This opinion will be unpublished and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
Ali Abdi Ali,
Filed December 26, 2006
Hennepin County District Court
File No. 05021951
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
John M. Stuart, State Public
Defender, Sara Lynne Martin, Assistant Public Defender,
Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction of assault in the second degree, arguing that there was insufficient evidence to convict him and that the district court erred when it denied appellant’s motion for a substitute public defender. We affirm.
April 10, 2005, at approximately 6:30 p.m., R.K., a taxi driver, went into the Hard
Times Café in
After the assailant started to walk away, R.K. got into his taxi and called the police. R.K., who is five feet, eleven inches tall, told the dispatcher that the man was an inch or so taller than he was and that the man had a “skinny” build. Upon receiving R.K.’s call, Officer Thomas Subject of the Minneapolis Police Department was dispatched to the area to search for a suspect. Officer Subject was told that the suspect was a black male who was approximately six feet, two inches tall. Officer Subject located a man matching the description standing outside of a bar two businesses to the east of the Hard Times Café. As Officer Subject instructed the suspect to put his hands on the wall, the man turned toward the officer with a knife in his left hand. The officer drew his gun, and the man dropped the knife. Officer Subject identified the knife as white-handled with a little blade, and at trial, he identified Ali as the man whom he arrested.
After Officer Subject had secured Ali, R.K. returned to the scene and described to the officer what had happened. Officer Subject testified that R.K. seemed nervous and that his hands were shaking. During the conversation, Ali, who was handcuffed, was removed from the back of a marked squad car by another police officer, and R.K. identified Ali as the man who assaulted him.
Ali was charged with one count of
aggravated robbery in violation of
Before and during the trial, Ali expressed dissatisfaction with his lawyer and twice asked for a new attorney. On July 14, 2005, the day before trial, Ali requested that the district court assign a new public defender, arguing that his lawyer was “not actually fighting for [Ali’s] . . . best interest.” The district court denied Ali’s request, noting that “the district court policy is not to substitute public defenders.” On July 15, 2005, the first day of trial, Ali’s assigned public defender told the district court that Ali had decided to continue with the assigned public defender. But on the second day of trial, just before closing arguments, Ali again asked the district court to assign another lawyer to him because he did not believe he was “fairly presented.” The district court again denied Ali’s request.
Ali was convicted of assault in the second degree but was acquitted of robbery in the first degree and the lesser-included offense of simple robbery. The district court sentenced Ali to 27 months’ imprisonment. This appeal follows.
D E C I S I O N
Ali first argues that the evidence against him is insufficient to support a conviction of assault in the second degree. Specifically, Ali argues that (1) there was a discrepancy between what R.K. reported to the police as his assailant’s height (six feet, two inches tall) and Ali’s true height (five feet, ten inches tall); (2) because generally the guilty flee, and Ali stood his ground, there is a reasonable doubt of Ali’s guilt; (3) R.K. reported that three cigarettes were stolen, but Ali had no cigarettes on him when he was arrested; (4) R.K.’s identification was tainted by a suggestive show-up procedure; and (5) R.K.’s identification of Ali is further suspect because of an alleged previous incident between the two in which R.K. “said derogatory things about” Ali.
considering a claim of insufficiency of the evidence, we painstakingly review
the record to determine whether the evidence, when viewed in the light most
favorable to the conviction, permitted the jury to find the defendant guilty. State v.
Webb, 440 N.W.2d 426, 430 (
credibility of the witnesses and the weight to accord their testimony is for
the jury to decide. State v.
Ali was convicted of assault in the second
degree, in violation of Minn. Stat. § 609.222, subd. 1 (2004). Under the statute, the state must prove that Ali
assaulted the victim with a dangerous weapon.
Here, R.K. testified that Ali
slashed at his throat and at his stomach with a knife. R.K. testified that he
was fearful at the time of the attack, and both police officers testified that
R.K. appeared to be shaking while relating what happened. R.K. identified Ali as the assailant on the
night of the incident and again in court. Further, Officer Subject testified that R.K.’s
identification that night was certain and was made without hesitation. Finally, Ali’s knife is a dangerous weapon within
the statutory definition.
