This opinion will be unpublished and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

A05-2016

 

State of Minnesota,

Respondent,

 

vs.

 

Ali Abdi Ali,

Appellant.

 

Filed December 26, 2006

Affirmed

Willis, Judge

 

Hennepin County District Court

File No. 05021951

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

John M. Stuart, State Public Defender, Sara Lynne Martin, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant challenges his conviction of assault in the second degree, arguing that there was insufficient evidence to convict him and that the district court erred when it denied appellant’s motion for a substitute public defender.  We affirm.

FACTS

            On April 10, 2005, at approximately 6:30 p.m., R.K., a taxi driver, went into the Hard Times Café in Minneapolis to purchase coffee and cigarettes.  Upon leaving the café, a man asked R.K. if he could have a cigarette; R.K. replied that he would sell the man a cigarette.  R.K. testified that after he handed the man two cigarettes, the man pulled out a knife and slashed at R.K.’s throat.  R.K. testified that he jumped back from the knife, and another cigarette fell out of his pack.  The man then gestured at R.K.’s stomach with the knife as the man picked up the dropped cigarette.  R.K. later described the knife to the police as having a short blade, a sharp point, and a white handle.  R.K. testified that he was fearful because the assailant was threatening to use the knife.  

            After the assailant started to walk away, R.K. got into his taxi and called the police.  R.K., who is five feet, eleven inches tall, told the dispatcher that the man was an inch or so taller than he was and that the man had a “skinny” build.  Upon receiving R.K.’s call, Officer Thomas Subject of the Minneapolis Police Department was dispatched to the area to search for a suspect.  Officer Subject was told that the suspect was a black male who was approximately six feet, two inches tall.  Officer Subject located a man matching the description standing outside of a bar two businesses to the east of the Hard Times Café.  As Officer Subject instructed the suspect to put his hands on the wall, the man turned toward the officer with a knife in his left hand.  The officer drew his gun, and the man dropped the knife.  Officer Subject identified the knife as white-handled with a little blade, and at trial, he identified Ali as the man whom he arrested.

            After Officer Subject had secured Ali, R.K. returned to the scene and described to the officer what had happened.  Officer Subject testified that R.K. seemed nervous and that his hands were shaking.  During the conversation, Ali, who was handcuffed, was removed from the back of a marked squad car by another police officer, and R.K. identified Ali as the man who assaulted him.

            Ali was charged with one count of aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1 (2004), and one count of assault in the second degree in violation of Minn. Stat. § 609.222, subd. 1 (2004).  At trial, R.K. positively identified appellant Ali Abdi Ali as the man who assaulted him.  Ali was the only defense witness.  Ali testified that he had seen R.K. sometime during February near the Hard Times Café.  Ali testified that R.K. used a racial epithet to address Ali and told Ali and his friends to “go back to your country.”  Ali testified that after the incident in February, he had not spoken with R.K.  On cross-examination, Ali admitted that he had not told the police officer who interviewed him about having seen R.K. in February.

            Before and during the trial, Ali expressed dissatisfaction with his lawyer and twice asked for a new attorney.  On July 14, 2005, the day before trial, Ali requested that the district court assign a new public defender, arguing that his lawyer was “not actually fighting for [Ali’s] . . . best interest.”  The district court denied Ali’s request, noting that “the district court policy is not to substitute public defenders.”  On July 15, 2005, the first day of trial, Ali’s assigned public defender told the district court that Ali had decided to continue with the assigned public defender.  But on the second day of trial, just before closing arguments, Ali again asked the district court to assign another lawyer to him because he did not believe he was “fairly presented.”  The district court again denied Ali’s request.

            Ali was convicted of assault in the second degree but was acquitted of robbery in the first degree and the lesser-included offense of simple robbery.  The district court sentenced Ali to 27 months’ imprisonment.  This appeal follows.

D E C I S I O N

I.

            Ali first argues that the evidence against him is insufficient to support a conviction of assault in the second degree.  Specifically, Ali argues that (1) there was a discrepancy between what R.K. reported to the police as his assailant’s height (six feet, two inches tall) and Ali’s true height (five feet, ten inches tall); (2) because generally the guilty flee, and Ali stood his ground, there is a reasonable doubt of Ali’s guilt; (3) R.K. reported that three cigarettes were stolen, but Ali had no cigarettes on him when he was arrested; (4) R.K.’s identification was tainted by a suggestive show-up procedure; and (5) R.K.’s identification of Ali is further suspect because of an alleged previous incident between the two in which R.K. “said derogatory things about” Ali.

