This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





Mark Allen Humphrey,



Filed September 18, 2001


Harten, Judge


Cass County District Court

File No. K6-00-43


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


John E. Valen, Attorney at Law, P.O. Box 1105, Walker, MN 56484 (for respondent)


Gregory K. Larson, Larson Law Office, 111 First Avenue Southeast, Little Falls, MN 56345 (for appellant)


            Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant challenges his conviction of gross misdemeanor driving after cancellation, arguing that the district court conducted an inadequate voir dire, erred in referring to the charge as a gross misdemeanor, misstated the burden of proof in instructing the jury, failed to poll the jury after rendition of the verdict, and did not make an adequate inquiry into his waiver of his right to counsel.  Appellant also argues that the prosecutor committed prejudicial misconduct.  We affirm.



Respondent State of Minnesota charged appellant Mark Allen Humphrey with gross misdemeanor driving after cancellation/inimical to public safety in violation of Minn. Stat. § 171.24, subd. 5 (Supp. 1999).  Respondent alleged that on December 30, 1999, appellant operated a motor vehicle while his driver’s license was canceled and after he had been given notice of the cancellation. 

Following an in camera discussion with appellant regarding his decision to represent himself, the district court held a jury trial with appellant participating pro se.  The jury found appellant guilty.  Appellant subsequently retained counsel and unsuccessfully moved the district court for a new trial.  This appeal followed.



Whether or not a new trial should be granted remains in the discretion of the trial court which may ascertain whether any prejudice has resulted.  State v. Thompson, 273 Minn. 1, 33, 139 N.W.2d 490, 513 (1966).

1.         Alleged District Court Errors

            Appellant alleges that the district court conducted an inadequate voir dire.  Minn. R. Crim. P. 26.02, subd. 4(1), governs voir dire.

The judge shall initiate the voir dire examination by identifying the parties and their respective counsel and by briefly outlining the nature of the case.  The judge shall then put to the prospective juror or jurors any questions which the judge thinks necessary touching their qualifications to serve as jurors in the case on trial * * * .


Minn. R. Crim. P. 26.02, subd. 4(1).  The transcript shows that the district court outlined the nature of the case, identified the parties, and asked the necessary questions to cover the requirements of Minn. R. Crim. P. 26.02, subd. 4(1).  Appellant was given the opportunity to question the potential jurors, but he chose not to do so.  The district court correctly found that appellant was not prejudiced by the district court’s purportedly inadequate voir dire. 

Appellant next argues that the district court erred in referring to the charge against him as a “gross misdemeanor” during voir dire and on the verdict forms.  Appellant alleges that the use of the term “gross misdemeanor” “tips the jury off to the potential punishment to the crime if convicted.”  Appellant made no objection nor did he request a curative instruction at trial.  Appellant has failed to show beyond mere speculation that he was prejudiced by the district court’s use of the term “gross misdemeanor.”

            Appellant also alleges that the district court misstated the burden of proof in instructing the jury.  A jury instruction must be viewed in its entirety to determine whether it fairly and adequately explained the law of the case.  State v. Broulik, 606 N.W.2d 64, 68 (Minn. 2000).  District courts are allowed “considerable latitude” in the selection of language for jury instructions.  State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986)).  But this court may reverse if a jury instruction was “misleading or confusing on fundamental points of law such as burden of proof and presumption of innocence.”  State v. Butler, 295 N.W.2d 658, 659 (Minn. 1980).           

Appellant alleges that the district court erred in giving the following instruction:

Remember that this case is important to both sides.  It’s important in the respect that a man who is guilty of the commission of a crime be brought to justice and punished.  It is equally important that a man who has not been guilty of the commission of a crime should not be punished for something that he did not do. 


The district court then asked:  “At this time are there any additions or corrections to the jury charge?”  Both parties answered that they had no additions or corrections.  Appellant contends that the above instruction “caused confusion as to the burden of proof.”  But the district court instructed the jury on the proper burden of proof both in its preliminary jury instructions at the beginning of the trial and in its final jury instructions:

The defendant is presumed innocent of the charge; and in order to find the defendant guilty, the State must prove him guilty beyond a reasonable doubt.  The defendant does not have to prove innocence.  The presumption of innocence remains with the defendant unless and until the defendant has been proved guilty beyond a reasonable doubt by evidence admitted at the trial. 


