State v. Christian , 2003 Minn. LEXIS 64 ( 2003 )

OPINION

HANSON, Justice.

Appellant Scot Perry Christian was convicted of two counts of first-degree premeditated murder, two counts of first-degree felony murder, two counts of second-degree intentional murder, two counts of second-degree felony murder, one count of first-degree assault and one count of felon in possession of a pistol, stemming from a robbery carried out by appellant and several others. During the fourth day of jury voir dire, he asked to be allowed to represent himself. This request was initially granted, but the district court reconsidered its decision a day later. Based on the finding that appellant had made the request with the intent to delay trial, the district court denied it. Appellant seeks a new trial, arguing that the district court erred in terminating his self-representation and in joining his trial with that of two other defendants. He further argues that he was the victim of prosecutorial misconduct and ineffective assistance of counsel. We affirm.

Appellant, his brother David Christian, Vernon Powers and Janea Weinand planned and carried out an armed robbery at the Downtown Motel in Austin, Minnesota, on June 30, 2000. After Weinand knocked on the victims’ motel room door, appellant and Powers entered the room with guns, demanded money and ultimately fired their weapons. Of the five occupants of the room, two died from gunshot wounds; a third was hit but survived.

Weinand entered into a plea agreement with prosecutors. Over objection, the district court joined the trials of appellant, Powers and David Christian. While awaiting trial, appellant and Powers escaped from the Mower County Jail but were apprehended. Because of adverse local publicity surrounding the escape, venue was transferred to Dakota County. Jury selection for the joined trial of appellant, Powers and David Christian began on Monday, May 14.

On Friday, May 18, the fourth day of jury selection, appellant complained that his attorneys were not representing him adequately. “I truly believe if I have to I could do it myself,” appellant told the court. Appellant requested a continuance so that he could seek private counsel. The district court stated, “I will also point out to you that you do have the option of representing yourself, since you apparently brought that to the Court’s attention” and then granted appellant a continuance until the following Monday, May 21. Counsel for codefendant David Christian moved to sever appellant’s trial if appellant was allowed to represent himself because of the potential for prejudice to David Christian. The court deferred ruling on that motion.

On Monday, May 21, appellant asked for another continuance to obtain private counsel. In the alternative, he moved that he be allowed to represent himself. The court denied the continuance and then addressed appellant’s self-representation motion. The court told appellant:

I want you to be aware of two things; one of which is that any defendant has an absolute right to proceed pro se, so long as in the Court’s determination they enter an intelligent waiver of their right to counsel. An intelligent waiver does not mean saying [”]I want to represent myself,[”] it means that you have to demonstrate that you truly understand the ramifications of proceeding on your own, and that you also understand that given the status of this matter and the late date for the request that while your attorneys would be discharged, they would be reappointed as standby counsel. And, pursuant to the Rules of Criminal Procedure, in the event that this Court made a determination that the request to go pro se is a potential delay or disruption in this trial, if at any point your representation of yourself constituted a disruption of this trial or [if it] became obvious to the Court that it was solely for the purpose of delay or, in this particular instance, solely for the purpose of obtaining a severance by the device of representing yourself, the Court has the option of simply reappointing your attorneys and prohibiting you from representing yourself pro se.

Appellant said that he understood this. Appellant then answered several questions the court put to him regarding the scope of his right to self-representation and the relevant laws appellant would need to be familiar with while conducting his own defense. After the prosecution agreed that “the Court made the correct inquiries of [appellant] to determine whether he was making a knowing, voluntary [and] intelligent waiver of his right to counsel,” the district court granted appellant’s motion to represent himself.

David Christian immediately moved for severance, arguing that appellant’s “lack of legal knowledge and training” would have a “spill-over effect” which would prejudice David Christian. The court denied that motion. Appellant then filed five motions, among them a severance motion made on the same grounds as David Christian’s. In response to this severance motion, the court asked appellant whether his request to represent himself had anything to do with his desire to be tried separately. Appellant answered “[y]es and no” and reiterated the concerns earlier expressed by David Christian. The court essentially denied appellant’s motions but granted a continuance until the following afternoon, asking counsel to research the severance question further.

