This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Brian Antonio Hill,


Filed July 22, 1997

Affirmed in Part, Reversed in Part

Randall, Judge

Ramsey County District Court

File No. K496139

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

Peggy J. Birk, St. Paul City Attorney, John T. Penland, Jill Gerber, Assistant City Attorneys, 500 City Hall, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for Respondent)

John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.



Brian A. Hill appeals from convictions for obstructing legal process with force and disorderly conduct, arguing (1) the trial court erred in denying his motion for a continuance; (2) the trial court denied his constitutional right to effective assistance of counsel; (3) he is entitled to a new trial because of prosecutorial misconduct; and (4) his disorderly conduct sentence should be vacated because it is based on the same behavioral incident as the obstructing legal process sentence. We affirm in part and reverse in part.


On May 25, 1995, St. Paul police received a call about a domestic assault at Arnella's Bar and Nightclub. When police arrived, approximately 200 people were hanging around outside the bar. When the police attempted to subdue one of the patrons, the crowd became antagonistic toward the police. Police called for backup and the officers started to tell people to leave the area. Some rocks and bottles were thrown at the officers and some fights broke out.

Hill was outside Arnella's when the officers told him to leave the area. The officers testified Hill threatened them and attacked a K-9 officer. Hill testified the officers beat him up after he was tripped into the K-9 officer. Hill was arrested and eventually charged with disorderly conduct and obstructing justice with force.

At trial, Hill was supposed to be represented by an attorney from the Legal Rights Center, but for some unknown reason that attorney was not present. Instead, Hill was represented by Jordan Kushner. Before voir dire, Hill fired Kushner. The trial judge appointed Kushner "standby counsel." The trial court denied Hill's motion for a continuance.

After Hill represented himself for three of the state's witnesses, Hill rehired Kushner. Kushner made a motion for a mistrial based on the prosecutor's comments during opening statements and questions asked during direct examination of the three state witnesses. The trial court denied the motion. Kushner represented Hill for the remainder of the trial.

Hill was convicted of disorderly conduct and obstructing legal process with force. Hill was sentenced to 20 days in the Workhouse and 2 years' probation. Hill appeals.


1. Hill argues the trial court erred in denying his motion for a continuance to find other counsel after he fired Kushner in the middle of voir dire.

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 denial was an abuse of discretion if, in light of the circumstances at the time of the motion, the court's decision prejudiced the defendant by materially affecting the outcome of the trial. State v. Buschkopf, 373 N.W.2d 756, 769 (Minn. 1985), abrogated on other grounds by, Horton v. California, 496 U.S. 128, 110 S. Ct. 2301 (1990)).

Here, Hill fired Kushner during voir dire because Hill did not like the fact that Kushner had an investigator interview defense witnesses rather than do it himself. Kushner, however, was not Hill's main attorney, and Kushner stated he could proceed adequately from the investigator's notes. Kushner gave Hill all of his notes when he was appointed standby counsel, and Kushner represented Hill for most of the trial anyway. We also note that Hill's case was the oldest on the docket, and he was granted at least two prior continuances; one of which was for Hill's discovery purposes. We conclude Hill was not substantially prejudiced. The trial court did not abuse its discretion in denying the motion.

2. Hill argues his constitutional rights were violated because the trial court allowed him to proceed pro se without his knowing and intelligent waiver of the right to counsel.

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) (citing Faretta, 422 U.S. at 835, 95 S. Ct. at 2541) (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)). We review the trial court's findings on the waiver of right to counsel for clear error. State v. Comacho, 561 N.W.2d 160, 173 (Minn. 1997).

The record shows that before trial even started, Hill wanted to fire Kushner, but was persuaded otherwise by Kushner. When Hill again moved to fire Kushner, Hill made it clear to the trial court that he did not want to be represented by Kushner. The trial court appointed Kushner standby counsel where he was available for consultation. See Richards, 456 N.W.2d at 265 (presuming attorney who represented defendant at waiver proceeding advised defendant of rights). Hill rehired Kushner after only three state witnesses had testified.[1] Kushner then represented Hill for the rest of the trial, including ten more state witnesses, two defense witnesses, Hill's testimony, and closing argument.

In asking Hill if he wished to proceed pro se, the trial court stated:

THE COURT: * * * Mr. Hill, you have indicated to this court that you no longer wish to be represented by your attorney of record, Mr. Jordan Kushner; is that correct?


THE COURT: Mr. Kushner, as I previously ruled, is then appointed as standby counsel.

