant Michael Newell appeals his conviction for second-degree assault on the ground that he did not knowingly, intelligently, and voluntarily waive his right to appointed counsel.  In addition, appellant claims that he was denied his right to a fair trial because the trial court erred when it:  (1) did not allow him to cross-examine witnesses against him; (2) overruled his objection regarding the prosecution's improper closing statement; and (3) refused to return the jury to the courtroom when they had questions during deliberations.  We affirm.

FACTS

            Lucanchine "Rick" Box was dating two women:  Donna Modissett, with whom he had a thirteen-year relationship; and Salina Newell, whom he had seen for three or four years.  Salina is also appellant Michael Newell's daughter.  On March 31, 1999, Box tried calling Salina several times but she did not answer his calls.  He went over to her home, but when he realized she was not there, he went to a bar to play pool.  At the bar he saw Salina and her mother having a drink.  Box confronted Salina about not returning his calls and slapped her.  The police were called to the bar, but when Box denied slapping Salina, they sent him home.

At approximately 6:00 a.m. on March 31, 1999, someone knocked on the door of Box's home.  When Box went to the door, he looked through the blinds and saw Michael Newell holding a shotgun.  The victim started to run away from the door, but Newell shot through he door, hitting the victim in the lower back.  Modissett called 911.

            Box identified Michael Newell as the shooter.  In addition, he described seeing a white Cadillac with a red top parked across the street.  Lawrence Flowers, a neighbor, testified that prior to the incident he had seen a white Cadillac with a red top parked in the area around 6:00 a.m.  He saw a man leave the car, open his trunk, and walk toward Box's home carrying something. When Flowers noticed the police cars by the house, he called 911 and reported what he had seen.  He testified that he had seen a car matching the description of Newell's car in the neighborhood after the shooting. 

            On April 7, 1999, Newell was charged with second-degree assault.  Initially, Newell retained private counsel.  But on May 17, 1999, in an appearance before Judge Lindberg, he asked to proceed pro se because he was unable to afford his private attorney; he declined representation by a public defender.  The district court granted Newell's request but named a public defender as stand-by counsel. 

On May 25, 1999, Newell appeared before Judge Hartigan and asked to be represented by a public defender.  The district court appointed Richard Trachy.  But on July 15, 1999, Newell asked the district court to remove Trachy as his attorney because he was not "representing" him.  Specifically, Newell complained that Trachy had not discussed strategy or defenses with him.  In addition, he claimed that Trachy did not believe in his innocence because he suggested that Newell plead guilty to second-degree assault.  Newell asked for a new attorney and, in the alternative, to proceed pro se.  Judge Levy, presiding on that date, told Newell that Trachy was a competent attorney and that she could not appoint a new attorney.  Judge Levy also discussed the consequences of proceeding pro se, but because Newell refused to proceed with Trachy as his attorney, she named Trachy as stand-by counsel.

In a September 27, 1999 appearance, both Trachy and the prosecuting attorney raised concerns regarding whether Newell was competent to proceed pro se.  Judge McKinsey questioned Newell, who stated that while he did not want to proceed pro se, he did not want Trachy representing him.   When Judge McKinsey told Newell that she could not appoint a new attorney, he insisted on proceeding pro se.  Judge McKinsey once again explained to Newell what would be expected of him if he were to proceed pro se, but Newell insisted on representing himself rather than accept Trachy as his public defender.  The district court ordered a Rule 20 competency evaluation.

The trial was continued until October 5, 1999, at which point Judge Albrecht declared Newell competent to proceed.  Judge Albrecht once again questioned Newell regarding whether he wanted to proceed pro se.  Newell once again said that he wanted a new attorney because Trachy had not represented him when he was his attorney.  Judge Albrecht questioned Trachy about his interactions with Newell and again apprised Newell of the consequences of proceeding pro se and explained his potential sentence.  The district court concluded that it could not appoint a new attorney and explained that Trachy's inability to devote more time to Newell's case did not make him incompetent. 