When trial resumed on Tuesday, May 22, all three codefendants requested that their trials be severed because of the risk of prejudice. After appellant spoke on his own behalf, the court informed him that, were the trials to be severed, he would be the first defendant tried that afternoon. When appellant said he was ready to proceed “[i]f I have to,” the court asked him if he would be ready to question jurors, make an opening statement and defend himself. Appellant stated that he was not ready to do those things.

The state then asked the court to reconsider appellant’s self-representation motion. The court agreed. It found that the purpose of the motion had been “to allow a delay” and rescinded its order allowing appellant to represent himself. As support for this finding, the court cited appellant’s prior “[y]es and no” statement regarding the relation between his self-representation motion and his severance motion, appellant’s admission that he was not prepared to proceed with trial immediately, the fact that appellant did not make the self-representation motion until the fourth day of jury selection and the fact that the case had “already * * * once been continued due to the efforts of the defendants.”¹ After a recess, the court added that appellant’s motions for severance and for a continuance were further evidence of his dilatory intent. The court then denied all severance motions. Appellant never represented himself in the presence of the jury. The jury found appellant guilty of all charges.²

Appellant asserts that the district court’s ruling ending his self-representation denied him his Sixth Amendment right to represent himself. He also argues that his severance motion was improperly rejected and that he was denied a fair trial as a result of prosecutorial misconduct and ineffective assistance of counsel.

I.

We first address appellant’s claim that the district court erred in rescinding his order granting Christian’s request to represent himself. In State v. Richards, we held that the deprivation of the right of self-representation is not subject to a harmless error analysis and overturned Richards’ conviction because the district court’s refusal to let Richards proceed pro se was “clearly erroneous.” 456 N.W.2d 260, 263-64 (Minn.1990) (hereinafter “Richards /”). We therefore apply the clearly erroneous standard in reviewing the district court’s denial of a self-representation motion.

Under the Sixth and Fourteenth Amendments to the United States Constitution, a criminal defendant has the right to defend himself in a state criminal proceeding. Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). While that right is not explicitly mentioned in the Sixth Amendment,³ the United States Supreme Court has ruled that the Sixth Amendment right to the assistance of counsel implies a correlative right of self-representation:

Although not stated in the Amendment in so many words, the right to self-representation — to make one’s own defense personally — is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.

Faretta, 422 U.S. at 819-20, 95 S.Ct. 2525 (footnote omitted).

Faretta is the last expression on this subject by the United States Supreme Court. As was predicted in the dissent of Justice Blackmun, the lower courts have struggled with the procedural questions that were left unanswered by Faretta:

Must every defendant be advised of his right to proceed pro se? If so, when must that notice be given? Since the right to assistance of counsel and the right to self-representation are mutually exclusive, how is the waiver of each right to be measured? If a defendant has elected to exercise his right to proceed pro se, does he still have a constitutional right to assistance of standby counsel? How soon in the criminal proceeding must a defendant decide between proceeding by counsel or pro se? Must he be allowed to switch in midtrial? May a violation of the right to self-representation ever be harmless error? Must the trial court treat the pro se defendant differently than it would professional counsel?

Id. at 852, 95 S.Ct. 2525 (Blackmun, J., dissenting). Of these questions, the one that is presented here — “How soon in the criminal proceeding must a defendant decide between proceeding by counsel or pro se? ” — has not been definitively answered. While Faretta treats the right of self-representation as virtually absolute, subject only to the conditions necessary to a waiver of the right to assistance of counsel, the request for self-representation in Faretta was made weh before the beginning of jury selection. Thus, Faretta did not address the issue of whether the strength of the right of seE-representation is diminished by the passage of time.

