State of Minnesota, Respondent, vs. Derrick L. Preston, Appellant.

State of Minnesota, Respondent, vs. Derrick L. Preston, Appellant. A05-1819, Court of Appeals Unpublished, November 14, 2006.

This opinion will be unpublished and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

A05-1819

 

State of Minnesota,
Respondent,
 
vs.
 
Derrick L. Preston,
Appellant.

 

Filed November 14, 2006

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. 04080801

 

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

 

Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (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

PETERSON, Judge

            In this appeal from convictions of terroristic threats, gross-misdemeanor harassment, and fifth-degree assault, appellant argues that the district court erred in (a) admitting evidence of a prior assault against the victim; (b) refusing to appoint a substitute public defender; and (c) denying his right of self-representation.  We affirm.

FACTS

            Appellant Derrick Lee Preston lived with his girlfriend, H. B., and their child in the upper level of a duplex.  On December 2, 2004, H.B. and appellant got into an argument.  Appellant became upset and grabbed some personal belongings and started to leave.  H.B. asked him if they could talk about it, and appellant hit her with a closed fist.  H.B. called 911, and appellant told her not to tell the police that he hit her.   Appellant left and went to the lower level of the duplex, which was occupied by his sister.  A police officer who responded to the 911 call accompanied H.B. downstairs to look for appellant, but when they did not find appellant, the officer left.  Appellant later called H.B. on the telephone and asked for his clothes; he was upset and yelled at H.B.  H.B. estimated that appellant called her more than 60 times from his sister's apartment.  She could hear him yelling at her through the floor and banging on the walls and ceiling. 

            The next day, appellant called H.B. and asked for his clothes.  H.B. told him that she was getting a restraining order against him and that she would leave a bag of his clothes by the door.  Appellant got upset and threatened H.B. that she would have to leave the apartment sooner or later, and when she did, he would kill her.  H.B. called the police again.

            Appellant was charged with one count of terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (2004); two counts of gross-misdemeanor harassment in violation of Minn. Stat. § 609.749, subds. 2(a)(1), (4) (2004); and one count of misdemeanor fifth-degree assault in violation of Minn. Stat. § 609.224, subd. 1(2) (2004).  On April 28, 2005, the prosecutor filed a Statement and Notice of Other Offenses or Prior Acts the State Intends to Prove, which stated that the state would seek to prove during trial that appellant was arrested for domestic assaults against H.B. on May 28, 2000, and June 8, 2000, and details about the assaults.  Appellant objected to the introduction of evidence about either incident.  The district court ruled during jury selection that evidence about the assault incidents would be admitted. Also during jury selection, appellant asked the district court to appoint a different attorney to represent him, and the district court denied the request.  The jury found appellant guilty as charged.  This appeal followed.

D E C I S I O N

1.         Evidence of prior assault

            Evidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members, is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.  "Similar conduct" includes, but is not limited to . . . domestic abuse . . . .  "Domestic abuse" and "family or household members" have the meanings given under section 518B.01, subdivision 2.

 

Minn. Stat. § 634.20 (2004).  The Minnesota Supreme Court has "expressly adopt[ed] Minn. Stat. § 634.20 as a rule of evidence for the admission of evidence of similar conduct by the accused against the alleged victim of domestic abuse."  State v. McCoy, 682 N.W.2d 153, 161 (Minn. 2004).

            "Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that the appellant was thereby prejudiced."  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).  "Whether the probative value of prior bad acts outweighs their prejudicial effect is a matter left to the discretion of the trial court."  State v. Waino, 611 N.W.2d 575, 579 (Minn. App. 2000) (quotation omitted).

            Appellant argues that the district court abused its discretion in admitting evidence about the June 8, 2000 assault because the probative value of the evidence was substantially outweighed by the danger of unfair prejudice and because the manner in which the evidence was presented was cumulative.  Appellant contends that the June 8, 2000 incident was far more violent than the conduct for which he was charged.

