This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).


State of Minnesota,


Richard C. Dillon,

Filed October 26, 1999
Davies, Judge

Hennepin County District Court
File No. 98037134


Mike Hatch, Attorney General, 525 Park Street, St. Paul, MN 55103-2106 ; and

Amy Klobuchar, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Shumaker, Presiding Judge, Davies, Judge, and Willis, Judge.


U N P U B L I S H E D   O P I N I O N


Appellant was convicted of first-degree assault following a bench trial in which he appeared pro se with a public defender as stand-by counsel. Appellant now challenges his conviction on three grounds: (1) the trial court erred in granting his request to waive assistance of counsel; (2) the evidence is insufficient to support his conviction; and (3) the police violated his constitutional rights by bringing a "ride-along" probation officer into the apartment after the assault. We affirm.


Appellant Richard C. Dillon was arrested for beating his wife. Five days after the arrest, the court appointed a public defender to represent appellant. Four months later, appellant moved the court to dismiss the appointed public defender. After a short inquiry on the record, the court allowed appellant to proceed pro se, appointing the public defender as stand-by counsel. Appellant also waived a jury trial. After a two-day bench trial, the trial judge found appellant guilty of first-degree assault. The beating caused serious bruising, major internal injuries, rib and eye socket fractures, and loss of blood. The beating also caused permanent loss of the gallbladder, impairment of the liver, eye, and colon, and serious permanent disfigurement. The trial judge found that these injuries cumulatively created a high probability of death.


I. Waiver of Counsel

An appellate court "will only overturn a trial courtís finding of a valid waiver of a defendantís right to counsel if that finding is clearly erroneous." State v. Worthy, 583 N.W.2d 270, 276 (Minn. 1998).

The right to counsel is guaranteed by the Sixth and Fourteenth Amendments. If the accused chooses to waive his right to counsel, the trial court must determine whether the waiver is "intelligent and competent." Johnson v. Zerbst, 304 U.S. 458, 465, 58 S. Ct. 1019, 1023 (1938).

The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused--whose life or liberty is at stake--is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.

Id. (remanding to trial court when no findings had been made on whether waiver of counsel was valid). Whether a waiver is "competent" looks to the defendantís mental capacity to understand the proceedings. Godinez v. Moran, 509 U.S. 389, 401 n.12, 113 S. Ct. 2680, 2687 (1993). Whether the waiver is "intelligent" addresses "whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced." Id. This inquiry depends, "in each case, upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused." Johnson, 304 U.S. at 464, 58 S. Ct. at 1023.[1]

The Minnesota Supreme Court has further cautioned that trial courts should

comprehensively examine the defendant regarding the defendantís comprehension of the charges, the possible punishments, mitigating circumstances, and any other facts relevant to the defendantís understanding of the consequences of the waiver.

State v. Worthy, 583 N.W.2d at 276 (citation omitted). An intelligent waiver can be implied, however, based on the surrounding circumstance, even in the absence of a full, on-the-record trial court inquiry. See, e.g., id. at 276-77 (holding waiver valid when defendants were familiar with criminal justice system and had competent legal representation for month before they fired public defenders on morning of trial); State v. Brodie, 532 N.W.2d 557, 557 (Minn. 1995) (holding waiver valid when defendant wanted to "fire" his counsel and was aware that he would have to represent himself);

State v. Krejci, 458 N.W.2d 407, 412-13 (Minn. 1990) (holding waiver valid based on defendantís interactions with multiple judges and public defenders).[2]

In this case, the trial courtís decision that appellant validly waived his right to counsel is not clearly erroneous. The record shows appellant had the benefit of counsel for four months. Appellant then wrote to both his public defender and the supervising public defender requesting dismissal. The court conducted an inquiry on the record. The court specifically asked whether appellant knew enough about the law to represent himself and cautioned that there would be questions arising at trial on which appellant would want legal representation. Appellant was hesitant to represent himself, but this shows that appellant knew the significance of the decision. While the trial court inquiry could have been more comprehensive, the surrounding circumstances and the inquiry on the record support the finding that the waiver was competent and intelligent. Further, appellant had the benefit of stand-by counsel for his Rasmussen hearing, trial, and sentencing.

II. Sufficiency of the Evidence

When reviewing sufficiency of the evidence, an appellate court is limited to determining whether, based on the facts in the record and any reasonable inferences, the fact-finder could reasonably conclude that the defendant was guilty of the charged offense. State v. Atkins, 543 N.W.2d 642, 646 (Minn. 1996). The appellate court views the evidence in the light most favorable to the factual findings and assumes the fact-finder believed the stateís witnesses and disbelieved contrary evidence. Id.

Appellant was convicted of first-degree assault, which requires that the accused inflict "great bodily harm," defined as

bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.

Minn. Stat. ß 609.02, subd. 8 (1998). In this case, the victim testified that she was kicked in the ribs and eye until she lost consciousness; she described the long-term effects of the assault, including vision changes, fatigue, weight loss, permanent scars, and pain in her ribs. The treating doctor described her injuries as the loss of her gallbladder, part of her liver and large intestine, and eight quarts of blood. The doctor testified that these injuries were life threatening. There is ample evidence that defendant committed first-degree assault.

III. Illegal Search

In his pro se brief, appellant claims "the police arrest was in error" because a probation officer accompanied police into appellantís apartment immediately after the assault. We assume that appellant seeks to exclude evidence gathered after the entry.

The United States Supreme Court recently held that it is a Fourth Amendment violation for police to bring media members, or other third parties, into a home during execution of a search warrant when the third parties did not aid in executing the warrant. Wilson v. Layne, ___ U.S. ___, 119 S. Ct. 1692, 1699 (1999). The Wilson court went on to state, however, that its decision did not address whether such a violation of the Fourth Amendment triggered the "exclusionary rule." Wilson, ___ U.S. at ____, n.2, 119 S. Ct. at 1699. Furthermore, the police did not enter appellantís apartment using the warrant; appellant admitted at the Rasmussen hearing that the police entry was consensual. Wilson does not require the exclusion of any evidence under these circumstances.


[1] Some subsequent Minnesota Supreme Court cases have used the term "knowing and voluntary" instead of "intelligent." See, e.g., State v. Richards, 456 N.W.2d 260, 263 (Minn. 1990). Because this is a federal constitutional right, we defer to the federal terminology.

[2] Rule 5.02 now provides the procedure for ensuring that a waiver of counsel is voluntary and intelligent. Minn. R. Crim. P. 5.02, subd. 1(4). This new rule became effective January 1, 1999, after the waiver in this case, and reads:

(4) Waiver of Counsel, Felony, Gross Misdemeanor. If a defendant appearing without counsel charged with a felony or gross misdemeanor does not request counsel and wishes to represent himself or herself, the court shall ensure that a voluntary and intelligent written waiver of the right to counsel is entered in the record. If the defendant refuses to sign the written waiver form, the waiver shall be made orally on the record. Prior to accepting any waiver, the trial court shall advise the defendant of the following: the nature of the charges, the statutory offenses included within the charges, the range of allowable punishments, that there may be defenses, that there may be mitigating circumstances, and all other facts essential to a broad understanding of the consequences of the waiver of the right to counsel, including the advantages and disadvantages of the decision to waive counsel. The court may appoint the public defender for the limited purpose of advising and consulting with the defendant as to the wavier.