We have said that a defendant’s request for seE-representation should be granted where it is “clear, unequivocal, and timely” and the defendant “knowingly and inteEi-gently waives his right to counsel.” Richards I, 456 N.W.2d at 263 (citing Faretta, 422 U.S. at 835, 95 S.Ct. 2525). But, Richards I, like Faretta, involved a motion for seE-representation that was made weeks before jury selection was to begin. Thus, Richards I likewise does not address the issue of whether the strength of the right of seE-representation is diminished by the passage of time. The argument that it might or should be diminished is based on the conflict between the defendant’s right of seE-representation and the authority of the district court to control trial proceedings. State v. Richards, 552 N.W.2d 197, 205 (Minn.1996) (hereinafter “Richards IV”). We have held that the district court may rescind the pro se status of a defendant who “ ‘deliberately engages in serious and obstructionist misconduct’ ” and have stated that the court cannot aEow a defendant to use the right of seE-representation to delay proceedings or to force a mistrial. Id. (quoting Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. 2525).

In the absence of a definitive statement by the U.S. Supreme Court on the appropriate resolution of this conflict, we look for guidance to the decisions of the federal courts of appeal and especially to those of the Eighth Circuit Court of Appeals. The Eighth Circuit has held that a defendant’s right of seE-representation is “unqualified” only E it is demanded before trial. See, e.g., United States v. Wesley, 798 F.2d 1155, 1155 (8th Cir.1986). After trial begins, the seE-representation right “is subject to the trial court’s discretion which requires a balancing of the defendant’s legitimate interests in representing himseE and the potential disruption and possible delay of proceedings already in progress.” Id. at 1155-56 (citing United States ex rel. Maldonado v. Denno, 348 F.2d 12,15 (2d Cir.1965)).

We are persuaded that this discretion to balance these conflicting interests is essential to the adequate protection of the right to assistance of counsel. We agree with the observation that the “ ‘right to counsel is, in a sense, the paramount right; E wrongly denied, the defendant is likely to be more seriously injured than E denied his right to proceed pro se.’” United States v. Betancourtt-Arretuche, 933 F.2d 89, 92 (1st Cir.1991) (quoting Tuitt v. Fair, 822 F.2d 166, 177 (1st Cir.1987)).

A. When Does “Trial” Begin?

If we are to follow the Wesley rule— that, after trial begins, the district court has discretion to balance the defendant’s right of seE-representation against the potential for disruption or delay — we must determine what activity constitutes the beginning of trial. Wesley did not address this precise question because the request in that case was made mid-trial, well after the beginning of trial under any definition. See 798F.2d at 1156.⁴

The Minnesota Court of Appeals and the courts of some other states have held that a self-representation motion is untimely “ “where the request is not made a reasonable time before trial and there is no good cause justifying [its] lateness.’” State v. VanZee, 547 N.W.2d 387, 391 (Minn.App. 1996) (quoting Lyons v. State, 106 Nev. 438, 796 P.2d 210, 214 (1990)); People v. Windham, 19 Cal.3d 121, 137 CaLRptr. 8, 560 P.2d 1187, 1191-92 (1977); Russell v. State, 270 Ind. 55, 383 N.E.2d 309 (1978); accord Hamiel v. State, 92 Wis.2d 656, 285 N.W.2d 639, 648 (1979).

In contrast, some federal circuit courts have held that a request is timely if made before “meaningful trial proceedings,” defined to coincide with the attachment of jeopardy when the jury is sworn. See, e.g., Betancourt-Arretuche, 933 F.2d at 96; Fritz v. Spalding, 682 F.2d 782, 784 (9th Cir.1982); Chapman v. United States, 553 F.2d 886, 895 (5th Cir.1977); see also Larrabee v. Bartlett, 970 F.Supp. 102, 105 (N.D.N.Y.1997). But some of these courts have treated a motion as untimely, even if made before the jury is sworn, if it is made with dilatory intent. See, e.g., Fritz, 682 F.2d at 784 (“[A] motion to proceed pro se is timely if made before the jury is empaneled, unless it is shown to be a tactic to secure delay.”).

