This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
State of Minnesota,
Reversed and remanded
Clay County District Court
File No. K9-03-1860
John M. Stuart, State Public
Defender, Roy G. Spurbeck, Assistant State Public Defender,
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Lisa N. Borgen, Clay County Attorney, Pamela Harris, Assistant Clay County Attorney, Clay County Courthouse, 807 11th Street North, P.O. Box 280, Moorhead, MN 56560 (for respondent)
Considered and decided by Peterson, Presiding Judge; Schumacher, Judge; and Wright, Judge.
Appellant asserts a violation of due process because, after the presentation of the evidence, the district court did not verbally instruct the jury on the presumption of innocence and proof beyond a reasonable doubt. Appellant also challenges the district court’s imposition of a $200 co-payment to the public defender without an assessment of appellant’s ability to pay. We reverse and remand.
In October 2003, appellant Joseph Schiele was charged with one count of felony escape from custody, Minn. Stat. § 609.485, subds. 2(1), 4(a)(1) (2002); one count of felony violation of an order for protection, Minn. Stat. § 518B.01, subd. 14(a), (d)(1) (2002); and one count of driving after cancellation, Minn. Stat. § 171.24, subd. 3 (2002). At an initial appearance on November 11, 2003, in accordance with Minn. Stat. § 611.17, subd. 1(c)(1) (Supp. 2003), the district court ordered Schiele to make a co-payment of $200 for public defender services, without first determining whether Schiele had an ability to pay this amount.
A jury trial was held on February 3 and 4, 2004. Prior to the presentation of the evidence, the district court verbally instructed the jury on the presumption of innocence and on the state’s burden of establishing proof beyond a reasonable doubt. But in its final charge before deliberations, the district court did not verbally instruct the jury on these constitutional principles. The jurors received written jury instructions that included statements on both the presumption of innocence and proof beyond a reasonable doubt. Schiele was acquitted of the escape charge and convicted of the remaining charges. This appeal followed.
Schiele argues that, when the
district court failed to instruct the jury verbally on the presumption of
innocence and on proof beyond a reasonable doubt in the final jury charge, it
committed reversible error. In State v. Peterson, the Minnesota Supreme
Court considered the consequences of a district court’s omission of verbal
instructions on these constitutional principles after the evidence is presented
to the jury. 673 N.W.2d 482, 485-87 (
also argues that, because the district court imposed a $200 co-payment for
public defender representation in violation of his right to counsel, he is entitled
to the return of these funds. Whether a
co-payment violates the right to counsel is a question of law, which we review
de novo. State v. Tennin, 674 N.W.2d 403, 406 (