This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-01-984

 

 

State of Minnesota,

Respondent,

 

vs.

 

Gari Lamont Stewart,

Appellant.

 

Filed April 30, 2002

Affirmed

Robert H. Schumacher, Judge

 

Martin County District Court

File No. K400490

 

 

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

 

Terry W. Viesselman, Martin County Attorney, 923 North State Street, Suite 130, Fairmont, MN 56031 (for respondent)

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Parker, Judge.*


U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

            Appellant Gari Lamont Stewart alleges his waiver of counsel at his trial was ineffective, and the district court erred in: (1) admitting his prior felony conviction into evidence, (2) offering a curative instruction to the jury regarding his decision to represent himself, (3) failing to hold, sua sponte, a previously tabled omnibus hearing, (4) not having stand-by counsel present at his sentencing hearing, and (5) failing to offer, sua sponte, an accomplice instruction to the jury.  Stewart maintains that these errors cumulatively denied him a fair trial and due process of law.  We affirm. 

FACTS

            Early on July 26, 2000, police in Fairmont, Minnesota received a report of a burglary.  Just prior, the police had been called to investigate suspicious activities in and around a vehicle in the area.  The assailants entered the victim's home, knocked him to the floor, and threatened him with a knife.  They then stole stereo equipment, cash, and cigarettes from the home.  After receiving the report, police officer Steven Runge began searching for a vehicle observed in the area just prior to the incident.  The victim's neighbors provided information to the police regarding possible suspects. 

            Runge located the described vehicle pulling into the parking lot of a store.  Four adult males were in the car, including Stewart in the back seat.  The men's clothing matched descriptions provided by the victim's neighbors.  The driver consented to a search of the trunk, where the stolen property was found.  The victim was then brought to the parking lot, where he identified Stewart as the man who had knocked him down, threatened him with the knife, and robbed him.  The victim had met Stewart, who had previously visited his home.  Stewart was arrested and charged with two counts of first-degree burglary, felony theft, possession of stolen property, fifth-degree assault, and underage consumption of alcohol.

            Stewart's first appearance was on July 28, 2000, at which time a public defender was assigned to represent him.  An omnibus hearing was scheduled for August 14, but it was continued.  On October 30, the public defender requested a trial date and asked that the omnibus hearing be postponed until the start of trial.  The district court granted the request and set the trial for February 21, 2001.

            On November 30, however, Stewart sent a letter to the trial judge stating that he "would like to fire [his] lawyer" because he did not feel that the public defender had his "best interest in mind and [because] he is also against me just as if he was the prosecuting attorney."  Stewart wrote: "I am prepared to represent myself in the court of law."  Consequently, a hearing was held on December 11 to address the matter.  The district court, after confirming that Stewart still wished to terminate the public defender, informed Stewart that he would not receive the assistance of another public defender and that the hearings and trial would proceed as scheduled.  Stewart stated that he understood and would proceed without the assistance of the public defender.  The public defender was appointed stand-by counsel.

            On February 21, the jury trial began.  Before seating the jury, the district court again went over Stewart's decision to represent himself.  The court informed Stewart of the charges against him and the potential sentence should the jury find him guilty.  The district court explained to Stewart that by representing himself, he would not have the assistance of an attorney's expertise and that this would present difficulties at trial.  Stewart said that he understood all of this and wanted to proceed without an attorney.  The court explained to Stewart that a plea offer was available, and that the court would allow him some time to discuss this with the prosecuting attorney if he so desired.  Stewart said he was ready to proceed to trial.  Additionally, the court advised Stewart that the public defender was available as stand-by counsel, and if Stewart wanted to consult with him, the court would allow him to do that throughout the trial.  The court also informed Stewart that he was not required to testify, and that neither the court nor the prosecution could comment about his decision not to testify should he decide not to take the stand.

            Stewart waived opening statement.  The state began by calling the neighbors who had made partial identifications of Stewart and his accomplices.  Stewart asked questions on cross-examination of one witness.  After the noon recess, before the jury had been brought back into the courtroom, Stewart told the court he did not know what he was doing and wanted some additional time to hire his own attorney.  The state objected, stating that the request was untimely and prejudicial to the state's case as well as a potential hardship on the victim who was present to testify despite medical problems.  The court denied Stewart's request, concluding that Stewart had confirmed his willingness to proceed without an attorney prior to trial, and there was no just reason to delay the trial.