The trial was continued to November 10, 1990 before Judge Connolly.  Before proceeding with the trial, Judge Connolly asked Newell whether he wished to be represented by an attorney and Newell once again said he wanted a new attorney and would represent himself if he could not get one.  Judge Connolly explained that he could not appoint a new public defender and that given his situation, he would be better off represented by an attorney. He offered to grant Trachy a continuance of four weeks to properly prepare for the case if Newell accepted Trachy as counsel.  Newell declined.

The trial was continued to November 15, 1999 and concluded on November 19.  On November 22, 1999, the jury returned a verdict of guilty of second-degree assault.  On December 17, 1999, Newell was sentenced to 36 months in prison.  This appeal followed. 

D E C I S I O N

I.

            Under the Sixth and Fourteenth Amendments to the United States Constitution, criminal defendants are guaranteed the right to an attorney.  State v. Worthy, 583 N.W.2d 270, 275 (Minn. 1998).  If the accused chooses to waive the right to counsel, it is the responsibility of the trial court to determine whether the waiver is "competent and intelligent."  Id.  "Whether a waiver of a constitutional right is valid depends upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of accused."  Id. at 275-76 (quotation and citation omitted). 

The purpose of the district court inquiry is to ensure that the accused is "aware of the dangers and disadvantages of self-representation * * * so that the record will establish that he knows what he is doing and his choice is made with eyes open."  Faretta v. California, 422 U.S. 806, 836, 95 S. Ct. 2525, 2541 (1975) (quotation and citation omitted).  An appellate court "will only overturn a trial court's finding of a valid waiver of a defendant's right to counsel if that finding is clearly erroneous."  Worthy, 583 N.W.2d at 276 (citation omitted).

While an accused who has resources may choose his or her own counsel to assist in the defense, an indigent accused who cannot afford to do so is also entitled to assistance and will be appointed counsel to aid in the defense.  Id. at 278.  But an indigent defendant does not have the unbridled right to be represented by an attorney of his or her choice.  Id.

            The district court concluded that Newell knowingly, intelligently and voluntarily waived his right to an attorney.  We agree.  In determining whether waiver is knowing, intelligent, and voluntary, the district court

should comprehensively examine the defendant regarding the defendant's comprehension of the charges, the possible punishments, mitigating circumstances, and any other facts relevant to the defendant's understanding of the consequences of the waiver.

 

State v. Camacho, 561 N.W.2d 160, 173 (Minn. 1997).  Here, Newell was questioned by Judges Levy, McKinsey, Albrecht and Connolly about his decision to proceed pro se.  Judge Levy explained to Newell that he would be expected to act like an attorney, to be familiar with the rules, and to conduct the trial as if he were an attorney.  She reminded him that it is very difficult to represent oneself without knowledge of the law.  She also told him that there was still sufficient time for his court-appointed attorney, Richard Trachy, to prepare for trial.  She even suggested placing Newell in the Minneapolis jail so that it could be easier for Trachy to keep in contact with him.  Judge Levy asked Newell several times if he was sure that he wanted to represent himself and he answered affirmatively.

Judge McKinsey also explained to Newell that proceeding pro se meant he would have to be familiar with all the rules of the court.  Believing that he did not understand the consequences of representing himself, she ordered a Rule 20 evaluation.  While Judge McKinsey stated that she was not interested in his conversation with Trachy, she also stated that she believed Trachy was a competent attorney.

Like Judges Levy and McKinsey, Judge Albrecht cautioned Newell about his responsibilities were he to proceed pro se.  Judge Levy also explained to Newell that if he represented himself at trial, he could potentially be charged with attempted murder and could face up to fifteen years in jail.  He also questioned Trachy about his interactions with Newell. 

When Newell asked Judge Albrecht if he could have an attorney appointed other than Trachy, Judge Albrecht denied the request.  Judge Albrecht explained to Newell that the fact that Trachy could not spend a lot of time with him did not make him an incompetent attorney, but instead, was indicative of a problem in an overly burdened and under-funded public defender office. 

Finally, Judge Connolly gave Newell one last opportunity to allow Trachy to represent him.  He even offered to grant a continuance of four weeks to allow Trachy to prepare for trial.  Newell refused.  While the trial was initially set for mid-September, the court continued the case several times in order to make sure Newell was competent to waive his right to an attorney and to give him time to reconsider. 

