Denial of Request During Trial For Advisory Counsel to Assume Full Representation was Harmless Error

State v. Chavez-Nelson, Minn.S.Ct., 7/6/2016.  Mr. Chavez-Nelson is serving a life sentence without possibility of release for a conviction of first degree premeditated murder.  About a week before trial Mr. Chavez-Nelson discharged his appointed counsel; he said that he disagreed with them about trial strategy.  Mr. Chavez-Nelson also asked the trial court for a continuance so that he could retain private counsel; the trial court denied that request, and declined to appoint new counsel to represent him.  On the first day of trial, the trial court appointed attorneys who had no prior involvement with Mr. Chavez-Nelson's case as advisory counsel.

The very next day, the jury panel having spent the rest of the first day completing a questionnaire, Mr. Chavez-Nelson asked that his advisory counsel assume full representation of his case.  The trial court saw this as a backdoor attempt to obtain substitute counsel and denied the request.  The court did repeat what it had been saying the previous day that it would reappoint Mr. Chavez-Nelson's original appointed counsel.

On the third day of jury selection Mr. Chavez-Nelson said that he would be open to having his original counsel reappointed to represent him.  The court did just that at the end of jury selection the following day and then gave those off-again, on-again attorneys a short continuance to gear back up for trial.  Original counsel represented Mr. Chavez-Nelson for the remainder of trial.

Mr. Chavez-Nelson complained on appeal about the denial of his request for advisory counsel to assume full representation of his case.  He pointed to the rule under which the trial court appointted advisory counsel, Rule 5.04, subd. 2(2)(b), which says that when advisory counsel has been appointed"

“because of concerns about delays in completing the trial, the potential disruption by the defendant, or the complexity or length of the trial,” advisory counsel will assume full representation of the defendant if the defendant “requests advisory counsel to take over representation during the proceeding.”

Under this rule Justice G. Barry Anderson said that Mr. Chavez-Nelson had a right to request that advisory counsel assume full representation and the trial court's denial of that request was an error.  The Justice suggests that this would not have been the case had advisory counsel been appointed under subdivision 2(1) of this rule.  This rule says that the trial court may appoint advisory counsel because of concerns about the fairness of the process but it does not include the language about having advisory counsel take over at a defendant's request.

The court then had to decide whether this error in denying the request that advisory counsel assume full representation entitled Mr. Chavez-Nelson to a new trial.  Justice Anderson concluded that this error was not a structural error, at least where the only time that Mr. Chavez-Nelson was not represented was during jury selection, which was more or less by his choice. Ignoring this rather dubious distinction for now, it suggests that had the request come at a different point in the trial the court may have looked at the error differently.  The court went on to conclude that the error was harmless.