When considering a claim of insufficiency of the evidence, we painstakingly review the record to determine whether the evidence, when viewed in the light most favorable to the conviction, permitted the jury to find the defendant guilty.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We will not disturb the verdict if the jury, acting with due regard to the presumption of innocence, could have found appellant guilty.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).  But this court cannot retry the facts. State v. Sheldon, 391 N.W.2d 537, 539 (Minn. App. 1986).  On review, we must assume that the jury credited the testimony of the state’s witnesses and discredited any conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).

The credibility of the witnesses and the weight to accord their testimony is for the jury to decide.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  It is the exclusive responsibility of the jury to resolve conflicting testimony.  State v. Heinzer, 347 N.W.2d 535, 538 (Minn. App. 1984), review denied (Minn. July 26, 1984).  Minor inconsistencies in the state’s case—or in a witness’s testimony—are not sufficient to overturn a conviction.  Pieschke, 295 N.W.2d at 584.  And a single credible witness is sufficient to sustain a conviction.  See Caldwell v. State, 347 N.W.2d 824, 828 (Minn. App. 1984) (noting that the supreme court has “consistently upheld” convictions on the basis of the testimony of a single eyewitness).

            Ali was convicted of assault in the second degree, in violation of Minn. Stat. § 609.222, subd. 1 (2004).  Under the statute, the state must prove that Ali assaulted the victim with a dangerous weapon.  Id. An assault is defined by statute as an act done with the intent to cause another to fear “immediate bodily harm or death” or the intentional infliction or attempt to inflict bodily harm.  Minn. Stat. § 609.02, subd. 10 (2004).  A “dangerous weapon” is defined by statute as, among other things, any device that is designed as a weapon and is capable of causing “death or great bodily harm,” or an instrumentality that is used in a manner calculated to or likely to cause death or great bodily injury.  Minn. Stat. § 609.02, subd. 6 (2004).

            Here, R.K. testified that Ali slashed at his throat and at his stomach with a knife. R.K. testified that he was fearful at the time of the attack, and both police officers testified that R.K. appeared to be shaking while relating what happened.  R.K. identified Ali as the assailant on the night of the incident and again in court.  Further, Officer Subject testified that R.K.’s identification that night was certain and was made without hesitation.  Finally, Ali’s knife is a dangerous weapon within the statutory definition.  See State v. Slaughter, 691 N.W.2d 70, 75-76 (Minn. 2005) (noting that a knife-like object qualifies as a dangerous weapon).

            Ali challenges R.K.’s identification of Ali as the assailant, arguing that the police conducted a “very suggestive show-up” and that there were numerous discrepancies in the state’s case.  Ali’s argument is essentially a challenge to the jury’s decision to credit R.K.’s identification testimony. But judging the weight to be given to testimony and the credibility of witnesses is the jury’s function.  Moore, 438 N.W.2d at 108. Ali argued to the jury that they should disbelieve R.K. because the police impermissibly tainted the identification or because R.K.’s estimation of his assailant’s height was not accurate or even because, generally speaking, the guilty flee and Ali stood his ground.  The fact that the jury apparently did not accept Ali’s arguments is no basis to overturn his conviction.

II.

Ali also argues that the district court erred when it did not inquire further into Ali’s request for substitute counsel.  Whether to appoint substitute counsel is within the sound discretion of the district court.  State v. Gillam, 629 N.W.2d 440, 449 (Minn. 2001).  An indigent defendant does not have an absolute right to counsel of his choice.  State v. Krejci, 458 N.W.2d 407, 413 (Minn. 1990).  Substitute counsel, however, may be appointed if the defendant makes a timely and reasonable request that establishes “exceptional circumstances” justifying a substitution.  State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977).

A request made on the morning of trial is not timely.  See State v. Worthy, 583 N.W.2d 270, 278-79 (Minn. 1998).  Here, Ali made his request on June 14, 2005, the day his trial was scheduled to begin.  At the June 14 hearing, the trial was delayed one day to allow Ali to acquire “clothes for court.”  Ali’s request was, therefore, made at the last moment before his trial and is not timely.

