This opinion will be unpublished and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

A05-1886

 

State of Minnesota,

Respondent,

 

vs.

 

Chester Landers,

Appellant.

 

Filed December 26, 2006

Affirmed; motion to strike granted

Kalitowski, Judge

 

Hennepin County District Court

File No. 04014010

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

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

 

John M. Stuart, State Public Defender, G. Tony Atwal, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Chester Otto Landers challenges his conviction of financial transaction card fraud, arguing that the district court erred by (1) denying a continuance to secure counsel of choice; (2) giving a no-adverse-inference instruction without first obtaining appellant’s consent; and (3) permitting testimony of the victim’s prior abusive relationship.  Appellant also requests that a document appearing in the appellate record but not accepted into the trial record be stricken.  We affirm and grant the motion to strike.

D E C I S I O N

I.

            Appellant argues that the district court erred by not granting a continuance for appellant to secure substitute counsel.  A criminal defendant has a constitutional right to assistance of counsel.  U.S. Const. amend. VI; Minn. Const. art. 1, § 6.  “This right includes a fair opportunity to secure counsel of [one’s own] choice.”  State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977).  Although an indigent defendant has the right to appointed counsel at every stage of the criminal process, he does not have “the unbridled right to be represented by counsel of his choice.”  Id.  A defendant’s request for substitution of counsel will be granted only when exceptional circumstances exist, the demand is reasonable, and the request is timely.  Id. 

            We review the district court’s decision for abuse of discretion.  Id. In deciding whether the district court was within its discretion, we consider whether the defendant was “so prejudiced in preparing or presenting his defense as to materially affect the outcome of the trial.”  Id. at 359. 

            A defendant’s motion for continuance to obtain counsel is properly denied when the defendant has not been diligent in obtaining counsel.  State v. Courtney, 696 N.W.2d 73, 82 (Minn. 2005).  A request for substitute counsel is untimely when it is made on the first day of trial.  See State v. Worthy, 583 N.W.2d 270, 278-79 (Minn. 1998) (determining that request for substitute counsel was untimely when made the morning of trial); Vance, 254 N.W.2d at 358 (“A defendant may not . . . obtain a continuance by arbitrarily choosing to substitute council at the time of trial.”). 

            Here, appellant, an indigent defendant in district court, requested that the district court appoint a substitute public defender or grant a 60-day continuance so that he could secure private representation.  But appellant failed to appear at trial the first two days and when he did appear, he immediately asked for a continuance.  Moreover, the case had been pending for seven months, had been postponed several times, and the public defender’s office had entered motions on appellant’s behalf.  And the record indicates that the public defender repeatedly assured the court that she was prepared to try the case.  We conclude that appellant’s request for a continuance was untimely and that the district court did not err by refusing it.

            The record also indicates that the district court told appellant that if he fired his current public defender, he was releasing not just that attorney but the whole office and would have to represent himself.  Appellant argues that this misstatement of the law is reversible error.  We disagree.

            We have previously held that even where the district court tells a defendant that a different public defender will not be appointed under any circumstances, such error is harmless absent a showing of incompetent representation or good cause for a new attorney.  State v. Lamar, 474 N.W.2d 1, 3 (Minn. App. 1991), review denied (Minn. Sept. 13, 1991).  Here, appellant alleges incompetent representation arguing that his counsel (1) did not share information, such as witness lists and documents; (2) did not adequately review the case file; and (3) did not call several witnesses and review ten years’ worth of the victim’s financial records as requested by appellant.  We disagree. 

            Disagreements on tactical decisions comprise neither exceptional circumstances nor ineffective assistance of counsel.  Exceptional circumstances are those that affect a public defender’s “ability or competence to represent the client.”  State v. Gillam, 629 N.W.2d 440, 449 (Minn. 2001).  General dissatisfaction or disagreement with court-appointed counsel does not constitute exceptional circumstances. Id.at 449-50 (upholding the district court’s denial of substitute counsel when request was based on general dissatisfaction with the representation).  Furthermore, tactical decisions, such as which witnesses to call at trial and what evidence to present, are within the discretion of counsel and do not amount to ineffective assistance of counsel.  State v. Mems, 708 N.W.2d 526, 534 (Minn. 2006); Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004); State v. Miller, 666 N.W.2d 703, 717 (Minn. 2003).

II.

            Both the United States and Minnesota Constitutions guarantee a criminal defendant’s right not to testify.  U.S. Const. amend. V; Minn. Const. art. 1, § 7.  Ordinarily, a district court should obtain permission from a criminal defendant before giving the no-adverse-inference instruction.  State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988); 10 Minnesota Practice, CRIMJIG 3.17 (1999).  Failure to obtain the defendant’s personal consent is error.  State v. Duncan, 608 N.W.2d 551, 558 (Minn. App. 2000), review denied (Minn. May 16, 2000).

            But if the defendant fails to object to the instruction, we review the error only if it is plain and affects the defendant’s substantial rights.  State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002).  Giving the instruction without consent is prejudicial “when there is a reasonable likelihood that the giving of the instruction would have had a significant effect on the jury’s verdict.”  Id.  The defendant bears the heavy burden of proving significant effect.  Id. 

            Although appellant’s counsel did not object to the jury instruction at trial, appellant maintains on appeal that this error was prejudicial because it drew attention to his decision not to testify.  We disagree.  The jury instruction specifically admonished the jury to draw no adverse inference from the defendant’s failure to testify.  The record reflects that the district court told the jury that “[t]he defendant has a right not to testify” which is “guaranteed by the federal and state constitutions,” and that it “should not draw any inferences from the fact that the defendant has not testified in this case.”  We conclude that appellant’s argument does not meet the heavy burden of showing that the error substantially affected the jury’s verdict. 

III.

            Appellant claims that the district court erred by allowing the victim to testify to a previous abusive relationship.  We disagree.  Admission of evidence rests within the broad discretion of the district court and its ruling will not be disturbed unless it is based on an erroneous view of the law or constitutes an abuse of discretion.  Colby v. Gibbons, 276 N.W.2d 170, 175 (Minn. 1979); Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  The complaining party must show prejudicial error to gain relief.  Colby, 276 N.W.2d at 175. 

            Here, the minimal testimony that appellant challenges indicated that appellant did not abuse the victim, but that she was in an abusive relationship when she met and befriended appellant some 12 years earlier.  Admission of this evidence did not prejudice appellant and was not an abuse of discretion. 

IV.

            Respondent’s appellate brief references a four-page, hand-written letter from appellant to the victim.  Although the letter’s existence was raised during the jury trial, the actual letter was not received into evidence.  Appellant has made a motion to strike the letter from the appellate record.

            We agree that inclusion of this letter is improper and strike it from the appellate record.  Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993); see also AFSCME, Council No. 14 v. Scott County, 530 N.W.2d 218, 222-23 (Minn. App. 1995) (holding that a court may selectively disregard improper references to evidence outside the record without striking the entire brief.), review denied (Minn. May 16 & June 14, 1995). 

            Affirmed; motion to strike granted.