This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Paul Jon Craig,




Filed May 28, 2002


Anderson, Judge


Stearns County District Court

File No. K7005205


John M. Stuart, State Pubic Defender, Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55414 (for appellant)


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


Roger S. Van Heel, Stearns County Attorney, Administration Center, 705 Courthouse Square, St. Cloud, MN  56303-4773 (for respondent)


            Considered and decided by Stoneburner, Presiding Judge, Harten, Judge, and Anderson, Judge.





U N P U B L I S H E D  O P I N I O N




A jury convicted appellant of one count of terroristic threats and two counts of fifth-degree domestic assault.  Appellant argues the district court abused its discretion when it denied his motion for a continuance on the day of trial.  Appellant also argues that he was denied his constitutional right to counsel during jury selection because he did not knowingly and intelligently waive his court-appointed representation approximately two weeks before trial.  We affirm.



On December 13, 2000, the state charged appellant with one count of terroristic threats, a violation of Minn. Stat. § 609.713, subd. 1 (2000), and two counts of fifth-degree domestic assault, violations of Minn. Stat. § 609.2242, subd. 1 (2000).  On January 5, 2001, appellant waived an omnibus hearing, pleaded not guilty, and demanded a speedy trial.

On February 16, 2001, appellant dismissed his public defender for cause and waived his right to be represented by counsel at trial, which was scheduled to begin approximately two weeks later.  The district court, over appellant’s objection, appointed the public defender to act as standby counsel.  The next day, appellant wrote his now-standby counsel and directed him to (1) copy the relevant criminal statutes for his review; (2) interview certain witnesses; (3) subpoena those witnesses; and (4) prepare for jury selection.  He also demanded that the standby counsel investigate his wife’s criminal history and review any past domestic-abuse complaints filed by his wife.  The standby counsel copied the statutes and directed appellant to contact the court administrator to obtain the subpoenas.  During a subsequent phone conversation between appellant and his standby counsel, the standby counsel noted that it was appellant’s responsibility to subpoena his witnesses.  On February 28, 2001, appellant moved the court to appoint new counsel, continue his trial date, and shorten the time for hearing his motion.

On March 7, 2001, the day of trial, appellant argued that he did not have sufficient time to prepare for trial after he dismissed his court-appointed public defender on February 16.  Appellant argued that he was unable to (1) subpoena witnesses to testify for his defense; (2) take those witnesses’ depositions; or (3) obtain substitute counsel.  Appellant therefore requested a continuance.  The state argued that appellant’s case had been set for trial on January 8, and noted that appellant had requested a speedy trial.  The state argued that it was ready to proceed and opposed appellant’s motion for a continuance.  The district court denied appellant’s motion for a continuance. 

Shortly thereafter, the court asked appellant whether he was prepared to proceed pro se, or whether he wished to proceed with his standby counsel as his lawyer.  The court asked appellant, among other things, whether he was “fully aware of the gravity of the charge” and whether he understood the substance of the charges.  Appellant responded, “Definitely.”  The court again requested that appellant reconsider his decision to represent himself.  Appellant disregarded the court’s suggestions.  After a haphazard jury selection, where appellant incorrectly marked the wrong jurors to be dismissed (which was only later rectified by reassembling the jury pool), appellant decided that he would permit his standby counsel to complete the rest of his trial, including the cross-examination of the state’s witnesses.

During the trial, the state called as witnesses appellant’s wife, step-son, step-daughter, and the step-daughter’s boyfriend.  These witnesses corroborated the state’s theory of the case.  The state also examined the two officers who responded to appellant’s wife’s 911 phone call.  Appellant testified in his own defense.  The jury found appellant guilty of all three counts, and the district court sentenced appellant to 15 months in prison.  This appeal followed.



