This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,





Michael Antwon Miller,



Filed February 6, 2007


Halbrooks, Judge



Ramsey County District Court

File No. K1-05-003041



Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)


John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414  (for appellant)


            Considered and decided by Stoneburner, Presiding Judge; Halbrooks, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction of fleeing a police officer in a motor vehicle, arguing that the district court violated his constitutional right to counsel and abused its discretion when it denied his requests for a substitute public defender and for a continuance so that he could discharge his appointed attorney and hire private counsel.  We affirm. 


            After his arrest on August 31, 2005, appellant Michael Antwon Miller was charged with fleeing a police officer in a motor vehicle in violation of Minn. Stat. § 609.487, subd. 3 (2004).  The following day, a public defender was assigned to represent appellant.  Appellant subsequently pleaded not guilty to the charge and demanded a speedy trial. 

            A Rasmussen hearing was held on November 14, 2005, regarding statements appellant allegedly made to the arresting officer before receiving a Miranda warning.  At the hearing, appellant informed the district court that he desired a new attorney, stating:

I want to say that I just—I don’t feel that he’s working in my best interests, Your Honor.  I’m not disrespectful. . . .  I don’t feel he’s working in my best interest and because we’re having a conflict of interest.  I asked him to do one thing and he don’t want to do it. . . .  I don’t want him to represent me on his case.  I would like just a little more time for me and my family coming together to get a paid attorney. 


The district court reminded appellant that he had made a speedy-trial demand and noted that appellant did not have another attorney retained.  Appellant acknowledged this but stated, “we’re trying—you know what I’m saying—to get the money together to get one.  And it took longer than I thought it was going to take, but we’re still trying.”  The district court denied appellant’s request for a continuance to obtain private counsel, noting that trial was to begin later that day.  Appellant reiterated that he did not want the public defender appointed by the district court acting as his counsel, that he did not want to represent himself, and that he wanted another attorney.  The following exchange then took place:

THE COURT:  Well, I don’t know how you’re going to find an attorney between now and this afternoon.


[APPELLANT]:  Well, I know I don’t have to go to trial with a person that’s not working in my best interest representing me on the case. 


When I—I asked him to do a certain thing and he told me no because he don’t—he feels that I’m a jailhouse lawyer and I don’t know what I’m talking about.  So I wouldn’t—would you want somebody like that representing you?


THE COURT:  Well, I don’t know.  I’m assuming he probably knows a little more about the law than you do. 


[APPELLANT]:  I’m pretty sure he [does], but I’ve talked to other attorneys and other attorneys—you know what I’m saying—that I can do what I asked him to do.


THE COURT:  Okay.  Well, I don’t know anything about that, and you probably don’t want to tell me what you’re talking about. 


[APPELLANT]:  I will tell you.  I asked him to put in a motion to squash the rest—to suppress evidence. 


THE COURT:  And that’s what we’re doing right now.


[APPELLANT]:  Okay.  That’s what I want to see.


THE COURT:  Yes; that’s what we’re going to do right now before we start the trial—


[APPELLANT]:  All right.


THE COURT:  —so he is following your lead.


[APPELLANT]:  I hope so.


Appellant’s attorney was subsequently successful in excluding appellant’s non-Mirandized statements.

Appellant’s jury trial was held on November 15-16, 2005, but before jury selection on the 15th, appellant again expressed his dissatisfaction with his appointed attorney.  Appellant asked the district court to either substitute another public defender or grant a continuance so that he could obtain a private attorney, alleging that his attorney told appellant that he did not care what happened to him.  The district court again denied appellant’s request, stating that it could not appoint another public defender to represent appellant and that it would not grant a continuance because it was the day of trial.  Appellant then threatened to state on the record in front of the jury his desire for a new attorney; he subsequently agreed not to say anything after the district court warned him it would not allow such comments because they were not relevant to his guilt or innocence.   

            Near the end of trial, while the district court was instructing the jury, appellant interrupted and asked to address the court.  Appellant’s request was denied, but appellant nonetheless began telling the jury that he tried to “fire” his attorney twice and that the district court denied his request.  The district court asked appellant to be quiet so that it could continue with the jury instructions, but appellant continued the disruption, talking over the district court and telling the jury that his attorney told him that he did not care what happened to him.  Because appellant would not remain silent, the district court excused the jury.  The district court then listened once again to appellant’s concerns and requests to substitute a new attorney or for additional time to obtain a private attorney.  After appellant threatened to continue talking over the jury instructions and obstructed the trial after the jury re-entered the courtroom, the district court had appellant removed—first to the holding cell attached to the courtroom, but later to a different floor because appellant’s protests and shouts from the courtroom holding cell were still causing a disruption. 

