This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Tendayi Tafadzwa Mareya, petitioner,
Hennepin County District Court
John Stuart, State Public
Defender, Michael F. Cromett, Assistant Public Defender,
Attorney General, 1800
Michael O. Freeman,
Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000
Considered and decided by Randall, Presiding Judge; Hudson, Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from a postconviction order, appellant challenges his 2004 conviction of first-degree driving while impaired (DWI). Appellant argues that the district court denied him his right to assistance of counsel and failed to exercise its discretion to appoint standby counsel. Appellant also argues that the district court abused its discretion in denying his requests for continuances. Finally, appellant argues that the court erred in reversing its earlier decision that the trial would be bifurcated. We affirm all issues.
Appellant Tendayi Tafadzwa Mareya was pulled over for speeding by a state trooper. The state trooper believed, due to the strong odor of alcohol omitting from the vehicle and appellant’s bloodshot and watery eyes, that appellant had been drinking. Appellant denied drinking and was directed to the state trooper’s squad car for further investigation. A preliminary breath test produced a blood alcohol level of .182. Appellant refused to submit to further testing. As a result, appellant was charged with felony first-degree driving while impaired (DWI) and felony refusal to submit to chemical testing.
At his first appearance on January 21, 2004, the court appointed a public defender to represent appellant. Appellant appeared with counsel three times: January 21, 2004 (first appearance), February 11, 2004 (probable-cause hearing), and March 5, 2004 (pretrial hearing). Appellant’s case was originally scheduled for trial on March 12, 2004, but was continued until March 18, 2004. At the March 5, 2004 hearing, appellant was specifically warned that his jury trial would begin on March 18, 2004.
On March 18, 2004, appellant discharged his public defender and requested substitute counsel. The court warned appellant that trial was set for that day and that his dismissal of counsel would result in him proceeding without representation. Appellant dismissed the court’s warnings, acknowledging that he was willing to take the risk.
Appellant appeared again before the court on March 19, 2004. Appellant pleaded not guilty and requested more time to prepare his defense. The court, although reluctantly, continued the trial until March 25, 2004.
Appellant made three continuance requests prior to the commencement of jury selection: the morning of March 25, 2004; the afternoon of March 25, 2004; and on March 26, 2004. The court denied these requests.
selection finally began on March 29, 2004.
On the second day of jury selection, the court discovered that the
prosecutor violated discovery rules by failing to provide appellant with copies
of criminal-history information pertaining to prospective jurors. Again, appellant requested a continuance,
which the court denied. The court, however,
provided appellant with the opportunity to re-question a previously accepted juror who had a criminal history. Appellant declined.
The court ordered a bifurcated trial in light of appellant’s refusal to stipulate to prior convictions. On numerous occasions the court warned appellant not to mention his prior convictions; however, appellant himself twice introduced such information into evidence. Consequently, the court recalled its bifurcation decision.
The jury returned a guilty verdict and appellant was sentenced, according to the presumptive guidelines, to a stayed sentence of 36 months and five years of probation. Appellant filed a petition for postconviction relief, which was denied. This appeal followed.
D E C I S I O N
court’s findings are reviewed to determine whether there is sufficient
evidentiary support in the record. Dukes v. State, 621 N.W.2d 246, 251 (
argues that the district court made numerous errors related to his
self-representation. We disagree. The
argues that the court erred by failing to appoint substitute counsel. The decision to appoint substitute counsel is
within the discretion of the district court.
State v. Clark, 722 N.W.2d
460, 464 (
The postconviction court denied appellant relief, stating:
While technically, the Court was incorrect and actually could have appointed another attorney if she had found exceptional circumstances warranting such appointment, the reasons [appellant] gave for discharging his attorney did not rise to the level of challenging his court-appointed attorney’s competence or ability to represent him so as to constitute exceptional circumstances. . . . [Appellant] did not demonstrate that his attorney was incompetent or unable to adequately represent him. [Appellant’s] dissatisfaction and the described personal tension between himself and his attorney do not constitute ‘exceptional circumstances’ warranting the appointment of another public defender.