In light of (1) the district court's effort to provide Newell with information regarding the consequences of proceeding pro se, and (2) Newell's insistence to proceed pro se if not given a new attorney, we hold that the district court did not err in concluding that Newell had knowingly, intelligently, and voluntarily waived his right to counsel.  See State v. Krejci, 458 N.W.2d 407, 412-13 (Minn. 1990) (concluding that the waiver was valid in absence of full inquiry, where surrounding circumstances--including defendant's interaction with 12 different judges, his conversations with two public defenders, and his refusal to accept representation from public defender's office€‘€‘supported finding that defendant was fully aware of consequences of proceeding pro se).

While Newell claims that the judges incorrectly stated that they could not appoint a new attorney, we cannot conclude that this was an incorrect statement of law.  Because the judges concluded that there were no exceptional circumstances, they could not appoint a new public defender.  See Worthy, 583 N.W.2d at 278 (quotation omitted) (stating that "[a] court will grant an indigent's request for different counsel only if exceptional circumstances exist and the demand is timely and reasonably made").  Therefore, the district court did not err in telling Newell that it could not appoint a new attorney.

II.

            Appellate courts largely defer to the trial court's evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). 

            The scope of cross-examination is left largely to the trial court's discretion and will not be reversed absent a clear abuse of discretion.  State v. Parker, 585 N.W.2d 398, 406 (Minn. 1998). 

            A district court's ruling on the impeachment of a witness by prior conviction is reviewed, as are other evidentiary rulings, under a clear abuse of discretion standard.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).  Whether the probative value of the prior convictions outweighs their prejudicial effect is a matter within the discretion of the trial court.  State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985).  The district court's decision will not be reversed absent a clear abuse of discretion.  Id. at 209. 

            Newell claims that he was deprived of his constitutional right to due process and a fair trial because the district court (1) did not allow him to cross-examine witnesses against him; (2) overruled his objection regarding the prosecution's improper closing statement; and (3) refused to return the jury to the courtroom when they had questions during deliberations.

A.         Cross-examination of witnesses

            The scope of cross-examination is left largely to the district court's discretion and will not be reversed absent a clear abuse of discretion.  State v. Parker, 585 N.W.2d 398, 406 (Minn. 1998).  Newell claims that he was denied the right to cross-examine an adverse witness because he was not allowed to question Flowers about his refusal to comply with a subpoena to testify at trial.  When the district court asked Newell why this fact was relevant Newell could not provide a reason.  The district court concluded that whether Flowers refused to appear at trial was not relevant to what he was going to testify to at trial.  Because the district court has broad discretion in admitting evidence in the context of cross-examinations, and Newell failed to articulate a reason why the evidence was relevant to his case, we conclude the district court did not abuse its discretion in excluding the evidence.

            Newell also claims that his right to cross-examine adverse witnesses was violated when the district court allowed him to question the victim about a prior felony, but did not allow him to refer to the conviction as a "felony."  Specifically, the district court told Newell that he could ask the victim "if either of the crimes were punishable by imprisonment in excess of a year."  The district court reasoned that because Minn. R. Evid. 609 only refers to crimes punishable by imprisonment in excess of one year, and does not mention the word "felony," Newell could not refer to the victim's two prior convictions for fifth-degree possession of a controlled substance.  Minnesota case law does not address this particular issue.  But Newell argues that in Campbell v. Greer, a 7th Circuit federal case, the federal court stated that "defining [the crime] as a crime punishable by * * * imprisonment for more than one year * * * would add little to [the jury's] understanding."  Campbell v. Greer, 831 F.2d 700, 707 (7th Cir. 1987).  The Campbell court explained that a prior conviction could be described as a "felony" and as a "rape."  Id.  But in light of the fact that Minnesota law does not prohibit the district court's decision, and Newell has been unable to show that he was prejudiced by the trial court's ruling, we cannot conclude that the district court abused its broad discretion in this instruction.

            Finally, Newell argues that the district court erred in preventing him from introducing previous acts of violence between Box and Newell's daughter.  Newell argues that the evidence was relevant because (1) the relationship could have made Box biased and affected his credibility; and (2) because it refutes the state's argument that Newell shot Box because he slapped his daughter the previous night.

