This opinion will be unpublished and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
James Earl Chairse,
Crow Wing County District Court
File No. K3-04-1110
Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul,
Donald F. Ryan,
John M. Stuart,
State Public Defender, Melissa Sheridan, Assistant Public Defender, 1380
Corporate Center Curve,
Considered and decided by Peterson, Presiding Judge; Randall, Judge; and Kalitowski, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from conviction for felon in possession of a firearm, appellant argues that (a) the district court abused its discretion in denying him a continuance so he could hire a private attorney after the court had discharged the public defender at appellant’s request; (b) the court abused its discretion in failing to appoint standby counsel; (c) the prosecutor committed prejudicial misconduct in closing argument by referring to the state’s evidence as undisputed, thereby (appellant argues) drawing attention to appellant’s failure to testify. We affirm.
Appellant James Chairse was charged with two counts of ineligible person in possession of a firearm, one count of furnishing a dangerous weapon to a minor, one count of possession of a firearm with a removed serial number, one count of reckless use of a firearm, and one count of carrying a weapon without a permit. Appellant was appointed a public defender, and an omnibus hearing was held on May 24, 2004. At the omnibus hearing, appellant appeared with his public defender and asked the district court to modify bond or bail. A contested omnibus hearing was requested.
A hearing was held on June 1, 2004, where the district court reduced appellant’s bond and bail. A few days later, a contested omnibus hearing was held where appellant advised the court that his family was in the process of hiring a new attorney. At appellant’s request, the omnibus hearing was continued until June 28, 2004. On that date, neither appellant nor his public defender appeared; the matter was rescheduled to July 1, 2004. The matter was eventually heard on July 12, 2004, at which time appellant informed the district court that he wanted to discharge the public defender’s officer. Appellant also asked the court to continue the case for about three months so that he could obtain the money he needed to hire a private attorney. According to appellant, he needed the extra time because all of his money had been stolen from his bank account and the bank was in the process of replacing his stolen funds. The district court agreed to continue the matter for six weeks, but refused to discharge the public defender until appellant was able to assure the court that he had arranged for counsel to represent him or that he was choosing to represent himself. The district court advised appellant that representing himself “would be most unwise.”
An omnibus hearing was started on August 30, 2004. Appellant reiterated his financial situation to the district court and requested another continuance of approximately four weeks to allow him more time to hire an attorney. The district court reset the matter for October 4, 2004, and, at the specific request of appellant, discharged the public defender’s office.
By the end of September, appellant had retained private counsel, and, at the October 4, 2004 omnibus hearing, the parties again agreed to continue the matter. On November 1, 2004, appellant appeared with counsel and advised the district court that he was prepared to waive his right to an omnibus hearing and enter a plea of not guilty to all counts of the complaint. A jury trial calendar call was held on December 8, 2004, where appellant now advised the district court that “he wanted to discharge his attorney.” According to appellant, he wanted to discharge his attorney because he claimed she could not help him. Appellant’s counsel informed the court that she had thoroughly discussed the case with appellant. The district court discussed the situation with appellant. The court explained to appellant that if he discharged his attorney and his case came up for trial, either appellant must have hired an attorney to try the case, or else appellant would have to try the case himself. The district court told appellant that it would not allow any more continuances simply because appellant kept discharging lawyers. The district court then allowed appellant to discharge this attorney.
Appellant appeared before the court without a lawyer on December 14, 2004. When asked whether he had an attorney, appellant replied that he had made some calls, but nobody had responded. The district court informed appellant that trial would start the next day regardless of whether appellant had an attorney. When appellant insisted that he was trying to get an attorney and that he did not want to try the case himself, the district court reminded appellant that the judge presiding over the December 8 hearing had told appellant that the trial would go forward even if appellant had not retained legal counsel. The district court explained the various stages of a jury trial to appellant and informed appellant that he had the option of waiving a jury and trying the case to the court. In addition, the district court and the prosecutor discussed a possible plea agreement with appellant.
The next day, a possible plea agreement was again discussed on the record before the trial started. Appellant rejected the proposed plea agreement and agreed to proceed with the trial. After voir dire, a discussion was held on the record but outside the presence of the jury regarding appellant’s objection to the court’s statement that appellant had entered a plea of not guilty. Appellant told the court that “I’ve been trying to get an attorney to represent me - - I’m not entering a plea. I’m not ready to enter a plea ‘cause I do not have an attorney.” The district court responded that appellant had fired his private attorney. The district court further stated that the court had advised him on December 8, 2004 that:
you had discharged two attorneys, that his matter was set for jury trial. It was number 5 and was going to be tried in its proper order. And it was up to you to have an attorney at that time or you would have to go without an attorney. Those were [the court’s] instructions.