I.          Continuance


            Appellant argues the district court abused its discretion by denying his motion for a continuance on the day of trial because appellant had only two weeks, after he dismissed his public defender, to prepare for trial.  Appellant argues that his continuance request was reasonable because it was his first request and the need for the continuance was in large part caused by the district court’s failure to inform him about the limited scope of his standby counsel’s responsibilities.  Appellant notes that the district court failed to explain that he, and not his standby counsel, would be responsible for subpoenaing witnesses, interviewing those witnesses, and conducting jury selection.  Because the district court denied him the opportunity to subpoena and interview his wife’s ex-husband, and to subpoena two character witnesses for his defense, appellant argues the continuance denial materially affected the outcome of his trial.

A ruling on a request for a continuance is within the district court’s discretion and a conviction will not be reversed unless the denial is a clear abuse of discretion.  State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987).

The reviewing court must examine the circumstances before the trial court at the time the motion [for a continuance] was made to determine whether the trial court’s decision prejudiced defendant by materially affecting the outcome of the trial.


State v. Turnipseed, 297 N.W.2d 308, 311 (Minn. 1980) (citations omitted).  This court

cannot reverse the trial court absent a showing of prejudice by the defendant, but reversal is required where denial of a continuance deprives defendant’s counsel of adequate trial preparation.


In re Welfare of L.B., 404 N.W.2d 341, 344 (Minn. App. 1987) (citation omitted). 

Nevertheless, “[a] defendant may not obtain a continuance by discharging his counsel for purposes of delay or by arbitrarily choosing to substitute counsel at the time of trial.”  State v. Fagerstrom, 286 Minn. 295, 299, 176 N.W.2d 261, 264 (1970) (citations omitted).  If there is no reasonable probability that the result of the trial would have been different, then a district court does not abuse its discretion by denying a motion for a continuance.  In re Welfare of L.B., 404 N.W.2d at 345; State v. Huber, 275 Minn. 475, 481, 148 N.W.2d 137, 142 (1967) (noting that the test is “whether the defendant has been in some manner embarrassed or prejudiced in preparing his defense so as to materially affect the outcome of the trial” (citations omitted)).   

            We conclude the district court did not clearly abuse its discretion when it denied appellant’s motion for a continuance because the denial did not materially affect the outcome of appellant’s trial. 

At trial, four eyewitnesses, including members of appellant’s immediate family, recounted appellant’s threatening and abusive conduct on the night in question.  This testimony was clear and dispassionate.  There is no suggestion in the record that appellant’s family conspired to ensure appellant’s conviction.  In fact, the reverse is true; the state revealed at trial an initial collusive attempt by appellant’s family to conceal the fact that appellant had held an exacto knife to his wife’s throat at the beginning of the domestic altercation.  Appellant admitted to several, but not all, of these allegations.  The steak knife that appellant later used to threaten his family near the end of the altercation was found on the floor near the location of the altercation.  Therefore, the evidence at trial overwhelmingly suggested appellant’s guilt.  There is simply no indication in the record that any of appellant’s unfulfilled pre-trial requests would have materially affected the strength of the state’s case.

            Furthermore, appellant’s assertion that his inability to interview and subpoena witnesses to testify for his defense materially affected the outcome of the trial is questionable.  According to the record at trial, appellant intended to call character witnesses presumably to show his reputation for peacefulness and honesty, and his wife’s alleged prior abusive conduct towards her children and her alleged reputation for dishonesty.  The prosecution, however, would have attempted to impeach this testimony through cross-examination and possibly would have introduced its own substantive character evidence. 

Finally, appellant does not contend that his re-appointed public defender inadequately represented him during the balance of his trial.  See State v. Graff, 510 N.W.2d 212, 216 (Minn. App. 1993) (noting that “a pro se defendant can request standby counsel to render assistance, or take over the entire defense” (citation omitted)), review denied (Minn. Feb. 24, 1994).  The record suggests that appellant’s counsel promptly impeached the veracity of the witnesses’ testimony when they unexpectedly revealed appellant’s alleged threatening use of the exacto knife during direct examination. 