Appellant contends that the district court incorrectly accepted appellant’s “waiver” of counsel before determining whether he was entitled to appointment of different counsel. Additionally, appellant claims the district court failed to investigate or to make any inquiry whatsoever into the reasons for appellant’s discharge of his public defender.
similar argument was made in Clark, where
the supreme court acknowledged that the district court may be required to
conduct a more searching inquiry, “particularly when a defendant voices serious
allegations of inadequate representation before trial has commenced,” thus
making it partly a timing issue. 722
N.W.2d at 464. The defendant in
Here, appellant requested substitute counsel on March 18, 2004, the date set for trial, after appellant had previously appeared with his public defender on three occasions. See Worthy, 583 N.W.2d at 278-79 (holding that a request for substitute counsel on the first day of trial is not timely). Appellant did not make a speedy-trial request; however, the court was concerned with the length of time appellant had already spent in jail.
A request for substitute counsel
requires exceptional circumstances. State v. Vance, 254 N.W.2d 353, 358 (
The postconviction court found that “[appellant] did not demonstrate that his attorney was incompetent or unable to adequately represent him. [Appellant’s] dissatisfaction and the described personal tension between himself and his attorney do not constitute ‘exceptional circumstances’ warranting the appointment of another public defender.” We agree. Appellant fails to establish exceptional circumstances warranting substitute counsel. The record simply indicates that appellant was dissatisfied with his attorney, including that counsel was not appropriately responsive to his requests for advice. Appellant argues that the court failed to inquire as to his reasons for dismissing his public defender. The record shows otherwise.
Appellant argues that the court’s refusal to appoint substitute counsel amounted to more than just harmless error. Appellant fails to demonstrate how this was not harmless error, instead, simply states that he expressly requested substitute counsel, that he was prepared to present the court with reasons necessitating substitute counsel, and that he proceeded to trial without counsel. Any claimed error is harmless absent a showing of incompetent representation or good cause for a new attorney. See State v. Lamar, 474 N.W.2d 1,3 (Minn. App. 1991), review denied (Minn. Sept. 13, 1991) (holding that even if the defendant is advised by the district court 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).
Appellant contends that the court
failed to obtain a valid waiver of counsel.
A defendant may waive the right to counsel if the waiver is competent
and intelligent. Worthy, 583 N.W.2d at 275 (citing Johnson v. Zerbst, 304
A written waiver was not obtained
here, but that does not automatically invalidate appellant’s waiver. A waiver may be valid even if not in writing
per rule 5.02, as long as the surrounding circumstances support the waiver. In re
G.L.H., 614 N.W.2d 718, 723 (
The record shows that the court inquired into appellant’s education, made a record that appellant had an extensive criminal history with similar offenses, and that appellant consistently refused, without good cause, to accept appointed counsel. The court was diligent in making a record of the fact that appellant continuously refused assistance from court-appointed counsel. The court even offered to appoint advisory counsel but appellant refused, insisting that he did not want assistance from the specific attorney the court sought to appoint. Based on the extensive inquiry of appellant made on the record, we conclude that appellant’s waiver of counsel was valid.
argues that the district court’s denial of his requests for continuances constituted
an abuse of discretion and deprived him of his right to due process and a fair
trial. A district court’s ruling on a
defendant’s request for a continuance is reviewed for abuse of discretion. State
v. Courtney, 696 N.W.2d 73, 81 (
Appellant argues that his “requests for continuances were all related to a single legitimate objective: preparation for trial.” The postconviction court denied relief, stating that “[a]ll the facts and circumstances of this case support the conclusion that the denial of a trial continuance was justified and that [appellant] was not prejudiced by the denial of a trial continuance.” We agree.