For purposes of the record let me explain to you that as you are representing yourself pro se, I am obligated by the Minnesota Rules of Criminal Procedure and the Rules of Evidence to treat you as an attorney. That means that your objections to any evidence must be properly made. Any objections that the State makes obviously must be properly made. I cannot help you in any way. And Mr. Kushner is only there in an advisory capacity. He is not your attorney because you have an absolute right to get rid of your attorney and you have decided to do that and he has been appointed as counsel.

Mr. Kushner is going to be in an advisory capacity only. He will not be conducting any cross-examination. He will not be making any legal objections. He will not be conducting voir dire, that s upon you. You are, in effect becoming an attorney. That means you are bound by all the rules of criminal procedure and all of the rules of evidence. I have to take a neutral position in this situation, which means that I cannot help you. That means I can't say "Maybe you should object to that" and "Maybe you should conduct cross-examination of a potential witness differently," understand?


While the above instructions are arguably not a complete and comprehensive examination to determine Hill's understanding of his rights, we conclude that under these facts, the trial court's finding that Hill waived his right to counsel was not clearly erroneous.

While we do not find Hill's rights were denied, we note that the trial bench should keep in mind that when defendants switch from private counsel to public defender or from public defender to pro se, or any combination thereof, the trial court should be patient and carefully go through the litany again to be sure the record fully reflects that the defendant was advised of all constitutional and statutory rights.

3. Hill argues he is entitled to a new trial because of prosecutorial misconduct. Whether a new trial should be granted because of prosecutorial misconduct rests within the discretion of the trial court. State v. Whalberg, 296 N.W.2d 408, 420 (Minn. 1980). This court will reverse

only where the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that defendant's right to a fair trial was denied.


Hill alleges it was misconduct for the prosecutor to ask three of its police officer witnesses about their thoughts on accusations of police misconduct and racism when Hill had not raised any issues of police misconduct or racism. During his cross-examination of Hill, the prosecutor asked Hill questions like: "Pretty tough guy, aren't you?" (the prosecutor was alluding to Hill's service in the United States Marine Corps); "[Y]ou're prejudiced against the system and the establishment"; "Are you prejudiced against white people?" Hill also alleges the prosecutor improperly asked Hill about an alias and implied Hill's case was weak because he could not produce a witness.

The prosecutor's sarcastic cross-examination of Hill was improper and is not condoned by our affirmance. But a thorough search of the record does not show the level of error that would require reversal. See, e.g., State v. Porter, 526 N.W.2d 359, 366 (Minn. 1995) (reversing where prosecutor suggested jurors were suckers or no salve could make them feel better if they acquitted defendant); State v. Salitros, 499 N.W.2d 815, 818-20 (Minn. 1993) (reversing where prosecutor suggested defense's arguments were just typical defense tactics and told jury to hold defendant accountable for actions).

The state correctly argues that the record shows the prosecutor anticipated Hill's defense of racism. Hill testified that one of the officers said, "Nigger, didn't I already tell you to leave?" The officers also testified the crowd was unruly and yelled "pig," "nazi," and "racist" at the officers. It was not misconduct for the prosecutor to ask Hill to state his real name when Hill gave the police at the scene an identification card with a different name and birth date. The questions about the unproduced witness were not

misconduct because Hill testified he confronted the police in the parking lot where he was to meet that witness for a ride home.

4. Hill argues his disorderly conduct sentence should be vacated because it is based on the same behavioral incident as the obstructing legal process sentence. We agree.

A person may not be punished for multiple offenses arising out of the same behavioral incident. Minn. Stat. § 609.035, subd. 1 (1996). The test for whether multiple offenses arose out of a single behavioral incident depends on the facts and circumstances, including "the singleness of purpose of the defendant and the unity of time and place of the behavior." State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995) (citation omitted). The state has the burden to show the divisibility of defendant's conduct. State v. Clark, 486 N.W.2d 166, 171 (Minn. App. 1992).

The record shows that all of Hill's actions toward the police, taken together, provoked their response and the resulting charges, and all the actions occurred at the same time and place. We conclude the offenses arose from the same behavioral incident and, thus, the disorderly conduct sentence is vacated.

Affirmed in part and reversed in part.

[ ]1 The record indicates that when Hill told the trial court that he wished to rehire Kushner, the trial court initially told Hill he could not. The trial court, however, later changed its position and allowed Hill to rehire Kushner. For future reference, a defendant has the right to hire or rehire standby counsel at any time during the trial.