            The district court’s decision to deny appellant’s motion for a continuance did not prejudice appellant’s defense and did not materially affect the outcome of his trial.  Therefore, the district court did not abuse its discretion by denying appellant’s motion for a continuance. 

II.         Right to Counsel 


            Appellant also argues that his Sixth Amendment right to counsel at jury selection was not vindicated because his waiver of counsel at his pre-trial hearing was not knowing and intelligent.  Appellant cites the brief and cursory discussion with the court at his February 16, 2001 pre-trial hearing, but fails to discuss the court’s lengthy colloquy with appellant before appellant conducted jury selection.

“The Sixth and Fourteenth Amendments to the United States Constitution guarantee criminal defendants the right to an attorney.”  State v. Worthy, 583 N.W.2d 270, 275 (Minn. 1998) (citation omitted).  This right attaches “at every stage of the criminal process.”  Fagerstrom, 286 Minn. at 298, 176 N.W.2d at 264 (citations omitted).  A defendant’s right to counsel may be waived if the waiver is competent and intelligent.  Worthy, 583 N.W.2d at 275.  Whether a waiver “is valid depends ‘upon the particular facts and circumstances surrounding that case, including the background, experiences, and conduct of the accused.’”  Id. at 275-76 (quotation omitted).  We review a district court’s finding of a valid waiver of the right to counsel only to determine whether the district court’s finding was clearly erroneous.  Id. at 276  (citation omitted).

The supreme court has

cautioned that to determine whether a waiver of the right to counsel is knowing, intelligent, and voluntary, trial 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. (quotation omitted).  A waiver of the right to counsel, however, may be valid even though a detailed colloquy between the court and the defendant is absent from the record.  Id

A waiver is also valid if the defendant is given counsel, fires his counsel, and understands that he does “not have a right to a different public defender but would have to represent himself if he did not accept the services of the [original] public defender.”  State v. Brodie, 532 N.W.2d 557, 557 (Minn. 1995).  Finally, “[a] defendant’s refusal, without good cause, to allow appointed counsel to continue representation may by itself be sufficient to find a valid waiver.”  Worthy, 583 N.W.2d at 277 (citations omitted).     

At two stages of the proceedings, the district court inquired about appellant’s decision to proceed pro se, with standby counsel to assist him with trial procedure.  At his February 16 pre-trial hearing, appellant moved to dismiss his counsel.  The following colloquy then occurred:

COURT: Okay, Mr. Craig, you not only want a jury trial, but you want to do it yourself; right?


            COURT: Have you ever done that before?

            DEFENDANT: No, sir.

            COURT: You know what Abraham Lincoln said?

            DEFENDANT: Yes, I do.

            COURT: And you still want to represent yourself?

            DEFENDANT: Yes, I do.

COURT: Well, I don’t think I have any choice--anybody in America[] who wants to be their own lawyer has some sort of right to do that, I guess, according to the United States Supreme Court.  So you may represent yourself.


On the day of trial, after denying appellant’s motion for a continuance, the court again inquired about appellant’s decision to represent himself:

COURT: Mr. Craig, when you indicated you wanted to proceed without counsel, I think I made it known that I thought that was a bad choice.  Are you fully aware of the gravity of the charge and what this charge is? 

DEFENDANT: Definitely. 

COURT: You understand it’s a charge of terroristic threats, which is a felony? 

DEFENDANT: Yes, I do.  

COURT: Punishable statutorily by five years in prison and a fine of $10,000. Minnesota Sentencing Guidelines makes it a 12 to 15-month stay of sentence, depending upon your record.  You may have defenses to this charge.  I’m not sure.  You may have a self-defense or an intoxication defense or other defenses. 

I have appointed--or I had appointed, I think, almost immediately, [a public defender] as standby counsel when you told me you wanted to go ahead on you own.  * * * 

I’m not real interested in delaying this matter.  [The public defender] is still here.  [He] can still undertake your defense.  It’s up to you. 

DEFENDANT: Can I say what I need to say? 

