State of Minnesota, Respondent, vs. Ulysses A. Haggenmiller, Appellant.

State of Minnesota, Respondent, vs. Ulysses A. Haggenmiller, Appellant. A05-2230, Court of Appeals Unpublished, May 8, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2230

 

 

State of Minnesota,

Respondent,

 

vs.

 

Ulysses A. Haggenmiller,

Appellant.

 

 

Filed May 8, 2007

Affirmed in part and reversed in part

Crippen, Judge*

 

Crow Wing County District Court

File No. K3-03-1016

 

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

 

Donald F. Ryan, Crow Wing County Attorney, Rockwell J. Wells, Assistant County Attorney, Crow Wing County Judicial Center, 213 Laurel Street, Suite 31, Brainerd, MN 56401 (for respondent)

 

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

On appeal from his conviction and sentence for felony receiving stolen property, appellant Ulysses Haggenmiller argues that the district court failed to conduct an adequate inquiry into waiver of his right to counsel, that the court abused its discretion by narrowing the issues to exclude the value of short-term use of the stolen property, and that the court erred by ordering him to pay the sheriff's department for costs incurred transporting him from another county following his arrest.  Because appellant knowingly and voluntarily waived his right to counsel and the district court defined the issues correctly, we affirm on those issues, but we reverse the court's order for restitution.

FACTS

In April 2003, appellant was implicated in the theft of construction tools, many of them seized in the course of execution of a search warrant.  The state charged him with two felony counts of receiving stolen property, one gross misdemeanor and one misdemeanor count of receiving stolen property, and possessing burglary tools.

Following a jury trial in June 2005, during which appellant represented himself with the aid of stand-by counsel, appellant was convicted of one count of felony receiving stolen property worth over $2,500.  The district court denied appellant's motion for a downward departure, sentenced him to the presumptive term of 23 months' imprisonment, and ordered him to pay $112.88 in prosecution costs to cover the expense of transporting him from Ramsey County to Crow Wing County following his arrest. 

D E C I S I O N

1.

Appellant argues that the district court's inquiry and acceptance of his waiver of counsel was insufficient.  Appellant was represented by court-appointed counsel until he discharged his attorney shortly before trial, when he requested to proceed to trial pro se. 

Both the Sixth Amendment to the United States Constitution and article 1, section 6, of the Minnesota Constitution establish the fundamental right to the assistance of counsel for the defendant in criminal proceedings.  State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977).  The defendant also has a corollary constitutional right to self-representation.  State v. Worthy, 583 N.W.2d 270, 279 (Minn. 1998); State v. Richards, 456 N.W.2d 260, 263 (Minn. 1990). 

The district court must ensure that a defendant, who wishes to represent himself, voluntarily and intelligently waives the right to counsel.  Minn. R. Crim. P. 5.02, subd. 1(4) (stating requirements for valid waiver); State v. Krejci, 458 N.W.2d 407, 412 (Minn. 1990).  Under rule 5.02, a waiver may be valid, even if not in writing, when the surrounding circumstances support the waiver.  In re Welfare of G.L.H., 614 N.W.2d 718, 723 (Minn. 2000).  "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 the accused."  Worthy, 583 N.W.2d at 275-76 (quotation omitted).  We will overturn a district court's finding of a valid waiver only if the finding is clearly erroneous.  Id. at 276. 

The district court normally should conduct a comprehensive examination of the defendant's understanding of the charges, possible punishments, mitigating circumstances, and any other facts relevant to the defendant's comprehension of the consequences of a right-to-counsel waiver, but an evaluation of all the facts and circumstances surrounding the waiver may suffice in some circumstances.  Id. at 275-76; Krejci, 458 N.W.2d at 412-13 (upholding right-to-counsel waiver despite limited inquiry where defendant delayed trial, interacted with several judges, discussed case with two public defenders, and had assistance of appointed stand-by counsel, but refused to accept representation by public defender's office). 

