This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1298

 

 

State of Minnesota,

Respondent,

 

vs.

 

Ikechi Kallys Albert,

Appellant.

 

Filed June 7, 2005

Affirmed

Lansing, Judge

 

Hennepin County District Court

File No. 04026849

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Jay M. Heffern, Minneapolis City Attorney, Timothy Richards, Assistant City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, MN 55402 (for respondent)

 

Ikechi Kallys Albert, P.O. Box 583352, Minneapolis, MN 55458 (pro se appellant)

 

 

            Considered and decided by Stoneburner, Presiding Judge; Lansing, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

In this appeal from a conviction and sentence for failure to stop at a stoplight, Ikechi Albert raises three grounds for reversal: discriminatory enforcement of traffic laws, rejection of his midtrial request for a continuance to obtain counsel, and the imposition of a $300 fine.  Because the fine was not excessive, the denial of the continuance was within the court’s discretion, and Albert failed timely to raise or prove discriminatory enforcement, we affirm.

F A C T S

            Police officers stopped Ikechi Albert and cited him for failure to provide proof of insurance and failure to stop at a stoplight.  The police officers, who were driving east on Eighteenth Avenue Northeast, saw the light for east-west traffic turn green.  Shortly after it turned, they saw two cars on Johnson, the cross street, enter the intersection against the red light for the north-south traffic.  The first car continued traveling south on Johnson Street.  The second car, which Albert was driving, turned left and proceeded east on Eighteenth Avenue.  The police officers stopped Albert’s car and issued the two citations.  They did not stop the first car.

            Albert pleaded not guilty, acted pro se before trial, and indicated that he was representing himself at trial.  Consistent with that representation, he cross-examined the two police officers called by the state.  After the state rested, he requested an opportunity to obtain an attorney.  The district court declined to grant a continuance for the purpose of obtaining counsel.  Albert testified on his own behalf, stating that both he and the car behind him turned left before the light changed. 

The district court dismissed the failure-to-provide-proof-of-insurance charge and found Albert guilty of failing to stop for a red light.  The district court sentenced Albert to a fine of $300, and Albert appeals both his conviction and sentence.

D E C I S I O N

I

The Equal Protection Clause of the Fourteenth Amendment prohibits the intentional, discriminatory enforcement of municipal ordinances.  State v. Vadnais, 295 Minn. 17, 19, 202 N.W.2d 657, 659 (1972).  To prevail on a claim of discriminatory enforcement, the defendant must show by a preponderance of the evidence, first, that he has been singled out for prosecution while other similarly situated people were not prosecuted and, second, that the government’s selection of him for prosecution was invidious or in bad faith, meaning that it was based on an impermissible consideration of race or some other protected classification.  State v. Russell, 343 N.W.2d 36, 37 (Minn. 1984).  

The issue of discriminatory enforcement “does not go to the guilt or innocence of the particular defendant,” and thus the procedure for presenting a discriminatory-enforcement claim requires the defendant to raise the issue in pretrial proceedings.  City of Minneapolis v. Buschette, 307 Minn. 60, 66, 240 N.W.2d 500, 503 (1976).  This procedure provides notice to the state and allows a decision on the preliminary issue before a trial on the merits.  Id. A defendant’s failure to raise a defense of discriminatory enforcement before trial waives the issue.  Id. 

Albert waived his defense of discriminatory enforcement because he did not raise the issue before trial.  Albert first asserted his discriminatory-enforcement claim when he testified on his own behalf, after the state had completed its case in chief.  Neither the court nor the state had notice that Albert intended to raise a defense of discriminatory enforcement, and the district court had no opportunity to conduct a pretrial hearing to determine whether the issue had merit.  See State v. Hyland, 431 N.W.2d 868, 873 (Minn. App. 1988) (affirming district court’s refusal to consider discriminatory-enforcement issue at trial when defendant fails to raise issue before trial). 

Even if the issue had been properly raised, Albert failed to meet the Russell requirements that he demonstrate he was singled out from other similarly situated individuals and that the prosecution was in bad faith based on an impermissible classification.  The evidence provides at least two reasons that the police officers followed and stopped Albert instead of the first car.  As the second car to run the red light, his conduct was more egregious than the first offender’s conduct.  And he, unlike the other car, turned onto the street in front of the police officers, which made it easier for them to stop him because they were traveling the same direction on the same street.  Albert also failed to prove that the stop was racially motivated.  The record lacks evidence that the officers observed the other driver’s race.  Although Albert, who is black and originally from Nigeria, testified that the other driver was white, he provided no evidence that this difference impacted the officers’ decision.  

