1. An appellate court reviews the district court's denial of a self-representation motion under the clearly erroneous standard.
2. Where a self-representation motion is made after the jury voir dire has begun, the district court has discretion to balance the defendant's legitimate interests in representing himself against the potential disruption and possible delay of proceedings already in progress.
3. The district court's denial of appellant's self-representation motion, based on the finding that the motion was made with the intent to delay trial, was not clearly erroneous.
4. The district court did not abuse its discretion in joining appellant's trial with that of his co-defendants and in denying appellant's severance motion.
5. Appellant has not shown that the prosecutor engaged in inexcusable serious and prejudicial misconduct.
6. The record does not provide a sufficient basis to review appellant's claims of ineffective assistance of counsel.
Heard, considered, and decided by the court en banc.
The opinion of the court was delivered by: Hanson, Justice
Dissenting, Page, J. and Blatz, C.J., and Anderson, Paul H., J.
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 co-defendant 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 co-defendants 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."*fn1 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.*fn2
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.
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 I"). 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 (1975). While that right is not explicitly mentioned in the Sixth Amendment,*fn3 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 (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 ...