may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
Walter Randall York,
St. Louis County District Court
File No. K200600807
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Duluth, MN 55802 (for respondent)
John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge, Toussaint, Chief Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of fourth-degree assault, appellant Walter Randall York, who discharged his public defender by letter but was never questioned about whether his decision to proceed pro se was knowing and intelligent, argues that he did not validly waive his right to counsel. York also argues that the trial court abused its discretion by refusing to instruct the jury on self-defense when there was evidence that York, a jail inmate being transferred to segregation, was handled with unnecessary force. We affirm.
York was an inmate at the St. Louis County jail assigned to a cell in a high-risk unit on the second floor. A supervisor instructed Corrections Officers Greg Halvorson and Scott Lurye to transfer York to a cell in an adjacent disciplinary-segregation unit on the first floor. The unit to which York was being transferred housed inmates who had committed “major violations” in the jail. When the officers entered York’s cell, he complied with their instructions to kneel while they handcuffed his hands behind his back and then to stand up.
As the officers escorted York out of his cell and down the stairs, he began yelling loudly. Halvorson repeatedly told York to be quiet, but York continued yelling. When the officers opened the door to York’s new cell, York yelled even louder and began physically resisting the officers’ efforts to get him inside the cell.
Halvorson told York to quiet down or he would be taken to the intake cell, a cell where an inmate who is creating a disturbance is taken to isolate him from other inmates. York asked Halvorson, “What are you going to do, assault me?” Halvorson testified that at that point,
I took him by the left arm and he jerked away from me and resisted, and we got a hold of him but he was still struggling. So we had to forcefully put him up against the wall so we could gain control of him because he was resisting the whole time.
Halvorson admitted pushing York “hard up against the wall.” As the officers escorted York out of the disciplinary-segregation unit to the intake cell, York continued yelling and physically struggling against the officers.
To reach the intake cell, after leaving the disciplinary-segregation unit, the officers and York had to walk down a corridor. York continued resisting, saying that he did not want to go to the intake cell. At one point, York broke free from the officers, and the officers again placed York against a wall to regain control of him. York told Halvorson to remove the handcuffs, so he could show Halvorson how tough he was.
The officers regained control of York and continued escorting him down the corridor. When they reached a door at the end of the corridor, York kicked the door open. He continued physically resisting the officers and making comments to Halvorson. York then turned and spit on Halvorson’s face.
Halvorson and Lurye took York to the floor to regain control, and other officers came to assist. When the other officers arrived, York stopped resisting and was escorted to the intake cell.
Corrections Officer William Plachta saw Halvorson’s and Lurye’s efforts to escort York from his original cell to a cell in the disciplinary-segregation unit. Plachta described York as agitated and fighting. Plachta specifically testified that he saw Halvorson place York against the wall to regain control while in the disciplinary-segregation unit. Plachta opined that in handling York, Lurye and Halvorson complied with jail rules and regulations governing inmate handling.
Sergeant Penny Wietman saw Halvorson and Lurye escorting York down the corridor between the disciplinary-segregation unit and the intake cell. Wietman testified that York was acting unruly and was physically resisting the officers. In Wietman’s opinion, Halvorson and Lurye complied with jail rules and regulations in the manner in which they handled York. Wietman testified that she did not observe any injuries on York before York spit on Halvorson and was taken to the floor. When York got up from the floor, Wietman saw blood above his left eyebrow and an abrasion on his left cheek.
Zachary Harrington, another inmate in the St. Louis County jail, testified on York’s behalf. Harrington was confined to a cell in the disciplinary-segregation unit adjacent to the cell to which York was supposed to be transferred. Harrington testified that through the window in his cell door, he saw Halvorson and Lurye escort York into the disciplinary-segregation unit. Harrington testified that York said “hello” to another inmate, and Halvorson told him to quiet down and jerked his arm up. According to Harrington, when Halvorson jerked York’s arm, York said he did not need to do that, and Halvorson then pushed York up against the wall, causing York’s head to bounce off the wall. Harrington also testified that as Lurye and Halvorson escorted York through the door leaving the disciplinary-segregation unit, they pushed York in a way that caused his head to strike the doorframe.