COURT: Yeah.  What I want you to tell me is whether or not you really want to give up your right to have an attorney?

DEFENDANT: I want to have an attorney that’s going to represent me in my best interests, Your Honor. * * * 

COURT: What is your education level? 

DEFENDANT: Ninth grade level.  * * *

COURT: There is probably no way you should have put yourself in the position of representing yourself, and I’m asking you to reconsider that.


Appellant ignored the court’s warnings and proceeded to conduct jury selection without consulting his standby counsel for procedural advice. 

            We conclude that appellant’s argument that the district court clearly erred by finding that he validly waived his right to counsel before jury selection must fail.  Appellant only focuses on the colloquy at his pre-trial hearing.  We need not decide whether this initial colloquy satisfied constitutional standards, because the lengthy colloquy between appellant and the court before jury selection, the next stage of the proceedings, was sufficient to satisfy the constitutional standard of a knowing and intelligent waiver of counsel.

            The district court asked appellant whether he understood (1) the consequences of self-representation; (2) the nature of the underlying charges; (3) the severity, including the presumptive sentences, of the charges; and (4) that he may have defenses to the charges.

            The record suggests that appellant was aware that he would be responsible for preparing for his trial, and his contention that he did not understand the extremely limited role of a standby counsel is unreasonable.  See State v. Richards, 552 N.W.2d 197, 206 (Minn. 1996) (“[S]tandby counsel’s role is fundamentally advisory * * * .” (citation omitted)).  In fact, at the pre-trial hearing appellant requested that his public defender not be appointed as standby counsel.  Appellant’s criminal history suggests that his previous interaction with the courts and attorneys in this state is extensive.  See In re Welfare of G.L.H., 614 N.W.2d 718, 724 (Minn. 2000) (noting that one of the factors that suggests a knowing and intelligent waiver is a defendant’s “previous experience in the criminal justice system”).  The district court’s inquiries at both the pre-trial hearing and the jury selection on the day of trial were thorough.  There is no evidence that appellant was not aware of the consequences of his decision.  See State v. Richards, 456 N.W.2d 260, 264 (Minn. 1990) (“The case law is clear that ‘[a] request to proceed pro se is not equivocal merely because it is an alternative position, advanced as a fall-back to a primary request for different counsel.’” (quotation omitted)); State v. Savior, 480 N.W.2d 693, 694 (Minn. App. 1992) (noting that a valid waiver may be found where “the surrounding circumstances show that appellant was aware of the consequences of proceeding pro se” (citation omitted)). 

Although appellant was not satisfied with the diligence of his public defender, appellant does not assert any claim that he was denied adequate assistance of counsel.[1]  See State v. Camacho, 561 N.W.2d 160, 173 (Minn. 1997) (“An indigent defendant does not have an absolute constitutional right to the counsel of his or her choice.” (citation omitted)); Fagerstrom, 286 Minn. at 299, 176 N.W.2d at 264 (noting that “the right of an indigent to have counsel does not give him the unbridled right to be represented by counsel of his own choosing”); see also State v. Gillam, 629 N.W.2d 440, 449 (Minn. 2001) (noting that an “exceptional circumstance” sufficient to establish a defendant’s right to substitute counsel “are those [circumstances] that affect a court-appointed attorney’s ability or competence to represent the client” (citation omitted)).

            Therefore, the district court’s finding that appellant knowingly and intelligently waived his right to counsel was not clearly erroneous.


[1] The record suggests that such a claim would likely be precluded because appellant apparently disagreed with his court-appointed counsel’s pre-trial decision to conduct limited discovery.  As the supreme court has stated,


Which witnesses to call at trial and what information to present to the jury are questions that lie within the proper discretion of the trial counsel. Such trial tactics should not be reviewed by an appellate court, which, unlike the counsel, has the benefit of hindsight. Counsel must, after all, have the flexibility to represent a client to the fullest extent possible.


State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (citation omitted).