STATE OF MINNESOTA
IN COURT OF
State of Minnesota,
Clay Carl Clark,
Filed June 28,
File No. 03083635
Mike Hatch, Attorney General,
1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County
Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government
Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
John Stuart, State Public Defender,
Steven P. Russett, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis,
MN 55414 (for appellant)
Considered and decided by Lansing,
Presiding Judge; Toussaint, Chief Judge; and Halbrooks, Judge.
Y L L A B U S
Criminal defendants have a
constitutional right to be represented by an attorney and, as a corollary, a constitutional
right to self-representation. But Minnesota does not
recognize a right under our state constitution to advisory counsel when the
right of self-representation is exercised.
P I N I O N
this appeal from conviction of four felonies, Clay Clark challenges the
district court’s denial of his requests to substitute appointed counsel,
appoint advisory counsel, and rescind self-representation. Because the district court did not abuse its
discretion and properly applied the law in denying Clark’s
requests, we affirm.
A C T S
Clark fled from police officers in a car that had been reported stolen. After police took him into custody, the
Hennepin County Attorney charged him with receiving stolen property, fleeing a
police officer in a motor vehicle, possession of a firearm by a prohibited
person, and theft of a motor vehicle. Clark pleaded not guilty, demanded a speedy trial, and
expressed his intent to retain private counsel.
Approximately one month later, Clark
advised the district court that he was unable to retain private counsel and
would proceed with the appointed public defender.
On the second day of jury voir dire, Clark told the district court that he wanted a different
attorney. Clark explained that he was
dissatisfied because the appointed public defender had never come to see him,
did not provide him with paperwork, told him that the evidence he believed
would prove his innocence was inadmissible at trial, and recommended that he
accept the plea offer because his case was “open and shut.” After listening to Clark’s reasons, the
district court reviewed with Clark the effect
of his previous requests for time to obtain private counsel and for a speedy
trial. The district court allowed the
public defender an opportunity to respond, which she declined, and the court then
denied Clark’s request, stating that “[u]nder the rules, [Clark]
would not be reassigned a different lawyer from the Public Defender’s Office.”
On the same day, after completion of jury
selection, Clark told the district court that
he wanted to represent himself. In
response to this request, the district court advised Clark of the
responsibilities of self-representation: that no delay would be allowed to
accommodate Clark’s trial preparation; that if Clark was not prepared for trial,
he should continue with the public defender because she was skilled and trained
as an attorney and was prepared for trial; that Clark would not be provided
with “standby” counsel if he represented himself; that Clark would not be
allowed to change his mind; and that Clark would be bound by the same rules as
any attorney and would be required to make an opening statement, question
witnesses, and make relevant objections without the assistance of the court. Clark
reaffirmed his decision to represent himself.
The district court then proceeded through a formal
waiver inquiry in which it ascertained that Clark had received a copy of the
complaint, understood the charges against him, understood that the maximum
penalty for the crimes charged was up to fifteen years in prison and a $30,000
fine, was medically competent to represent himself, and understood that he had
an absolute right to be represented by an attorney. After providing Clark an opportunity to
discuss his decision with the public defender, the district court granted Clark’s request and dismissed the public defender. The jury was empanelled, and the state gave
its opening statement and began examination of its first witness.
On the following day Clark
told the district court that he was a “layperson” and was “not qualified to
represent himself.” He said he had less
than twenty-four hours to prepare, did not have any sleep, was feeling
stressed, and had made a mistake. He
also asserted that he thought his public defender would assist him at trial and
that it was his constitutional right to have her present. The district court reminded Clark
that during the previous day’s proceeding, he waived his right to have an
attorney represent him and that it had been repeatedly explained that the
public defender would not assist at trial if he decided to represent
himself. The state argued that Clark’s request was untimely and that, because witnesses
had already been called, the request should be denied.
The district court denied Clark’s
request to rescind self-representation or to have the public defender present
to assist him. The judge explained that
Clark had waived his right to counsel, that witnesses had been called, that jeopardy
had attached, and that the court had told him prior to his waiver that the
public defender would not act as standby counsel if Clark
proceeded with self-representation.