In determining whether a defendant validly waived the right to counsel, we must conduct a "fact-specific examination" of all the circumstances surrounding the purported waiver.  State v. Garibaldi, 726 N.W.2d 823, 829 (Minn. App. 2007) (noting importance of carefully considering all facts when determining whether defendant validly waived right to counsel). 

Despite being afforded the services of two court-appointed attorneys, appellant discharged his second court-appointed attorney five days before trial and elected to represent himself.  Appellant refused to come to court from the jail and, instead, notified the court that he wanted to discharge his appointed counsel, that he did not want the public defender's office representing him, and that he wanted to represent himself at trial with stand-by counsel only.  See Krejci, 458 N.W.2d at 413 (holding that defendant's refusal to proceed with appointed counsel supports finding of voluntary waiver).  At the start of his jury trial, appellant confirmed his decision on the record.  The court allowed appellant to discharge his attorney and appointed another public defender as stand-by counsel only.  See State v. Clark, 722 N.W.2d 460, 466 (Minn. 2006) (holding that Minnesota Constitution does not guarantee pro se defendant's right to appointment of advisory counsel, which is within district court's discretion); see also State v. Gassler, 505 N.W.2d 62, 70 (Minn. 1993) (holding that indigent defendant does not have right to choose court-appointed attorney).

The record on appellant's background, experience, and conduct amply supports a finding that appellant knowingly, intelligently, and voluntarily waived his right to counsel:

            a.         Following his arrest, the district court appointed a public defender to represent appellant, but he represented himself for purposes of bail and obtained release on his own recognizance, despite his criminal history, which includes six felony convictions, and the prosecutor's request for cash bail due to his arrest on an outstanding warrant. 

            b.         Prior to trial, appellant explained to the court that he understood the felony he was charged with, the elements, and the possible punishment under the sentencing guidelines. 

            c.         Appellant's numerous prior convictions furnished him unusual experience in the criminal process.  At trial, with the assistance of stand-by counsel, he conducted voir dire, successfully challenged a juror for cause, made an opening statement, successfully moved to preclude prior-bad-act and other evidence, successfully objected several times during the state's case-in-chief, cross-examined all the state's witnesses, called three witnesses, made a closing argument, moved for a directed verdict on the possession of burglary tools charge, requested a particular jury instruction in support of his theory of defense, elected not to have the court instruct the jury on his right not to testify, and obtained an acquittal of one charge.

            d.         Appellant also benefited from and took advantage of his representation by the public defender's office for over two years, during which a motion to suppress evidence and a motion to dismiss for lack of probable cause were argued on his behalf.  And shortly before trial, which had twice been continued over the state's objection, appellant unequivocally fired his second court-appointed public defender.  See Worthy, 583 N.W.2d at 274, 276 (upholding right-to-counsel waiver despite court's failure to make on-the-record inquiry where appointed counsel represented defendants for extended period of time and made pretrial motions, including motions to suppress, until defendants unequivocally fired counsel on morning of scheduled trial); State v. Brodie, 532 N.W.2d 557, 557 (Minn. 1995) (reversing this court and finding right-to-counsel waiver valid where defendant had been given counsel but then fired him, knowing that another public defender would not be appointed and defendant would have to represent himself).

            e.         Both appellant's appointed counsel and the district court warned appellant about the consequences of proceeding pro se, albeit not in the context of his waiver.  See Worthy, 583 N.W.2d at 276 (stating that consulting with attorney prior to waiver raises reasonable presumption that defendant was informed of benefits of legal assistance and risks of proceeding without it).  During a hearing in which appellant insisted on addressing the court, it warned him about the consequences of addressing the court pro se, the benefits of having counsel, and the complexity of the legal system.  "These explanations, although not given in the context of defendant's waiver . . . provide ample evidence to support a determination that [the] defendant made the waiver knowingly and intelligently."  Krejci, 458 N.W.2d at 413 (holding that court and counsel's explanations of possible punishments and options available supported finding valid waiver).  Prior to granting his request to proceed to trial pro se, the court further warned appellant that he would be held to the same standard as a lawyer, and that if he had an objection he would have to state the legal basis for it.

