ANDERSON, G. BARRY, Justice.
Appellant Jeffrey Arthur Krause asks us to decide whether the district court (1) erred in ruling that he forfeited his right to appointed counsel and (2) denied him procedural due process at his forfeiture-of-counsel hearing.
Krause was charged by amended complaint with the following offenses: (a) Count I: Illegal possession of a firearm (following conviction of crime of violence) in violation of Minn.Stat. § 624.713, subds. 1(2), 2(b) (2008); (b) Count II: Controlled substance crime in the fourth degree in violation of Minn.Stat. § 152.024, subds. 1(1), 3(a) (2010); (c) Count III: Controlled substance crime in the fourth degree in violation of Minn.Stat. § 152.024, subds. 1(1), 3(a); and (d) Count IV: Controlled
At Krause's first appearance on July 28, 2009, the district court reviewed the charges with Krause, set bail at $50,000, and approved Krause's request for appointed counsel. Assistant Public Defender David Phillipe was appointed to represent Krause and first appeared with him for a Rule 8 hearing. An omnibus hearing was held on August 28, 2009; Phillipe requested a speedy trial and a continuance of 2 to 3 weeks to conduct some necessary legal research.
During the pretrial hearing on October 16, 2009, Phillipe told the court that he met with Krause on Thursday or Friday of the previous week and that Krause had indicated that he was firing Phillipe.
The district court explained to Krause that, although the court was responsible for ordering the appointment of a public defender, the public defender's office, not the court, was responsible for the selection of the particular public defender to represent him. The court also warned Krause that the public defender's office might not appoint a different public defender to represent him. The court told Krause that it would not discharge Phillipe as Krause's counsel until replacement counsel was hired.
Krause then told the district court that he wanted to hire a private or "outside" attorney. Krause said he needed to talk with his parents about hiring a lawyer for him or selling his truck. When the district court asked Krause if he wanted to continue with his demand for a speedy trial and keep the October 27, 2009, trial date, or waive that right in order to have more time to hire another attorney, Krause responded, "Whatever you guys want..... that's fine." Krause said he had difficulty making decisions because of the prescription pills and morphine he was taking.
The district court judge briefly recessed the hearing to permit Phillipe to discuss with Krause how his request to discharge Phillipe would affect his request for a speedy trial. When the hearing was reconvened, Phillipe reported that when he attempted to explain to Krause his right to waive his speedy trial demand, Krause started "arguing with [him] about other things." Krause denied that he argued with Phillipe.
The district court judge announced that she was removing herself from the case because she had been the prosecutor in a prior case leading to one of Krause's terroristic-threats convictions. After Krause said he would not have time to hire another attorney by October 27, 2009, and agreed to have the trial reset, the court decided to reset the trial date.
At a hearing held on October 21, 2009, Krause reiterated his intention to discharge Phillipe and told the district court he was attempting to retain private counsel. The court reiterated the need to know quickly who would be representing Krause in light of Krause's demand for a
Before adjourning the hearing, the district court provided Krause with a "waiver of counsel" form for him to review in the event he elected to represent himself and discussed with him the difficulties of self-representation and the advantages of counsel. The court also explained to Krause that standby counsel could be appointed for him in the event he elected to waive his right to counsel. The court found good cause to continue the matter until November 3, 2009, for trial.
At the beginning of the hearing on October 22, 2009, the district court asked Krause whether he had retained private counsel. Krause said that he had called an attorney the previous day and arranged to meet with the attorney, but the attorney did not appear for the meeting. Krause then said he had not been successful in hiring an attorney and would represent himself.
The district court asked Krause if he wished to proceed pro se. After some initial equivocation, Krause stated that he intended to represent himself. The court conducted a waiver colloquy, and Krause furnished the court with a signed "waiver of counsel" form. The court concluded that Krause had knowingly and intelligently waived his right to counsel and asserted his constitutional right to self-representation. The court also announced that it would appoint standby counsel for Krause. The court further found that good cause would exist to continue the matter despite Krause's speedy trial demand in the event that standby counsel could not be adequately prepared by the date set for trial. Phillipe was then discharged.
Krause appeared pro se with standby counsel, Christopher Cadem, but at the beginning of the hearing Krause told the district court that he was unprepared to represent himself and asked the court to continue the trial because he wished to hire private counsel. Krause said that his sister had spoken to proposed private counsel the previous evening. Krause also waived his speedy trial demand.