Waiver of counsel
In July 2000, attorney Susan Ginsburg was appointed to act as York’s public defender. Ginsburg conducted discovery and appeared at a hearing on York’s behalf, moving to dismiss for lack of probable cause and requesting a speedy trial. In October 2000, York filed a substitution of attorneys substituting Joanne Piper-Maurer for Ginsburg. Piper-Maurer also conducted discovery on York’s behalf.
In November 2000, Piper-Maurer moved to withdraw as York’s attorney due to a conflict. At a hearing on Piper-Maurer’s motion, the district court indicated that it would grant the motion and explained to York that he had four options for legal representation. He could have the district court reappoint Ginsburg to represent him, hire a private attorney, represent himself, or represent himself with Ginsburg reappointed to serve as standby counsel. York was undecided about how to proceed but did express a concern about whether Ginsburg could be reappointed because he had filed a grievance against her. York stated that if his grievance was deemed to be without merit, he would opt to represent himself with Ginsburg as standby counsel.
In December 2000, the district court sent York a letter advising him that Ginsburg would be reappointed to represent him. After meeting with the chief public defender, York advised the district court that he would represent himself with Ginsburg serving as standby counsel. York requested guidance from the court regarding who would assist him in obtaining copies of statements and other documentary evidence. He also requested the services of a paralegal from the public defender’s office, filed a witness list and a demand for a jury trial, and requested subpoenas.
In an order filed January 2, 2001, the district court directed the public defender’s office to provide photocopying, but not mailing, services to York; denied York’s request for a paralegal; and provided for scheduling of a contested omnibus hearing pursuant to York’s request.
York represented himself, with Ginsburg acting as standby counsel, at a hearing on January 5, an omnibus hearing on February 12, and at his jury trial on April 4-5, 2001.
1. York argues that his waiver of his right to counsel was not knowing, intelligent, and voluntary. The United States Constitution guarantees criminal defendants the right to an attorney. State v. Worthy, 583 N.W.2d 270, 275 (Minn. 1998). If the defendant chooses to waive that right, it is the district court’s responsibility to determine whether the waiver is “competent and intelligent.” Id. The purpose of the district court inquiry is to ensure that the defendant is “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.” Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541 (1975) (quotation and citation omitted). “Whether a waiver of a constitutional right is valid depends upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Worthy, 583 N.W.2d at 275-76 (quotation and citation omitted). This court will affirm the district court’s finding of a valid waiver of a defendant’s right to counsel unless that finding is clearly erroneous. Worthy, 583 N.W.2d at 276.
York argues that he did not want to represent himself but rather sought to have a public defender other than Ginsburg appointed to represent him. An indigent defendant does not have a right to be represented by the attorney of his choice; a court will grant an indigent’s request for different counsel only if exceptional circumstances exist and the demand is timely and reasonably made. Worthy, 583 N.W.2d at 278. In State v. Brodie, 532 N.W.2d 557 (Minn. 1995), the supreme court held that the defendant knowingly and voluntarily waived his right to counsel when he “fired” appointed counsel, and the record demonstrated that the defendant knew that he did not have a right to a different public defender but would have to represent himself if he did not accept the public defender’s services. See also Worthy, 583 N.W.2d at 276 (explaining Brodie).
The district court advised York that if he wanted a public defender to represent him, Ginsburg would be reappointed. The district court explained to York his four options regarding representation. The district court’s explanation made it clear that York did not have the right to representation by a public defender other than Ginsburg, and the record demonstrates that York understood that he would have to represent himself or hire a private attorney if he declined to have Ginsburg represent him.
