This opinion will be unpublished and

may not be cited as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-99-1190

 

 

State of Minnesota,

Respondent,

 

vs.

 

Dwight Thomas Jones,

Appellant.

 

 

Filed April 25, 2000

Affirmed.

Toussaint, Chief Judge

 

Cass County

File No: K098618

 

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 and

 

Earl E. Maus, Cass County Attorney, Cass County Courthouse, 300 Minnesota Avenue, P.O. Box 3000, Walker, MN 56484 (for respondent)

 

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 for appellant)

 

            Considered and decided by Chief Judge Toussaint, Presiding Judge, Randall, Judge, and Amundson, Judge.

U N P U B L I S H E D  O P I N I O N

TOUSSAINT, Chief Judge

 

Appellant Dwight Thomas Jones was charged with two counts of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subds. 1(e)(i), 1(f)(i) (1998).  Following a jury trial, Jones was convicted of one count of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subds. 1(e)(i).  While the presumptive guideline sentence for his crime is 122 months, the trial court sentenced appellant to 180 months because “appellant’s victim was vulnerable and treated with particular cruelty.”  See Minn. Sent. Guidelines IV and V.

Jones challenges the district court’s denial of his motion for new trial arguing that the procedures used to call prospective jurors for voir dire were not random as required by Minn. R. Gen. Pract. 805.  Because: (1) “random selection,” for the purposes of complying with Minn. R. Gen. Pract. 805, does not require mathematical randomness; and (2) the district court did not abuse its discretion, we affirm the district courts denial of appellant’s motion for new trial.  In his pro se brief, Jones also contends that: (1) he received ineffective assistance of counsel; (2) his request for substitution of appointed counsel was erroneously denied; and (3) his 180-month sentence was an improper upward durational departure from the sentencing guidelines.  Because Jones failed to prove his appointed counsel’s conduct was objectively unreasonable or affected the outcome of the trial, his ineffective assistance of counsel claim is unsuccessful.  Because the district court did not deny Jones’s request for substituted counsel, appellant’s second pro se claim is without merit.  Finally, because the record supports the sentence and the district court did not abuse its discretion, we affirm.

D E C I S I O N

I.

            Before the first witness testified at trial, Jones moved for a mistrial on the ground that the jury selection process was not randomized as required by Minn. R. Gen. Pract. 805.  When reviewing a district court’s denial of a motion for a mistrial, this court applies an abuse-of-discretion standard.  State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998).  In denying Jones’s motion, the district court found that the process for selecting a jury satisfied rule 805’s requirement that each eligible and available person have an equal probability of being selected to serve on the jury.  Because jurors are selected from a randomly-generated list of names of potential jurors who report after being summoned for jury service, the court opined that the process “gives an equal probability of selection” to each panel member present to serve.

Minn. R. Gen. Pract. 805 provides in relevant part:

            (a) Random selection procedures shall be used throughout the juror selection process.  Any method may be used, manual or automated, that provides each eligible and available person with an equal probability of selection.

            (b) Random selection procedures shall be employed in (1) selecting persons to be summoned for jury service; (2) assigning prospective jurors to panels; and (3) calling prospective jurors for voir dire.

 

“Random selection” is described as the

selection of names in a manner totally immune to the purposeful or inadvertent introduction of subjective bias and such that no recognizable class of the population from which names are being selected can be purposely included or excluded.

 

Minn. R. Gen. Pract. 802 (h).

            Jones contends that because the person listed on the bottom of the randomized jury panel list does not have an equal chance of being called as the person at the top of that list, the district court process was not random.  To generate the jury panel list, the district court randomly assigned a number to each person who reports for service after being summoned for jury duty.  Because the panel list is randomly generated, each person who reports has an equal probability of being assigned a number at the top, middle, or bottom of the list.  Prospective jurors are called for voir dire from the randomized jury panel list.

While Jones is correct that the district court called names off the jury panel list numerically, not randomly, “random selection,” as described by rule 802(h), does not require mathematical randomness.  Instead, it only requires that the manner of selection avoids the purposeful or inadvertent introduction of subjective bias and prevents the purposeful inclusion or exclusion of a recognizable class of the population.  See Minn. R. Gen. Pract. 802(h).  There is no record support that suggests the district courts jury-selection process introduced subjective bias or permitted the purposeful inclusion or exclusion of a particular class of persons.

