This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Marlowe Nathaniel Brooks,



Filed June 11, 2002


Lansing, Judge


Hennepin County District Court

File No. 00087189



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


Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney,   C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, Suite 600, 2829 University Avenue SE, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Lansing, Presiding Judge, Randall, Judge, and G. Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N




Marlowe Brooks pleaded guilty to second-degree murder and first-degree attempted murder for fatally shooting one man and shooting at another as the men left a Minneapolis music store.  Before sentencing, Brooks moved to withdraw his plea on the ground that his attorneys’ comments and recommendations caused him to lose confidence in them and coerced his plea.  The district court denied the motion and imposed sentence.  Brooks appeals the denial of his plea-withdrawal motion and raises additional claims in a pro se brief.  The district court did not misapply the law or abuse its discretion in denying the plea withdrawal, and we affirm.



Cassadeah Collins died from gunshot wounds that he sustained as he and Demetrius Harris walked out of a music store on Lake Street in Minneapolis.  Police apprehended Marlowe Brooks in Missouri two weeks later, and Brooks provided a statement admitting that he shot Collins and attempted to shoot Harris.

About seven months after he was indicted for first-degree murder and first-degree attempted murder, Brooks entered a negotiated plea to second-degree murder and first-degree attempted murder.  At the plea hearing, Brooks submitted a detailed plea petition and testified to the events surrounding the shooting.  Brooks stated that he was standing across Lake Street from Collins and Harris when they left the store.  He said that Harris “lifted his shirt up and was pulling for a gun” and that he “got scared,” pulled his own gun, and started shooting.  He admitted that he fired seven or eight shots from across the street and then pursued the two men on foot, chasing Collins into an alley and killing him with two or three gunshots at close range.  After extended questioning, Brooks stated that he intended to kill both men.

At three separate points in the plea inquiry, Brooks stated that he was withdrawing his claim of self-defense.  Brooks also specifically waived his self-defense claim in his plea petition.  Brooks stated in his plea petition that he was satisfied with the performance of his attorneys and that his plea was entered of his own free will and not under duress.  The district court provisionally accepted the plea and continued the case for sentencing.

About two weeks later, Brooks contacted the district court and indicated that he wanted to withdraw his guilty plea because his attorneys had not adequately investigated and he felt  coerced into pleading guilty.  The district court conducted a postplea hearing and directed the Office of the Public Defender to appoint conflict counsel to represent Brooks at a plea-withdrawal hearing.

At the hearing, Brooks argued that his plea was invalid because his attorneys failed to investigate or conduct discovery, he was unable to work with his attorneys, and the difficulty of the attorney-client relationship coerced his plea.  Brooks and his two former attorneys testified.  The district court found that the attorneys had adequately investigated, properly conducted discovery, and provided professional representation.  The court also found that Brooks’s testimony was not credible.  The court found that Brooks had not presented a fair and just reason to withdraw his plea and denied the motion.

Following sentencing, Brooks brought this appeal, contending that the district court’s denial was an abuse of discretion.  In a pro se supplemental brief, Brooks contends that he has been denied constitutionally effective assistance of counsel and that the prosecutor engaged in misconduct in the indictment process by failing to disclose exculpatory evidence.



            Once a guilty plea has been entered, a defendant does not have an absolute right to withdraw it.  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).  The district court may, in its discretion, allow a defendant to withdraw his guilty plea at any time before he is sentenced if withdrawal is fair and just.  Minn. R. Crim. P. 15.05, subd. 2.  The burden is on the defendant to establish a fair and just reason.  Kim, 434 N.W.2d at 266.  The ultimate decision on whether or not to allow a defendant to withdraw a guilty plea is “left to the sound discretion of the trial court, and it will be reversed only in the rare case in which the appellate court can fairly conclude that the trial court abused its discretion.”  State v. Kaiser, 469 N.W.2d 316, 320 (Minn. 1991) (quoting Kim, 434 N.W.2d at 266).


To be valid, a guilty plea must be accurate, voluntary, and intelligent.  State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).  If a guilty plea lacks any of these three basic prerequisites, a defendant should be permitted to withdraw a guilty plea.  Perkins v. State, 559 N.W.2d 678, 688-89 (Minn. 1997).  Brooks contends that his plea was not intelligent because he did not understand that by pleading guilty he waived any claim to self-defense and not accurate because the state failed to establish that he had intent to kill.

The purpose of the accuracy requirement is to protect a person from entering a plea to a more serious offense than would result from a jury trial.  Trott, 338 N.W.2d at 251.  Accuracy also assures that a defendant’s plea is intelligently entered.  Id.  A plea is intelligent if the defendant knows and understands the charges, the rights waived by pleading guilty, and the consequences of the plea.  Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989).

The record does not support Brooks’s contention that he misunderstood the effect of the plea on his claim of self-defense.  First, Brooks signed a plea petition stating that he waived his right to claim self-defense.  Second, Brooks’s attorney specifically advised him at the plea hearing that he was waiving his self-defense claim and at three different points in the hearing, asked Brooks if he understood that the plea represented a withdrawal of that claim.  Brooks answered, “Yes.”  Brooks stated that he was acting of his own free will and was not coerced.  The record does not support Brooks’s claim that his plea was unintelligent.

