This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Khaim Khaimov,


Filed October 27, 1998


Schumacher, Judge

Dissenting, Davies, Judge

Ramsey County District Court

File No. K997339

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Kathleen A. Bruton, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Ann B. McCaughan, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Davies, Presiding Judge, Schumacher, Judge, and Short, Judge.



Appellant Khaim Khaimov was convicted of aggravated robbery and burglary. He contests the district court's decision finding him competent to stand trial and allowing him to proceed pro se. He also challenges the court's durational departure in sentencing. We affirm.


In December 1996, Khaimov broke into the home of K.Z. and her elderly mother, V.B. After forcing K.Z. to bind and gag V.B., Khaimov forced K.Z. to disrobe and kneel on the floor. He tied her hands and taped her mouth shut, then pointed a loaded gun at her head and threatened to kill her. He also beat K.Z. about the face with his fists while her hands were tied, stole cash and jewelry from her purse, and forced her to write him a check for $11,600. The entire incident lasted more than two hours. Khaimov was later arrested and charged with two counts of first-degree aggravated robbery and one count of first-degree burglary.

The district court appointed psychiatrist Dr. Dan Larson to examine Khaimov and to determine whether he was competent to stand trial. Dr. Larson reported that Khaimov was psychotic and suffered from a paranoid disorder that precluded him from adequately participating in his own defense. Dr. Larson concluded that, although Khaimov understood he was charged with a crime and had "a reasonable knowledge of court officers and situation," he was not competent to stand trial. On this testimony, the district court postponed Khaimov's criminal case and initiated civil commitment proceedings.

Two court-appointed psychiatrists testified at the civil commitment hearing. Dr. Hector Zeller testified that, although Khaimov suffered from a paranoid personality, he showed no signs of major mental illness. He also testified that a diagnosis of paranoid personality did not render Khaimov incompetent to stand trial. Dr. Zeller concluded that Khaimov was competent to participate in his own defense because he understood the functions of the judge, jury, and prosecutor, and the nature of the charges against him.

Dr. Hildegard Graber testified that, though Khaimov may suffer from "mixed personality disorder," he did not suffer from mental illness that rendered him incompetent to stand trial. Dr. Graber testified that Khaimov could participate in his own defense because he understood the proceedings against him and the roles of the various parties in those proceedings. Based on this testimony, the commitment court found Khaimov competent to stand trial and dismissed the commitment petition.

At a subsequent hearing, Khaimov told the district court that he wished to proceed pro se because he believed his appointed public defender was trying to kill him. The district court found that Khaimov "intelligently, voluntarily and knowingly" chose to represent himself, but appointed another public defender to serve as standby counsel.

At trial, Khaimov was argumentative, asserted that he was the victim of a broad conspiracy, and insulted witnesses who gave unfavorable testimony (including his own witnesses). The district court was forced to terminate Khaimov's rambling opening and closing statements. Khaimov did not allow standby counsel to assist in his defense.

The jury convicted Khaimov on all three counts. He was sentenced to a presumptive term of 58 months for the robbery charge and 108 months for the burglary charge (a 50-month upward departure from the sentencing guidelines) to be served concurrently. Khaimov appeals.


1. A criminal defendant may not be tried and convicted unless he is legally competent. State v. Camacho, 561 N.W.2d 160, 171 (Minn. 1997). A defendant is not competent to stand trial if he

(1) lacks sufficient ability to consult with a reasonable degree of rational understanding with defense counsel; or

(2) is mentally ill or mentally deficient so as to be incapable of understanding the proceedings or participating in the defense.

Minn. R. Crim. P. 20.01, subd. 1. The district court must order a medical examination or hold a competency hearing if it determines that there is reason to doubt the defendant's competence. Id. at subds. 2, 3. Before trial may proceed, the court, upon consideration of the examiner's report or evidence received at the competency hearing, must determine "by the greater weight of the evidence" that the defendant is competent to stand trial. Id. at subd. 3(6).

All three psychiatrists who evaluated Khaimov found that he understood the nature of the proceedings against him and the roles of the various participants in the trial. Khaimov reluctantly recognized K.Z. as a victim of the charged offenses. Further, Khaimov assured the district court that he understood that he faced 20 years in prison if convicted of all three charged offenses. There was sufficient evidence to support the district court's conclusion that Khaimov was not so mentally ill or deficient that he was unable to understand the proceedings in which he was involved. We defer to the district court's determinations of credibility. Minn. R. Civ. P. 52.01.

The rule we apply on Khaimov's competence to waive counsel comes from Camacho: "[T]he legal standard for competence to waive counsel is the same as the legal standard for competence to stand trial." 561 N.W.2d at 171. Thus, Khaimov's competence to stand trial determines his competence to waive counsel and proceed pro se. There are, independent of competence, several other requirements that must be met before a defendant can be allowed to waive counsel. These requirements are as follows:

A defendant shall not be permitted to waive counsel who lacks sufficient ability to knowingly, voluntarily, and intelligently waive the constitutional right to counsel, to appreciate the consequences of the decision to proceed without representation by counsel, to comprehend the nature of the charge and proceedings, the range of applicable punishments, and any additional matters essential to a general understanding of the case.

Minn. R. Crim. P. 20.01, subd. 1. "It is not necessary that defendant possess the skills and knowledge of a lawyer to waive the right to counsel and proceed pro se" so long as the waiver was knowing and intelligent. State v. Richards, 456 N.W.2d 260, 264 (Minn. 1990).

