Opinion
No. A05-2312.
Filed January 16, 2007.
Appeal from the District Court, Stearns County, File No. K604004992.
Lori Swanson, Attorney General, Janelle P. Kendall, Stearns County Attorney, Elizabeth Lamin, Assistant County Attorney, (for respondent).
John M. Stuart, Minnesota Public Defender, Leslie J. Rosenberg, Assistant Public Defender, (for appellant).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
Appellant challenges his convictions of terroristic threats and violation of an order for protection, asserting that he was denied his constitutional right to counsel when the district court refused to replace the public defender that he fired and allowed him to proceed to trial pro se without a valid waiver of his right to counsel. Because we conclude that appellant's waiver of counsel was valid, we affirm.
FACTS
A public defender was appointed to represent appellant Ronald Duane Saxon on charges of terroristic threats and violation of an order for protection. The charges were based on messages that Saxon left on his ex-girlfriend's answering machine. A month after a public defender was appointed to represent Saxon, Saxon and his attorney appeared in court on the charges in this case and the charges in five other files. At that time, Saxon did not indicate any dissatisfaction with appointed counsel.
A month later, Saxon appeared at a pretrial hearing with counsel. Saxon repeatedly interrupted the district court and disrupted the hearing. Saxon asserted that his attorney was "fired" because he had failed to remove the judge, failed to get a copy of the tape of the telephone messages, failed to have a forensic analysis of the tape, and failed to subpoena the witnesses that Saxon requested. Saxon also asserted that his attorney had prosecuted him for DWI ten years earlier as an assistant county attorney.
Saxon's counsel explained to the district court that (1) Saxon's requests to remove the judge were untimely on all but one case and that counsel had advised against removing the judge only on one case; (2) Saxon had failed to prepare a statement that could be attached to a request to remove that counsel offered to prepare and submit; (3) counsel had requested the tape and expected to be receiving the tape that day; (4) counsel had explained that the state was unlikely to use an expert, and was most likely to use the victim's testimony to identify Saxon's voice, and that Saxon could, if he wished, testify at trial that it was not his voice; (5) the witnesses Saxon proposed were mostly character witnesses and counsel had argued against calling character witnesses, which would open the door for evidence otherwise inadmissible by the state; (6) Saxon had declined counsel's request that he outline their proposed testimony so counsel could evaluate whether they could be called as witnesses; and (7) with regard to a bailiff Saxon wanted subpoenaed, it was counsel's conclusion that the bailiff would not be allowed to testify. The only allegation not addressed by counsel was the allegation that he had previously prosecuted Saxon in an unrelated matter.
Despite repeated questions by the district court, Saxon refused to state that he wanted to represent himself while continuing to insist that his public defender was fired. The district court declined to remove or replace the public defender at the pretrial hearing.
On the first day of trial, Saxon immediately fired his attorney again. After a colloquy with the district court about whether he wanted to proceed with counsel or proceed representing himself, Saxon stated he wanted to represent himself. The district court nonetheless requested that counsel respond to the state's motion to admit Spreigl and relationship evidence. Counsel was successful in defeating this motion, but Saxon again told counsel that he was fired and should leave. The district court excused counsel from further representing Saxon.
After Saxon's attorney was discharged, Saxon asserted that he was confused about which case was being tried that day and that he was not prepared for trial on the terroristic-threats charge. The district court asked Saxon if he wanted to change out of his jail clothes, and Saxon declined to do so. He also declined to conduct any voir dire. During trial, Saxon disregarded rulings and instructions from the district court and continued to be disruptive. Due to Saxon's behavior, the district court cut off part of his opening statement, threatened to find him in contempt of court, and curtailed his cross-examination of the victim.
Saxon testified at trial. He admitted that it was his voice on tape recordings that were played to the jury and admitted that he knew the victim had obtained an OFP prohibiting him from contacting her. He alleged, however, that the victim had told him that she had dismissed the OFP. The jury found Saxon guilty of both counts. Saxon was sentenced, and this appeal followed.
DECISION
Saxon argues that he did not validly waive his right to counsel. "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." State v. Worthy, 583 N.W.2d 270, 275-76 (Minn. 1998) (quotation omitted). Appellate courts will only overturn a district court's finding of a valid waiver if the finding is clearly erroneous. Id. at 276.
"Criminal defendants have a constitutional right to an attorney and a corollary constitutional right to choose to represent themselves in their own trial." Id. at 279. Generally, in determining whether a waiver is knowing, intelligent, and voluntary, the district court is to "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. Comacho, 561 N.W.2d 160, 173 (Minn. 1997). But when a defendant has been given counsel and then "fires" counsel, knowing that a different public defender will not be appointed and that he will have to represent himself, a defendant's waiver of counsel has been considered knowing and voluntary. State v. Brodie, 532 N.W.2d 557, 557 (Minn. 1995). "When a defendant has consulted with an attorney prior to wavier, a trial court could reasonably presume that the benefits of legal assistance and the risks of proceeding without it had been described to defendant in detail by counsel." Worthy, 583 N.W.2d at 276 (holding that defendants validly waived their right to counsel even though the trial court's on-the-record inquiry regarding waiver did not include a recitation of the charges or potential punishments) (quotation omitted). Saxon, like Brodie and Worthy, unequivocally fired his attorney after having been represented by counsel for some time.
Saxon argues that under the circumstances, the district court should have appointed a different public defender to represent him. We disagree. The district court's decision not to appoint different counsel is reviewed for abuse of discretion. State v. Gillam, 629 N.W.2d 440, 449 (Minn. 2001). Generally, a request for new counsel will be granted only if there are exceptional circumstances and the request is reasonable. Id. In Gillam, the supreme court defined "exceptional circumstances" as "those that affect a court-appointed attorney's ability or competence to represent the client." Id.
In this case, the district court noted that Saxon's court-appointed attorney was experienced in criminal law. And counsel's explanation of the issues Saxon complained about demonstrated that Saxon's complaints against counsel were not reasonable. On this record, the district court did not abuse its discretion by declining to appoint different counsel to represent Saxon.
Saxon argues that he did not fully understand the ramifications of representing himself and that the district court erred by not appointing standby counsel, as was done in Brodie and Worthy. But the record demonstrates that Saxon was not interested in any explanations that the district court attempted to provide regarding representation or self-representation. Saxon continually interrupted the district court and failed to pay attention to any of the district court's instructions or questions. On the day of trial, despite counsel's success in excluding Spreigl and relationship evidence from trial, Saxon made it clear that he did not want counsel's assistance in any capacity. Any error in not appointing standby counsel was therefore harmless. To the extent that Saxon asserts that he did not understand what case was being tried or what was expected of him in representing himself, such confusion can only be attributed Saxon's failure to pay attention to the district court.