            The trial continued, with the state calling several witnesses including the victim, who made a positive identification of Stewart, and the other men involved in the incident, each of whom implicated Stewart.  When Stewart was offered the opportunity to cross-examine, he replied that he did not know anything about the law and could not ask questions. 

            After the state rested, Stewart called his mother to the stand.  She testified that Stewart did not know the other men involved in the incident very well and had just met them.  Stewart's mother made some general, positive statements about Stewart's character and behavior but made no mention of any mental problems or abnormal intelligence.  She could not provide any first-hand information to refute the state's case.  Instead, she stated that the process was unfair to Stewart because he had no attorney.  The state objected and asked for a curative instruction.  Stewart's mother continued, informing the jury that she had tried unsuccessfully to contact Stewart's lawyer several times and now he had no representation.

            Stewart testified and denied any involvement in the crime, suggesting that the other men were implicating him because he was new to the group and to "help themselves out."  On cross-examination, the prosecutor reaffirmed Stewart's denial of the assault and asked whether Stewart would "do that type of thing."  When Stewart said he would not, the prosecutor asked whether he had ever been convicted of a felony.  Stewart admitted he had.  The prosecutor asked: "[T]hat was on December 22, 1999 that you were convicted of a felony and aggravated robbery in the first degree?"  Stewart admitted this.

            After Stewart rested, the district court gave a curative instruction to the jury.  The court explained that Stewart had been appointed a public defender but later declined his representation.  The court told the jury that he had explained to Stewart that another attorney would not be assigned to him and he would either have to hire his own attorney or proceed without one.  The court also told the jury that Stewart had informed the court he was prepared to represent himself.  In addition, the court told the jury that he had confirmed this the morning before the trial began, and the first time Stewart asked for an attorney was that afternoon.  The court told the jury that he had denied Stewart's request to continue the trial.

            The district court instructed the jury prior to deliberations.  Stewart made no requests regarding instructions, nor did he make any objections to the instructions.  The court did not give an instruction on accomplice testimony.  The underage consumption charge was dropped, and the jury retired for deliberations.  The jury had a question for the court.  The parties were present for the question and the court's response.  Neither side offered any suggestion as to how the court should respond, nor did Stewart make any objection to the response.  The jury found Stewart guilty of all the remaining counts.

            Stewart did not request a jury polling, and none was conducted.  At sentencing, Stewart declined the court's invitation to speak.  The sentencing transcript does not reference an appearance by stand-by counsel.  Stewart received the presumptive sentence of 68 months.

D E C I S I O N

1.         Stewart alleges that the district court erred in allowing him to proceed to trial without assistance of counsel.  Stewart claims his constitutional rights to a fair trial and to due process of law were violated because he could not effectively waive his right to counsel and therefore the district court should not have allowed him to do so.  Constitutional issues are questions of law that this court reviews de novo.  State v. Wicklund, 589 N.W.2d 793, 797 (Minn. 1999).

            In Faretta v. California, 422 U.S. 806, 836, 95 S. Ct. 2525, 2541 (1975), the United States Supreme Court held that a criminal defendant has an absolute, constitutional right to forego assistance of counsel and represent himself in a state court proceeding.  The court cannot force a defendant to accept counsel, even when the court believes that the defendant is making a mistake by refusing assistance of counsel.  Id. Furthermore, the accused's technical legal knowledge is not relevant when determining whether the defendant's choice is a knowing exercise of his right to defend himself.  Id. 

Likewise, the Minnesota Supreme Court has recognized a defendant's right to self-representation.  State v. Richards, 456 N.W.2d 260, 266 (Minn. 1990).  Notably, the supreme court added that a request to proceed without assistance of counsel is not equivocal merely because it is posited as an alternative to a primary request for a different attorney.  Id. at 264.  The standard for analyzing a self-representation request is: "(1) whether the request is clear, unequivocal, and timely, and (2) whether the defendant knowingly and intelligently waives his right to counsel." Id. at 263 (footnote omitted) (citing Faretta, 422 U.S. at 835, 95 S. Ct. at 2541). 