The jury found Clark
guilty of all charges. The district
court sentenced him to concurrent prison terms, the longest of which was sixty
appeals his conviction.
I S S U E S
I. Did the district court abuse its
discretion in denying Clark’s request to
II. Did the district court err in denying Clark’s request to have a public defender act as advisory
III. Did the district court abuse its
discretion in denying Clark’s request to
N A L Y S I S
and Minnesota Constitutions provide a criminal defendant the right to have the
assistance of counsel in his or her defense. U.S. Const. amend. VI; Minn. Const. art. I, § 6. The right to counsel includes a fair
opportunity to secure an attorney of choice, but an indigent defendant’s right
to representation does not include the right to choose which attorney will
provide the representation. State v. Gassler, 505 N.W.2d 62, 70 (Minn. 1993); State
v. Vance, 254 N.W.2d 353, 358 (Minn.
1977). A court will grant an indigent’s
request for substitute counsel “only if exceptional circumstances exist and the
demand is timely and reasonably made.” Vance, 254 N.W.2d at 358. The decision whether to grant a request for
substitute counsel lies within the district court’s discretion. State
v. Worthy, 583 N.W.2d 270, 279 (Minn.
A defendant has the burden of showing the
existence of exceptional circumstances. Id. Exceptional circumstances “are those that
affect a court-appointed attorney’s ability or competence to represent a
client.” State v. Gillam, 629 N.W.2d 440, 449 (Minn. 2001).
“General dissatisfaction or disagreement with counsel’s assessment of
the case does not constitute . . . exceptional
circumstances.” Worthy, 583 N.W.2d at 279.
Personal tension between defendant and counsel during trial preparation
also does not constitute exceptional circumstances when it does not relate to
counsel’s ability or competence to represent a defendant. State
v. Voorhees, 596 N.W.2d 241, 255 (Minn.
1999). Requests for substitute counsel
are not timely when made “on the morning of trial” after jury voir dire has
begun. Worthy, 583 N.W.2d at 278-79.
Clark requested substitute counsel the morning of
trial, on the second day of jury voir dire.
At that point, his request was not timely. In part, Clark’s
stated reason was dissatisfaction with his appointed counsel’s opinion on what
evidence would be admissible and her assessment of the strength of his
case. These reasons do not constitute
exceptional circumstances that affect counsel’s ability or competence to
represent Clark. Although Clark told the court that his
appointed attorney had “never” come to see him, the record shows that the appointed
counsel who represented Clark at the beginning
of his trial was present with him at a court appearance two months earlier. At a minimum, Clark and his appointed
attorney had an opportunity to discuss his case at that appearance. At an appearance a month later, Clark told the district court that he was unable to
retain private counsel and would proceed with the appointed attorney. Because Clark’s
request was not timely and his allegations do not establish exceptional
circumstances, we conclude that the district court did not abuse its discretion
in denying the request for substitute counsel.
Clark also contends that he is entitled to a
new trial because the district court incorrectly stated that “[u]nder the
rules, [Clark] would not be reassigned a
different lawyer from the Public Defender’s Office.” We agree that it would be an incorrect
statement of the law to say that a criminal defendant may not have a different
public defender under any circumstances.
See State v. Lamar, 474 N.W.2d
1, 3 (Minn. App. 1991) (noting district court’s statement that defendant could
not have different public defender under any circumstances was inaccurate), review denied (Minn. Sept. 13, 1991). Nevertheless, in these circumstances, the
statement was not inaccurate because Clark’s
request was untimely and he failed to demonstrate exceptional circumstances. Because any overstatement in the court’s
explanation of the law was harmless and Clark does not challenge the
sufficiency of the evidence against him, Clark
is not entitled to a new trial. See id. (concluding inaccuracy of
district court’s explanation of law regarding substitution of counsel was
On the third day of trial, Clark
made two simultaneous requests: that he be allowed to rescind self-representation
and that the district court appoint the previously dismissed public defender as
his advisory counsel. In support of the
latter request, Clark argued that he had a “constitutional
right” to have the public defender present at trial. On appeal, Clark
contends that Minn. Const. art. I, § 6,
should be interpreted to establish the right of advisory counsel. We review issues of constitutional interpretation de novo. Star Tribune Co.
v. Univ. of Minn.