Because the officers were traveling in one vehicle and could not follow both cars, because the record provides two logical, nondiscriminatory reasons for stopping Albert’s car, and because the record provides no evidence that the officers had knowledge of the other driver’s race, we affirm the district court’s determination that Albert failed to prove by a preponderance of the evidence that his arrest was the product of discriminatory enforcement of traffic laws.

II

At his first appearance on the traffic citation, Albert indicated that he intended to represent himself, and he appeared pro se for trial.  The district court has discretion in deciding whether to grant a continuance, and we will not reverse the district court’s ruling unless it was an abuse of discretion.  State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987).  “A defendant may not demand a continuance to delay the proceedings” or “arbitrarily attempt[] to substitute another attorney at the time of trial.”  State v. Worthy, 583 N.W.2d 270, 278 (Minn. 1998).

When the trial began, the district court judge carefully explained the trial procedures and gave Albert an opportunity to ask any questions.  Albert told the judge that he understood the court process and that he had previously represented himself in a trial on a traffic violation.  Albert vigorously cross-examined both of the state’s witnesses.  He only requested a continuance to obtain an attorney after the state rested its case, explaining that he “just forgot” to ask earlier. 

The record demonstrates that Albert had a full opportunity to secure an attorney before trial or to request a continuance before the trial began.  Instead he requested the continuance after the state had completed its case in chief.  By this time, jeopardy had attached.  See State v. Caswell, 551 N.W.2d 252, 254-55 (Minn. App. 1996) (noting that jeopardy attaches in bench trial when witnesses are sworn and court begins to hear evidence).  Given these circumstances, the district court did not abuse its discretion in concluding that the request was an attempt to delay the proceedings and in denying the continuance as untimely.  Additionally, Albert has not offered any explanation of how the district court’s decision prejudiced him by materially affecting the outcome of the case.  See State v. Lloyd, 345 N.W.2d 240, 247 (Minn. 1984) (to demonstrate reversible error appellant must show abuse of discretion in denying continuance and resulting prejudice in outcome of trial).

III

Failure to stop for a stoplight is a petty misdemeanor, which carries a maximum fine of $300.  Minn. Stat. § 169.89, subds. 1, 2 (2002).  Albert contends that this fine is excessive and, therefore, unconstitutional.  The constitutionality of a statute is a legal question, which we review de novo.  State v. Rewitzer, 617 N.W.2d 407, 412 (Minn. 2000).

The United States and Minnesota Constitutions both prohibit the imposition of excessive fines. U.S. Const. amend. VIII; Minn. Const. art. I, § 5.  But Minnesota courts recognize that “large discretion is necessarily vested in the legislature to impose penalties sufficient to prevent the commission of an offense, and it would have to be an extreme case to warrant the courts in holding that the constitutional limit has been transcended.”  Rewitzer, 617 N.W.2d at 412 (quotation omitted).  To prevail on a claim that a fine is so excessive that it violates constitutional standards it must be “grossly disproportional to the gravity of the offense,” disproportionate to fines imposed for other crimes in the same jurisdiction, and disproportionate to fines imposed for the commission of the same crime in other jurisdictions.  Id. at 413; State v. Kujak, 639 N.W.2d 878, 883 (Minn. App. 2002), review denied (Minn. Mar. 25, 2002).

An examination of these three factors demonstrates that the fine is not unconstitutionally excessive.  First, a $300 penalty is not unduly harsh in light of society’s interest in deterring dangerous driving conduct to protect the safety of motorists and pedestrians.  

Second, other driving offenses classified as petty misdemeanors have the same penalty range as failure to stop at a stoplight.  The next level of offense, a misdemeanor, is punishable by a fine of no more than $1,000, imprisonment for up to ninety days, or both.  Minn. Stat. § 609.03(3) (2002).  The financial penalty for this offense is therefore less than half as severe as the next most severe criminal offense and carries no possibility of imprisonment. 

Third, and finally, the fine is not disproportionate to the penalties imposed in other states.  Other states impose maximum penalties for petty misdemeanors that include comparable fines and, in some states, the possibility of imprisonment.  See, e.g., State v. Basabe, 97 P.3d 418, 420 n.2 (Haw. App. 2004) (recognizing that petty misdemeanor in Hawaii is subject to maximum fine of $1,000 and imprisonment of no more than thirty days); State v. Martini, 860 A.2d 689, 692 (R.I. 2004) (defining petty misdemeanor as criminal offense punishable by imprisonment of up to six months, fine of up to $500, or both).  Although Albert received the maximum fine for a petty misdemeanor in Minnesota, the court may reasonably have considered his past driving record in rejecting a lesser amount. 

Albert’s $300 fine is not disproportionate to the gravity of the offense, it is not disproportionate to the penalty for similar offenses in Minnesota, and it is within the range of penalties imposed by other states for similar offenses.  Consequently the fine is not excessive within the meaning of the state or federal constitution.

            Affirmed.