But even if Ali’s request were timely, he has not established the exceptional circumstances necessary to justify the appointment of substitute counsel.  Ali argues that this court should adopt the Eighth Circuit’s test for “exceptional circumstances”: “a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant.”  Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991).  But in Minnesota, exceptional circumstances are those that implicate counsel’s competence or ability to proceed.  Gillam, 629 N.W.2d at 449.  While disagreements between client and counsel may rise to the level that defense counsel’s ability to represent the client is compromised, the supreme court has pointedly rejected the Eighth Circuit’s test, noting that it is “more stringent than the ‘ability or competence’ standard” used in Minnesota.  Id. at 449.

            Ali argues that, in any case, the district court should have inquired into his reasons for wanting substitute counsel.  A recent supreme court decision has suggested that an inquiry may be necessary when the defendant raises “serious allegations” of exceptional circumstances.  State v. Clark, 722 N.W.2d 460, 464 (Minn. 2006); see State v. Lewis, 656 N.W.2d 535, 538 (Minn. 2003) (holding that new rules of law apply when cases are pending on direct appeal).  In State v. Clark, the defendant requested substitute counsel, arguing that his counsel had not, among other things, helped the defendant “prove [his] innocence.” 722 N.W.2d at 464.  The district court denied the request, noting that it was public-defender policy not to substitute lawyers.  Id. At the supreme court, the defendant argued that the district court should have conducted a “searching inquiry” before denying the defendant’s request.  Id. While ultimately concluding that the district court was properly satisfied with the defendant’s counsel’s representation, the supreme court, in dictum, agreed that a searching inquiry may be necessary when a defendant raises “serious allegations of inadequate representation before trial has commenced.”  Id.

            Ali did not raise serious allegations of inadequate representation.  He told the district court before trial that he believed that his lawyer was “not actually fighting for [his] . . . best interest” and during the trial that he was not being “fairly presented.”  Ali’s allegations were not sufficient to require a more searching inquiry because he offered nothing more than bare assertions of displeasure to substantiate his claim that he was being improperly represented.  See State v. Benniefield, 668 N.W.2d 430, 434-35 (Minn. App. 2003) (affirming a decision not to appoint substitute counsel when the defendant did “not show that his attorney was incompetent or otherwise unable to adequately represent him”), aff’d, 678 N.W.2d 42 (Minn. 2004).  Thus, we conclude that the district court did not abuse its discretion by denying Ali’s request for a new attorney.[1]

III.

            Ali alleges a number of additional errors in his pro se supplemental brief.  First, Ali argues that he did not possess the “requisite intent to support a conviction for second degree assault” instead of assault in the fifth degree.  But Ali’s intent is a question of fact and may be determined by his words and actions considered in light of the surrounding circumstances.  State v. Kastner, 429 N.W.2d 274, 275 (Minn. App. 1988), review denied (Minn. Nov. 16, 1988).  R.K. testified that Ali slashed at his throat and stomach with a knife while stealing three cigarettes.  The jury could infer from Ali’s actions that he intended either to cause fear of or to actually cause great bodily harm to R.K.

Ali also argues that he received ineffective assistance of counsel, claiming that his trial counsel failed to seek a continuance to secure witnesses.  To succeed in his claim, Ali must establish that (1) his counsel’s efforts fell below an objective standard of competency and (2) that there is a reasonable probability that but for counsel’s errors the outcome of the trial would have been different.  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).  But which witnesses to call and what evidence to present are trial tactics committed to the discretion of counsel and generally are not reviewed on appeal.  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).  Thus, Ali’s claim fails.

Finally, Ali argues that he is entitled to reversal of his conviction because he would have received “probation” under the state’s plea offer.  We assume Ali’s argument to be that he received ineffective assistance of counsel because his trial counsel did not accurately communicate the state’s plea offer to him.  But the plea agreement was placed on the record and explained at length to Ali.  We also note that Ali is mistaken as to the terms of the plea offer.  Under the offer, Ali would plead guilty to the state charge and then would be transferred to federal custody because of a probation violation.  Ali would then receive credit against his state sentence for any time served in federal custody.  But the district court expressly warned Ali that “[i]f [he] owed extra time on the 18-month sentence, which really is 12 months actual service of time, then [he] would have to serve that time.”  

Affirmed.