The district court decided not to grant a mistrial, stating, “I don’t think that [appellant] should be allowed to benefit from his own misconduct, and that’s what would be happening if I were to grant a mistrial.”  Instead, the district court gave the jury a cautionary instruction to disregard the statements made by appellant and the fact that he had been removed from the courtroom, determining that appellant had waived his right under Minn. R. Crim. P. 26.03 to be present for the rest of trial.  The district court also denied appellant’s request to represent himself, concluding that appellant was “too angry” and “irrational” to effectively represent himself.  Appellant was found guilty of fleeing a peace officer in a motor vehicle and was sentenced to 15 months’ imprisonment.  This appeal follows.


            Appellant argues that the district court abused its discretion when it did not inquire further into appellant’s request for substitute counsel and that the district court denied appellant his Sixth Amendment right to counsel by refusing to grant a continuance so that appellant could hire private counsel.    

A criminal defendant has a guaranteed 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. Fagerstrom, 286 Minn. 295, 298, 176 N.W.2d 261, 264 (1970).  Although an indigent defendant has the right to appointed counsel at every stage of the criminal process, the defendant does not have “the unbridled right to be represented by counsel of his own choosing.”  Id. at 299, 176 N.W.2d at 264.  A defendant’s request for a substitution of appointed counsel will be granted only when exceptional circumstances exist, the demand is reasonable, and the request is timely.  Id.; State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977).  Exceptional circumstances include “those that affect a court-appointed attorney’s ability or competence to represent the client.”  State v. Gillam, 629 N.W.2d 440, 449 (Minn. 2001) (citing State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999)).  Because the right to counsel must be balanced against the public interest in maintaining an efficient judicial system, a defendant’s motion for a 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 (Minn. 2005); see also Fagerstrom, 286 Minn. at 299, 176 N.W.2d at 264 (stating that “[a] defendant may not obtain a continuance by discharging his counsel for purposes of delay or by arbitrarily choosing to substitute counsel at the time of trial”). 

The decision whether to appoint a substitute attorney or grant a continuance to allow a defendant to obtain private counsel rests within the district court’s discretion “based on the facts and circumstances surrounding the request.”  Fagerstrom, 286 Minn. at 299, 176 N.W.2d at 264; see also Gillam, 629 N.W.2d at 449.  Thus, we review the district court’s denial of a motion for a continuance to obtain private counsel for an abuse of discretion.  Courtney, 696 N.W.2d at 81.  In deciding whether the district court abused its discretion, we consider whether the defendant was “so prejudiced in preparing or presenting his defense as to materially affect the outcome of the trial.”  Vance, 254 N.W.2d at 359. 

            A request for substitute counsel is generally untimely when it is made on the first day of trial.  State v. Worthy, 583 N.W.2d 270, 278-79 (Minn. 1998); see also Vance, 254 N.W.2d at 358 (stating that a defendant cannot arbitrarily decide to substitute counsel at the time of trial).  Here, appellant made his first request on November 14, 2005, the day of the Rasmussen hearing and the day before his trial began (although the district court believed that trial would begin later that same afternoon).  Appellant again requested substitute counsel on the morning of November 15, 2005, before the beginning of trial.  Appellant’s requests, made at the last moment before his trial, were not timely.

            But even if appellant’s requests were timely, he has not established the “exceptional circumstances” necessary to justify the appointment of substitute counsel.  Unlike the Eighth Circuit’s test for “exceptional circumstances,” which includes “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), Minnesota law requires appellant to demonstrate that his attorney lacked the “ability” or “competence” to represent him.  Gillam, 629 N.W.2d at 449.  In Gillam, for example, the Minnesota Supreme Court held that the district court’s denial of a defendant’s request at a pretrial hearing for a substitute attorney did not violate his right to counsel because the request was based on the defendant’s disagreement with his public defender about trial strategy and general dissatisfaction with the representation, which did not implicate the public defender’s ability or competence.  Id. at 446, 449-50; see also Worthy, 583 N.W.2d at 279 (holding that general dissatisfaction or disagreement with public defender’s assessment of the case did not constitute exceptional circumstances warranting substitute counsel). 

