This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-667

 

 

Tendayi Tafadzwa Mareya, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed April 10, 2007

Affirmed

Randall, Judge

 

Hennepin County District Court

File No. 03010338

 

John Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

            Considered and decided by Randall, Presiding Judge; Hudson, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

On appeal from a postconviction order, appellant challenges his 2004 conviction of first-degree driving while impaired (DWI).  Appellant argues that the district court denied him his right to assistance of counsel and failed to exercise its discretion to appoint standby counsel.  Appellant also argues that the district court abused its discretion in denying his requests for continuances.  Finally, appellant argues that the court erred in reversing its earlier decision that the trial would be bifurcated.  We affirm all issues.

FACTS

            Appellant Tendayi Tafadzwa Mareya was pulled over for speeding by a state trooper.  The state trooper believed, due to the strong odor of alcohol omitting from the vehicle and appellant’s bloodshot and watery eyes, that appellant had been drinking.  Appellant denied drinking and was directed to the state trooper’s squad car for further investigation.  A preliminary breath test produced a blood alcohol level of .182.  Appellant refused to submit to further testing.  As a result, appellant was charged with felony first-degree driving while impaired (DWI) and felony refusal to submit to chemical testing.

            At his first appearance on January 21, 2004, the court appointed a public defender to represent appellant.  Appellant appeared with counsel three times:  January 21, 2004 (first appearance), February 11, 2004 (probable-cause hearing), and March 5, 2004 (pretrial hearing).  Appellant’s case was originally scheduled for trial on March 12, 2004, but was continued until March 18, 2004.  At the March 5, 2004 hearing, appellant was specifically warned that his jury trial would begin on March 18, 2004.

            On March 18, 2004, appellant discharged his public defender and requested substitute counsel.  The court warned appellant that trial was set for that day and that his dismissal of counsel would result in him proceeding without representation.[1]  Appellant dismissed the court’s warnings, acknowledging that he was willing to take the risk.

            Appellant appeared again before the court on March 19, 2004.  Appellant pleaded not guilty and requested more time to prepare his defense.  The court, although reluctantly, continued the trial until March 25, 2004.[2]

            Appellant made three continuance requests prior to the commencement of jury selection:  the morning of March 25, 2004; the afternoon of March 25, 2004; and on March 26, 2004.  The court denied these requests.

            Jury selection finally began on March 29, 2004.  On the second day of jury selection, the court discovered that the prosecutor violated discovery rules by failing to provide appellant with copies of criminal-history information pertaining to prospective jurors.  Again, appellant requested a continuance, which the court denied.  The court, however,
provided appellant with the opportunity to re-question a previously accepted juror who had a criminal history.  Appellant declined.

            The court ordered a bifurcated trial in light of appellant’s refusal to stipulate to prior convictions.  On numerous occasions the court warned appellant not to mention his prior convictions; however, appellant himself twice introduced such information into evidence.  Consequently, the court recalled its bifurcation decision.

            The jury returned a guilty verdict and appellant was sentenced, according to the presumptive guidelines, to a stayed sentence of 36 months and five years of probation.  Appellant filed a petition for postconviction relief, which was denied.  This appeal followed.

D E C I S I O N

            A postconviction court’s findings are reviewed to determine whether there is sufficient evidentiary support in the record.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  “We afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.  The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id.  (citations omitted).

I.

Appellant argues that the district court made numerous errors related to his self-representation.  We disagree.  The United States and Minnesota constitutions provide a criminal defendant with the right to the assistance of counsel.  U.S. Const. amend. VI; Minn. Const. art. I, § 6.  An indigent defendant has the right to be provided counsel in criminal proceedings at every stage of the criminal process.  State v. Fagerstrom, 286 Minn. 295, 298, 176 N.W.2d 261, 264 (1970).  But the right of an indigent to counsel does not give him “the unbridled right to be represented by counsel of his own choosing.”  Id. at 299, 176 N.W.2d at 264. 

