Opinion
A23-0395
02-12-2024
State of Minnesota, Respondent, v. Brandon Stuart Moore, Appellant.
Stearns County District Court File No. 73-CR-21-2060
Considered and decided by Bratvold, Presiding Judge; Ross, Judge; and Schmidt, Judge.
ORDER OPINION
DIANE B. BRATVOLD, JUDGE
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Appellant Brandon Stuart Moore appeals from a judgment of conviction for unlawful possession of a firearm or ammunition, arguing that this court should reverse his conviction because the district court failed to secure a valid waiver of counsel, which is a structural error and requires a new trial.
2. Respondent State of Minnesota charged Moore with unlawful possession of a firearm or ammunition under Minn. Stat. § 624.713, subd. 1(2) (2020). The following summarizes the state's evidence as received during Moore's jury trial. On March 28, 2021, around 1:30 a.m., a police officer observed Moore's vehicle driving with one of its headlights out and conducted a traffic stop. When the officer asked, Moore refused to identify himself and argued with the officer. The officer radioed for assistance, and more officers arrived. Moore continued to withhold his name and other information for about 40 minutes. After several requests, Moore exited the vehicle. Before he was patted down, Moore stated that he had "a strap" on him, which is slang for a gun. An officer then found a loaded handgun in Moore's back waistband and arrested Moore.
3. The district court discussed the right to counsel with Moore at three separate pretrial hearings. Moore first appeared before the district court on March 30, 2021. The district court informed Moore of the charge and the maximum penalty. The district court also informed Moore of his "right to be represented by an attorney" and that "an attorney [would] be appointed" for him if he wanted one but could not "afford to pay for an attorney." The district court asked Moore whether he intended to represent himself, hire an attorney, or apply for a public defender. Moore responded, "There is no answer for that," and, "I do not do business with Stearns County." When the district court tried to clarify whether Moore would represent himself, Moore gave conflicting answers, stating, "I am not representing myself," and, "I am not hiring an attorney."
4. Moore failed to appear at the next scheduled hearing, and the district issued a warrant for Moore's arrest. Moore next appeared in custody before the district court on May 4, 2021. The district court asked Moore if he would "like to apply for a court-appointed lawyer," to which Moore responded, "No." Moore then asked the district court four times whether it was "honoring [its] oath of affirmation to the United States Constitution" and stated that he does not "do business with Stearns County."
5. Finally, at a settlement conference in September 2022, the district court informed Moore that it was his "last opportunity to try and reach a resolution before the case is set for trial" and asked whether he would "like to apply for a court-appointed lawyer." Moore responded, "I don't do business with the State." The district court replied that it interpreted "that as a valid waiver of the right to be represented by an attorney," to which Moore "object[ed]." As a result, the district court again asked Moore whether he would "like to be appointed a court-appointed lawyer." Moore responded, "I don't do business with Stearns County."
6. The district court stated that court-appointed lawyers are paid by the state and not Stearns County and then asked whether Moore wanted "a state-funded court-appointed attorney." Moore replied, "I don't do business with the State of Minnesota." The district court stated, "I understand that. I need you to let me know, would you like a lawyer, or would you waive your right to be represented by a lawyer and you wish to represent yourself?" Moore remained silent for more than three minutes. The district court stated that based on Moore's "silence in this stage of the proceedings," it had "no alternative but to assume [Moore] wants to continue to represent himself."
7. On the day of trial, the district court asked Moore whether he wanted to be present. Moore declined. The district court stated that it was "not going to force [Moore] . . . to be present during the trial" but that Moore should consider that "this [offense] is a 60-month presumptive commit." Moore again declined to attend the trial.
8. The case proceeded to trial, the jury found Moore guilty of the charged offense, and the district court sentenced Moore to 60 months in prison.
9. Moore argues that he did not validly waive his right to counsel. An appellate court will "overturn a district court's finding that the defendant voluntarily waived his right to counsel only if that finding is clearly erroneous." State v. Woods, 961 N.W.2d 238, 247 (Minn. 2021). "When the facts are undisputed, however, the question of whether a waiver-of-counsel was knowing and intelligent is a constitutional one that is reviewed de novo." State v. Rhoads, 813 N.W.2d 880, 885 (Minn. 2012).
