This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Raymond Earl Orr,


Filed March 16, 1999


Harten, Judge

Hennepin County District Court

File No. 97073667

John M. Stuart, State Public Defender, Theodora K. Gaitas, Assistant Public Defender, 2829 University Avenue N.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Michael A. Hatch, Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Amy J. Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Harten, Presiding Judge, Randall, Judge, and Shumaker, Judge.



Appellant challenges his conviction for temporary theft, arguing that he did not knowingly and intelligently waive his right to a jury trial and his right to testify at a bench trial on stipulated facts. We affirm.


Because his vehicle was being repaired, appellant Raymond Earl Orr rented an automobile from Choice Auto Rental on May 7, 1997. Orr's automobile insurer authorized payment for the rental car through June 13, 1997. When the vehicle had not been returned by August 6, 1997, Choice Auto Rental reported it stolen. On two occasions, a Brooklyn Park police detective went to the Mounds View home of Orr's son, Rory Orr, where Orr was residing. On his second visit, the detective noticed that the rental vehicle was parked in the driveway. Orr was charged with theft and temporary theft under Minn. Stat. § 609.52 (1996). At his arraignment, Orr pleaded not guilty and demanded a jury trial.

Immediately before trial, the prosecutor explained to the trial judge that the parties had agreed to dismiss the theft count and that the temporary theft count would be tried to the court on stipulated facts. After outlining the agreement with regard to sentencing, the prosecutor stated:

I do think that in order to have a stipulated-fact trial, it requires some waivers from Mr. Orr and in fact, perhaps, a modified petition, even. I know he needs to waive a number of his rights.

The subsequent exchange between defense counsel and Orr went as follows:

Q. Mr. Orr, you understand what we're doing here today as far as submitting the facts, the documentation to the Court to Judge Oleisky for his review? He will consider the case based on that evidence and then he will make a determination as to the outcome of the case?

A. OK.

Q. Do you wish to do that at this time?

A. That's all right.

Q. Now, you understand we're waiving our right to 12 people in a jury to determine that outcome?

A. Like I said, I'm not guilty so --

Q. OK. You believe the evidence would show you're not guilty?

A. Yes.

Q. Do you have a problem with not having a jury to decide that today?

A. No. The only thing is I don't have the cousin that didn't return the vehicle when I thought he returned it.

Q. I thought he--I understand that and we'll argue to the Court now because we have a chance for brief argument.

A. That's fine.

Q. You have a right to take the stand. You're giving up that right or the right not to take the stand, the right to cross-examine the State's witnesses which we will not be able to do in this case.

A. I understand.

Q. You will have no witnesses?

A. I understand.

Q. You wish to waive those rights?

A. That's fine.

Defense counsel: Is that sufficient, Your Honor?

The Court: Sure.

Counsel then presented brief arguments to the court. During the prosecution argument, Orr stated, "Excuse me," but was told that he could not speak at that time. At the conclusion of the defense argument, defense counsel asked if she could have a moment with Orr. After speaking with him, she stated:

My client would like to let you know that he - when they came to get him, they asked for a Roy Orr. I believe the police officers involved in it - Looks like they might have gotten that information based on the fact this certified letter was address to Roy Orr and not Raymond Orr. - so my client then informed him that a Roy Orr was not there.

The district court did not consider this statement because it was not part of the stipulated facts. Later, when the district court and the parties were discussing a scheduling matter, Orr stated, "There's one other thing I wanted to say. I couldn't drive that car because I had some cracked ribs." After reviewing the stipulated facts, the district court found Orr guilty of temporary theft of a motor vehicle.

At the sentencing hearing, the district court asked Orr if he would like to say anything before the imposition of sentence. Orr stated:

Like I said, I can't believe this mess that I got into and I just can't believe it * * * that I got convicted on the thing because I couldn't make my full statement when we had this deal so I'm over a barrel. My health is against me and I don't have the money.

Orr appeals his conviction.


Orr contends that the district court erred in its determination that he intelligently and voluntarily waived his right to a jury trial. Specifically, Orr argues that defense counsel's colloquy regarding his right to a jury trial was insufficient.

When a case is submitted on stipulated facts, the defendant must waive his right to a jury trial. State v. Sandmoen, 390 N.W.2d 419, 423 (Minn. App. 1986). A jury trial waiver must "be knowing, intelligent and voluntary." State v. Ross, 472 N.W.2d 651, 653 (Minn. 1991). The trial court must ascertain that "the defendant understands the basic elements of a jury trial." Id. at 654. In Ross, the supreme court recommended, but did not require, that trial courts explain to defendants that a jury is composed of twelve members of the community, that a defendant may participate in jury selection, that a jury verdict must be unanimous, and that, if the defendant waives a jury, the judge will decide guilt or innocence. Id. However, a defendant need not have "'an exhaustive knowledge of all the doctrinal subtleties of Sixth Amendment jurisprudence.'" Id. (quoting United States ex. rel. Williams v. DeRobertis, 715 F.2d 1174, 1179-80 (7th Cir. 1983)).

In her formal inquiry, defense counsel informed Orr that the district court would determine his guilt or innocence and that he was waiving his right to a jury of twelve people. But defense counsel did not inform Orr that he could participate in jury selection or that the jury's verdict would have to be unanimous. Under these circumstances, we find that Orr was informed of the essential elements of a jury trial. While we recommend that a defendant be informed that

in a jury trial, he would have a voice in the selection of jurors and that their verdict must be unanimous, this is not an absolute requirement.

State v. Johnson, 354 N.W.2d 541, 543 (Minn. App. 1984). Here, the record leaves us with no doubt that Orr was aware of the basic elements of a jury trial and the likely consequences of his waiver. Accordingly, his waiver of a jury trial was knowing and intelligent.

Orr also challenges the district court's determination that he voluntarily and intelligently waived his right to testify. Specifically, Orr argues that his attempts to make statements during the trial and sentencing hearing revealed his failure to completely comprehend his waiver.

Both the state and federal constitutions grant a criminal defendant the right to testify in his own defense. Rock v. Arkansas, 483 U.S. 44, 51, 107 S. Ct. 2704, 2708-09 (1987); State v. Rosillo, 281 N.W.2d 877, 878 (Minn. 1979). Minn. R. Crim. P. 26.01, subd. 2 requires that, before proceeding on stipulated facts, the defendant "shall acknowledge and waive" (among other things) the right to testify at trial. Any waiver of the right to testify should be voluntary and knowing. State v. Walen, 563 N.W.2d 742, 751 (Minn. 1997). Placing a waiver on the record is recommended to save time at postconviction proceedings. Id. at 751-52.

When Orr was informed that he had the right to "take the stand," and that he was "giving up that right or the right not to take the stand," Orr responded with the statement, "I understand." When asked whether he wished to waive that right, Orr responded, "That's fine." The clarity of Orr's responses to defense counsel's inquiry shows that his waiver of the right to testify was both knowing and intelligent.

Orr argues that this straightforward analysis is unsettled by his contribution to defense counsel's argument at trial and his statement to the district court at sentencing. According to Orr, those statements highlight his failure to thoroughly understand the significance of his waiver. In light of Orr's on-the-record waiver, however, the statements he made during and after the trial arguments likely represented an attempt to assist defense counsel with her argument. And regarding his statement made at sentencing, it appears that Orr was merely disagreeing with the district court's finding. At most, those statements collectively reflect Orr's frustration at his decision to waive his right to testify, not his failure to understand the waiver. Nowhere did Orr claim that he did not understand that he was waiving his right to testify. The record shows that Orr understood his waiver of the right to testify.