Appellant argues that the court erred by failing to appoint substitute counsel.  The decision to appoint substitute counsel is within the discretion of the district court.  State v. Clark, 722 N.W.2d 460, 464 (Minn. 2006).  In Clark, the Minnesota Supreme Court reiterated that:  “[a] court will grant an indigent’s request for different counsel ‘only if exceptional circumstances exist and the demand is timely and reasonably made.’”  Id. (quoting State v. Worthy, 583 N.W.2d 270, 278 (Minn. 1998).

The postconviction court denied appellant relief, stating: 

While technically, the Court was incorrect and actually could have appointed another attorney if she had found exceptional circumstances warranting such appointment, the reasons [appellant] gave for discharging his attorney did not rise to the level of challenging his court-appointed attorney’s competence or ability to represent him so as to constitute exceptional circumstances. . . . [Appellant] did not demonstrate that his attorney was incompetent or unable to adequately represent him.  [Appellant’s] dissatisfaction and the described personal tension between himself and his attorney do not constitute ‘exceptional circumstances’ warranting the appointment of another public defender.

 

 

Appellant contends that the district court incorrectly accepted appellant’s “waiver” of counsel before determining whether he was entitled to appointment of different counsel.  Additionally, appellant claims the district court failed to investigate or to make any inquiry whatsoever into the reasons for appellant’s discharge of his public defender.

A similar argument was made in Clark, where the supreme court acknowledged that the district court may be required to conduct a more searching inquiry, “particularly when a defendant voices serious allegations of inadequate representation before trial has commenced,” thus making it partly a timing issue.  722 N.W.2d at 464.  The defendant in Clark made an untimely request for substitute counsel -- during jury selection on the second day of trial.  Id.  Since the defendant had requested a speedy trial and his case was moved to accommodate the request, the denial of his request for substitute counsel was not an abuse of discretion.  Id. at 465.

Here, appellant requested substitute counsel on March 18, 2004, the date set for trial, after appellant had previously appeared with his public defender on three occasions.  See Worthy, 583 N.W.2d at 278-79 (holding that a request for substitute counsel on the first day of trial is not timely).  Appellant did not make a speedy-trial request; however, the court was concerned with the length of time appellant had already spent in jail. 

            A request for substitute counsel requires exceptional circumstances.  State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977).  Exceptional circumstances are those affecting a court-appointed attorney’s ability or competence to represent the client.  State v. Gillam, 629 N.W.2d 440, 449 (Minn. 2001).  In Gillam, the supreme court held that the district court did not abuse its discretion in denying defendant’s request for substitute counsel simply because the defendant disagreed with his court-appointed attorney about trial strategies and was generally dissatisfied with the representation.  Id. at 449-50.  Also, “personal tension” during trial preparation does not constitute an exceptional circumstance entitling a defendant to substitute counsel.  State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999). 

            The postconviction court found that “[appellant] did not demonstrate that his attorney was incompetent or unable to adequately represent him.  [Appellant’s] dissatisfaction and the described personal tension between himself and his attorney do not constitute ‘exceptional circumstances’ warranting the appointment of another public defender.”  We agree.  Appellant fails to establish exceptional circumstances warranting substitute counsel.  The record simply indicates that appellant was dissatisfied with his attorney, including that counsel was not appropriately responsive to his requests for advice.  Appellant argues that the court failed to inquire as to his reasons for dismissing his public defender.  The record shows otherwise.

            Appellant argues that the court’s refusal to appoint substitute counsel amounted to more than just harmless error.  Appellant fails to demonstrate how this was not harmless error, instead, simply states that he expressly requested substitute counsel, that he was prepared to present the court with reasons necessitating substitute counsel, and that he proceeded to trial without counsel.  Any claimed error is harmless absent a showing of incompetent representation or good cause for a new attorney.  See State v. Lamar, 474 N.W.2d 1,3 (Minn. App. 1991), review denied (Minn. Sept. 13, 1991) (holding that even if the defendant is advised by the district court 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).