With Krause's consent, the district court recessed the hearing to contact the lawyer and confirm the representation. Following the recess, the court announced that the lawyer had sent a message to the court indicating that while he had spoken with Krause's family, no definite financial arrangements had been made. Although Krause was prepared to have the court discharge standby counsel, the court indicated that it would take no further action until the court had confirmation that the lawyer was representing Krause.
Krause appeared pro se with advisory counsel and informed the district court that he was unable to hire private counsel. He also told the court that he realized, after looking over the case file, that he could not adequately represent himself. The court again reminded Krause that if he reapplied for a public defender, Phillipe would probably be appointed to represent him. When Krause protested that he and Phillipe did not get along, the court told him that the court did not believe that the record reflected the sort of exceptional circumstances that would require the public defender's office to appoint a different public defender to represent Krause. More specifically, the court said that exceptional
The district court continued the matter for one week to give Krause an opportunity to reapply for appointed counsel. Following the hearing, Krause applied for appointed counsel, and the public defender's office for the Seventh Judicial District once again assigned Phillipe to represent him.
Krause and Phillipe met privately on December 3, 2009. In his affidavit,
On December 11, 2009, Rex Tucker, the Chief Public Defender for the Seventh Judicial District, sought an order discharging the public defender as Krause's counsel and an order that Krause had forfeited his right to court-appointed counsel. Tucker alleged that Krause had complained about Phillipe "[o]n dozens of occasions," but that Phillipe's services were deemed satisfactory by Phillipe's supervisors.
Tucker alleged that Krause's statements to Phillipe during their meeting on December 3, 2009, were "abusive, threatening and harassing in nature" and made "for the clear purpose of manipulating the court process." The motion alleged that the statements were made to intimidate Phillipe and to have him discharged as defense counsel. Although Tucker, in his motion, recognized that it is the "nature" of the public defender "business" to be "verbally assailed, screamed at and disrespected," he stated that Krause's actions went well beyond "the `normal course of our business'" and were "reprehensible."
On December 15, 2009, Krause was served with a copy of Tucker's notice of motion and motion. A hearing on the motion was held on December 18, 2009. Tucker represented the district public defender's office and argued in favor of the motion. Krause was present without counsel. During the hearing, Tucker provided the court with a copy of Phillipe's affidavit, and the court recessed the hearing to review it. Phillipe was not present at the hearing.
Following the recess, Krause was provided with a copy of Phillipe's affidavit. After Krause finished reviewing the affidavit, the court addressed Krause as follows:
Krause replied, "What can I tell you? The guy's a jerk."
On January 5, 2010, the district court issued an order and memorandum granting Tucker's motion for discharge and finding that Krause had forfeited his right to court-appointed counsel. The court
In support of its forfeiture ruling, the district court further found that Krause had demonstrated a history of attempting to obtain a different public defender to manipulate and delay the proceedings:
A jury trial commenced on March 9, 2010. Krause proceeded pro se with standby counsel. The jury found Krause guilty on all counts. The district court sentenced Krause on counts 1 and 2 for the sale of a controlled substance and the illegal possession of a firearm.
Krause appealed to the court of appeals, contending that (1) the district court erred in its forfeiture ruling; and (2) the district court violated his right to procedural due process at the forfeiture-of-counsel hearing. State v. Krause, A10-1091, 2011 WL 3425978 at *1 (Minn.App. Aug. 8, 2011). The court of appeals affirmed the district court's decision, id. at *6, and Krause petitioned our court for further review. We reverse in part and remand the matter to the district court for an evidentiary hearing.
The dispositive question in this case is whether the district court violated Krause's procedural due process rights in the course of deciding that Krause had forfeited his right to counsel. Because we conclude that the court denied Krause his due process rights, we do not decide whether the court erred in its ruling. Instead, we remand the matter to the district court for an evidentiary hearing with full due process protections to determine whether Krause engaged in "extremely serious misconduct" warranting forfeiture of his right to counsel. In order to guide the court in its decision, we also conclude that credible threats to harm an attorney or an attorney's family may constitute "extremely serious misconduct" warranting forfeiture of the right to counsel.
Because the alleged threatening statements took place outside of the courtroom,
We review a district court's decision that a defendant has forfeited his right to counsel under a "clearly erroneous" standard of review. State v. Jones, 772 N.W.2d 496, 504 (Minn.2009). But we review de novo whether a defendant has been denied due process of law. State v. Wiegand, 645 N.W.2d 125, 129 (Minn.2002) ("We review de novo a lower court's ruling on constitutional questions.").