Stewart alleges his waiver does not satisfy the second prong of the standard because a mental deficiency rendered his waiver invalid.  The first mention of a mental deficiency occurred after trial during the presentence investigation.  Assuming Stewart's contention to be accurate, this is not sufficient to render his waiver invalid.  Under the appropriate standard, the waiver must be knowing and intelligent.  This singular, vague reference after trial is not adequate to refute substantial information in the record indicating that Stewart had sufficient mental capacity to effectuate a valid waiver.  The legal standard for mental competency to waive assistance of counsel is the same as that for competence to stand trial.  State v. Camacho, 561 N.W.2d 160, 171 (Minn. 1997). 

Stewart's competence to stand trial was never questioned.  Moreover, Stewart's conduct and statements as reflected in the record indicate that he possessed the requisite minimum mental capacity.  His letter to the district court is coherent and clear.  He responded to the court's questions appropriately and consistently.  His testimony at trial establishes that he understood what was going on and was able to provide relevant information in his defense.  Likewise, his closing argument demonstrated Stewart's appreciation for the process, the risks, and the issues involved at the trial.  See Minn. R. Crim. P. 20.01, subd. 1.  A minor mental defect is not sufficient mental incapacity to invalidate a waiver of counsel.  See Camacho, 561 N.W.2d at 173 (defendant's IQ of 79 to 82 not sufficient to preclude valid waiver).

Stewart asked to terminate the public defender and represent himself on November 30, 2000.  He confirmed this on the record on December 11, 2000.  The district court informed him that he would not be appointed a different attorney.  Stewart clearly stated that he understood.  Under very similar facts, the supreme court held that the defendant's waiver of counsel was valid, despite his somewhat diminished intelligence.  Id.

2.         Stewart also asserts that the district court denied him a fair trial by refusing to grant a continuance mid-way through trial so that he might attempt to secure private counsel.  Stewart knew, as of December 11, 2000, that he would not be represented by a court-appointed attorney pursuant to his request.  Nonetheless, he waited some ten weeks until trial and a significant portion of the state's case had been completed to mention to the court that he wanted to retain an attorney.  The supreme court has upheld district courts' denials of motions for a continuance in similar situations.  SeeState v. Worthy, 583 N.W.2d 270, 278 (Minn. 1998) (request for continuance on first day of trial more than six weeks had passed without mention of attempt to retain counsel); State v. Vance, 254 N.W.2d 353, 359 (Minn. 1977), (request for continuance made few days prior to trial after passage of 11 weeks).  The district court did not abuse its discretion in denying Stewart's request for a continuance.

3.         The record does not indicate that stand-by counsel was present at the sentencing hearing.  In any event, it is very unlikely Stewart would have called upon the assistance of stand-by counsel given that he did not request counsel's presence at the hearing.  Also, Stewart never consulted with stand-by counsel at trial.[1]  Additionally, the district court had the presentence report and had reviewed it.  The court referenced Stewart's criminal history score at the sentencing hearing, as taken from the presentence report.  The court is allowed to rely upon such factors to depart from the presumptive sentence but is not required to do so.  Stewart declined the opportunity to address the court on his own behalf.  The absence of stand-by counsel at sentencing did not deny Stewart due process.

4.         Stewart references the district court's failure to consult with him regarding the jury's question.  Stewart was present and made aware of the jury's inquiry and allowed to observe everything the district court said and did in response.  The court did not receive substantive input from Stewart or the prosecution.  This did not deny Stewart due process.

5.         Stewart also references the fact that the jury was not polled following the verdict.  Stewart was not informed of this, and he made no request.  The district court did confirm, however, that the jury's verdict was unanimous.  Also, stand-by counsel was present for Stewart's consultation as to his options.  Stewart elected not to consult with him.  Stewart was not denied due process because the jury was not polled.