            Relying on Minn. R. Evid. 404(b), the district court excluded the evidence.  The district court has great discretion in evidentiary matters.  Kelly, 435 N.W.2d at 813.  Here, the court was clearly not satisfied with the reasons for which the evidence was being offered.  In light of the deference granted to the district court in deciding whether to exclude evidence, we cannot conclude that it erred.  Moreover, Newell has not demonstrated that the exclusion of the evidence resulted in actual prejudice.  See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (appealing party must demonstrate that the error resulted in actual prejudice in order for the appellate court to reverse).  The record contains no evidence that the outcome of the trial would have been different had the district court allowed Newell to introduce the previous acts of violence between the victim and Newell's daughter.  Therefore, we refuse to conclude that the district court erred.

B.         Improper Closing Statement

Next, Newell argues that the district court erred in allowed the prosecutor to speculate about what would have happened had the victim been shot somewhere else on his body.  Specifically, the prosecutor stated:

Dr. Beal told you that the shotgun blast in his back missed his spine, missed his vital organs by just inches.  A few inches either way and Rick Box could have been dead or paralyzed.  * * *  Now, while Rick Box is lucky to be alive and is lucky not to be paralyzed, he did, as you know, suffer significant damage to his body.

 

"While the state's argument need not be ‘colorless,' it must be based on the evidence produced at trial, or the reasonable inferences from that evidence."  State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995) (citation omitted).  Statements by the prosecutor in closing argument which are unsupported by the record are improper.  State v. Kirvelay, 248 N.W.2d 310, 311 (Minn. 1976).  Here, there was testimony by the doctor that the bullet missed the victim's spine and vital organs by inches.  A reasonable inference can be made from this testimony that the victim was lucky that he was not dead or paralyzed.  In addition, the possibility of death or paralysis is supported by the doctor's testimony that the bullet missed the spine and vital organs by just inches.  Accordingly, we cannot conclude that the statement was improper.

C.        Refusal to Return Jury to Courtroom      

During deliberations, the jury requested to see Flowers's testimony and asked if Flowers was shown a picture of the car.  The district court denied both requests.  Minn. R. Crim. P. 26.03, subd. 19(2), which deals with jury requests to review evidence, provides:

If the jury, after retiring for deliberation, requests a review of certain testimony or other evidence, the jurors shall be conducted to the courtroom.  The court, after notice to the prosecutor and defense counsel, may have the requested parts of the testimony read to the jury and permit the jury to re-examine the requested materials admitted into evidence.

 

Newell does not question the district court's denial of the juror's request but, instead, claims the district court erred in not returning the jury to the courtroom when denying their request.  The district court conferred with both the prosecution and the defense regarding the jury's request.  But in spite of Trachy's objection, the court did not return the jury to the courtroom and chose to write a note telling the jury to rely on their own recollection of the trial testimony.

The facts in this case are similar to those in State v. McMorris (McMorris I), wherein the jury asked the judge to see some evidence during deliberations, and the district court wrote a note to the jury denying the request, but did not return the jury to the courtroom. 367 N.W.2d 664 (Minn. App. 1985).  On appeal, this court held that the trial court violated Minn. Crim. P. 26.03, subd. 19(2).  Id. at 665.  But this case was reversed by the Minnesota Supreme Court in State v. McMorris, 373 N.W.2d 593 (Minn. 1985) (McMorris II).  In McMorris II, the Supreme Court concluded that because the defendant did not object in a timely manner, he waived his right to raise this issue.  While the Supreme Court did not address whether this court's holding would have been upheld had there been a proper objection by the defense, Minn. R. Crim. P. 26.03, subd. 19(2) clearly provides that the jury shall be brought into the courtroom if they request further evidence.  Accordingly, the district court erred in failing to return the jury to the courtroom.  But because there is no evidence in the record that the error was prejudicial to Newell, we cannot mandate a new trial.  See State v. Rean, 421 N.W.2d 303, 307 (Minn. 1988) (stating that any error in applying Minn. R. Crim. P. 26.03, subd. 19(2) must be prejudicial to mandate a new trial).

            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.