This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



John Harald Lunday,


Filed December 16, 1997


Schumacher, Judge

Clay County District Court

File No. K39684

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

Todd S. Webb, Clay County Attorney, Courthouse, P.O. Box 280, Moorhead, MN 55561 (for Respondent)

William Kirschner, 118 Broadway, Suite 604, Fargo, N.D. 58102 (for Appellant)

Considered and decided by Schumacher, Presiding Judge, Huspeni, Judge, and Forsberg, Judge.** Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 2.



John H. Lunday appeals from convictions of possession of stolen property and theft, arguing the trial court (1) erred in allowing him to waive his right to counsel, (2) failed to conduct an evidentiary hearing on a motion to suppress evidence, (3) erred in failing to suppress the evidence, and (4) erred in not granting Lunday a continuance. We affirm.


Lunday lived with his girlfriend, Jennifer Norman, in an apartment in Moorhead. In November 1995, Norman ended the relationship. She moved out of the apartment and took all the furniture and furnishings with her. Lunday moved out at the same time. The apartment was thus vacant and no further rent was paid, either for December or January. On November 20, 1995, Norman reported that her car was stolen and that she believed Lunday took it.

Although the record is not clear, apparently sometime before January 9, 1996, Lunday began occupancy of the apartment again and, in the process, changed the lock on the door. On January 9, 1996, the resident manager of the building called the police, informing them an intruder was in the vacant apartment. The police arrived, knocked on the door, identified themselves, but received no answer. The police heard someone moving inside. The manager did not have a key for the new lock so the police broke down the door and found Lunday inside. Lunday had a few bags next to the door. The police searched the bags and found a set of keys. The keys opened the apartment's garage where the police found Norman's car.

Lunday was arrested and charged with receiving stolen property, theft, and temporary theft. At his initial appearance, Lunday indicated he wished to represent himself. The court told Lunday he could have counsel appointed at any time. The court also appointed Bruce Ringstrom as Lunday's standby counsel.

Before Lunday's second appearance, he moved to dismiss Ringstrom and proceed pro se, citing the Sixth Amendment and the U.S. Supreme Court decision Faretta v. California. The district court judge refused to dismiss Ringstrom as standby counsel.

Before the omnibus hearing, Lunday again moved to have Ringstrom removed because of an alleged conflict of interest and bias. Lunday also made numerous written motions, including suppression of evidence under the exclusionary rule, a demand for an evidentiary hearing, and dismissal for lack of probable cause.

At the omnibus hearing, the trial court denied Lunday's motion to remove Ringstrom as standby counsel, finding no conflict. Lunday argued the evidence should be suppressed because there was no search warrant. The trial court denied all Lunday's motions, specifically refusing to suppress the evidence because Lunday had no possessory interest in the vacant apartment and therefore no standing to contest the search and seizure. A jury subsequently found Lunday guilty of all three charges. Lunday appeals.


1. Lunday argues that the trial court denied his constitutional right to counsel by not determining whether his waiver of that right was knowing and intelligent. A defendant has the constitutional right to represent himself in a state criminal proceeding. Faretta v. California, 422 U.S. 806, 836, 95 S. Ct. 2525, 2541 (1975). When a defendant seeks to proceed pro se in a criminal trial,

the 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).

To make this determination,

a 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) (quoting State v. Rubin, 409 N.W.2d 504, 506 (Minn. 1987)).

The record shows that Lunday refused counsel at his initial appearance. Lunday understood that he could have counsel appointed. Lunday continually moved to dismiss standby counsel and proceed pro se, citing Faretta v. California. We conclude Lunday's waiver of his right to counsel was clear, unequivocal, and timely.

At Lunday's initial appearance, he stated that he understood the charges. The trial court made a brief examination to determine whether Lunday understood the consequences of his waiver. While the trial court's examination could have been more extensive, we are satisfied that the surrounding circumstances show that Lunday was aware of the consequences of proceeding pro se. See Krejci, 458 N.W.2d at 412-13 (holding defendant waived right to counsel where defendant had opportunity to consult with counsel and understood charges).

The record shows that Lunday moved to represent himself under the Sixth Amendment and cited the Faretta decision. Lunday made numerous pro se evidentiary and procedural motions, citing various statutes, rules, and federal and state cases. Lunday had the benefit of standby counsel, despite his repeated attempts to dismiss counsel. See Richards, 456 N.W.2d at 265 (presuming attorney who represented defendant at waiver proceeding advised defendant so that he could make an informed decision). We conclude Lunday understood the ramifications of proceeding pro se, and therefore he made a knowing and intelligent waiver of the right to counsel.

2. Lunday argues the trial court erred in not conducting an evidentiary hearing on his motion to suppress evidence. But the trial court at the omnibus hearing told Lunday he could call witnesses. Lunday bore the burden of proving standing, or a reasonable expectation of privacy, before the state would be required to show, through the testimony of police officers, the legality of police conduct. See Rakas v. Illinois, 439 U.S. 128, 130 n.1, 99 S. Ct. 421, 424 n.1 (1978); State v. Robinson, 458 N.W.2d 421, 423 (Minn. App. 1990), review denied (Minn. Sept. 14, 1990). We recognize that the failure to hold a Rasmussen hearing may violate a defendant's constitutional rights. State v. Hall, 286 Minn. 424, 430, 176 N.W.2d 254, 258 (1970). Here, however, Lunday was given the opportunity to present evidence on the threshold issue of whether he had a reasonable expectation of privacy in the apartment. He failed to do so, and the court was not required to hear testimony concerning police conduct. We note, moreover, that the landlord was in the process of discovering Lunday's presence in the apartment before police took any steps in the case, and the landlord would inevitably have discovered the automobile parked in the garage assigned to the apartment. See generally State v. Rodewald, 376 N.W.2d 416, 422 (Minn. 1985) (applying inevitable discovery doctrine).

3. Lunday argues the trial court erred in not granting him a continuance when the state amended the complaint to add the theft and temporary theft charges close to the trial date. A ruling on a request for a continuance is within the trial court's discretion and a conviction will not be reversed for denial of the motion unless the denial is a clear abuse of discretion. State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987).

The record shows that the complaint was amended and served on Lunday and Ringstrom on October 9, 1996. The trial began on October 22, 1996. The added charges were based on the same facts, and the state called no additional witnesses nor introduced new evidence to prove the additional charge. The trial court did not abuse its discretion in denying Lunday's motion for a continuance.