STATE OF MINNESOTA

IN COURT OF APPEALS

A06-905

State of Minnesota,
Respondent,

vs.

Michael Shepersky,
Appellant.

Filed August 14, 2007

Affirmed

Wright, Judge

Lake County District Court

File No. CR-05-6

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

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

Russell Conrow, Lake County Attorney, Lake County Courthouse, 601 Third Avenue, Two Harbors, MN 55616 (for respondent)

Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Wright, Judge.

U N P U B L I S H E D O P I N I O N

WRIGHT, Judge

In this appeal from his conviction of first-degree driving while impaired, appellant argues that the district court abused its discretion by denying his request for a substitute public defender without inquiring into whether there were “exceptional circumstances” warranting the appointment of substitute counsel. In a pro se supplemental brief, appellant also argues that he received ineffective assistance of trial counsel. We affirm.

FACTS

After respondent State of Minnesota charged appellant Michael Shepersky with first-degree driving while impaired, a violation of Minn. Stat. § 169A.20, subd. 1(5) (2004), the district court appointed a public defender to represent him. At the omnibus hearing, Shepersky’s counsel told the district court that Shepersky had asked the chief public defender to appoint substitute counsel. Shepersky’s counsel also advised that the chief public defender had denied Shepersky’s request, telling Shepersky that his choices were limited to representing himself, retaining his current public defender, or hiring a private attorney. Without inquiring into the reasons for Shepersky’s request, the district court told Shepersky:

[I]f you’ve talked to [the chief public defender], and he said he’s not gonna assign another attorney then those are your choices: to try your own case[ ], to have [your current public defender] represent you, or to hire counsel on your own. . . . [I]f you’ve made your appeal or made your complaint to [the chief public defender], and he says, “I am not gonna change counsel,” . . . those are the choices. Do you understand those choices?

Shepersky then attempted to explain the reasons for his request, stating:

[T]his minute right here is the first time [counsel] has actually acted like he wants to represent me. All he’s done so far is want me to make a deal. As I said in court here last time, he wants me to make a deal to do six and a half years on charges that I’m not guilty of. I need a lawyer, obviously. . . . I need one that defends me though; . . . it took four months for them . . . to talk to my witnesses[.]

The district court interrupted Shepersky and repeated the three options available to him. Faced with those options, Shepersky chose to continue with his appointed counsel.

A jury found Shepersky guilty as charged, and the district court sentenced him to a 36-month prison term, which was consistent with the parties’ negotiated plea agreement involving other charges. This appeal followed.

D E C I S I O N

Shepersky argues that the district court abused its discretion by failing to conduct a searching inquiry to determine if exceptional circumstances warranted the appointment of substitute counsel. The decision to appoint a substitute attorney is within the district court’s broad discretion. State v. Gillam, 629 N.W.2d 440, 449 (Minn. 2001). In determining whether the district court abused 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.” State v. Vance, 254 N.W.2d 353, 359 (Minn. 1977).

Like all criminal defendants, an indigent defendant has a constitutional right to the effective assistance of counsel at every stage of the criminal process. U.S. Const. amend. VI; Minn. Const. art. I, § 6. But the right to counsel does not give an indigent defendant “the unbridled right to be represented by counsel of his own choosing.” State v. Fagerstrom, 286 Minn. 295, 299, 176 N.W.2d 261, 264 (1970) ( “The [district] court is obligated to furnish an indigent [defendant] with a capable attorney, but he must accept the [district] court’s appointee.”). To prevail on a request for substitute counsel, a defendant must establish that the request is reasonable and that it is justified by “exceptional circumstances.” Id. (stating that request for substitution “will be granted only if exceptional circumstances exist and the demand seems reasonable”).

