This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1237

 

 

State of Minnesota,

Respondent,

 

vs.

 

Dawn Marie Walker,

Appellant.

 

 

Filed May 17, 2005

Reversed and remanded
Klaphake, Judge

 

St. Louis County District Court

File No. K3-02-102510

 

 

Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Alan Mitchell, St. Louis County Attorney, St. Louis County Government Center, 100 North 5th Avenue West, #501, Duluth, MN  55802 (for respondent)

 

John M. Stuart, State Public Defender, Melissa Sheridan, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Shumaker, Judge.


U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Dawn Marie Walker and her husband, Charles Robert Walker, were charged with aiding and abetting each other in the commission of felony check forgery and theft under Minn. Stat. §§ 609.05, .631, subd. 2(1), .52, subd. 2(1) (2002).  The charges arose from allegations that appellant had issued unauthorized checks to herself and her husband from the account of their former employer, Kodiak Home Improvement Company, and that the couple had taken and retained possession of moveable property belonging to Kodiak.

            At the Walkers’ request, the cases were consolidated for trial.  Prior to trial, appellant’s attorney withdrew.  On the first day of trial, the district court ruled that the husband’s attorney could jointly represent both parties at trial.  Following a two-day trial, the jury returned verdicts finding both parties guilty of felony check forgery (more than $2,500) and gross misdemeanor theft (more than $200, less than $500).

            Appellant was sentenced for felony check forgery to the presumptive term of one year and one day, and to a consecutive term of one year on the gross misdemeanor theft conviction.  Both sentences were stayed, and appellant was placed on probation and ordered to pay restitution.

            In this appeal, appellant raises the same arguments raised by her husband in his appeal.  In particular, she argues she is entitled to a new trial because the district court failed to advise her of the dangers of joint representation or ask her about her waiver of separate counsel, failed to instruct the jury that it had to agree on which particular act constituted a specific offense, and failed to instruct the jury to consider the cases against each defendant separately.  Appellant alternatively argues that if this court does not reverse her convictions, then at a minimum it must either vacate the theft offense or order the sentence for that offense to be served concurrently with the forgery sentence.

            Because our decision in State v. Walker, ___ N.W.2d ___ No. A04-1099 (Minn. App. May 17, 2005), which is being released simultaneously with this opinion, is dispositive, we reverse and remand for a new trial.  We need not address appellant’s alternative challenges to her sentences.

D E C I S I O N

            Appellant argues that she was denied her constitutional right to effective assistance of counsel because the district court failed to obtain a valid waiver of her right to individual representation in accordance with the procedure set out in Minn. R. Crim. P. 17.03, subd. 5.

            In Walker, this court holds that appellant’s husband is entitled to a new trial because the district court here failed to follow the required procedure before allowing dual representation.  Id., slip op. at 11.  We conclude that the state failed to meets its burden to demonstrate beyond a reasonable doubt that no prejudicial conflicts of interest existed, given the defendants’ differing degrees of culpability, the lack of instructions cautioning the jury to consider the charges against each defendant separately, and the prosecutor’s arguments essentially encouraging the jury to find the defendants guilty by association.  Id., slip op. at 8-10.

            The same conflicts exist here:  (1) appellant was arguably less culpable for one of the charged offenses (the theft of Kodiak’s movable property); (2) defense counsel was precluded from advancing that theory because of his professional obligation to appellant’s husband; and (3) the prosecutor’s closing argument capitalized on this conflict by suggesting that the Walkers’ guilt was a package deal because they were married and had an interest in protecting each other.

            Our holding in Walkeris dispositive of this case.  We therefore reverse and remand for a new trial

            Reversed and remanded.