This opinion will be unpublished and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
Manivone Oot Khamphoune,
Filed May 23, 2006
Cottonwood County District Court
File No. KX-04-303
Attorney General, James B. Early, Assistant Attorney General,
Storey, Cottonwood County Attorney,
Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender,
Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his convictions of kidnapping and second-degree assault, arguing that he was denied his right to a fair trial when the same judge who presided during Khamphoune’s initial court appearance also presided as the fact-finder in his bench trial. Because we find no error, we affirm.
Appellant Manivone Oot
Khamphoune’s girlfriend, S.P., contacted
At Khamphoune’s initial rule 5 court appearance, the judge conditionally appointed a public defender to represent him and informed him that he would have to furnish financial information to qualify for public-defender services. Khamphoune indicated that he wanted to talk with his grandmother and that he would get an attorney. Khamphoune then spontaneously made exculpatory statements denying the charges and accusing S.P. of making up the story because she was jealous of his new girlfriend.
Subsequently, with the assistance of counsel, Khamphoune waived a jury trial and consented to a bench trial. The same judge who presided over the initial appearance questioned Khamphoune about his waiver and ascertained that Khamphoune understood and agreed that he, the presiding judge, would replace the jury as fact-finder.
The case was tried to the court. Based on the evidence and testimony, the court found Khamphoune guilty of kidnapping and assault with a dangerous weapon, but not guilty of sexual assault.
D E C I S I O N
Khamphoune claims for the first time
on appeal that his right to a fair trial was violated because the judge presiding
over his bench trial was biased after hearing Khamphoune’s spontaneous exculpatory
statements during the initial court appearance.
Failure to move to disqualify
an allegedly biased judge results in a waiver of the right to assert bias on
appeal. Oslin v. State, 543 N.W.2d 408, 417 (
When Khamphoune waived his right to a jury trial, he knowingly, intelligently, and voluntarily waived any objection to a bench trial before the same judge who presided over the initial appearance:
Q. And, Mr. Khamphoune, do you understand
that both under the
A. I understand.
Q. And we are currently in the process of jury selection in your trial and would seat probably 13 jurors; 12 of which would have to deliberate, and all 12 of the jurors would have to agree before you could be found guilty of anything. Do you understand that?
A. Yes, I understand.
Q. Now do you understand that if you give
up your right to a jury of citizens
A. Yes, I understand.
Despite having the opportunity to challenge the judge as the presiding fact-finder, Khamphoune never objected.
However, even if Khamphoune had objected, there was no prejudicial error when the rule 5 judge also presided over the bench trial. The judge heard only exculpatory statements from Khamphoune. Khamphoune denied being with S.P., stating that on the night of the incident he and several friends “[went] to party in [his friend’s] house. I drink beer all night and vodka over there . . . . My friend drop me home,” and that he slept “upstairs in my grandma[’s] house” until the next morning when the police arrested him. He contended that S.P. falsified the story against him out of jealousy:
[S.P.] [doesn’t] leave me alone because I have a new girlfriend already. That’s my new girlfriend is . She get mad. She tell somebody to come tell me. She say I am going to get big trouble because I have a new girlfriend, . But I talk to this friend. Me and her is over with. I can’t say no more. But she say you going to get big trouble; you better watch out.
Khamphoune contested the allegation that he shot S.P. with a gun and argued that this was “not true because . . . [he] [had] never been there before.” Khamphoune concluded, “I never went to apartment before at all. That girl there, she don’t leave me alone. She too smart, sir. She don’t come talking to me, but she tell somebody to come talking to me, you know.”
Nothing in Khamphoune’s statements could be deemed to be inculpatory so as to cause the judge to be biased toward finding him guilty. These statements were consistent with Khamphoune’s theory of defense. Furthermore, the judge’s impartiality is indicated by the fact that he found Khamphoune not guilty of sexual assault. The district court did not commit plain error when it presided over both the rule 5 appearance and Khamphoune’s bench trial.