At the March 5, 2004 pretrial hearing, appellant, represented by counsel, requested a continuance to review a plea offer. Appellant claims that he was led to believe that a continuance would be granted if he declined the plea offer. However, at this hearing the court three times clearly explained to appellant his options and upcoming deadlines, reminding him that his jury trial was scheduled for March 18, two weeks away.
On March 18, 2004, upon appellant’s insistence, the court permitted him to discharge his public defender. The court warned appellant that “you are on for a jury trial today so if you don’t want [the public defender] to represent you then you’re going to have to go to trial and represent yourself.” Appellant accepted self-representation and never asked for a continuance during this court appearance.
Jury selection did not begin until March 29, 2004, giving appellant additional time to prepare. Based on the numerous court appearances appellant made, coupled with the court’s warnings, appellant was well aware of his upcoming jury trial. We conclude that the district court did not abuse its discretion in denying appellant’s repetitive requests for continuances.
Appellant next argues that he was
deprived of an opportunity to review and digest juror criminal-history
information before jury selection.
During a criminal prosecution, the state is under a continuing
obligation to disclose to the defense all matters within its possession or
control that relate to the case.
The discovery violation in question resulted from the prosecution’s failure to provide appellant with criminal-history information on potential jurors. The court discovered the violation on the second day of jury selection and immediately ordered the prosecution to provide appellant with this information. Appellant’s request for a continuance was denied. Instead, the court provided appellant with three remedies. First, the court advised appellant to ask questions of the jurors with criminal histories upon reaching them in voir dire. Second, the court gave appellant the opportunity to recall a juror, whom he had already accepted, that had a criminal history for further questioning. Appellant declined to take advantage of this opportunity. Finally, the court promised appellant adequate time to review the information before questioning the other two prospective jurors with criminal histories. We find there was no abuse of discretion in how the district court handled the prosecution’s discovery violation.
Appellant argues that the court erred by reversing its decision to bifurcate the trial, allowing the jury to hear evidence of appellant’s DWI history. The postconviction court ruled:
Again, whether [appellant’s] insistence on exposing the jury to his prior alcohol related driving offenses was due to his own sheer stubbornness or obtuseness, he was free, and had a constitutional right, to so represent himself, even if he would have been better off heeding the Court’s advice. [Appellant] has only himself to blame for any possible prejudice to him that resulted when he exposed his prior history to the jury. At that point, any benefit in bifurcation of the trial was lost.
The Minnesota Supreme Court recently
implied that the district court has the authority to bifurcate a trial in order
to separately try an element whose proof involves evidence, such as a prior
conviction, that is highly prejudicial to a defendant.
Appellant contends that the court’s
reversal of a bifurcated trial was unfair because the court never warned him
that introduction of the tape would result in forfeiture of bifurcation. We disagree.
Before trial, the district court repeatedly warned appellant not to
mention his prior convictions so as not to prejudice the jury. Despite the court’s repeated warnings,
appellant proceeded, twice, to introduce evidence containing references to his
prior convictions. First, appellant offered into evidence the
of his arrest. Second, on cross-examination of the arresting officer, appellant referred to his prior convictions during questioning.
Appellant argues, ironically, that the lack of a bifurcated trial prejudiced him because the jury heard detailed accounts of his prior convictions. Appellant brought the prior convictions up. Appellant was aware of the purpose of bifurcation – to withhold prior conviction information from the jury during the guilt phase – but put such information before the jury anyway.
 The court gave appellant numerous warnings before discharging counsel, including that it was not in his best interests and that it would be difficult for him to represent himself.
 The court was concerned with further delays since appellant had already served more jail time than required.
 Appellant also appeared before the court on March 19, 2004, and March 25, 2004, to discuss various aspects of the case.
 Twice during trial, the district court judge called appellant and the prosecutor to the bench for off-the-record discussions. Presumably, based on the fact that these bench conferences occurred before appellant was about to admit evidence of his prior convictions, the court was again warning appellant not to disclose information regarding his prior convictions to the jury.
 The audio portion of the tape was played. On the tape appellant and the arresting officer discuss appellant’s DWI history.