Although this latter line of cases suggests that “meaningful trial proceedings” do not occur until the jury is sworn, none of these cases actually involved a motion for self-representation that was made after jury selection had begun. Thus, their focus on jury empanelment is made in the abstract and, in our view, is based on an incomplete analysis. In fact, we have only found a single case dealing with a self-representation motion that was made during jury voir dire and that case held that “meaningful trial proceedings” commenced with the beginning of jury selection. See Robards v. Rees, 789 F.2d 379, 382 (6th Cir.1986) (holding a self-representation request untimely where made after voir dire had begun, but before the jury had been empaneled). The court ruled the motion untimely and recognized the discretion of the district court to deny it, stating that defendant Robards’ self-representation request, if granted,

would have impermissibly delayed the commencement of the trial. The clerk had called the roll of jurors before Ro-bards made his request for self-representation. Had the request been granted, the trial judge would have been obliged to postpone the commencement of the trial for an extended period of time in order to allow Robards a sufficient amount of time to prepare his defense. It was within the discretion of the trial judge to deny Robards’ request. His denial was not an abuse of discretion. Moreover, this Court believes that this denial by the state court was not tantamount to a constitutional violation.

Id. at 384.⁵

We reached a similar conclusion in an analogous situation in State v. Worthy, 583 N.W.2d 270 (Minn.1998). In Worthy, two defendants expressed dissatisfaction with their court-appointed attorneys and moved for substitute counsel during jury voir dire. Id. at 274. We held that this motion was untimely, stating that it was made “on the morning of trial.” Id. at 278-79.

We conclude that, for the purpose of applying the Wesley standard, trial begins at the commencement of jury voir dire. Thus, when a self-representation motion is made after jury voir dire begins, the district court must exercise its discretion to balance “the defendant’s legitimate interests in representing himself and the potential disruption and possible delay of proceedings already in progress.” Wesley, 798 F.2d at 1155-56.

B. Did the District Court Abuse Its Discretion?

When it reconsidered its grant of appellant’s self-representation motion, the district court found that appellant had made the motion in order to delay his trial. In support, the court cited five facts: (1) appellant’s “[y]es and no” statement admitting to some connection between his self-representation request and his severance motions; (2) his statement that he was not ready to begin trial proceedings immediately; (3) the late date of appellant’s motion; (4) appellant’s escape from jail; and (5)the motions appellant had filed seeking severance and a continuance.

Appellant argues that the district court’s finding of dilatory intent was a mere pretext; he claims that the district court reconsidered his self-representation motion in order to avoid dealing with the severance motions from all three defendants. We view the situation differently.

First, we conclude that when the district court initially granted appellant’s motion, it applied the incorrect legal standard. It mistakenly assumed that appellant had “an absolute right to proceed pro se” and failed to recognize that the request was addressed to the court’s discretion because it was made after the beginning of trial. Consequently, we do not regard the district court’s initial order as establishing that appellant’s motion was timely, or as narrowing the district court’s discretion to that available after a timely motion is granted, which allows rescission only where the defendant engages in “serious and obstructionist misconduct.” Richards IV, 552 N.W.2d at 205.

Second, when the district court later reconsidered its initial order, it applied the correct legal standard by exercising its discretion to balance appellant’s right of self-representation against the potential for disruption and delay. Although the district court did not articulate the standard precisely as we do here, its approach reflected the essential elements of that standard and was not clearly erroneous. The court’s finding, that appellant’s motion had been made for the purpose of delay, was supported by the evidence and it supported the denial of appellant’s self-representation motion.

Third, because the district court applied the correct legal standard when it reconsidered its initial order, and expressly based its decision on intent to delay, which was within its discretion under that standard, we decline to speculate about whether the court’s decision was motivated by some other unexpressed rationale.

In summary, we choose to follow the rule in Wesley that self-representation motions made after the beginning of trial are addressed to the discretion of the district court to balance the defendant’s right of self-representation against the potential for disruption and delay. We hold that trial begins, for this purpose, when the jury selection process begins. On the facts before us, we conclude that the district court’s denial of the motion, based upon the finding of appellant’s intent to delay, was not clearly erroneous. Therefore, we affirm the district court’s denial of appellant’s self-representation motion.