Before trial, the state dismissed three of the charges and proceeded to trial on one count of ineligible person in possession of a firearm and one count of possession of a firearm with a removed serial number. At trial, the state presented witness testimony that appellant gave a 9mm pistol to a young person seated in the back seat of a car, and later returned to retrieve the pistol. Another witness testified that she called 911 after she was shown the gun. One of the arresting officers testified that appellant was apprehended nearby and that appellant had in his possession a 9mm pistol with a serial number that had been scratched off. When the state attempted to admit the pistol into evidence, appellant objected stating “[t]hat’s not the gun I had. The gun I had was a ten-shot; that is not it.” The district court overruled appellant’s objection, and the pistol was received into evidence. A certified copy of appellant’s 1991 conviction for aggravated assault was also received into evidence.
The jury returned guilty verdicts on both charges, and appellant was sentenced to 60 months in prison on the charge of ineligible person in possession of a firearm. The charge of removal or alteration of a serial number was dismissed. This appeal followed.
D E C I S I O N
Appellant argues that,
by denying his motion for a continuance, the district court deprived him of his
constitutional right to the assistance of counsel and forced him to represent
himself without obtaining a valid waiver of the right to counsel. This court reviews the district court’s
ruling on a defendant’s request for a continuance for
abuse of discretion. State v. Courtney,
696 N.W.2d 73, 81 (
defendant has the right to assistance of counsel in his defense. U.S. Const. amend. VI;
Here, the record
reflects that appellant was appointed a public defender, whom he subsequently
discharged so that he could hire a private attorney. After numerous continuances, appellant
eventually hired a private attorney, whom he then also discharged. Throughout this time-frame, the district
court repeatedly granted appellant’s requests for continuances, until the
district court told appellant at the December 8 hearing that no more
continuances would be allowed and that if appellant’s case number was called on
December 14, the case would go to trial regardless of whether appellant had a
lawyer. The record reflects that
appellant was fully aware of the circumstances and still chose to discharge his
attorney. Based on the facts and circumstances
of the case, the district court did not abuse its discretion by denying
appellant’s request for a continuance.
Appellant was accorded a full and fair opportunity to use a public
defender or hire an attorney of his own choosing. The district court went out of its way to
appellant. Appellant finally ended up going pro se, but he cannot maintain that public or private representation was not available to him.
The record reflects that the evidence against appellant was strong. Two witnesses testified that appellant had a gun, and a third witness testified that she saw the gun. Two police officers testified that appellant admitted he had a gun and that a 9mm handgun was removed from the waistband of appellant’s pants. The 9mm handgun was received into evidence, along with a certified copy of appellant’s prior conviction. Appellant’s “defense” was that he had a gun but it was not the gun the state offered in evidence.
that the district court violated his right to counsel when it required him to
represent himself at trial without obtaining a knowing and intelligent waiver
of his right to counsel. The right to an
attorney may be waived if the waiver is competent and intelligent. State v. Worthy, 583 N.W.2d 270, 275 (
Here, the record does not contain a “written” waiver of counsel signed by appellant, but there is a transcript from the court hearing. All surrounding circumstances show that appellant was aware of the consequences of proceeding pro se. See Krejci, 458 N.W.2d at 412-13. In Krejci, the supreme court held that the defendant’s waiver was constitutionally valid even though the trial court did not make the preferred comprehensive examination of the defendant. 458 N.W.2d at 413. The supreme court stated:
In the instant case, while the trial court . . . did not make the full, on-the-record inquiry which is normally required to ensure a valid waiver, it is clear from the surrounding circumstances . . . that the defendant was fully aware of the consequences of proceeding pro se. In addition, the record reflects that the trial court and counsel explained to the defendant the nature of the charges, the possible punishments, and the options available to him as a defendant. These explanations, although not given in the context of defendant’s waiver of his right to counsel, provide ample evidence to support a determination that defendant made the waiver knowingly and intelligently. Beyond that, the fact that defendant refused to proceed with the public defender when he could not retain private counsel did not make the waiver involuntary.
. . . .