Bd. of Regents, 683 N.W.2d 274, 283 (Minn.
“Minnesota has a long tradition of assuring
the right to counsel.” Friedman v. Comm’r of Pub. Safety, 473
N.W.2d 828, 831 (Minn. 1991); see also Minn. Const. art. I, § 6 (providing that “[i]n all criminal
prosecutions the accused shall enjoy the right . . . to
have the assistance of counsel in his defense”). The purpose of the right to counsel is to
protect the layperson who lacks the skill and knowledge for self-representation. Friedman,
473 N.W.2d at 833. In Minnesota, this right has been expanded
beyond criminal prosecution to those contexts that “present the same dangers
that gave birth initially to the right itself.” Id.
(quotation omitted). For example, the right
to counsel extends to proceedings such as police interrogations, State v.
Schabert, 218 Minn. 1, 9,
15 N.W.2d 585, 589 (1944), and circumstances in which a driver has been asked
to submit to a chemical test under the implied-consent law. Friedman,
473 N.W.2d at 833. But the Minnesota Constitution
has not been interpreted to establish a right to advisory counsel when a
defendant exercises the right to self-representation, and we reject Clark’s argument
that this case warrants such an interpretation for three reasons: (1) Clark
knowingly, intelligently, and voluntarily waived his right to counsel; (2) the
United States Constitution, which is substantially similar to our own in its
provision for a right to an attorney, has not been interpreted to provide for
the right to advisory counsel; and (3) the supreme court, in its promulgated
rules of criminal procedure, has provided only for the discretionary appointment
of advisory counsel.
First, Minnesota recognizes that the right to
counsel can be waived and that criminal defendants have “a corollary
constitutional right to choose to represent themselves in their own trial.” Worthy,
583 N.W.2d at 279 (citing Faretta v. California, 422 U.S. 806, 819-21, 95 S. Ct.
2525, 2533-34 (1975)). A
defendant seeking to waive the right to counsel “should be made aware of the dangers
and disadvantages of self-representation, so that the record will establish
that ‘he knows what he is doing and his choice is made with eyes open.’” Id. at 276
(quotationsomitted). To determine whether a waiver of the right to
counsel is knowing, voluntary, and intelligent, district courts “‘should
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.’” Id. (quoting State v. Camacho, 561 N.W.2d 160, 173 (Minn. 1997)); see
also Minn. R. Crim. P. 5.02, subd. 1(4) (stating district court “shall
ensure that a voluntary and intelligent written
waiver . . . is entered in the record.”); Melinda A.
Nicholson, comment, The Constitutional
Right to Self-Representation: Proceeding Pro Se and the Requisite Scope of
Inquiry When Waiving Right to Counsel, 79 Tul. L. Rev. 755, 762-772 (2005)
(discussing comprehensive inquiry methods that ensure defendant’s waiver is
knowing, voluntary, and intelligent).
record shows that the district court conducted a comprehensive examination of Clark to determine that he wished to waive his right to
counsel. This inquiry included an examination
of Clark’s comprehension of the charges
against him, the maximum possible punishment, and his absolute right to be
represented by an attorney. The court inquired
into Clark’s mental competency. The court also discussed what would be
required of Clark while representing himself,
the benefits of being represented by counsel, and the consequences of self-representation. The district court repeatedly stressed that Clark would not have the assistance of standby counsel if
he proceeded with self-representation. Finally,
the district court provided time for Clark to
discuss this matter with the appointed public defender. After approximately twenty pages of transcripted
discussion and examination, the district court accepted Clark’s
waiver. The record shows that Clark made
a knowing, intelligent, and voluntary waiver of his right to counsel, and
Clark’s waiver was made with the understanding that the public defender would
not serve as advisory counsel if Clark
exercised his right to self-representation.