            Appellant contends that the court failed to obtain a valid waiver of counsel.  A defendant may waive the right to counsel if the waiver is competent and intelligent.  Worthy, 583 N.W.2d at 275 (citing Johnson v. Zerbst, 304 U.S. 458, 465, 58 S. Ct. 1019, 1023 (1938)).  The court must be satisfied that the waiver is knowing and voluntary.  State v. Camacho, 561 N.W.2d 160, 171 (Minn. 1997).  In determining whether a waiver of the right to counsel is knowing, voluntary, and intelligent, the district court “should comprehensively examine the defendant regarding the defendant’s comprehension of the charges, the possible punishments, mitigating circumstances, and any other facts relevant to the defendant’s understanding of the consequences of the waiver.”  Worthy, 583 N.W.2d at 276 (quotation omitted).  Rule 5.02 of the Minnesota Rules of Criminal Procedure requires that the district court obtain a written waiver or make an oral record of waiver after the defendant refuses to sign a written waiver.  Minn. R. Crim. P. 5.02, subd. 3.  We will not overturn a district court’s finding that a defendant’s waiver was valid unless the finding is clearly erroneous.  Camacho, 561 N.W.2d at 168-69.

            A written waiver was not obtained here, but that does not automatically invalidate appellant’s waiver.  A waiver may be valid even if not in writing per rule 5.02, as long as the surrounding circumstances support the waiver.  In re G.L.H., 614 N.W.2d 718, 723 (Minn. 2000).  The court must engage in a fact-specific inquiry and consider the facts and circumstances of the case, including the accused’s background, experience, and conduct.  State v. Garibaldi, 726 N.W.2d 823, 827 (Minn. App. 2007) (quoting G.L.H., 614 N.W.2d at 723). 

            The record shows that the court inquired into appellant’s education, made a record that appellant had an extensive criminal history with similar offenses, and that appellant consistently refused, without good cause, to accept appointed counsel.  The court was diligent in making a record of the fact that appellant continuously refused assistance from court-appointed counsel.  The court even offered to appoint advisory counsel but appellant refused, insisting that he did not want assistance from the specific attorney the court sought to appoint.  Based on the extensive inquiry of appellant made on the record, we conclude that appellant’s waiver of counsel was valid.

II. 

Appellant argues that the district court’s denial of his requests for continuances constituted an abuse of discretion and deprived him of his right to due process and a fair trial.  A district court’s ruling on a defendant’s request for a continuance is reviewed for abuse of discretion.  State v. Courtney, 696 N.W.2d 73, 81 (Minn. 2005).  “In determining whether the trial court was within its sound discretion in denying a motion for a continuance, this court looks to whether the defendant was so prejudiced in preparing or presenting his defense as to materially affect the outcome of the trial.”  Vance, 254 N.W.2d at 358-59; see Courtney, 696 N.W.2d at 81 (“A defendant must show that he was prejudiced to justify reversal.”). 

            Appellant argues that his “requests for continuances were all related to a single legitimate objective:  preparation for trial.”  The postconviction court denied relief, stating that “[a]ll the facts and circumstances of this case support the conclusion that the denial of a trial continuance was justified and that [appellant] was not prejudiced by the denial of a trial continuance.”  We agree.

            At the March 5, 2004 pretrial hearing, appellant, represented by counsel, requested a continuance to review a plea offer.  Appellant claims that he was led to believe that a continuance would be granted if he declined the plea offer.  However, at this hearing the court three times clearly explained to appellant his options and upcoming deadlines, reminding him that his jury trial was scheduled for March 18, two weeks away.

On March 18, 2004, upon appellant’s insistence, the court permitted him to discharge his public defender.  The court warned appellant that “you are on for a jury trial today so if you don’t want [the public defender] to represent you then you’re going to have to go to trial and represent yourself.”  Appellant accepted self-representation and never asked for a continuance during this court appearance.