II.

Appellant raises three further arguments: improper joinder, prosecutorial misconduct and ineffective assistance of counsel. None is convincing.

Appellant argues that he was prejudiced by having his trial joined with that of Vernon Powers. He relies on the fact that, in connection with a prior plea agreement, Powers made statements incriminating appellant. But Powers’ plea agreement was rescinded, his guilty plea was vacated and the jury never heard his statements implicating appellant. Powers’ trial testimony did not incriminate appellant. Therefore, Powers’ statements could not have caused the “substantial prejudice” to appellant that would be necessary to require a new trial. See State v. Hathaway, 379 N.W.2d 498, 502 (Minn.1985).⁶

Appellant argues that he was denied a fair trial because of prosecutorial misconduct. He cites statements made by the prosecutors during voir dire and closing argument. Appellant also claims that the prosecutor engaged in an improper ex parte contact with a juror. Appellant has not established that any conduct of the prosecutor rose to the level of “inexcusable, serious and prejudicial” misconduct that would be required for us to disturb the district court’s discretion to govern attorney conduct during a trial. See State v. Henderson, 620 N.W.2d 688, 702-03 (Minn.2001).

Appellant argues that he was denied a fair trial because of ineffective assistance of counsel. We have held that an appeal from a judgment of conviction is generally not the proper method of raising an issue concerning the effectiveness of defense counsel because of the difficulty an appellate court has in determining the facts regarding the representation. State v. Gustafson, 610 N.W.2d 314, 321 (Minn.2000). The preferred procedure is to raise the issue of ineffective assistance in a petition for postconviction relief in the district court. Id. The record does not provide a sufficient basis to review appellant’s complaints, most of which require “additional facts to explain the attorney’s decisions.” Black v. State, 560 N.W.2d 83, 85 n. 1 (Minn.1997). Therefore, we decline to reach the merits of the issue. Appellant’s right to pursue an ineffective assistance of counsel claim in a petition for postconviction relief is preserved.

Affirmed.

Dissenting, PAGE, J. and BLATZ, C.J., and PAUL H. ANDERSON, J.

1 . Both parties interpret this statement as a reference to appellant's escape from the Mower County Jail.

2 . Powers was convicted of premeditated first-degree murder and other crimes, and his convictions were affirmed by this court. State v. Powers, 654 N.W.2d 667, 671-72 (Minn.2003). David Christian was convicted of second-degree unintentional felony murder and of first-degree assault, and his convictions were affirmed by the court of appeals. State v. Christian, No. C5-01-1840, 2002 WL 31415382, at *3, *9 (Minn.App. Oct.29, 2002), rev. denied (Minn. Dec. 30, 2002).

3 . The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” U.S. Const, amend. VI.

4 . Similarly, the issue of when a motion for self-representation is "untimely,” so as to activate the district court’s discretion, has not been addressed by this court. In Richards I, we said that a self-representation motion may be denied if it is not timely filed, but the motion there was made weeks before jury selection. 456 N.W.2d at 263.

5 . In other contexts, circuit courts have held that voir dire is "an integral component of trial,” United States v. Ford, 824 F.2d 1430, 1438 (5th Cir.1987), and "a delicate process whose outcome can be critical to the eventual trial," United States v. Dees, 125 F.3d 261, 268 (5th Cir.1997). The United States Supreme Court has held that voir dire is “a critical stage of the criminal proceeding” and that " ‘trial commences at least from the time when the work of empanelling the jury begins.’ ” Gomez v. United States, 490 U.S. 858, 873, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989) (quoting Lewis v. United States, 146 U.S. 370, 374, 13 S.Ct. 136, 36 L.Ed. 1011 (1892)).

6 . Appellant also claims that the district court improperly rejected his severance motion, but this argument is similarly flawed: the motion was predicated on appellant representing himself. When, the district court ended appellant’s self-representation, his severance motion was left with no basis.