Opinion
No. C9-98-1926.
Filed April 20, 1999.
Appeal from the District Court, Washington County, File No. K8-97-137.
Mike Hatch, Attorney General, and Douglas Johnson, Washington County Attorney, (for respondent)
John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, (for appellant)
Considered and decided by Short, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant William Godfrey Neuman, convicted of gross misdemeanor driving after cancellation under Minn. Stat. § 171.24, subd. 5 (1996), claims that his waiver of his right to a jury trial was involuntary; that the postconviction court erred in denying his motion to allow an independent court reporter to review the trial court reporter's notes; and that he is entitled to a new trial because of the suggestion of impropriety arising from the existence of various relationships among the participants in the trial. In his pro se brief, Neuman raises evidentiary and credibility issues that were not raised at trial. Because our review of the record demonstrates that (1) Neuman voluntarily waived his right to a jury trial; (2) there are no irregularities in the transcript; (3) the trial was not "tainted" by the relationships of certain trial participants; and (4) the evidentiary issues raised by Neuman are outside the record and therefore not reviewable, we affirm.
DECISION
1. Right to a Jury Trial
Neuman claims that his waiver of his right to a jury trial was involuntary because it was made "solely because there was no other way to get his case to trial that day." At his postconviction evidentiary hearing, Neuman stated that it was his "choice" to have a court trial rather than a jury trial. On its face, this claim does not demonstrate that Neuman's waiver was involuntary, merely that it was more important to him to proceed to trial than it was to have his case decided by a jury. See State v. Ross , 472 N.W.2d 651, 653 (Minn. 1991) (waiver of jury trial must be "knowing, intelligent, and voluntary"). Further, during his pretrial hearing, the court asked Neuman the requisite questions to confirm that his waiver was voluntary. See id. at 654. We also note that Neuman was familiar with the justice system, having been convicted of DUI three times in the three years prior to this offense. Thus, we conclude that Neuman voluntarily waived his right to a jury trial.
2. Accuracy of Transcript
Neuman claims that the trial transcript was altered and that an independent court reporter should have been allowed to review the official court reporter's notes to assess the accuracy of the trial transcript. The alleged inaccuracy involves the testimony of Barbara Ryan, the eyewitness who identified Neuman as the driver of his car. Ryan twice gave somewhat contradictory testimony about whether Neuman or his passenger was the driver of the car. A review of the record demonstrates, however, that she identified Neuman as the driver four times on direct examination and that, presented with her inconsistent testimony on redirect, she clearly identified Neuman as the driver and disavowed any other contradictory testimony. The inconsistencies in Ryan's testimony do not demonstrate that the trial transcript was altered. Thus, Neuman's claim is without merit.
Further, Neuman should have moved the trial court to correct any alleged inaccuracies in the record. See Minn.R.Civ.App.P. 110.05; Doty v. Doty , 533 N.W.2d 72, 75 (Minn.App. 1995) (motion to correct transcript not properly raised for first time on appeal).
3. Relationships of Trial Participants
Neuman claims that he is entitled to a new trial because a "suggestion of impropriety" hangs over this case. Specifically, he claims that the court reporter is married to the prosecutor; defense counsel and the trial judge are second cousins; and defense counsel, while defending Neuman, applied for a job in the Washington County Attorney's Office, the county in which this offense occurred.
We conclude that the existence of these relationships, which were disclosed to Neuman prior to trial, do not demonstrate that Neuman's trial was unfair. The marital status of the prosecutor and court reporter, on its face, does not suggest any impropriety. The Minnesota Rules of Professional Conduct set forth special responsibilities of a prosecutor, which include assuring that a defendant's guilt is determined on the basis of sufficient evidence. Minn. R. Prof. Conduct 3.8 cmt. Nothing in this record demonstrates that the prosecutor and court reporter's marriage to each other affected appellant's trial.
The record also establishes that Neuman believed that the relationship between the judge and defense counsel would provide an advantage to him at trial. The degree of consanguinity between defense counsel and the trial judge would not require recusal of the judge. See Minn. Code of Jud. Conduct, Canon 3D(1)(d) (requiring judge disqualification if "judge is within the third degree of relationship to" another person). Posttrial, Neuman claimed that "ill will" existed between the judge and defense counsel, only because he perceived that the judge "strongly overruled" defense counsel's objections. There is no support for this allegation in the record. Thus, neither the existence of the blood relationship nor the judge's conduct demonstrates any unfairness in Neuman's trial.
Finally, at the time he represented Neuman, defense counsel had applied for a position at the Washington County Attorney's Office. Again, the record does not demonstrate or suggest that defense counsel's representation of Neuman was adversely affected by his job search. Thus, Neuman was not denied a fair trial because of the relationships of various individuals involved in this case. See State v. Plant , 280 Minn. 397, 399, 159 N.W.2d 404, 405 (1968) (claims without support in record not reviewable); State v. Larson , 520 N.W.2d 456, 462 (Minn.App. 1994) (affirming conviction where defendant failed to establish trial judge bias against him), review denied (Minn. Oct. 14, 1994).
4. Neuman's Pro Se Evidentiary Issues
Finally, Neuman challenges pro se the credibility of Ryan and offers the affidavits of two other purported eyewitnesses to the accident that precipitated this offense. Credibility determinations are for the trial court. Minn.R.Civ.P. 52.01. Further, this court may not base its decision on the affidavits of the two purported eyewitnesses, as that evidence is outside the record and was not considered by the trial court. State v. Maidi , 520 N.W.2d 414, 419-20 (Minn.App. 1994), aff'd , 537 N.W.2d 280 (Minn. 1995); State v. Morrow , 492 N.W.2d 539, 549 (Minn.App. 1992).