* * * *


The defendant is presumed innocent of the charges made against him, and that presumption abides with the defendant unless and until he has been proved guilty beyond a reasonable doubt.  [That] defendant is on trial and has been brought before the court by the ordinary processes of the law should not be considered by you as in any way suggesting guilt.  The burden of proving guilt is on the State.  The defendant does not have to prove innocence.


Viewing the jury instructions in their entirety, we conclude that the district court fairly and adequately explained the burden of proof.        

Appellant alleges error in the district court’s failure to poll the jury following the verdict.  Minn. R. Crim. P. 26.03, subd. 19(5), provides: 

When a verdict is rendered and before the jury has been discharged, the jury shall be polled at the request of any party or upon the court’s initiative.


Appellant did not request the district court to poll the jury and, although it may have been the better practice in this case to do so, we conclude that appellant has not shown any prejudice because the jury was not polled.

            Finally, appellant alleges that the district court failed to make an adequate inquiry into his waiver of his right to counsel. 

A defendant has a federal constitutional right to represent himself in a state criminal proceeding.  Faretta v. California, 422 U.S. 806, 836, 95 S. Ct. 2525, 2541 (1975); State v. Richards, 456 N.W.2d 260, 263 (Minn. 1990).  A defendant who intelligently and knowingly waives his right to the assistance of counsel must be allowed to represent himself despite his lack of the legal ability to conduct a good defense, his argumentative tendencies, and his pursuit of annoying irrelevancies.  Richards, 456 N.W.2d at 264-66.


State v. Thornblad, 513 N.W.2d 260, 262 (Minn. App. 1994).  A defendant who is competent to stand trial is competent to waive the right to counsel.  Godinez v. Moran, 509 U.S. 389, 397-400, 113 S. Ct. 2680, 2686 (1993).

[T]he court must be satisfied that the waiver of counsel is “knowing and voluntary.”  Godinez, 509 U.S. at 400, 113 S. Ct. at 2687; see also Richards, 456 N.W.2d at 263 (requiring a clear, unequivocal, and timely request to waive counsel and a knowing and intelligent waiver); Minn. R. Crim. P. 20.01, subd. 1 (requiring a knowing, voluntary, and intelligent waiver).  We review the district court’s finding that a defendant knowingly, voluntarily, and intelligently waived the right to counsel for clear error.  See Richards, 456 N.W.2d at 264.


 State v. Camacho, 561 N.W.2d 160, 172-73 (Minn. 1997).

The record reflects that appellant was advised of his rights at his first court appearance.  The Criminal Minute Sheet from appellant’s first appearance shows that appellant “states [that he] has consulted [with an attorney and] wants to represent [him]self.”  Before the trial started, the following exchange took place between the district court and appellant in chambers.

The Court:      Mr. Humphrey, you were representing yourself; is that correct?

[Appellant]:    Yes, I am.

The Court:      And that’s your decision to represent yourself?

[Appellant]:    Yes, it is.

The Court:      And that’s what you want to do?

[Appellant]:    Yes, sir.

The Court:      And [do] you want to have a backup attorney present for you?

[Appellant]:    No, I would not, Your Honor.

The Court:      All right.  Then you’re prepared to proceed this morning?

[Appellant]:    Yes, I am.

We note that appellant decided to represent himself only after he had consulted with an attorney.  We conclude that appellant’s waiver of counsel was knowing, voluntary, and intelligent.

2.         Alleged Prosecutorial Misconduct

Whether a new trial should be granted because of misconduct of the prosecuting attorney is governed by no fixed rules but rests within the discretion of the trial judge, who is in the best position to appraise its effect.  The court’s determination should be reversed on appeal only where the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that defendant’s right to a fair trial was denied. 


State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980) (citation omitted).

            Appellant contends that the prosecutor’s opening statement was inflammatory in that it made “continued reference to driving under the influence and careless, dangerous driving.”  After outlining the elements he needed to prove, the prosecutor made the following remarks in his opening statement:

Keep in mind what the State does not have to prove.  I’ve outlined for you what we do have to prove.  We do not have to prove that [appellant’s] license should have been canceled.  We simply have to prove that it was.  It isn’t necessary to prove that [appellant’s] driving conduct at that time was, in fact, dangerous; although, it will show that he was speeding. 