            Nevertheless, relying on Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S. Ct. 1246, 1265 (1991), Jones argues he is entitled to a new trial on the basis of the structural-defect doctrine.  In that case, the supreme court recognized five situations in which a constitutional defect in the structure of a criminal trial is not subject to “harmless error” analysis and automatically entitles a defendant to a new trial.  See Fulminante, 499 U.S. at 309-10, 111 S. Ct. at 1265.^[1]   The supreme court explained that these structural defects make the: (1) trial process an unreliable vehicle to determine guilt or innocence; and (2) criminal punishment appear fundamentally unfair.  Id. at 310, 111 S. Ct. at 1265.  Here, Jones has not alleged a constitutional error and there is no evidence that the jury-selection process made the trial an unreliable vehicle for determining guilt or innocence or that Jones’s punishment would appear fundamentally unfair.  In the absence of such allegations or evidence, Jones’s reliance on Fulminante for application of the structural-defect doctrine is misplaced.

II.

Pro Se Arguments

A.                 Ineffective Assistance of Counsel

            Jones contends that in final argument his trial counsel’s factual misstatement  constitutes ineffective assistance of counsel.  Jones argues his attorney would not have made the misstatement had he been “practicing the customary skills and diligence [of] a competent lawyer.”  To prove ineffective assistance of counsel, a defendant must show, by preponderance of the evidence, that his counsel’s: (1) representation “fell below an objective standard of reasonableness,” and (2) “error *  *  * so prejudiced the defendant at trial that a different outcome would have resulted but for the error.”  State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (citing Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984) and Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987)).   Wilson v. State, 582 N.W.2d 882, 885 (Minn. 1998).

            The victim testified that her sister’s friend drove her to her friend Linda Fisherman’s house before she walked down the hill to Pete Hunt’s house.  While Jones’s counsel initially stated that the victim walked to Pete Hunt’s house after leaving the bar, he correctly explained and clarified that the victim had been driven to Linda Fisherman’s house before going to Pete Hunt’s house in search of John Fisherman.  Because Jones’s counsel immediately recognized his mistake and explained and clarified the victim’s testimony, his representation did not fall below an objective standard of reasonableness.  Moreover, because it is inconsequential whether the victim walked or was driven to Linda Fisherman’s house before being attacked, Jones failed to prove that his counsel’s factual misstatement affected the outcome of the trial.  Jones received adequate assistance of counsel.

B.         Substitution of Appointed Counsel

            Jones also challenges the district court’s denial of his request for substitution of appointed counsel.  While a court is obligated to furnish an indigent with capable counsel, dissatisfaction with a court-appointed counsel, absent exceptional circumstances, does not require a trial court to grant a request for a substitution.  State v. Brown, 597 N.W.2d 299, 307 (Minn. App. 1999), review denied (Minn. Sept. 14, 1999).  In fact, a court should grant a request for different counsel “only if exceptional circumstances exist and the demand is timely and reasonably made.”  State v. Worthy, 583 N.W.2d 270, 278 (Minn. 1998) (quoting State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977)).

            At a pretrial hearing on December 8, 1998, Jones’s first counsel commented that there was an irretrievable breakdown of the attorney-client relationship and notified the court that Jones desired different counsel.  The court granted Jones’s request for different counsel.  Because the record does not reflect a second request for substitution of appointed counsel, Jones’s second pro se claim is without merit.  Moreover, even if Jones had requested different counsel, Jones’s dissatisfaction with his counsel is not an exceptional circumstance warranting the appointed of new counsel.

C.        Upward Departure from Sentencing Guidelines

            Arguing  “the state guidelines only called for 120 months,” Jones challenges the district court’s 180-month sentence.  Departures from presumptive sentences are reviewed under an abuse-of-discretion standard, but must be justified by “substantial and compelling circumstances” in the record.  Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).  “If the record supports findings that substantial and compelling circumstances exist, this court will not modify the departure unless it has a ‘strong feeling’ that the sentence is disproportional to the offense.”  State v. Anderson, 356 N.W.2d 453, 454 (Minn. App. 1984) (citation omitted).

            In imposing the aggravated sentence, the district court explained that a departure was appropriate because the victim was vulnerable and treated with particular cruelty.  Specifically, the court noted that the victim had been severely beaten, urinated on, and threatened with death if she reported the rape.  Because the record supports the district court’s recitation of these “substantial and compelling circumstances,” the district court did not abuse its discretion in imposing an increased sentence of 180 months.

            Affirmed.