At the Rasmussen hearing on November 14, 2005, appellant stated that he did not “feel” that his attorney was “working in [his] best interests” because his attorney allegedly did not move to suppress evidence as appellant had “asked him to do.”  But appellant’s attorney did, in fact, move to suppress appellant’s non-Mirandized statements to the arresting officer, which appellant later recognized after the district court pointed it out to him.  Moreover, the motion for suppression was subsequently granted by the district court, and the statements were excluded.  Although appellant also claims that he and his attorney had “a conflict of interest” and that his attorney told him that he did not care what happened to appellant, the record demonstrates that appellant’s attorney was competent and that the general quality of representation provided by appellant’s appointed counsel was well beyond adequate.  Thus, appellant’s dissatisfaction with his attorney did not constitute the exceptional circumstances needed for appellant to be granted a substitution of counsel, as it did not indicate an inability to represent appellant.  See Voorhees, 596 N.W.2d at 254-55 (holding that the fact that defendant and his attorney experienced “personal tension” during preparation for trial did not constitute an exceptional circumstance that entitled defendant to a substitute attorney).  

            Appellant also argues that the district court abused its discretion when it did not make a “searching inquiry” into his request for substitute counsel despite appellant’s repeated attempts to notify the district court of the problems that he perceived in their relationship.  But the Minnesota Supreme Court has recently suggested in dictum that a searching inquiry is only necessary when the defendant shows exceptional circumstances or raises a “serious allegation of inadequate representation” before trial has commenced.  State v. Clark, 722 N.W.2d 460, 464 (Minn. 2006).  Here, on this record, appellant’s allegations that his attorney was not acting in his “best interests” and did not care what happened to appellant do not amount to “serious allegations of inadequate representation.”  Therefore, appellant’s allegations were not sufficient to require a more searching inquiry.  See State v. Benniefeld, 668 N.W.2d 430, 434-45 (Minn. App. 2003) (affirming decision not to appoint substitute counsel when defendant “did not show that his attorney was incompetent or otherwise unable to adequately represent him”), aff’d on other grounds, 678 N.W.2d 42 (Minn. 2004).  Because appellant’s requests for substitute counsel were untimely and exceptional circumstances did not exist, we conclude that the district court did not abuse its discretion by denying appellant’s requests for substitute counsel.     

Appellant also argues that the district court abused its discretion when it refused to grant him a continuance to obtain a private attorney.  But, like appellant’s requests for a substitute attorney, his request for a continuance to obtain a private attorney was not timely made.  The supreme court has found continuance requests properly denied when a defendant has ample opportunity to obtain new counsel, but waits until the last minute to exercise that option.  In Worthy, the defendants had experienced and competent court-appointed attorneys for 45 days but did not request a continuance to hire private counsel until the first day of trial.  583 N.W.2d at 274, 278-79.  The supreme court concluded that the district court did not abuse its discretion by denying the request.  Id. at 278.  Similarly, in Vance, the defendant was provided with a competent court-appointed attorney who was prepared for trial.  254 N.W.2d at 359.  The defendant had 11 weeks to obtain a private attorney, but he did not request a continuance until a few days before trial.  Id.  The supreme court again concluded that the district court did not abuse its discretion by denying the request for a continuance.  Id. 

Here, the district court had a similarly sufficient basis to find appellant’s request untimely.  Appellant’s attorney was appointed on September 1, 2005, more than two months before the Rasmussen hearing held on November 14, 2005.  Further, appellant made a speedy-trial demand on September 15, 2005, in effect asking for accelerated scheduling of trial.  Because appellant was provided competent legal representation and took full advantage of that representation up until November 14, the district court did not abuse its discretion when it refused to grant appellant’s request for a continuance on the day before trial.

            Finally, appellant has not demonstrated that the denial of a continuance “so prejudiced [him] in preparing or presenting his defense as to materially affect the outcome of the trial.”  Id. at 358-59.  Appellant’s attorney was successful in suppressing appellant’s non-Mirandized statements to the arresting officer and adequately handled the cross-examination of the state’s only witness.  In addition, appellant did not allege any other reason why his attorney could not adequately represent him other than the fact that his attorney allegedly told him that he did not care what happened to him.  Other than appellant’s allegation, we find no support for that claim in the record.  Because no prejudice is apparent, the district court did not abuse its discretion when it refused to grant a continuance so that appellant could obtain a private attorney.  See Fagerstrom, 286 Minn. at 299-300, 176 N.W.2d at 265 (holding that the district court did not abuse its discretion when it denied defendant’s request for a continuance to obtain a different attorney because (1) the court-appointed counsel was an able lawyer, (2) defendant did not allege a “specific reason why he felt the public defender could not adequately defend him,” (3) defendant was “completely and adequately represented,” and (4) “defendant had ample time prior to trial to make his request”).   


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.