This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-95-1630

State of Minnesota,

Respondent,

vs.

Leo D. Mueller,

Appellant.

Filed June 11, 1996

Reversed

Willis, Judge

Washington County District Court

File No. K2944668

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Michael A. Welch, 20 North Lake Street, Suite 301, Forest Lake, MN 55025 (for Respondent)

John M. Stuart, State Public Defender, Evan W. Jones, Assistant Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for Appellant)

Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Foley, Judge.*

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

On appeal from judgment of convictions for fifth-degree assault, disorderly conduct, and obstructing legal process, defendant claims that (1) he did not properly waive his right to counsel, (2) the district court should have appointed standby counsel, and (3) he was denied his right to be present when the verdicts were read. We reverse.

FACTS

Two Forest Lake police officers arrested appellant Leo Mueller for allegedly threatening them after they entered his unlocked town home without a warrant, in pursuit of a runaway teenager. Mueller appeared pro se at the arraignment hearing. After the court read a general advisory and explained the various charges, possible sentences, and an accused's right to counsel and trial by jury, Mueller told the court that he did not intend to be represented by an attorney. The record shows no further discussion at the arraignment regarding Mueller's waiver of his right to counsel.

Mueller also appeared pro se at the pretrial hearing. The prosecuting attorney informed the court that Mueller had asked for a jury trial, but was confused about potential omnibus hearing issues because he did not have an attorney. The court told Mueller that he should have a lawyer, and Mueller responded:

I think they're going to need a lawyer by the time I get through with them, him and that phoney cop, Your Honor, sir.

At the end of the hearing, the pretrial judge again urged Mueller to hire an attorney and informed him that it would be "too late" to apply for a public defender at the date of trial.

When Mueller appeared without counsel at the omnibus hearing, the court explained that an attorney could be appointed. Mueller informed the court that he did not qualify "for a free one" and rebuffed the omnibus hearing judge's subsequent offer to check whether Mueller would qualify for a public defender. The omnibus hearing judge did ask a public defender who was present in the courtroom "to sit in on this as stand-by so if he needs assistance after that, he can ask you about it," but the court specifically noted that it was not appointing standby counsel.

The jury trial transcript reflects no discussion regarding Mueller's waiver of his right to counsel. Mueller presented his case through narrative testimony and called no witnesses. He did cross-examine the state's witnesses, but with numerous objections from the prosecutor. At the end of the trial, the court permitted Mueller to leave. When the jury returned less than two hours later, the court allowed the verdict to be read and the jury to be polled even though Mueller was not present. The jury returned guilty verdicts on three of the four counts.

D E C I S I O N

Waiver of counsel. The federal constitution guarantees a criminal defendant the right to self-representation in a state criminal proceeding. State v. Thornblad, 513 N.W.2d 260, 262 (Minn. App. 1994). This right derives from the Sixth Amendment right to assistance of counsel. Faretta v. California, 422 U.S. 806, 820, 95 S. Ct. 2525, 2533 (1975).

When a criminal defendant asserts the right to proceed pro se, the district court

must determine (1) whether the request is clear, unequivocal, and timely, and (2) whether the defendant knowingly and intelligently waives his right to counsel.

State v. Richards, 456 N.W.2d 260, 263 (Minn. 1990) (footnote omitted). "Knowingly and intelligently" does not mean that the defendant must prove that he has the "skill and experience of a lawyer." Faretta, 422 U.S. at 835, 95 S. Ct. at 2541. Rather, the court must ensure that the defendant is made

aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open."

Id. (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 242 (1942)); see also Godinez v. Moran, 113 S. Ct. 2680, 2687 n.12 (1993) (stating that court's focus is whether defendant actually understands the "significance and consequences" of his decision).

Mueller's decision to proceed pro se was unequivocal and timely. At the arraignment hearing, at the pretrial hearing, and at the omnibus hearing, Mueller clearly expressed his intent to represent himself each time the court inquired about legal representation. The record does not show, however, that Mueller knowingly and intelligently waived his right to counsel at any time during the proceedings. To ensure a knowing and intelligent waiver of the right to counsel, the district court

should make a "comprehensive examination of the defendant [regarding] his comprehension" of the charges against him, the possible punishments, the defenses, mitigating circumstances, and any other facts relevant to an understanding of the consequences of the waiver.

State v. Krejci, 458 N.W.2d 407, 412 (Minn. 1990) (citations omitted).

There is no indication that the district court took any measures to ensure that Mueller was made aware of the dangers and disadvantages of self-representation. Of particular concern is the absence of any discussion or examination at the trial itself into Mueller's decision to proceed to trial pro se. Further, the pretrial court incorrectly told Mueller that it would be too late to apply for a public defender on the day of trial. A defendant's right to counsel continues throughout all stages of the proceeding, notwithstanding an earlier waiver. State v. Rubin, 409 N.W.2d 504, 505 (Minn. 1987); State v. Parson, 457 N.W.2d 261, 263 (Minn. App. 1990) ("It can never be assumed that the emphatic denial of offered assistance * * * is the pro se defendant's final word."), review denied (Minn. July 31, 1990).

The state admits that there is no valid waiver of counsel in the record, but the state attempts to construct a waiver through a reference to an unrecorded in-chamber discussion and Mueller's unequivocal request to proceed pro se. We reject this argument in light of case law defining a district court's duty to ensure a valid waiver. Krejci requires either a "comprehensive examination" or "surrounding circumstances" to establish that an accused's waiver was knowing and intelligent. Krejci, 458 N.W.2d at 412-13. The Krejci court upheld a waiver even though the trial court did not make a comprehensive examination because the surrounding circumstances showed that the defendant had interacted with 12 different judges--orally and in writing--and had discussed his case with two public defenders. Id. Likewise, in State v. Rubin, the supreme court noted that the trial court

carefully interrogated defendant about his waiver of counsel, which was in writing. Defendant explained that he had discussed the case with an attorney in Red Wing, whom he named, and that as a result of that discussion he had decided to plead guilty without counsel.

Rubin, 409 N.W.2d at 505; see also State v. Savior, 480 N.W.2d 693, 694 (Minn. App. 1992) (finding a knowing and intelligent waiver where record showed that defendant had discussed the advantages and disadvantages "at some length" with public defender).

The facts here do not show any judicial examination to establish that Mueller's waiver was made "with full knowledge and understanding of his rights." See State v. Edwards, 361 N.W.2d 90, 91 (Minn. App. 1985) (reversing conviction where there was no record of a valid waiver of counsel). The record is also devoid of facts or surrounding circumstances similar to those in Krejci, Rubin, or Savior from which we might infer that Mueller's choice to proceed pro se was knowing and intelligent.

Standby counsel. Under the rules of criminal procedure, a district court must appoint standby counsel for an indigent defendant, even if the defendant has waived the right to counsel. Minn. R. Crim. P. 5.02, subd. 1. We cannot determine whether Mueller was entitled to standby counsel because there was no determination whether Mueller was indigent.

Mueller's absence from the courtroom. Because we conclude that Mueller did not properly waive his right to counsel, we need not address Mueller's claim that the trial court erred by allowing the verdict to be read and the jury to be polled in Mueller's absence.

Reversed.


Footnotes

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