            H.B. testified that during the June 8, 2000 incident, appellant beat her with his fists and an umbrella while she was holding their infant son.  Appellant threatened to kill her, their son, and two eyewitnesses.  H.B. ended up in the hospital for several days with a broken nose, and several staples were needed to close a cut on her head.  Appellant distinguishes that incident from the current incident because, in the earlier incident, appellant beat H.B. with an umbrella, instead of his fist, threatened to kill H.B. and others, instead of just H.B., and H.B. suffered more serious injuries that required hospitalization.

            But these differences do not mean that evidence about appellant's conduct during the earlier incident was not admissible during trial on the current charge.  Under Minn. Stat. § 634.20, evidence of similar conduct by the accused is admissible, and the statute explicitly states that "similar conduct" includes "domestic abuse" as defined under section 518B.01, subdivision 2.  Under Minn. Stat. § 518B.01, subd. 2(a)(1) (2004), "domestic abuse" includes physical harm, bodily injury, and assault, "if committed against a . . . household member by a . . . household member."  Under Minn. Stat. § 518B.01, subd. 2(b)(5), "family or household members" includes "persons who have a child in common regardless of whether they have been married or have lived together at any time."  Under these definitions, appellant and H.B. were household members on June 8, 2000, and appellant committed domestic abuse when he inflicted bodily injury on H.B.  Consequently, appellant's conduct on June 8, 2000, was similar conduct under section 634.20.

            "Evidence of similar conduct in domestic abuse trials is relevant and admissible unless the probative value of the evidence is substantially outweighed by the danger of unfair prejudice."  State v. Bell, 719 N.W.2d 635, 641 (Minn. 2006) (quotation omitted).  Evidence of prior domestic abuse by the accused against the alleged victim "may be offered to illuminate the history of the relationship, that is, to put the crime charged in the context of the relationship between the two."  McCoy, 682 N.W.2d at 159.  The probative value of the evidence about the June 8, 2000 incident was that it put the current offense in the context of the relationship between appellant and H.B.

            "When balancing the probative value against the potential prejudice, unfair prejudice ‘is not merely damaging evidence, even severely damaging evidence; rather, unfair prejudice is evidence that persuades by illegitimate means, giving one party an unfair advantage.'"  Bell, 719 N.W.2d at 641 (quoting State v. Schulz, 691 N.W.2d 474, 478 (Minn. 2005)).  The evidence about the June 8, 2000 incident was damaging to appellant because it showed that, at times, the relationship between appellant and H.B. became violent.  But the evidence was offered to illuminate the history of the relationship, and it did not give the state an unfair advantage simply because it showed the degree of violence during the relationship.

            Appellant argues that the state did not need H.B.'s testimony about the June 8, 2000 incident to show the history of their strained relationship because (a) H.B. did not recant her statements about the current incident; (b) H.B. testified in detail about the current incident, and her testimony was corroborated by a police officer's testimony; (c) the jury was shown a photograph of her injuries from the December 2 incident; and (d) H.B. testified about other incidents of abuse.  The supreme court recently declined "to require that trial courts engage in an independent analysis of the state's need for section 634.20 evidence before it is admitted" and, instead, noted that "the need for section 634.20 evidence is naturally considered as part of the assessment of the probative value versus prejudicial effect of the evidence."   Bell, 719 N.W.2d at 639.  Under Bell, the district court did not err by admitting H.B.'s testimony about the June 8, 2000 incident without first addressing the state's need for the evidence.

            Appellant argues that even if H.B.'s testimony about the June 8, 2000 incident was admissible, other evidence about the incident should not have been admitted because the other evidence was cumulative.  In addition to H.B.'s testimony, a photograph of H.B.'s injuries taken while she was recovering in the hospital and the testimony of an eyewitness to the incident were admitted. 