Three additional factors also support a finding that York’s waiver of counsel was knowing, intelligent, and voluntary. First, York was represented by counsel for more than three months before exercising his waiver right. When a defendant has consulted with an attorney before waiver, the district court can “reasonably presume that the benefits of legal assistance and the risks of proceeding without it had been described to defendant in detail by counsel.” Id. (quotation and citation omitted). Second, York was experienced with the criminal-justice system. See id. (citing defendants’ prior experience with criminal-justice system as factor supporting a finding of valid waiver of counsel). Finally, the record does not show that York had good cause to be dissatisfied with Ginsburg’s representation. “A defendant’s refusal, without good cause, to allow appointed counsel to continue representation may by itself be sufficient to find a valid waiver.” Id. at 277.
The record shows that York knowingly, intelligently, and voluntarily waived his right to counsel. The district court did not err in allowing York to represent himself.
2. York argues that the district court erred in denying his request for a jury instruction on self-defense. The decision whether to give a requested jury instruction lies within the district court’s discretion and will not be reversed absent an abuse of that discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996). A defendant is entitled to an instruction on his theory of the case only if there is evidence to support it. State v. Coleman, 373 N.W.2d 777, 781 (Minn. 1985).
The elements of self-defense in a criminal case are (1) the absence of aggression or provocation on the part of the defendant; (2) the defendant’s actual and honest belief that he or she was in imminent danger of death or great bodily harm and that the action taken was necessary to avert that danger; (3) the existence of reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat to avoid the danger.
State v. McKissic, 415 N.W.2d 341, 344 (Minn. App. 1987).
While there is no burden on a defendant to prove self-defense, the defendant does have the burden of going forward with evidence to support his claim of self-defense. If the defendant does not go forward with such evidence, there is no right to the self-defense instruction. The process of going forward with evidence is complete when the defendant submits reasonable evidence that the victim was committing an independent assault on defendant at the time defendant [committed the assault].
State v. Graham, 371 N.W.2d 204, 209 (Minn. 1985) (quotations and citations omitted).
Even assuming the credibility of Harrington’s testimony, there is no evidence of any threat of physical harm to York at the time he spit on Halvorson. Wietman, who observed the incident, testified that Halvorson and Lurye were complying with jail rules and regulations for handling inmates in escorting York down the corridor. There is no evidence that Lurye’s and Halvorson’s efforts to maintain control over York as they escorted him down the corridor could have caused York to reasonably believe that a threat of great bodily harm existed. Because York failed to meet his burden of going forward with evidence to support his self-defense claim, he was not entitled to a jury instruction on self-defense.
3. In a pro se brief, York alleges that the state destroyed exculpatory photographs of the injuries he sustained during the altercation with Halvorson and Lurye and that the state tampered with mail he attempted to send containing confidential work product, including the photographs. In State v. Harris, 407 N.W.2d 456, 460 (Minn. App. 1987), review denied (Minn. July 31, 1987), this court set forth factors to weigh in determining whether the destruction of evidence warrants reversal of a conviction:
(1) whether the destruction was intentional; (2) the strength of the state’s case even if the evidence was available; and (3) the possible exculpatory value of the lost or destroyed evidence.
The record contains no evidence supporting York’s contention that the state intentionally destroyed the photographs of his injuries. Regarding the mail-tampering claim, jail personnel returned the mail to York unopened because it did not comply with jail requirements for outgoing mail. York admits that he was advised of the jail’s policy governing outgoing mail. He cites no evidence showing that he complied with that policy.
The photographs did not have exculpatory value. Wietman testified that she did not observe any injuries to York’s face until after he spit on Halvorson and the officers took him to the floor. The record contains no evidence that the injuries were present before York spit on Halvorson. York is not entitled to a reversal of his conviction based on alleged misconduct by the state.
 York was convicted of assault in the fourth degree in violation of Minn. Stat. § 609.2231, subd. 3(2) (2000) (intentionally throwing or otherwise transferring bodily fluids or feces at or onto employee of correctional facility).