10. The Sixth Amendment provides a criminal defendant the right to counsel. U.S. Const. amend. VI; see also Minn. Const. art. I, § 6. The right to self-representation is also "implied in the Sixth Amendment." Rhoads, 813 N.W.2d at 885 (citing Faretta v. California, 422 U.S. 806, 819 (1975)). A defendant may waive the right to counsel if the waiver is "made knowingly, intelligently, and voluntarily." Woods, 961 N.W.2d at 247. It is the district court's duty to ensure that a defendant validly waives the right to counsel. State v. Krejci, 458 N.W.2d 407, 412 (Minn. 1990).
11. This court has "strongly encourage[d] district courts to secure a waiver of the right to counsel in compliance with Minn. R. Crim. P. 5.04, subd. 1(4)." State v. Gant, 996 N.W.2d 1, 12 (Minn.App. 2023). Minnesota Rule of Criminal Procedure 5.04, subdivision 1(4), states that the district court "must ensure" that defendants charged with a felony who wish to represent themselves "enter on the record a voluntary and intelligent written waiver of the right to counsel." (Emphasis added.) See also Minn. Stat. § 611.19 (2022) ("Where counsel is waived by a defendant, the waiver shall in all instances be made in writing ...."). Here, it is undisputed that the district court did not obtain an express, written waiver of Moore's right to counsel.
12. Rule 5.04, subdivision 1(4), alternatively provides that the district court may accept a waiver "made on the record" after advising a defendant of the following: the nature of the charges, the included offenses, the allowable punishments, that there may be defenses and mitigating circumstances, and any "other facts essential to a broad understanding of the consequences of the waiver of the right to counsel, including the advantages and disadvantages of the decision to waive counsel."
13. Moore argues that he did not validly waive his right to counsel because the district court failed to conduct the required rule 5.04 colloquy. The state argues that Moore's "conduct showed that [he] waived his right to counsel" because the district court "provided [Moore] with most of the advice required by Minn. R. Crim. P. 5.04," Moore is "well-versed in the criminal justice system," and Moore's "access to counsel was repeatedly made available."
14. Based on our review of the record, we agree that the district court did not conduct a complete rule 5.04 colloquy before it determined that Moore waived his right to counsel. Still, the supreme court has held that "the particular facts and circumstances surrounding [a] case, including the background, experience, and conduct of the accused," may indicate that the defendant validly waived the right to counsel "even though the district court failed to follow a particular procedure." In re Welfare of G.L.H., 614 N.W.2d 718, 723 (Minn. 2000) (quotation omitted). Thus, we consider whether Moore validly waived his right to counsel based on the particular facts and circumstances in his case.
15. Two supreme court cases guide our review of the facts and circumstances in Moore's case. In the first case, Krejci appealed from his conviction and challenged the validity of his waiver of his right to counsel because the district court did not "advise him of the perils of proceeding pro se and failed to inquire into his reasons for rejecting the public defender." Krejci, 458 N.W.2d at 412. The district court appointed two lawyers to represent Krejci and, due to his continued dissatisfaction, delayed his trial so he could obtain private counsel. Id. Krejci appeared at the next hearing without counsel, refused representation by the public defender's office, and confirmed that "he would be acting pro se." Id. The district court "appointed [Krejci's] second public defender to act as standby counsel." Id. The supreme court determined that Krejci validly waived the right to counsel based on the "surrounding circumstances." Id. The supreme court acknowledged that the district court "did not make the full, on-the-record inquiry which is normally required to ensure a valid waiver" but noted that "[a]t no time during any of the proceedings did [Krejci] appear in court without counsel" and that "the trial court and counsel explained to [Krejci] the nature of the charges, the possible punishments, and the options available to him as a defendant." Id. at 412-13.
