This opinion will be unpublished and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
State of Minnesota,
Filed December 26, 2006
Affirmed; motion to strike granted
Hennepin County District Court
File No. 04014010
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; 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, G. Tony Atwal, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant Chester Otto Landers challenges his conviction of financial transaction card fraud, arguing that the district court erred by (1) denying a continuance to secure counsel of choice; (2) giving a no-adverse-inference instruction without first obtaining appellant’s consent; and (3) permitting testimony of the victim’s prior abusive relationship. Appellant also requests that a document appearing in the appellate record but not accepted into the trial record be stricken. We affirm and grant the motion to strike.
D E C I S I O N
Appellant argues that the district
court erred by not granting a continuance for appellant to secure substitute
counsel. A criminal defendant has a constitutional
right to assistance of counsel. U.S. Const. amend. VI; Minn. Const. art. 1, § 6. “This
right includes a fair opportunity to secure counsel of [one’s own] choice.” State
v. Vance, 254 N.W.2d 353, 358 (
We review the district court’s
decision for abuse of discretion.
A defendant’s motion for continuance
to obtain counsel is properly denied when the defendant has not been diligent
in obtaining counsel. State v. Courtney, 696 N.W.2d 73, 82 (
Here, appellant, an indigent defendant in district court, requested that the district court appoint a substitute public defender or grant a 60-day continuance so that he could secure private representation. But appellant failed to appear at trial the first two days and when he did appear, he immediately asked for a continuance. Moreover, the case had been pending for seven months, had been postponed several times, and the public defender’s office had entered motions on appellant’s behalf. And the record indicates that the public defender repeatedly assured the court that she was prepared to try the case. We conclude that appellant’s request for a continuance was untimely and that the district court did not err by refusing it.
The record also indicates that the district court told appellant that if he fired his current public defender, he was releasing not just that attorney but the whole office and would have to represent himself. Appellant argues that this misstatement of the law is reversible error. We disagree.
We have previously held that even
where the district court tells a defendant that a different public defender
will not be appointed under any circumstances, such error is harmless absent a
showing of incompetent representation or good cause for a new attorney. State
v. Lamar, 474 N.W.2d 1, 3 (
Disagreements on tactical decisions
comprise neither exceptional circumstances nor ineffective assistance of
counsel. Exceptional circumstances are
those that affect a public defender’s “ability or competence to represent the
client.” State v. Gillam, 629 N.W.2d 440, 449 (
But if the defendant fails to object
to the instruction, we review the error only if it is plain and affects the
defendant’s substantial rights. State v. Darris, 648 N.W.2d 232, 240 (
Although appellant’s counsel did not object to the jury instruction at trial, appellant maintains on appeal that this error was prejudicial because it drew attention to his decision not to testify. We disagree. The jury instruction specifically admonished the jury to draw no adverse inference from the defendant’s failure to testify. The record reflects that the district court told the jury that “[t]he defendant has a right not to testify” which is “guaranteed by the federal and state constitutions,” and that it “should not draw any inferences from the fact that the defendant has not testified in this case.” We conclude that appellant’s argument does not meet the heavy burden of showing that the error substantially affected the jury’s verdict.
Appellant claims that the district
court erred by allowing the victim to testify to a previous abusive
relationship. We disagree. Admission of evidence rests within the broad
discretion of the district court and its ruling will not be disturbed unless it
is based on an erroneous view of the law or constitutes an abuse of
discretion. Colby v. Gibbons, 276 N.W.2d 170, 175 (
Here, the minimal testimony that appellant challenges indicated that appellant did not abuse the victim, but that she was in an abusive relationship when she met and befriended appellant some 12 years earlier. Admission of this evidence did not prejudice appellant and was not an abuse of discretion.
Respondent’s appellate brief references a four-page, hand-written letter from appellant to the victim. Although the letter’s existence was raised during the jury trial, the actual letter was not received into evidence. Appellant has made a motion to strike the letter from the appellate record.
We agree that inclusion of this letter
is improper and strike it from the appellate record. Fabio
v. Bellomo, 489 N.W.2d 241, 246 (
Affirmed; motion to strike granted.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.