In sum, although it would have been preferable for the trial court to have made a more comprehensive examination into defendant’s desire to represent himself, it is clear from the record that defendant understood the consequences of proceeding pro se. . . . We hold that defendant validly waived his right to counsel.
In State v.
Savior, 480 N.W.2d 693, 694
(Minn. App. 1992), this court held that the trial court finding of a valid
waiver was not clearly erroneous because “[a]ppellant was made
aware that he did not have a choice of public defender, was reminded of his
right to an attorney, and was clearly informed of the nature of his crime and
See also State v. Richards,
456 N.W.2d 260, 265 (
The record reflects that appellant was given more than enough time to retain an attorney of his own choice, or the services of a court-appointed public defender. When appellant informed the district court at the December 8 hearing that he wanted to discharge his private attorney, the district court told appellant that, finally, no more continuances would be allowed. The record reflects that both the district court and counsel explained to appellant the nature of the charges, the possible punishments, and the options available to him as the defendant. Appellant acknowledged that he understood the situation, so the district court granted appellant’s request to discharge his attorney. The circumstances of the case demonstrate that appellant waived his right to counsel. See Krejci, 458 N.W.2d at 412.
Appellant argues that the Minnesota Constitution
requires that he be appointed standby counsel, and, therefore, the district
court erred by not appointing him standby counsel for his trial. This court reviews issues of constitutional
interpretation de novo. Star Tribune
Co. v. Univ. of
the Minnesota Constitution has not been interpreted to establish a right to
advisory counsel when a defendant exercises the right to
the defendant argued that Minn. Const. art. I, § 6, should be interpreted to establish the right of advisory counsel.
We have stated that “[i]t is our
It is true that court-appointed standby counsel is sometimes used and in certain jurisdictions even encouraged). This does not change the fact that appellant has no constitutional right under either the United States or the Minnesota Constitution to the appointment of standby counsel. See id.
that even if not constitutionally required, the district court committed
reversible error by not exercising its discretion to decide whether to appoint
standby or advisory counsel. We
disagree. Appellant did not even request
standby or advisory counsel. The
district court had no obligation to
ex parte appoint standby or advisory counsel to appellant. See Minn.
R. Crim. P. 5.02, subd. 2
(stating “[t]he court
may appoint ‘advisory counsel’ to assist the accused who voluntarily and intelligently waives the right to counsel” (emphasis added)).
This court will
reverse a conviction due to
prosecutorial misconduct at trial if the misconduct, “when considered in light
of the whole trial, impaired the defendant’s right to a fair trial.” State v. Powers, 654 N.W.2d 667, 678 (
Appellant argues that the prosecutor committed misconduct during his closing argument by referring to the state’s case as undisputed. Specifically, the prosecutor stated in closing arguments that “there’s no dispute that [appellant] gave this firearm to a person that was seated within that vehicle.” Shortly thereafter, the prosecutor added that:
State submits that there really is no doubt whatsoever that [appellant]
possessed a firearm on April 23rd of this year over at the Holiday Station here
Minnesota Supreme Court has cautioned against characterizing the state’s
evidence as undisputed because such characterization could erroneously suggest
to the jury that the defendant has an obligation to testify or call
witnesses. State v. Schneider, 311
Here, appellant appeared pro se and did not testify at
trial. Appellant failed to object to the prosecutor’s
comments during trial. Generally, a
party waives any challenge to the alleged misconduct on appeal by failing to
object or seek a cautionary instruction.
State v. Ture,
353 N.W.2d 502, 516 (
the state then has burden of showing that the error did not affect the defendant’s substantial rights.
Appellant has established plain-error based on the prosecutor’s misconduct. But the state has met its burden of showing that the error did not affect substantial rights. The state’s case against appellant was strong. Appellant admitted that he possessed a gun, but claims it was not the gun the state offered in evidence. The charge did not involve a unique caliber within its definition. It merely required a gun. Since appellant agreed he possessed one, even if he is right that the state produced another weapon, it is difficult to find the true prejudice, the substantial prejudice needed to warrant reversal.
Appellant makes a number of assertions in his pro se brief,
primarily challenging the evidence against him and the credibility of the
witnesses. We are not persuaded. The jury is the exclusive judge of witness credibility and determines the
weight of the evidence, and this court assumes that the jury believed the
evidence supporting the state’s case and disbelieved contrary evidence. Dale v. State, 535 N.W.2d 619, 623 (