6.         Stewart takes issue with the district court's specially-tailored instruction following his mother's testimony.  The district court did explain to the jury what led to Stewart's self-representation at trial.  Generally, the court and the prosecution are not to discuss the fact that the defendant is represented by the public defender.  State v. Bonn, 412 N.W.2d 28, 30 (Minn. App. 1987), review denied (Minn. Oct. 21, 1987).  In this instance, however, Stewart's mother put the issue before the jury.  His mother's testimony certainly may have prejudiced the jury by presenting only part of the history and suggesting that the court was treating Stewart unfairly.  The state made a timely objection and referenced a cautionary instruction.  Stewart's mother continued, however, now creating the possible appearance that the prosecutor was also victimizing the defendant.  Stewart created the need for this instruction.  The district court was within its discretion in giving the instruction to the jury for clarification purposes and to minimize any potential prejudice.

7.         Stewart claims error because no omnibus hearing was held.  He claims that the issue as to the constitutionality of the victim's "show-up" identification of Stewart in the parking lot was going to be addressed at this omnibus hearing.[2]  Prior to Stewart terminating him, the public defender had requested the hearing be tabled until the trial date.  No omnibus hearing was ever held. 

Stewart claimed at trial and now claims on appeal that he did not know what he was doing.  Stewart elected to represent himself; for better or worse, this was his choice.  The courts have clearly indicated that a defendant is free to represent himself or herself.  Stewart could have allowed his appointed counsel to continue to represent him.  He did not want the public defender to represent him, however.  The absence of the omnibus hearing was another situation Stewart created himself.  This factor did not deny Stewart a fair trial.

8.         The prosecutor impeached Stewart's testimony with his prior conviction.  Stewart claims this was improper and denied him a fair trial because the state did not give notice of its intent to use the conviction at trial and had not obtained a court ruling allowing for its use.  Stewart did not object to the evidence.  Minnesota Rule of Evidence 609 allows for a witness to be impeached with a prior felony conviction when the district court determines that the probative value of the evidence outweighs its prejudicial effect.  The district court's evidentiary ruling will not be overturned unless an abuse of discretion is shown.  State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979).  Appellate courts give "considerable deference" to the district court's admissibility ruling under Rule 609.  State v. Ross, 491 N.W.2d 658, 659 n.3 (Minn. 1992). 

In State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978), the supreme court set forth five factors to consider regarding the admissibility of prior crime impeachment evidence: the impeachment value of the prior crime, the date of conviction, the similarity of the prior crime and the charged crime, the importance of the defendant's testimony (i.e., whether the court's ruling will deter defendant from testifying), and the importance of the credibility issue.  Failure to place this analysis on the record amounts to harmless error if the conviction evidence could have been properly admitted after applying the Jones-factor analysis.  State v. Vanhouse, 634 N.W.2d 715, 719 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).

Applying these factors, the district court did not abuse its discretion by allowing the prior conviction into evidence.  The prior conviction was very recent and highly probative.  Although similar in nature to the crime at issue and thus potentially prejudicial, this fact alone does not constitute an abuse of discretion.  Id. at 720.   Allowing the evidence did not deter Stewart from testifying.  Moreover, Stewart's flat denial of any involvement placed his credibility squarely in issue.  Arguments to exclude the evidence were not presented to the district court most likely because of Stewart's self-representation.  This decision was his to make, and he must accept the consequences.  See Richards, 456 N.W.2d at 263 (defendant who elects to represent himself cannot later take issue with quality of his defense).

9.         Stewart contends that the district court's failure to give an accomplice testimony instruction denied him a fair trial.  Even though a defendant who wishes to preserve the issue for appeal should object, the district court should give the accomplice testimony instruction even absent a request.  State v. Shoop, 441 N.W.2d 475, 479 (Minn. 1989).  The failure to instruct on accomplice testimony is subject to harmless error analysis.  Id. at 480-81.  In this instance, the absence of the instruction amounts to harmless error.  The evidence against Stewart was significant.  Although a substantial portion of the state's evidence came from the others involved in the criminal conduct, Stewart referenced those individuals' bias to the jury on multiple occasions.  The jury was aware that these witnesses might have had ulterior motives that rendered their testimony biased.  Also, the state presented sufficient evidence to convict Stewart through other, non-accomplice witnesses, most notably, the victim himself.  Even if the failure to give the instruction constitutes error, it did not deny Stewart a fair trial.

Affirmed.



            * Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Stewart references this fact as an additional indication that he failed to receive a fair trial.  The court cannot force Stewart to utilize stand-by counsel, however, any more than it can force direct representation upon him.

[2] A motion to suppress was never filed with the district court, however.