We review under a "clear error" standard the district court's determination that Khaimov's decision to waive counsel was knowing, voluntary, and intelligent. Camacho, 561 N.W.2d at 173. Here, Khaimov waived counsel despite the court's warning that it was unwise to do so, indicating that his decision was informed. Khaimov repeatedly expressed his desire to proceed without counsel and refused to consult his standby counsel during trial, indicating that his decision was voluntary. The district court did not clearly err by allowing Khaimov to waive counsel and proceed pro se.

A defendant must only be competent to waive the right to counsel, not to represent himself. Godinez v. Moran, 509 U.S. 389, 399, 113 S. Ct. 2680, 2687 (1993). We nonetheless note that Khaimov did construct a plausible defense by: (1) denying that the charged offenses ever occurred; (2) attacking K.Z.'s credibility and motivation, suggesting that she had a financial motive for pressing charges against him; and (3) offering witness testimony that his good character was inconsistent with those charges. He called 20 witnesses of his own and testified in his own defense.

Khaimov understood what he had to prove in order to convince the jury of his innocence. It is irrelevant that he failed to raise a mental health defense or that he was ultimately convicted. That Khaimov was able to independently construct a reasonably compelling defense shows that he was not, by way of mental illness or deficiency, incapable of participating in his own defense. The district court properly found that Khaimov was competent to stand trial and waive his right to counsel.

2. Upward departure from the sentencing guidelines is within the district court's discretion if "substantial and compelling" circumstances are present. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981). Upward departure was justified here because of Khaimov's unusual cruelty in forcing K.Z. to bind and gag her own elderly mother, then disrobe and kneel on a cement floor while he held a loaded gun to her head and threatened to kill her and V.B. See, e.g., State v. Partlow, 321 N.W.2d 886, 887 (Minn. 1982) (upward durational departure justified where victim was treated with "particular cruelty"). Khaimov also displayed unusual cruelty by beating K.Z. in the face with his closed fists while her hands were tied and she could not defend herself. Finally, Khaimov denied that the incident occurred and showed no remorse or empathy for either victim. We find these circumstances substantial and compelling and conclude the district court did not abuse its discretion in sentencing Khaimov.

3. Khaimov has submitted a pro se supplemental brief and appendix. Courts are inclined to disregard defects in pro se appellate briefs. Thorp Loan and Thrift Co. v. Morse, 451 N.W.2d 361, 363 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990). Khaimov, however, fails to cite to the record, refers extensively to evidence from outside the record, asserts error without a coherent legal foundation, and raises issues that cannot be resolved by this court. In light of these serious defects, we decline to address Khaimov's pro se arguments.


DAVIES, Judge (dissenting)

I respectfully dissent.

As a general rule, a defendant who is competent to stand trial is also competent to waive counsel and proceed pro se. See Godinez v. Moran, 509 U.S. 389, 397-98, 113 S. Ct. 2680, 2685-86 (1993) (applying equivalent legal standard for competence to stand trial and competence to waive counsel); State v. Camacho, 561 N.W.2d 160, 172 (Minn. 1997) ("[I]f a defendant is competent to stand trial, the defendant is competent to waive counsel."); State v. Thornblad, 513 N.W.2d 260, 263 (Minn. App. 1994) (overruling Minnesota cases requiring defendants to meet more rigorous standard of competence to waive counsel than to stand trial).

This rule must, however, be applied with some attention to the individual circumstances of each criminal defendant. The trial court has an ongoing duty to ensure that the defendant, having initially been found competent to stand trial and waive counsel, remains competent to do so during the trial itself.

[T]hroughout the course of criminal proceedings a trial judge must be vigilant in ensuring that the defendant is competent to stand trial and that, when a sufficient doubt of the defendant's competence arises, he must observe procedures adequate to ensure the defendant's competency.

State v. Bauer, 310 Minn. 103, 114, 245 N.W.2d 848, 854 (1976). The trial court cannot simply determine that a defendant is, at the outset of trial, competent to proceed to trial and to waive counsel, then ignore the defendant's subsequent behavior. "[N]either [the] courts nor the public profit when a defendant, unable to make or participate in a defense because of a mental disorder, is tried and convicted." Id. at 126, 245 N.W.2d at 860.

In this case, it became clear during the trial that appellant's thought process was thoroughly distorted by paranoia and conspiratorial delusions. Regardless of his initial competence to stand trial or ability to understand the proceedings against him, he quickly demonstrated that he was incapable of constructing and executing a plausible defense. The record indicates that appellant constantly interrupted the proceedings and frequently drifted into irrelevancies. Appellant insulted witnesses and repeatedly claimed to be the victim of a broad conspiracy. The trial court should have recognized that appellant was incapable of proceeding pro se and terminated appellant's self-representation. See Camacho, 561 N.W.2d at 174-75 (trial court may terminate defendant's self-representation when necessary to maintain regularity of proceedings). Instead, the court allowed appellant to ensure his own conviction.

A defendant's exercise of the limited freedom to reject the assistance of counsel does not terminate that defendant's right to a meaningful trial. This paranoid and delusional criminal defendant did not have a meaningful trial.

The trial court's initial finding that appellant was competent to stand trial and waive counsel was not error. But allowing the trial to proceed to verdict was an abuse

of discretion. Justice requires that appellant's convictions be reversed and the matter remanded for a new trial.

I would reverse.