            f.          The court also advised appellant to consult with his appointed stand-by counsel for any procedural issues that might arise, and appellant did so. Appellant relied on his stand-by counsel to assist him in subpoenaing witnesses for trial on short notice and in bringing a motion in limine to exclude evidence, and he expressed his satisfaction to the court on the assistance he received.  He also acknowledged consulting with his stand-by counsel and prior attorneys on his decision not to testify on his own behalf so as to not open up his criminal history for impeachment, and he asked the court not to instruct the jury on his right not to testify.  See Garibaldi, 726 N.W.2d at 827-28 (noting significance of having stand-by counsel appointed and opportunity for extensive contact with prior defense attorneys or stand-by counsel in cases upholding waiver despite less-than-thorough court inquiry), and cases cited. 

            g.         Finally, at sentencing, appellant stated that he was "[r]eally very glad that [he] did go to trial." 

2.

Appellant argues that the district court erred by precluding him from introducing evidence of the loss in value of the stolen property while he possessed it.  He also asserts that the court erroneously refused to instruct the jury on the definition of "value" when the property is taken only temporarily from the rightful owner.  Neither argument has merit.

The state charged appellant with felony receiving stolen property valued over $2,500, in violation of Minn. Stat. § 609.53, subd. 1 (2004) (receiving stolen property) and Minn. Stat. § 609.52, subd. 3(2) (2004) (specifying sentence for taking property valued over $2,500).  The charge stated that appellant intended to permanently deprive the owners of possession of their property.  See Minn. Stat. § 609.52, subd. 2(1) (2004) (specifying theft with intent to permanently deprive owner of possession). 

Prior to the start of trial, the district court granted the state's motion in limine to "preclude any testimony regarding the value of the use of the property or the damage which it sustained while the owner was deprived of its possession, because [appellant was] not charged with a temporary possession."  Contrary to appellant's claim on appeal, the court did not preclude him from introducing evidence of the fair market value of the property.  Nor did the court discourage him from arguing or presenting evidence supporting a defense that the theft was temporary, as he emphasized in his opening and closing arguments, and which the prosecutor attempted to rebut.

            "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 appellant was thereby prejudiced."  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).  Similarly, the refusal to give a requested jury instruction lies within the discretion of the district court and will not be reversed absent an abuse of discretion.  State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).  There was no evidence refuting the state's charge that appellant's thefts were intended to permanently deprive the owners of possession; therefore, evidence on the value of the use of the property while appellant possessed it was not relevant to the case, and the district court properly excluded it.  See generally State v. Quick, 659 N.W.2d 701, 715 (Minn. 2003) (holding that court may properly exclude irrelevant or unduly confusing evidence).  In these circumstances, the court also properly refused within its broad discretion to instruct the jury on the definition of "value" for a temporary theft.  See 10 Minnesota Practice, CRIMJIG 16.81 (2006) (defining value as the greater of the use of the property or the damage it sustained while the defendant possessed the property in instruction for "intent to exercise temporary control").

3.

            Appellant argues that the district court erred when it ordered him to reimburse $112.88, the costs incurred in transporting him from Ramsey County to Crow Wing County following his arrest on a warrant for violation of his conditions of release in the present case. 

Minn. Stat. § 631.48 (2004) authorizes the district court to order a convicted offender to pay disbursements of the prosecution, including those made to "extradite a defendant."  We review questions involving the prosecution costs statute de novo.  State v. Lopez-Solis, 589 N.W.2d 290, 292 (Minn. 1999).  The costs allowed under the statute must either be expressly stated in the statute or analogous to costs taxable to the prevailing party in a civil action.  Id. at 293. 

            The phrase "disbursements made to extradite a defendant" does not include transporting a prisoner between counties within Minnesota.  Nor does the civil disbursements statute include a provision for transporting an arrestee.  See Minn. Stat. § 549.04 (2006) (civil disbursements statute).  Thus, we reverse the district court's award for transportation costs.

Affirmed in part and reversed in part.

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