Minnesota courts have not specifically defined what constitutes an exceptional circumstance. Gillam, 629 N.W.2d at 449. But “our cases . . . indicate that exceptional circumstances are those that affect a court-appointed attorney’s ability or competence to represent the client.” Id., at 449-50 (concluding that general dissatisfaction with court-appointed counsel’s representation or disagreements about trial strategies do not meet “ability or competence” standard); State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999) (concluding that “personal tension” between counsel and indigent defendant during trial-preparation phase was not exceptional circumstance); State v. Worthy, 583 N.W.2d 270, 278 (Minn. 1998) (concluding that general dissatisfaction or disagreement with court-appointed counsel’s assessment of case does not constitute exceptional circumstance warranting substitute counsel); State v. Benniefield, 668 N.W.2d 430, 434-35 (Minn. App. 2003) (holding that defendant who was dissatisfied with court-appointed counsel’s handling of case and wanted attorney who was “willing to fight” not entitled to substitute counsel), aff’d, 678 N.W.2d 42 (Minn. 2004).

The supreme court recently suggested in dictum that a searching inquiry may be necessary when a defendant raises “serious allegations of inadequate representation before trial has commenced.” State v. Clark, 722 N.W.2d 460, 464 (Minn. 2006) (affirming denial of request for substitute counsel); see also McKee v. Harris, 649 F.2d 927, 933 (2d Cir. 1981) (stating that when defendant “voices a seemingly substantial complaint about counsel, the [district] court should inquire into the reasons for dissatisfaction” (quotation omitted)), cited in State v. Lamar, 474 N.W.2d 1, 3-4 (Minn. App. 1991), review denied (Minn. Sept. 13, 1991).

The allegations that Shepersky had the opportunity to make before the district court interrupted him and restated the limited choices available to him do not constitute “serious allegations of inadequate representation” or a “seemingly substantial complaint” about counsel. The allegation that Shepersky’s counsel wanted Shepersky to reach a plea agreement does not reflect inadequate representation. Rather, it reflects his counsel’s reasoned determination that, given the evidence, a plea agreement was in Shepersky’s best interests. Shepersky does not challenge the sufficiency of the evidence. Thus, it appears that his counsel’s alleged insistence on a negotiated plea agreement was in Shepersky’s best interest and does not amount to inadequate representation. Furthermore, a defendant’s dissatisfaction with counsel’s trial strategies does not establish exceptional circumstances requiring substitution of counsel. Gillam, 629 N.W.2d at 449-50. Although a more extensive inquiry would have been the preferred practice, the district court’s failure to conduct one was not prejudicial error.

Shepersky’s allegation that, until the omnibus hearing, his counsel appeared not to want to represent him is not only insufficient to warrant a searching inquiry as a matter of law, but it is also unsupported by the record. The record establishes that once Shepersky decided to proceed to trial, his counsel put forth a vigorous defense that included 20 motions in limine and requests for additional discovery. His counsel also considered challenging prior DWI convictions that enhanced the charges against Shepersky to a felony. Indeed, even if his counsel had appeared unwilling to represent Shepersky before the omnibus hearing, the allegation did not warrant a more searching inquiry because it does not establish “exceptional circumstances”—circumstances affecting his counsel’s ability to represent him.

Nonetheless, we observe that the district court’s denial of Shepersky’s request before hearing the reasons for the request is troubling. But absent evidence of inadequate representation, any error resulting from the district court’s failure to consider the reasons for Shepersky’s request before denying it is harmless. See Lamar, 474 N.W.2d at 3 (concluding that district court’s failure to state law correctly was harmless error when there was no showing of inadequate representation); see also McKee, 649 F.2d at 933 (concluding that district court’s failure to inquire into reasons for defendant’s request for substitution of counsel was harmless error when failure to inquire caused no harm). Because Shepersky’s counsel’s representation was not inadequate for the reasons discussed above, any error was harmless.

In a related argument, Shepersky contends that the district court misstated the law when it told him, without any qualification, that because the chief public defender had denied his request for substitute counsel, Shepersky had only three options: representing himself, retaining a private attorney, or retaining his current attorney. We agree that the district court misstated the law by suggesting that it lacked the discretion to appoint substitute counsel. See Vance, 254 N.W.2d at 358 (stating that district court may appoint substitute counsel when “exceptional circumstances” exist). But the misstatement of law did not prejudice Shepersky because, as previously addressed, the record demonstrates that Shepersky did not receive inadequate legal representation. See Lamar, 474 N.W.2d at 2 (holding that while district court inaccurately told defendant that it could not appoint substitute counsel, error was harmless because defendant made no showing of inadequate representation).