[Appellant is] not charged with driving under the influence.  He’s not charged with careless driving.  He’s not charged with reckless driving.  [Appellant is] simply charged with driving a motor vehicle while his license was canceled, and I submit to you that the evidence from Officer Tennis and the certified copy of his driving record will prove that.  Thank you. 


The prosecutor made one reference to “driving under the influence,” one reference to “careless driving,” and one reference to “reckless driving”; these brief references were made in the context of what appellant was not charged with. 

As a threshold matter, this issue may not be properly before this court.  Appellant raised no objection to the prosecutor’s opening statement.  Generally, failure to object to a prosecutor’s statement at trial forfeits a defendant’s right to have the issue considered on appeal.  State v. Atkins, 543 N.W.2d 642, 647 (Minn. 1996); State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980); State v. Flom, 285 N.W.2d 476, 477-78 (Minn. 1979).  But we may consider prosecutorial misconduct that is not objected to at trial if the misconduct constitutes plain error affecting substantial rights that deprived the defendant of a fair trial.  See State v. Ives, 568 N.W.2d 710, 714 (Minn. 1997); Atkins, 543 N.W.2d at 647-48.  Here, the alleged misconduct is not plain error affecting substantial rights that deprived appellant of a fair trial.  Therefore, appellant is not entitled to our review of this issue.

Appellant next asserts that the prosecutor improperly referred to his driving record during the final argument.  A certified copy of appellant’s driving record was received into evidence as trial exhibit one.  When the prosecutor offered exhibit one, the district court asked if there was any objection; appellant responded, “No, Your Honor.”  Although portions of the driving record could have been redacted upon a timely objection, appellant failed to object to the admission of his driving record until the prosecutor’s final argument.  The district court then overruled his objection as untimely.  References to an exhibit admitted into evidence are not improper. 

            Appellant contends that the prosecutor “improperly spoke” with him prior to trial and “obtained information privileged by the work product doctrine.”  The prosecutor spoke with appellant to determine if the case could be settled.  The prosecutor then made a motion in limine.

Prosecutor:  Then I have a motion [in limine] to limit the testimony.  Based upon my discussions with [appellant], I believe that it’s his intention to testify or to argue to the jury that basically the laws that have resulted in his cancellation are unfair.  I guess I just want to make sure that [appellant] understands that the only issues here for the jury to decide are whether he operated a motor vehicle, whether his license was canceled, whether he had been given notice of that or should have known of it, and that any testimony outside of those issues would be objectionable and should not be permitted.


Now, I know it’s difficult to rule on such a motion but I just want [appellant] to know that.    


The Court:      Okay.  I’ll rule on that when, and if, those issues come up at trial. 

[Appellant]:    Yeah.  Your Honor, I was going to ask you about that.  You know, if we would stick to just what’s going on here, or if I do bring this other stuff up that it would help me get my license back.  Otherwise, I will not be bringing any of that in unless there’s something that we can do to get my license back. 


The district court stated in its memorandum accompanying its denial of appellant’s request for a new trial:

It is not unusual for an attorney to talk to a defendant or to opposing counsel prior to trial to determine the possibility for resolution of the case.  It is also not unusual for these discussions to reveal some indication of what the defenses to the case might be.  The Court finds that the discussions between the prosecution and [appellant] did not result in any prejudice to [appellant] by way of the prosecutor’s motion in limine.


The district court did not abuse its discretion in concluding that any discussion between the prosecutor and appellant did not result in any prejudice to appellant.

Finally, a defendant is not entitled to a new trial if it can be said with certainty that the misconduct was harmless beyond a reasonable doubt.  State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995).  Misconduct is harmless beyond a reasonable doubt if the verdict rendered was “surely unattributable to the error.”   State v. Ashby,567 N.W.2d 21, 28 (Minn. 1997) (looking to the basis on which the jury rested its verdict and determining what effect, if any, the error had on the verdict).  Here, we conclude that the prosecutor did not engage in any misconduct.  But, even if the prosecutor’s acts were misconduct, the jury’s verdict was “surely unattributable” to the misconduct and, thus, it was harmless.