Ali challenges R.K.’s identification
of Ali as the assailant, arguing that the police conducted a “very suggestive
show-up” and that there were numerous discrepancies in the state’s case. Ali’s argument is essentially a challenge to
the jury’s decision to credit R.K.’s identification testimony. But judging the
weight to be given to testimony and the credibility of witnesses is the jury’s
also argues that the district court erred when it did not inquire further into Ali’s
request for substitute counsel. Whether
to appoint substitute counsel is within the sound discretion of the district
court. State v. Gillam, 629 N.W.2d 440, 449 (
request made on the morning of trial is not timely. See State
v. Worthy, 583 N.W.2d 270, 278-79 (
even if Ali’s request were timely, he has not established the exceptional
circumstances necessary to justify the appointment of substitute counsel. Ali argues that this court should adopt the Eighth
Circuit’s test for “exceptional circumstances”: “a conflict of interest, an
irreconcilable conflict, or a complete breakdown in communication between the
attorney and the defendant.” Smith v. Lockhart, 923 F.2d 1314, 1320
(8th Cir. 1991). But in
Ali argues that, in any case, the
district court should have inquired into his reasons for wanting substitute
counsel. A recent supreme court decision
has suggested that an inquiry may be necessary when the defendant raises
“serious allegations” of exceptional circumstances. State v.
Clark, 722 N.W.2d 460, 464 (
Ali did not raise serious allegations
of inadequate representation. He told
the district court before trial that he believed that his lawyer was “not
actually fighting for [his] . . . best interest” and during the trial
that he was not being “fairly presented.” Ali’s allegations were not sufficient to require
a more searching inquiry because he offered nothing more than bare assertions
of displeasure to substantiate his claim that he was being improperly
represented. See State v. Benniefield, 668 N.W.2d 430, 434-35 (Minn. App. 2003)
(affirming a decision not to appoint substitute counsel when the defendant did
“not show that his attorney was incompetent or otherwise unable to adequately
represent him”), aff’d, 678 N.W.2d 42
Ali alleges a number of additional
errors in his pro se supplemental brief. First, Ali argues that he did not possess the
“requisite intent to support a conviction for second degree assault” instead of
assault in the fifth degree. But Ali’s
intent is a question of fact and may be determined by his words and actions
considered in light of the surrounding circumstances. State v.
Kastner, 429 N.W.2d 274, 275 (
also argues that he received ineffective assistance of counsel, claiming that
his trial counsel failed to seek a continuance to secure witnesses. To succeed in his claim, Ali must establish
that (1) his counsel’s efforts fell below an objective standard of competency
and (2) that there is a reasonable probability that but for counsel’s errors
the outcome of the trial would have been different. Gates v.
State, 398 N.W.2d 558, 561 (
Finally, Ali argues that he is entitled to reversal of his conviction because he would have received “probation” under the state’s plea offer. We assume Ali’s argument to be that he received ineffective assistance of counsel because his trial counsel did not accurately communicate the state’s plea offer to him. But the plea agreement was placed on the record and explained at length to Ali. We also note that Ali is mistaken as to the terms of the plea offer. Under the offer, Ali would plead guilty to the state charge and then would be transferred to federal custody because of a probation violation. Ali would then receive credit against his state sentence for any time served in federal custody. But the district court expressly warned Ali that “[i]f [he] owed extra time on the 18-month sentence, which really is 12 months actual service of time, then [he] would have to serve that time.”
 We note, however, that the district court incorrectly told Ali that it was district-court policy not to grant requests for a substitute public defender. Benniefield, 668 N.W.2d at 434. As we have discussed, a request for substitute counsel may be granted if it is timely and if the defendant raises exceptional circumstances justifying a substitution. Vance, 254 N.W.2d at 358.