II.

In his pro se brief, Shepersky argues that his attorney rendered ineffective assistance because he did not challenge the stop that led to his arrest, he failed to call Shepersky’s wife to testify, his cross-examination of the arresting officers was ineffective, he failed to investigate and develop evidence that Shepersky’s truck could not travel as fast as a state witness testified it was traveling, and he failed to object when the prosecutor left the courtroom with a witness before the completion of that witness’s testimony. To prevail on a claim of ineffective assistance of counsel, a defendant must show that (1) counsel’s performance was deficient, such that counsel “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”; and (2) the defendant was prejudiced by counsel’s performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). An insufficient showing on one of these requirements defeats a claim of ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Gates, 398 N.W.2d at 561.

Shepersky first argues that his attorney failed to challenge for lack of probable cause the traffic stop that led to Shepersky’s arrest. This argument is unavailing because probable cause is not required to justify an investigative stop. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968) (holding that investigative stop is valid if investigating officer had reasonable, articulable suspicion of criminal activity).

Shepersky next argues that his counsel’s decision not to call Shepersky’s wife as a witness and his alleged failure to vigorously cross-examine the arresting officers constituted ineffective assistance of counsel. Decisions regarding the scope of cross-examination and whether to call a witness, however, are matters of trial strategy. See State v. Brocks, 587 N.W.2d 37, 43 (Minn. 1998) (concluding that defense attorney’s decision not to cross-examine witnesses was reasonable trial tactic); State v. Berry, 309 N.W.2d 777, 785 (Minn. 1981) (stating that disagreement over trial strategy does not constitute ineffective assistance of counsel); Brown v. State, 292 Minn. 174, 177, 193 N.W.2d 613, 616 (1972) (stating that trial tactics are not to be confused with competence). Strategic decisions do not provide a basis for a claim of ineffective assistance of counsel. See Voorhees, 596 N.W.2d at 255 (“What evidence to present to the jury, including which defenses to raise at trial and what witnesses to call, represent an attorney’s decision regarding trial tactics which lie within the proper discretion of trial counsel and will not be reviewed later for competence.”); State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999) (stating that supreme court does not “review for competence matters of trial strategy”). Accordingly, this argument also fails.

Shepersky also contends that his counsel was ineffective because he failed to investigate whether Shepersky’s truck could travel at speeds up to 100 miles per hour. But “[i]t is within trial counsel’s discretion to forego investigation of leads not reasonably likely to produce favorable evidence.” Gustafson v. State, 477 N.W.2d 709, 713 (Minn. 1991) (finding no merit in defendant’s claim that counsel conducted inadequate investigation by failing to produce certain witnesses). Shepersky has not established that an inquiry into the truck’s capacity to travel at speeds up to 100 miles per hour was reasonably likely to produce favorable evidence. Even if he had, “[t]he extent of counsel’s investigation is considered a part of trial strategy.” Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004) (concluding that counsel’s failure to investigate two alternate suspects “reflect[ed] on . . . counsel’s strategy rather than his . . . performance”). Thus, the failure to investigate the truck’s capacity does not constitute ineffective assistance of counsel.

Finally, Shepersky argues that his counsel should have objected to the prosecutor leaving the courtroom with a witness for the state and talking to the witness in the hall before the witness completed his testimony. This argument is entirely without merit. The record establishes that the purpose of the prosecutor’s brief consultation with the witness was to ensure that the witness knew the permissible scope of his testimony and to prevent the inadvertent disclosure of inadmissible evidence. The consultation, therefore, was appropriate.

Because Shepersky has not established that his counsel’s performance was deficient, Shepersky’s claim of ineffective assistance of counsel fails.

Affirmed.