Brooks also claims that his plea was inaccurate because the record does not establish that he had the requisite intent.  We disagree.  During the plea interrogation, Brooks stated under oath that when he shot at Collins and Harris, he intended to kill them.  Brooks further contends that his plea was inaccurate because the state failed to show his actions were premeditated.  Premeditation means: “to consider, plan or prepare for, or determine to commit, the act referred to prior to its commission.”  Minn. Stat. § 609.18 (2000).  Because premeditation is a process of the mind, it is proven by inference rather than direct evidence.  State v. Hyatt, 402 N.W.2d 614, 616 (Minn. App. 1987), review dismissed (Minn. Apr. 29, 1987).  To infer premeditation, courts must look to the objective evidence of the circumstances surrounding a killing.  Id.  The state must show that some time passed before forming the intent and acting, but it need not show extensive planning or preparation, or the lapse of a specific time period between intent and act.  State v. Cooper, 561 N.W.2d 175, 180 (Minn. 1997).

The objective evidence necessary to show premeditation was provided by Brooks’s testimony.  Brooks admitted that he was carrying a gun because Collins and Harris had threatened him.  Brooks also admitted that he shot at the men seven or eight times and that, after pursuing them across a street and into an alley, he killed Collins with two or three more shots at close range.  Pursuing a person and shooting him at close range has been held to be indicative of premeditation.  See id. at 180 (stating that multiple gunshots are indicative of premeditation in a long and severe attack); see also Bangert v. State, 282 N.W.2d 540, 544 (Minn. 1979) (stating that procuring firearm and then pursuing victim over a distance before killing is evidence of premeditation).  The district court’s finding of premeditation is supported by the record.  See State v. Buntrock, 560 N.W.2d 383, 388 (Minn. 1997) (noting that requisite premeditation can be formed instantaneously).  The district court did not abuse its discretion by denying Brooks’s motion to withdraw his plea.


            In his pro se supplemental brief, Brooks claims that he did not receive effective assistance of counsel and that the prosecutor failed to disclose exculpatory evidence to the grand jury.

            A defendant claiming ineffective assistance of counsel must show that his attorney’s representation “fell below an objective standard of reasonableness” and that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  “In Minnesota, an attorney acts within the objective standard of reasonableness when he provides his client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances.”  State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quotation omitted).  “There is a strong presumption that counsel’s performance falls within the wide range of reasonable professional assistance.”  Pierson v. State, 637 N.W.2d 571, 579 (Minn. 2002) (quotation omitted).

            Brooks claims that his attorneys’ conduct was ineffective because they failed to obtain DNA analysis of a strand of hair found in Collin’s hand, expert evidence from Collins’s van, and expert evidence to show that the shell casings came from two different guns, and because they failed to develop inconsistencies in witnesses’ statement about who had fired the gun.

At the plea-withdrawal hearing, Brooks’s attorneys specifically stated that they decided not to obtain DNA results on the hair found in the victim’s hand because they were concerned that it could have been Brooks’s hair or that it would not have “specifically absolved [Brooks] of any involvement in the crime.”  Brooks’s attorneys testified that they did not believe that any relevant evidence could be obtained from the van and that the police inventory did not suggest any possible evidence that would be relevant or useful.  Police reports specifically stated that one of the shell casings recovered from the shooting was from a different gun.  Brooks’s attorneys believed that even if another shooter had been present, Brooks would still be liable for each offense because a jury would find him guilty of aiding and abetting.  Finally, Brooks’s attorneys acknowledged that they had no viable argument to support a motion to dismiss the indictment. 

The district court analyzed each of these arguments at the plea-withdrawal hearing and rejected Brooks’s claim that any of the theories would have been helpful to a defense.  The district court concluded that Brooks had received effective assistance of counsel, and the record supports that finding.

            Brooks’s final argument is that the state failed to present exculpatory evidence and misled members of the grand jury in the indictment proceeding.  “A grand jury proceeding is not a trial on the merits and grand jurors do not determine guilt or innocence but rather whether there is probable cause to believe the accused has committed the crime.”  State v. McDonough, 631 N.W.2d 373, 386 (Minn. 2001).  The regularity of an indictment is presumed, and it is rare that an indictment will be invalidated.   State v. Inthavong, 402 N.W.2d 799, 801 (Minn. 1987).  There is a heavy burden on a criminal defendant who seeks to overturn an indictment.  McDonough, 631 N.W.2d at 386.  Brooks raised this claim at his motion for plea withdrawal.

            The district court found that Brooks’s attorneys reasonably concluded that they had no viable basis to obtain dismissal of the indictment and that, even if they did, the prosecutor could re-indict and the defense would lose the cross-examination value of any inconsistencies between the grand jury evidence and the evidence at trial.  The district court’s finding is supported by the law and the record.