This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Kurt Buddy Spencer,


Filed June 17, 1997

Affirmed; motions denied

Klaphake, Judge

Olmsted County District Court

File No. K0-95-753

Hubert H. Humphrey, III, Attorney General, John B. Galus, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; Raymond F. Schmitz, Olmsted County Attorney, Government Center, 151 Fourth Street Southeast, Rochester, MN 55904 (for Respondent)

John M. Stuart, State Public Defender, Patricia P. Rettler, Special Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Klaphake, Judge.



Appellant Kurt Buddy Spencer, pro se and through counsel, appeals from the judgment of conviction and sentence for three counts of terroristic threats under Minn. Stat. § 609.713, subd. 1 (1994). Because the trial court properly determined the issues of competency, waiver, and presumptive sentencing, and because appellant's arguments in his pro se supplemental brief do not warrant relief, we affirm. Appellant's motion to proceed pro se before this court is denied.


After appellant completed a competency evaluation under Minn. R. Crim. P. 20 and the trial court conducted a hearing, the court granted appellant's motion to proceed pro se. Standby counsel was present during all trial court proceedings. Appellant represented himself and, from time to time, the court warned and admonished him to behave appropriately in the courtroom. On the fourth day of trial, appellant's arguments with the court in front of the jury were so disruptive that the court called in standby counsel to represent appellant. Subsequently, appellant was removed from the courtroom whenever his conduct disrupted the proceedings, including during his sentencing.

Before granting appellant's motion to proceed pro se, the trial court applied the proper test to determine competence to waive the right to counsel. See Minn. R. Crim. P. 20.01, subd. 1; Godinez v. Moran, 509 U.S. 389, 397-98, 113 S. Ct. 2680, 2686-87 (1993) (holding the Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788 (1960), standard applicable to determine competence to waive right to counsel). The trial court decided appellant was competent to waive counsel and proceed pro se based on appellant's two rule 20 evaluations and the court's own observations of appellant in the courtroom. The two evaluating psychologists agreed that appellant was competent to assist in his own defense. The court questioned appellant and was satisfied that his waiver of counsel was unequivocal, knowing, and voluntary. Thus, the court applied the proper test and its determination is supported by the facts. See State v. Camacho, 561 N.W.2d 160, 172-73 (Minn. 1997).

Appellant argues that his constitutional right to counsel was denied because the trial court did not reevaluate his competency before granting his motion to proceed pro se. Nothing in the record between the evaluations and the competency hearing requires a result different from that of the trial court's order allowing appellant to proceed pro se. Appellant cites various transcript excerpts as evidence of his lack of understanding of the proceedings. We have reviewed the evidence of alleged incompetence, much of which occurred after the competency decision, and conclude the trial court gave the evidence proper weight. See id. at 172. The standard for waiver of the right to counsel does not depend on a defendant's "technical legal knowledge." Godinez, 509 U.S. at 400, 113 S. Ct. at 2687 (quoting Faretta v. California, 422 U.S. 806, 836, 95 S. Ct. 2525, 2541 (1975)). Rather, the court here allowed appellant to represent himself until he deliberately engaged in serious and obstructionist misconduct. See Faretta, 422 U.S. at 834 n.46, 95 S. Ct. at 2541 n.46. At that point, the trial court acted properly in calling in the public defender.

Appellant also argues that his motion for a downward departure in sentencing should have been granted due to his mental impairment. The trial court sentenced appellant within the presumptive range. In such a case, this court generally will not review the trial court's exercise of discretion. See State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). The trial court's sentence was supported by both psychological evaluations and the court's own observations. The court properly concluded that appellant did not lack "substantial capacity for judgment when the offense was committed," which could be a proper mitigating factor. See Minn. Sent. Guidelines II.D.2.a.(3). Therefore, there was no basis for the downward departure requested by appellant. See State v. Wilson, 539 N.W.2d 241, 247 (Minn. 1995) (only extreme mental impairment justifies mitigating sentence).

Appellant's pro se supplemental brief also raises numerous issues based primarily on unsupported assertions, none of which requires reversal. The trial court properly exercised its sound discretion in making the evidentiary rulings regarding appellant's audiotaped statement to the arresting officer on February 20, 1995. See Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984). For the same reasons and based on the same facts as the trial court's decision regarding competency, appellant's arguments that he did not intentionally commit the offenses were rejected. Reviewing the record, we also observe no violations of the criminal rules of procedure or the federal constitution with respect to proceeding on the basis of a complaint, sworn statements of witnesses, alleged perjury of witnesses, speedy trial, discovery, appellant's guilty plea, preparation of appellant's case, contempt proceedings, or sentencing. Further, removal of appellant from the courtroom on the fourth day of trial was warranted. See Minn. R. Crim. P. 26.03, subd. 1(2).

After all briefing was complete on appeal, appellant moved this court for an order allowing him to proceed pro se. Where the briefs on file discuss the issues fully, this court need not grant a superfluous motion or a motion that would delay or stay action on the case by this court. See In re Rerat, 224 Minn. 124, 127, 28 N.W.2d 168, 172 (1947); Minn. R. Civ. App. P. 127. Because appellant's pro se brief, along with the state's and the public defender's briefs, were available to this court, there is no basis for granting the motion to proceed pro se. See also Minn. R. Civ. App. P. 134.01(d)(2) (no oral argument where facts and legal argument adequately presented by briefs and decisional process would not be significantly aided by oral argument).

Affirmed. Motions denied.