IN COURT OF APPEALS
St. Louis County District Court
File No. K7-02-102509
Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Alan L. Mitchell, St. Louis County Attorney, St. Louis County Government Center, 100 North 5th Avenue West, #501, Duluth, MN 55802 (for respondent)
Considered and decided by Klaphake, Presiding Judge, Toussaint, Chief Judge, and Peterson, Judge.
1. When the district court fails to follow the procedure outlined in Minn. R. Crim. P. 17.03, subd. 5, before allowing the same attorney to represent two defendants at a joint trial, the burden is on the state to demonstrate beyond a reasonable doubt that a prejudicial conflict of interest did not exist.
2. The state fails to meet this burden when inconsistent defenses could have been presented at trial to address the differing culpabilities of the defendants and when the potential conflict of interest is compounded by the manner in which the charges against the defendants were presented to the jury.
Charles Robert Walker and his co-defendant wife, Dawn Walker, were charged with
aiding and abetting each other in the commission of felony check forgery and
theft in violation of Minn. Stat. §§ 609.05, .631, subd. 2(1), .52, subd. 2(1)
(2002). The charges arose from
allegations that over a period of several months in 2002,
At the Walkers’ request, the cases were consolidated for trial. Prior to trial, Dawn Walker’s attorney withdrew. On the first day of trial, the parties moved to allow appellant’s attorney to jointly represent them, and the district court granted that request. Following a two-day trial, the jury returned verdicts finding both parties guilty.
Because the district court failed to engage in an affirmative inquiry to determine whether appellant validly waived his right to have a separate attorney and because the state failed to show beyond a reasonable doubt that a prejudicial conflict of interest did not exist during trial, we reverse and remand.
In July 2002, after
On October 22, 2002, after
Some time earlier,
On November 14, 2002, police received information from a
reliable informant that
Police thereafter executed a search warrant at the
After searching cancelled checks and other financial
records that he had,
At trial, appellant testified that each of the checks
represented legitimate payments to him for his work as a subcontractor. He also claimed that the tools in his
possession were either broken or belonged to someone else, and that
argued that appellant could be found guilty of theft for taking funds from the
business or for the movable property that was found at his residence. The jury found appellant and
Is appellant entitled to a new trial because the district court failed to follow the dual representation procedures set out in Minn. R. Crim. P. 17.03, subd. 5, and because the state failed to demonstrate beyond a reasonable doubt that no prejudicial conflict of interest existed?
district court failed to conduct the inquiry and relied solely on defense
counsel’s own questioning of his clients.
In addition, counsel addressed the defendants simultaneously, rather
than separately. Finally, rather than
questioning the defendants about their understanding of the potential problems
with joint representation so as to elicit a narrative response, counsel asked
leading questions that required only a yes or no response. We therefore conclude that the colloquy
between counsel and defendants failed to comply with the “affirmative-inquiry”
mandated by Olsen or by rule 17.03, subd. 5. While this error does not automatically
entitle a defendant to a new trial, the burden shifts to the state to
demonstrate beyond a reasonable doubt that no prejudicial conflict of interest
attorney representing two defendants may be faced with possible conflicts of
interest in cases involving “inconsistent pleas, factually inconsistent alibis,
conflicts in testimony, differences in degree of involvement in the crime,
tactical admission of evidence, the calling and cross-examination and
impeachment of witnesses, or [differing] strateg[ies] in final summation.”
the court held that “only where we can find no basis in the record for an
informed speculation that appellant’s rights were prejudicially affected, can
the conviction stand.”
From the facts presented here, defense counsel could have argued that appellant was an unknowing participant who merely endorsed checks made out to him for his work as a subcontractor. While a unified defense might have been an intended trial tactic, it is just as likely that counsel was precluded from arguing that appellant was an unknowing participant in Dawn Walker’s scheme because of his professional obligation to her. Indeed, the facts here easily could have supported differing defenses or arguments challenging the sufficiency of the evidence against each defendant, because appellant arguably was less involved in the forgery of checks and Dawn Walker was less involved in the theft of movable property.
In a case
involving liability by aiding and abetting, the lack of differentiation between
the defendants becomes even more pronounced.
A person can be criminally liable for aiding and abetting if he or she
played a knowing role in the crime; inaction, knowledge, or passive
acquiescence, however, does not rise to the level of criminal culpability. State
v. Matelski, 622 N.W.2d 826, 831 (Minn. App. 2001), review denied (
counsel’s representation of both appellant and Dawn Walker was further
compromised by the manner in which the evidence was presented here and by the
prosecutor’s closing arguments. The evidence
and the charges against the Walkers were not clearly separated. The prosecutor was able to capitalize on the
lack of differentiation between the co-defendants by arguing that the couples’
guilt was a “package deal” because they were married and had an interest in
protecting each other. Specifically, the
prosecutor argued that Dawn Walker’s testimony was a “convenient explanation to
explain away the criminal acts perpetrated by the Walkers” and that the jury
had to choose between the Walkers’ word and Morgan’s word. The prosecutor further argued that appellant
potential for prejudice here was further exacerbated by lack of clear
instructions cautioning the jury to separate the evidence and charges against
appellant and Dawn Walker. While a
district court has discretion to join codefendants for trial, in order to
minimize prejudice the court must instruct the jury, both at the time the
evidence is offered and again at the close of the case, that the evidence
against each co-defendant should be considered separately. See State v. DeVerney, 592 N.W.2d 837,
842 (Minn. 1999); State v. Greenleaf, 591 N.W.2d 488, 499 (Minn. 1999)
(finding no prejudice when court instructed jury at beginning and at end of
trial that cases against co-defendants were to be considered separately); see
also State v. Kates, 610 N.W.2d 629, 631 n.4 (Minn. 2000) (setting out new
cautionary instruction to be given whenever separate offenses are jointed for
trial). The district court here,
although giving a cautionary instruction, did not give the instruction
The state asserts that the evidence fails to support appellant’s claim that he was less culpable and that dual representation may have benefited appellant. See Lundin v. State, 430 N.W.2d 675, 678 (Minn. App. 1988), review denied (Minn. Dec. 21, 1988). While this may be true, our review of the record here leaves us with an “informed speculation” that appellant may have been actually prejudiced. See Lollar, 376 F.2d at 247. Given this possibility, we conclude that appellant is entitled to a new trial.
D E C I S I O N
Because the district court failed to individually question appellant and his co-defendant wife regarding their decision to allow appellant’s attorney to jointly represent them and because the state has failed to show beyond a reasonable doubt that no prejudice resulted from this joint representation, we reverse and remand for a new trial. Given our decision to grant appellant a new trial, we need not address any remaining issues raised by appellant in his brief or pro se supplemental brief.
Reversed and remanded.
 We note that appellant argues that he cannot
be convicted of aiding and abetting felony check forgery because Dawn Walker
did not sign a fictitious name and had authority to sign her name to Kodiak’s
checks. The statutory crime of check
forgery was enacted in 1987 and makes it a crime for a person to “falsely make[
] . . . a check so that it purports to have been made . . . by the authority of
one who did not give authority.” Minn.
Stat. § 609.631, subd. 2 (2002); 1987