Hennepin County District Court File No. 27-CR-12-821.
Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, Minneapolis, Minnesota (for respondent).
David W. Merchant, Chief Appellate Public Defender, Richard Schmitz, Assistant Public Defender, St. Paul, Minnesota (for appellant).
Considered and decided by Ross, Presiding Judge; Bjorkman, Judge; and Kirk, Judge.
Freddie Prewitt had vaginal and anal sex with a woman who lay unconscious after she ingested heroin. The state charged Prewitt with third-degree criminal sexual conduct, and he fired his public defender and repeatedly insisted on representing himself at trial. He now appeals from his conviction, arguing that the district court unconstitutionally failed to obtain a valid waiver of his right to counsel before allowing him to proceed pro se, that the prosecutor committed misconduct, and that the district court departed from its neutral role. Because the record shows that the district court adequately ensured that Prewitt's decision to proceed to trial without legal counsel was informed and voluntary notwithstanding its failure to conduct a specific on-the-record colloquy, because the prosecutor properly focused on the victim's credibility in her closing argument and not on Prewitt's exercise of his constitutional rights, and because the district court's improper questioning of a witness did not affect Prewitt's substantial rights, we affirm.
In May 2011, Freddie James Prewitt accompanied A.E., her friend, and another man to an apartment where all four ingested heroin. A.E. eventually went into a bedroom and fell asleep. The next morning, A.E. felt pain in her genital area and her friend told her that Prewitt had gone into the bedroom after her and had refused to let anyone else inside. A.E. went to the hospital for a sexual-assault examination. The examining nurse swabbed A.E.'s vagina and rectum. DNA testing of the swabs revealed semen that matched Prewitt's DNA profile maintained on a BCA database. A police investigator interviewed Prewitt, who denied ever having any sexual contact with A.E. The investigator obtained a DNA sample from Prewitt, which matched the DNA obtained from A.E.'s sexual-assault examination.
The state charged Prewitt with third-degree criminal sexual conduct for having sex with a helpless victim in violation of Minnesota Statutes section 609.344(1)(d) (2010). At a pretrial proceeding, Prewitt complained about his assigned public defender, stating, "[H]er and I don't get along, " and, "[S]he hangs up the phone in my face" and "cut[s] me off in conversations." Prewitt asserted his right to represent himself pro se. The district court observed that Prewitt's public defender "[has] been around here for a long time, " and it vouched for her skill and professionalism. It stated that Prewitt had a right to represent himself, but it recommended against it. The district court warned him, "You got a bunch of cases. You got two felonies here, one is very serious." It highlighted the potential punishment: "It's a presumptive 153 months in prison." And it pointed out the critical DNA evidence against him.
Prewitt responded that he wanted to argue the DNA issue with the "[p]ower of a pro se litigant, " and he attested to his own ability to conduct independent research about DNA evidence. He asked, "So can I request to represent myself as a pro se litigant?" The district court responded with more warnings: "[Y]ou have a right to represent yourself. I don't recommend it. . . . [T]his actually is a fairly complicated case." When Prewitt indicated that he intended to argue that the DNA evidence was contaminated, the district court warned him about the difficulties of making that argument. Prewitt again asked, "So you're giving me the right to be a pro se litigant, right?" The district court finally agreed, "I am." It nevertheless appointed his previously assigned public defender as advisory counsel to assist him with legal research.
The district court continued to warn Prewitt about the consequences of representing himself pro se at a later proceeding. It warned him that he would be held to the same standard as an attorney. Prewitt said he understood. It cautioned him further, saying that, by refusing a public defender, he would not be able to access law clerks, investigators, and experts available through the public defender's office. It highlighted the limitations on his ability to obtain investigators and experts from the court. And it emphasized the research burden Prewitt was facing and offered a continuance. Prewitt declined the court's recommendation for a continuance, and the court added that by declining the continuance, he would "proceed at [his] own peril." The district court further warned of the consequences of proceeding without legal representation, explaining, "[I]f you had a lawyer at your side, they might give you some advice as to whether or not you're waiving those issues by your decision to proceed to trial." The district court reminded Prewitt that the presumptive sentence was 153 months' incarceration. Prewitt would not relent, concluding, "I would rather proceed to trial."
On the day of trial, the district court again warned Prewitt about the consequences of representing himself. It opined, "I'm not sure you're capable of representing yourself, but . . . that's what you want to do. You're entitled to that." Prewitt demanded that his advisory counsel also be dismissed. The district court inquired and confirmed, "So you don't want an advisory counsel at all?" "So you intend to represent yourself?" "With the help of no lawyer; is that correct?"
Prewitt was confident. "Yes, sir. I feel like that I'm capable of being able to represent myself until its entirety." Even when the district court acceded to Prewitt's insistence, it gave a final warning: "So now you're on your own, Mr. Prewitt." And Prewitt indicated that he understood. The district court summarized, "I don't think you're prepared to go to trial, " and it confirmed that he was declining a court-appointed DNA expert and an investigator. Even the prosecutor offered to consent to a continuance so ...