Second, we recognize that our
constitution is substantially similar to the United States Constitution. Compare
U.S. Const. amend. VI (providing criminal
defendant the right “to have the assistance of counsel for his defense” (emphasis added)), with Minn. Const. art. I, § 6 (providing criminal
defendants the right “to have the assistance of counsel in his defense” (emphasis added)). Federal courts
have not found a right to advisory counsel under the United States
Constitution. See United States v. Einfeldt, 138 F.3d 373, 378 (8th
Cir. 1998) (noting there is no constitutional right to standby counsel when defendant
exercises constitutional right to self-representation). And, contrary to Clark’s
argument on appeal, this state’s constitution is readily distinguishable from
those state constitutions that have been interpreted to include a right to
standby counsel or hybrid representation.
See Hill v. Commonwealth, 125 S.W.3d 221, 226-26 (Ky. 2004)
(interpreting Kentucky Constitution, providing criminal defendant right to be
heard “by himself and counsel,” to include right to proceed pro se with
assistance of advisory counsel); State v.
Sanders, 237 S.E.2d 53, 54 (S.C. 1977) (recognizing right to assistance of
counsel, even when criminal defendant exercises right to self-representation, because
South Carolina Constitution provides for right of defendant to be heard “by himself
or counsel, or both”).
we note that, under
former rules of criminal procedure, this court has recognized that advisory counsel was mandatory in felony
and gross-misdemeanor cases when criminal defendants exercised their right to
self-representation. See, e.g., State v. Savior, 480 N.W.2d 693, 694-95 (Minn. App. 1992)
(recognizing, under Minn. R. Crim. P. 5.02, subd. 1, counsel must be appointed
for defendant financially unable to afford counsel in felony or gross-misdemeanor
cases even if defendant exercises right to refuse assistance of counsel). But under the current rule, the district
court’s decision to appoint advisory counsel is discretionary. See
Crim. P. 5.02, subd. 2 (stating district court “may appoint ‘advisory counsel’
to assist the accused who voluntarily and intelligently waives the right to
counsel”). Because Minnesota courts have the obligation to
interpret our state constitution, a supreme court rule that provides for
discretionary appointment of advisory counsel creates a reasonable inference
that advisory counsel is not constitutionally required.
Clark also contends that the district
court erred by not exercising its discretion to appoint advisory counsel under
Minn. R. Crim. P. 5.02, subd. 2. At trial, when requesting advisory counsel, Clark told the district court that it was his expectation
that the appointed public defender would assist him during his self-representation. But under Minn. Stat. § 611.26,
subd. 6 (Supp. 2003), public defenders “must not serve as advisory counsel.” Because the statute precludes appointment of
a public defender to serve as advisory counsel, the district court was not
required to exercise its discretion under rule 5.02, subdivision 2, to determine
whether an attorney who was not a public defender should have been appointed as
Clark’s advisory counsel.
contends that the district court abused its discretion in denying his request
to rescind self-representation. After
waiving one’s right to counsel, a defendant does not have an absolute right to
relinquish the right of self-representation.
State v. Richards, 552 N.W.2d
197, 206 (Minn.
1996). A defendant shall not be
permitted to relinquish self-representation unless the request is timely and
reflects extraordinary circumstances. Id. In exercising its discretion, the district
court balances the request “against the progress of the trial to date,
the readiness of standby counsel to proceed, and the possible disruption of the
During the state’s case-in-chief, the third
day after jury voir dire began, Clark told the
district court that he was a “layperson” who was “not qualified to represent
himself,” and he requested that the public defender be reappointed to represent
him. After listening to arguments by
Clark and the prosecuting attorney, the district court denied the request
because Clark had waived his right to counsel with the understanding that
advisory counsel would not be appointed, witnesses had been called, and jeopardy
had attached. The transcript
demonstrates that the district court properly exercised its discretion by
considering the progress of the trial to date, possible disruption of the
proceedings, and readiness of advisory counsel to take over. The
district court did not abuse its discretion in denying Clark’s
E C I S I O N
defendants have a constitutional right to be represented by an attorney and a
corollary constitutional right to self-representation. Minnesota,
however, does not recognize a right under our state constitution to advisory
counsel when the right of self-representation is exercised. The district court made a substantial effort
to ensure that Clark’s waiver of his right to
counsel was made knowingly, intelligently, and voluntarily. The district court properly applied the law
and did not abuse its discretion in denying Clark’s
requests for substitute counsel, advisory counsel, and rescission of self-representation.