16. In the second case, State v. Worthy, the defendants fired their attorneys the morning of trial and argued on appeal "that their waivers of their right to an attorney were invalid." 583 N.W.2d 270, 275-76 (Minn. 1998). The supreme court noted that the district court's on-the-record inquiry into the defendants' waivers of counsel "did not include a recitation of the charges or potential punishments." Id. at 276. Still, the district court warned the defendants "that if they chose to proceed pro se, they would be held to the same standard as the attorneys." Id. The supreme court also observed that the defendants "were familiar with the criminal justice system." Id. Accordingly, the supreme court determined that the defendants validly waived their right to counsel. Id. at 277.
17. Based on our review of Krejci and Worthy, we conclude that Moore validly waived his right to counsel. The district court partially complied with the rule 5.04 waiver requirements by advising Moore of the charges against him and the possible punishments. At three hearings, the district court informed Moore of his right to counsel and asked whether he would like a court-appointed attorney. Moore gave nonresponsive and argumentative answers. Moore also refused to answer the district court's questions about legal representation, even when the district court warned that it had "no alternative" but to interpret Moore's silence as indicating "he wants to continue to represent himself." We also note that Moore has five prior felony convictions, suggesting that he is familiar with the criminal-justice system like the defendants in Worthy.
Krejci and Worthy were decided before the rules of criminal procedure included the waiver requirements in rule 5.04, subdivision 1(4), as enumerated above. These requirements were added in 1998 when the current rule 5.04 was numbered 5.02. Order Promulgating Corrective Amendments to Rules of Criminal Procedure, No. C1-84-2137 (Minn. Aug. 21, 1998). Before they appeared in subdivision 1(4), the waiver requirements were detailed in a comment to rule 5.02. Minn. R. Crim. P. 5.02 cmt.; see also State v. Rubin, 409 N.W.2d 504, 506 (Minn. 1987) (summarizing the rule 5.02 comment).
18. Moore argues that his case is like that in State v. Garibaldi, in which this court determined that Garibaldi did not validly waive the right to counsel. 726 N.W.2d 823, 831 (Minn.App. 2007). Garibaldi first appeared in district court with a private attorney but at the next hearing stated that he could no longer afford his attorney. Id. at 825. The district court confirmed that Garibaldi was electing to represent himself but "did not question Garibaldi further on his decision to represent himself, mention the possibility of applying for a public defender, or offer a form for Garibaldi to sign to waive representation by an attorney." Id. On the day of trial, the prosecutor stated that he had advised Garibaldi of his right to an attorney and to apply for a public defender, but this discussion was not in the record. Id. at 830. The district court asked Garibaldi on the record whether he wished to proceed without an attorney, and Garibaldi "replied that he did." Id. The record contained "no indication that the district court conducted any further on-the-record examination, such as informing [Garibaldi] of the range of possible punishments for his offense and the advantages and disadvantages of his decision to waive counsel." Id. at 831.
19. We reject Moore's comparison to Garibaldi because the particular facts and circumstances were materially different. Unlike the record in Garibaldi, this record indicates that the district court advised Moore of the nature of the charges and the possible punishments and repeatedly advised Moore of his right to counsel. Moore refused to answer directly the district court's questions about applying for a court-appointed attorney or representing himself. Instead, Moore responded with many statements-some were nonsense, and some were illogical or contradictory-and persisted in maintaining his silence even when the district court advised him that his silence would be taken as a request to represent himself. Under these particular facts and circumstances, Moore validly waived his right to counsel.
20. The state also argues, in the alternative, that Moore forfeited his right to counsel, citing State v. Jones, 772 N.W.2d 496 (Minn. 2009). There, Jones failed to retain counsel after he "repeatedly told the district court he was planning on retaining private counsel, . . . was granted three continuances solely for the purpose of giving him time to do so," and was informed "he would get no more continuances as a pro se party" after a certain date. Id. at 506. The district court concluded that Jones had "given up [his] right to an attorney" and the supreme court agreed, holding that Jones's "extremely dilatory" conduct forfeited his right to counsel. Id. We observe that Moore's refusal to respond directly to the district court's questions about applying for a court-appointed attorney or representing himself at three separate pretrial hearings may be extremely dilatory conduct. But because we conclude that Moore validly waived his right to counsel based on the particular facts and circumstances in this record, we need not decide whether Moore forfeited his right to counsel.
IT IS HEREBY ORDERED:
1. The district court's judgment of conviction is affirmed.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.