Jury selection did not begin until March 29, 2004,[3] giving appellant additional time to prepare.  Based on the numerous court appearances appellant made, coupled with the court’s warnings, appellant was well aware of his upcoming jury trial.  We conclude that the district court did not abuse its discretion in denying appellant’s repetitive requests for continuances.

            Appellant next argues that he was deprived of an opportunity to review and digest juror criminal-history information before jury selection.  During a criminal prosecution, the state is under a continuing obligation to disclose to the defense all matters within its possession or control that relate to the case.  Minn. R. Crim. P. 9.01, subd. 1; Minn. R. Crim. P. 9.03, subd. 2.  If a party fails to comply with a discovery rule, the district court has the discretion to order disclosure, grant a continuance, or enter any order it deems just.  Minn. R. Crim. P. 9.03, subd. 8.  “The district court has broad discretion to determine the appropriate remedy for a discovery violation after considering why disclosure was not made, the extent of prejudice to the opposing party, the feasibility of rectifying any prejudice with a continuance, and other relevant factors.”  State v. Moon, 717 N.W.2d 429, 440 (Minn. App. 2006), review denied (Minn. Sept. 19, 2006).  A district court’s response to discovery violations will not be reversed absent a clear abuse of discretion.  Id.

 

            The discovery violation in question resulted from the prosecution’s failure to provide appellant with criminal-history information on potential jurors.  The court discovered the violation on the second day of jury selection and immediately ordered the prosecution to provide appellant with this information.  Appellant’s request for a continuance was denied.  Instead, the court provided appellant with three remedies.  First, the court advised appellant to ask questions of the jurors with criminal histories upon reaching them in voir dire.  Second, the court gave appellant the opportunity to recall a juror, whom he had already accepted, that had a criminal history for further questioning.  Appellant declined to take advantage of this opportunity.  Finally, the court promised appellant adequate time to review the information before questioning the other two prospective jurors with criminal histories.  We find there was no abuse of discretion in how the district court handled the prosecution’s discovery violation. 

III. 

Appellant argues that the court erred by reversing its decision to bifurcate the trial, allowing the jury to hear evidence of appellant’s DWI history.  The postconviction court ruled: 

Again, whether [appellant’s] insistence on exposing the jury to his prior alcohol related driving offenses was due to his own sheer stubbornness or obtuseness, he was free, and had a constitutional right, to so represent himself, even if he would have been better off heeding the Court’s advice.  [Appellant] has only himself to blame for any possible prejudice to him that resulted when he exposed his prior history to the jury.  At that point, any benefit in bifurcation of the trial was lost.

 

            The Minnesota Supreme Court recently implied that the district court has the authority to bifurcate a trial in order to separately try an element whose proof involves evidence, such as a prior conviction, that is highly prejudicial to a defendant.  See State v. Laine, 715 N.W.2d 425, 432-33 (Minn. 2006) (holding that district court did not abuse its discretion by denying defendant’s motion to bifurcate his trial so that jury would not hear evidence regarding his past behavior until the jury found that state had met its burden of proof on other elements of the charge). 

            Appellant contends that the court’s reversal of a bifurcated trial was unfair because the court never warned him that introduction of the tape would result in forfeiture of bifurcation.  We disagree.  Before trial, the district court repeatedly warned appellant not to mention his prior convictions so as not to prejudice the jury.  Despite the court’s repeated warnings, appellant proceeded, twice, to introduce evidence containing references to his prior convictions.[4]  First, appellant offered into evidence the videotape
of his arrest.[5]  Second, on cross-examination of the arresting officer, appellant referred to his prior convictions during questioning.

            Appellant argues, ironically, that the lack of a bifurcated trial prejudiced him because the jury heard detailed accounts of his prior convictions.  Appellant brought the prior convictions up.  Appellant was aware of the purpose of bifurcation – to withhold prior conviction information from the jury during the guilt phase – but put such information before the jury anyway.

            Affirmed.