            Appellant is correct that the district court's rationale for admitting the eyewitness testimony--because it was needed to meet the state's burden of proving by a preponderance of the evidence that the June 8, 2000 incident occurred--was not a proper rationale for admitting the testimony.  Minn. Stat. § 634.20 does not require similar conduct to be proved by a preponderance of the evidence before evidence of the similar conduct may be admitted in a domestic-abuse trial.  See McCoy, 682 N.W.2d at 159 (stating that Minn. Stat. § 634.20 "is unambiguous--evidence of similar conduct in domestic abuse trials is relevant and admissible unless it should be excluded for the reasons listed [in section 634.20]"). 

            But this does not mean that the additional evidence was inadmissible.  Under Minn. Stat. § 634.20, evidence of similar conduct is admissible unless the probative value is substantially outweighed by, among other things, "considerations of . . . needless presentation of cumulative evidence."  Evidentiary rulings regarding "materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence" will not be reversed absent a clear abuse of discretion.  Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994) (quotation omitted).  The district court determined that H.B.'s testimony about the earlier incident was unclear and difficult to follow.  In light of this determination, the record shows that the additional evidence was needed to clarify H.B.'s testimony and does not show that the probative value of the additional evidence was substantially outweighed by considerations of needless presentation of cumulative evidence.  The district court did not abuse its discretion by admitting evidence about the June 8, 2000 incident.

2.         New public defender

            Appellant argues that the district court mistakenly believed that it did not have authority to appoint a different public defender and, as a result, erred in refusing to appoint a different public defender for him.  But the record does not demonstrate that the district court refused to appoint a different public defender because it mistakenly believed that it did not have authority to do so; the district court refused to appoint another attorney because appellant requested a new attorney after jury selection had begun, and a new attorney could not take over at that point without continuing the trial.

            During jury selection, appellant told the district court that he wanted another attorney.  The district court told appellant:

            You're not going to get another attorney.  You only get one public defender.  The only thing you could do would be to represent yourself, which is the worst thing you could do because you don't know the rules of evidence and rules of law.  It would simply not be wise. 

 

            Jury selection continued, and the next day appellant's counsel informed the district court that he had been told that he was not going to be representing appellant and that appellant's family had other plans.  Appellant's mother and sister were in the courtroom, and the following exchange occurred between the district court and appellant's mother:

            THE COURT:  I will not continue the trial.  We've already begun.  The trial is going to continue.  [Appellant] is not an attorney.  We don't give a person a different public defender.  You get one and one only.  [Appellant's attorney] is a highly experienced and fine attorney, so his choice is to represent himself, which he's not qualified to do, or to continue with [his attorney].

 

            [APPELLANT'S] MOTHER:  So what you're saying is that he doesn't have a right if he's feeling he's not being represented properly, he doesn't have a right to get someone else to represent him.

 

            THE COURT:  That's correct.

 

            [APPELLANT'S] MOTHER:  Why is that?  I'm not understanding --

 

            THE COURT:  There's only -- the public defender's policy is that one person is appointed and there is no second person appointed.

 

            [APPELLANT'S] MOTHER:  We're trying -- we're working on someone else to represent my son.

 

            THE COURT:  The point is if you wanted to hire someone the time is over because we are in trial.  Another person can't possibly get up to speed and take over at this point.  If you were to hire someone that was then.  This is now, in trial.  You could have hired a person to represent [appellant] earlier.

 

            . . . .

 

            THE COURT:  [Appellant], I'm not going to give you a continuance.  No attorney could pick up this case today and continue.

 

            . . . .

 

            [APPELLANT'S COUNSEL]:  Your Honor, I will advise the Court that I will be unable to devote my attention to the trial of this case if the animosity that's being expressed to me towards me now continues.

 

            THE COURT:  I agree.  [Appellant's counsel] has to concentrate on trying the case and defending your son.

 

            [APPELLANT'S] MOTHER:  We believe he's not doing that.

 

            THE COURT:  Your son is not in a position to adequately defend himself.

 

            [APPELLANT'S] MOTHER:  We know that.

 

            THE COURT:  Okay.

 

            [APPELLANT'S] MOTHER:  That's not what we're requesting.