Neither the United States Supreme Court nor our court has articulated what due process requires before a criminal defendant can be deprived of his right to counsel. Although not binding on our court, the court of appeals has stated that when the misconduct giving rise to a forfeiture of the right to appointed counsel does not occur in the court's presence, "an evidentiary hearing is required in order for the court to determine whether the alleged misconduct ... actually occurred."
The Due Process Clauses of both the Minnesota and United States Constitutions provide that the government cannot deprive a person of "life, liberty, or property without due process of law." U.S. Const. amends. V, XIV; Minn. Const. art. I, § 7. "The due process protection provided under the Minnesota Constitution is identical to the due proces[s] guaranteed under the Constitution of the United States." Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 453 (Minn.1988).
Procedural due process "`is flexible and calls for such procedural protections as the particular situation demands.'" Mathews, 424 U.S. at 334, 96 S.Ct. 893 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). The protections due in a particular case are determined by weighing and balancing several factors
Turning to the Mathews factors as applied to Krause, the private interests are obvious and significant. Here, Krause's right to appointed counsel in his criminal proceeding is a fundamental constitutional right. See Gideon v. Wainwright, 372 U.S. 335, 343, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Johnson v. Zerbst, 304 U.S. 458, 462, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) ("[The assistance of counsel] is one of the safeguards ... deemed necessary to insure fundamental human rights of life and liberty."). In addition, Krause's personal liberty was potentially implicated because not having counsel to represent him at trial placed him at a significant disadvantage. See Johnson, 304 U.S. at 462-63, 58 S.Ct. 1019 (noting that the right to counsel "embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal").
We now turn to the second factor — whether there is any risk of "erroneous deprivation" of the private interests at stake "through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards." Mathews, 424 U.S. at 335, 96 S.Ct. 893. Krause claims that the additional safeguard of the assistance of counsel at the hearing would have been valuable. There is support in the record that there was a risk of erroneous deprivation of Krause's right to counsel through the procedures used at the hearing. For example, Krause repeatedly told the court that his medications — which included morphine and prescription pills — made it difficult for him to make decisions. Furthermore, while he did not deny the allegations against him at the hearing, he later submitted a letter to the court denying the allegations, but the court did not consider the letter because the letter was submitted ex parte. The letter is evidence that Krause may have wanted to oppose the claims against him during the hearing but did not understand his right to do so nor how to vindicate that right. If Krause had been represented by counsel at the hearing, counsel could have instructed him on his rights, ascertained his wishes, facilitated the presentation of evidence, and articulated Krause's position to the court. In other words, the presence of counsel at the hearing could have made a difference in the outcome of the hearing.
Finally, we must determine the State's interest and the burdens it would face in
Because Krause's private interests are important, there is a risk of erroneous deprivation of those interests, and the State's interest is correspondingly weaker, the weighing of the Mathews factors supports a finding that Krause was denied his right to procedural due process in his forfeiture hearing.
We turn next to the specific details of the due process right to assistance
Having concluded that Krause's procedural due process rights were violated, we now determine the appropriate remedy. Krause argues that the appropriate remedy is reversal of his convictions and a new trial. The State, on the other hand, asserts that remand for an evidentiary hearing is the appropriate remedy.
The State has the better argument. Several of our cases support remand as the preferred remedy. In State v. Fageroos, 531 N.W.2d 199, 200-01 (Minn.1995), the district court closed the courtroom to spectators during the testimony of two minors, and the defendant claimed on appeal that a new trial was required because the district court plainly erred in closing the courtroom in violation of his right to a public trial. We held that, although the record on appeal failed to support closure, the appropriate initial remedy was a remand for an evidentiary hearing, not retrial:
Id. at 200; see also State v. Biebinger, 585 N.W.2d 384, 385 (Minn.1998) (ruling that "the appropriate initial remedy [for an inadequately supported decision to close the courtroom] is a remand for an evidentiary hearing, not retrial"); State v. McRae, 494 N.W.2d 252, 260 (Minn.1992) ("[T]he remedy should be appropriate to the violation. If a remand for a hearing on whether there was a specific basis for closure might remedy the violation of closing the trial without an adequate showing of the need for closure, then the initial remedy is a remand, not a retrial.").