 

            THE COURT:  I am not continuing the trial.  You had five months to hire a lawyer and didn't do so.  This case is now in trial.  We are going to proceed and I expect your attitudes to be pleasant and gracious to the jurors, to [appellant's counsel], and anyone else in here. 

 

            The record indicates that appellant did not ask the district court to appoint a different public defender to represent him; appellant informed the court that he was trying to hire an attorney.  But the district court recognized that, without a continuance, a different attorney could not take over for the public defender who had been working on appellant's case.  The district court's comments about a different public defender do not indicate that the district court mistakenly believed that it did not have authority to appoint a different public defender; they simply reflect the fact that only one public defender had been appointed to work on appellant's case, and there was not another public defender familiar with the case who could take over for that public defender without a continuance.

            "In determining whether the trial court was within its sound discretion in denying a motion for a continuance, this court looks to whether the defendant was so prejudiced in preparing or presenting his defense as to materially affect the outcome of the trial."  State v. Vance, 254 N.W.2d 353, 358-59 (Minn. 1977).  It is apparent that appellant disagreed with his attorney about how his case should have been handled.  But appellant has not demonstrated that he was so prejudiced in preparing or presenting his defense as to materially affect the outcome of the trial. 

            Appellant contends that his counsel (a) could have done a better job of eliciting potential bias among jurors during jury selection; (b) mistakenly referred to appellant's and H.B.'s child as a daughter, rather than a son; (c) remarked that he wears a suit so that he is not mistaken for the defendant; (d) reserved his opening statement, but then did not give an opening statement at the beginning of the defense case; and (e) failed to object to the prosecutor's reference, during jury selection, to the witnesses having a different lifestyle than the jurors.  Even if we assume that each of these acts by counsel was improper, appellant has not explained how, either independently or collectively, the acts materially affected the outcome of the trial.  Therefore, appellant has not demonstrated that the district court's refusal to grant a continuance to obtain new counsel prejudiced the preparation or presentation of appellant's defense.

3.         Self-representation

Appellant argues that he is entitled to a new trial because the district court deprived him of his right to represent himself. 

Under the Sixth and Fourteenth Amendments to the United States Constitution, a criminal defendant has the right to defend himself in a state criminal proceeding.  While that right is not explicitly mentioned in the Sixth Amendment, the United States Supreme Court has ruled that the Sixth Amendment right to the assistance of counsel implies a correlative right of self-representation[.]

 

State v. Christian, 657 N.W.2d 186, 190 (Minn. 2003) (citation and footnote omitted).  Because the right to the assistance of counsel and the right of self-representation are mutually exclusive, a court must "require the defendant to make a knowing, intelligent, voluntary, and unequivocal request before concluding that he has waived his right to counsel and invoked his right to represent himself."  Hamilton v. Groose, 28 F.3d 859, 862 (8th Cir. 1994); see also State v. Richards, 456 N.W.2d 260, 263 (Minn. 1990) ("When a criminal defendant asks to represent himself, the court must determine (1) whether the request is clear, unequivocal, and timely, and (2) whether the defendant knowingly and intelligently waives his right to counsel." (footnote omitted)).  Otherwise, a defendant who is found guilty after being allowed to proceed pro se could seek to overturn the conviction by arguing that his right to counsel was denied, and a defendant who is found guilty after being represented by counsel could seek to overturn the conviction by arguing that he was denied his right to represent himself.  Hamilton, 28 F.3d at 862-63. 

            In our review of the record, we have not found any indication that appellant made a request to represent himself.  Appellant and his mother only informed the court that appellant wanted another attorney and that they were trying to obtain another attorney to represent appellant.  Because appellant never made a request to represent himself, the district court did not deny appellant's right of self-representation.

4.         Pro Se Arguments

            Appellant has made four allegations of error in a pro se supplemental brief.  But because the brief contains no argument or citation to legal authority to support the allegations, we deem the issues raised in the brief waived.  See State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002) (holding that allegations of wrongdoing by trial counsel and trial court set forth in pro se supplemental brief without supporting argument or citation to legal authority were waived).

            Affirmed.