We also ordered a remand for further proceedings rather than a new trial in State v. Licari, 659 N.W.2d 243 (Minn. 2003). Licari was convicted of second-degree murder in connection with the death of his spouse. Id. at 246. The "[p]olice discovered much of the evidence upon which [Licari] was convicted during a warrantless search of a storage unit rented by [Licari]." Id. On appeal, we held that the landlord's contractual right to inspect the storage unit did not give her actual authority to consent to the search, the police officer's mistaken belief that the landlord had authority to consent to the search was not reasonable for purposes of the apparent authority exception to the warrant requirement, and the intrusion was not justified under the plain-view exception to the warrant requirement. Id. at 250-54. Rather than reversing Licari's
Giving Krause a full evidentiary hearing with appointed counsel remedies the district court's violation of his due process rights. If, after the evidentiary hearing, the district court finds that Krause's right to counsel was violated, the district court should then vacate the convictions and order a new trial. On the other hand, if the district court concludes, following an evidentiary hearing, that Krause forfeited his right to appointed counsel, a new trial is not necessary.
Because we conclude that the district court denied Krause his due process rights, we do not decide whether the district court erred in its ruling. Instead, we remand the matter to the district court for an evidentiary hearing with the due process protections outlined above to determine whether Krause engaged in "extremely serious misconduct" warranting forfeiture of his right to counsel.
Forfeiture results in the loss of the right to counsel regardless of the defendant's knowledge of either the consequences of his actions or the dangers of self-representation.
The district court concluded that Krause "forfeited his right to court-appointed counsel by making threatening statements" to Phillipe. In reaching its conclusion, the court relied on Phillipe's affidavit and the fact that Krause did not deny the content of the affidavit. Krause claims that his statements to Phillipe during their December 3, 2009, meeting do not constitute "extremely serious misconduct" warranting forfeiture based on the case law of Minnesota or other jurisdictions.
The only reported Minnesota case to hold that a defendant forfeited his right to counsel due to "extremely serious misconduct" is State v. Lehman, 749 N.W.2d 76, 79 (Minn.App.2008), which involved a defendant who physically attacked his court-appointed lawyer. In that case, the court of appeals stated:
Id. at 82 (footnote omitted). Consistent with Lehman, other jurisdictions have held that a defendant forfeits his right to counsel when he physically attacks or assaults his counsel. See Gilchrist v. O'Keefe, 260 F.3d 87, 90, 99-100 (2d Cir.2001) (ruling that a habeas petitioner had not been unconstitutionally deprived of counsel during a sentencing proceeding based on a state court finding of forfeiture because the petitioner punched his counsel in the head); United States v. Leggett, 162 F.3d 237, 250-51 (3d Cir.1998) (holding that a defendant's unprovoked physical battery of his attorney at a hearing qualifies as the sort of "extremely serious misconduct" that amounts to the forfeiture of the right to counsel); Wilkerson v. Burge, No. 03 CIV 3857PKC, 2005 WL 1705298, at *5 (S.D.N.Y. July 20, 2005) (holding that a habeas petitioner was not entitled to relief from a state court's determination that he had forfeited his right to counsel by physically assaulting his attorney and threatening to put a contract on his attorney's life).
Forfeiture of counsel has also been found in cases in which a defendant has threatened the life of his counsel or engaged in a pattern of threatening and abusive behavior. Commonwealth v. Thomas, 879 A.2d 246, 258 (Pa.Super.Ct.2005) (holding "that appellant forfeited his right to counsel through his pattern of serious misconduct, abuse, threats, and utter failure to collaborate in his own defense"); see United States v. Thompson, 335 F.3d 782, 785 (8th Cir.2003) (concluding that defendant's threat to kill his counsel justified permitting counsel to withdraw and refusing to appoint substitute counsel); United States v. McLeod, 53 F.3d 322, 325-26 (11th Cir.1995) (holding that defendant forfeited his right to counsel by verbally abusing and threatening to harm his attorney, threatening to sue his attorney on four different occasions, and attempting to persuade his attorney to engage in unethical conduct); People v. Sloan, 262 A.D.2d 431, 693 N.Y.S.2d 52, 53 (1999) (concluding "that the defendant forfeited his right to counsel by his persistent pattern of threatening, abusive, obstreperous, and uncooperative
Consistent with that case law, we conclude that credible threats to harm an attorney or an attorney's family may constitute "extremely serious misconduct" warranting forfeiture of the right to counsel. We do not decide whether the statements occurring here rise to the level of "extremely serious misconduct." Therefore, if the district court, after an evidentiary hearing accompanied by appropriate due process protections, concludes that Krause's statements to Phillipe during their December 3, 2009, meeting were credible threats to harm Phillipe or his family, then it would be appropriate for the court to hold that Krause forfeited his right to counsel. If, on the other hand, the court concludes that Krause's statements were not credible threats to harm Phillipe or his family, then the court should reverse Krause's convictions and order a new trial.
Reversed in part and remanded.
Id. at 662. The court then provided a list of procedural safeguards that should be provided at forfeiture of counsel hearings:
Id.
