State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0280

State of Minnesota,
Respondent,

vs.

Michael Gene Southern,
Appellant.

Filed January 16, 2018
Affirmed
Smith, John, Judge*

Aitkin County District Court
File No. 01-CR-16-419

Lori Swanson, Attorney Ge neral, Edwin W. Stockmeyer, Assistant Attorney General, St.
Paul, Minnesota (for respondent); and

Jim Ratz, Aitkin County Attorney, Lisa R. Rakotz, Associate Aitkin County Attorney,
Aitkin, Minnesota (for respondent)

Thomas M. Skare, Cloquet, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Smith, Tracy M., Judge; and
Smith, John, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SMITH, JOHN, Judge
We affirm appellant’s conviction of felony burglary and felony assault because:
(1) the waiver of his right to counsel was made knowingly, voluntarily and intelligently,
(2) the failure to transcribe voir dire was not an error on the part of the district court, (3)
the district court did not have a conflict of interest, and (4) the district court properly
denied his postconviction prosecutorial misconduct claims without an evidentiary
hearing.
FACTS
Appellant Michael Gene Southern and his friend, J.C., broke into M.D.’s cabin
during the night while both M.D. and S.M.J were in the cabin. J.C. was armed with a pistol
and Southern had a wooden bat . After breaking in, J.C. pointed his pistol at M.D. and
Southern hit M.D. in the head and shoulder with his bat. S.M.J. moved between Southern
and M.D. to try to prevent any more violence. Southern and J.C. then left the cabin.1
Respondent State of Minnesota charged Southern with three counts of first -degree
burglary and one count of second -degree assault . A public defender was appointed to
represent Southern. Less than two months later, the district court held a hearing at which
Southern requested to discharge his public defender and waive his right to counsel. The
district court asked several questions about his request and had Southern sign a petition to
proceed pro se, on the record, to waive his right to counsel.

1 J.C. and Southern spent less than two minutes inside the cabin.

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A jury found Southern guilty of all four charges and the district court later sentenced
Southern to a 58 month prison term . Southern appealed to this court, and we stayed the
appeal so he could seek relief. Southern also petitioned for postconviction relief. The
postconviction court denied relief without an evidentiary hearing. This court reinstated the
appeal.
D E C I S I O N
I. Southern knowingly, voluntarily, and intelligently waived his right to counsel.
If the facts are undisputed, this court will review a waiver of counsel de novo.
State v. Rhoads, 813 N.W.2d 880, 885 (Minn. 2012). The United States and Minnesota
Constitutions guarantee criminal defendants the right to counsel. U.S. Const. amend. VI;
Minn. Const. art. I, § 6. Although criminal defendants are guaranteed the right to counsel
in criminal prosecutions, a defendant is allowed to waive this right if it is done so
knowingly, intelligently, and voluntarily. Rhoads, 813 N.W.2d. at 885. To determine
whether a waiver was knowing, intelligent, and voluntary, a court must analyze the facts
and circumstances of the case, including the background, experience, and conduct of the
accused. Id. at 884.
Southern argues that his right to counsel was violated when the district court failed
to advise him of the information contained in Minn. R. of Crim. P. 5.04, subd. 1(4). Under
Minn. R. Crim. P. 5.04, subd. 1(4), district courts are required to ensure that unrepresented
defendants charged with a felony complete a voluntary and intelligent written waiver of
the right to counsel. Before the district court may accept a waiver, it must first advise the
defendant of the nature of his charges, specify the offenses included in the charges, disclose

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the range of possible punishment, explain that there may be defenses or mitigating
circumstances, and mention “other facts essential to a broad understanding of the
consequences of the waiver of the right to counsel.” Minn. R. Crim. P. 5.04, subd. 1(4)(a)–
(f).
Southern contends that his waiver was not knowing , intelligent, and voluntary
because the district court incorrectly described the range of allowable punishment as 34 to
46 months. He also contends the district court failed to discuss the lesser-included charges,
mitigating circumstances, or the advantages or disadvantages of waiving counsel. As an
initial matter, a district court’s failure to strictly comply with the inquiry detailed in Minn.
R. Crim. P. 5.04, subd. 1(4) does not necessarily require a reversal so as long as “the
particular facts and circumstances of the case demonstr ate a valid waiver.” Rhoads, 813
N.W.2d at 886. Our supreme court has affirmed several convictions in which the district
court failed to properly advise defendants according to a particular procedure such as r ule
5.04, subd. 1(4). See State v. Worthy, 583 N.W.2d 270, 274-77 (Minn. 1998) (concluding
waiver was still valid even without advisement of charges or potential punishments because
co-defendants were represented by counsel for over a month, they knew they were
responsible for their own defense, they had prior experience with the criminal justice
system, and the district court had appointed standby counsel); State v. Brodie, 532 N.W.2d
557 (Minn. 1995) (concluding waiver was valid because the defendant was represented by
counsel for a month prior; the defendant knew he would need to represent himself; and the
district court appointed standby counsel).

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Factual similarities to Brodie and Worthy are present in Southern’s waiver . The
district court made sure that Southern understood that if he waived his right to counsel, he
would be responsible for his own defense and the same rules that applied to attorneys would
apply to him. Southern was represented by defense counsel for nearly two months.
Southern also had a great deal of experience with the criminal justice system and its general
procedure as he was convicted of nine different felonies between 1995 and 2012. And,
like both Brodie and Worthy, the district court appointed standby counsel.
Southern also reviewed a petition to proceed pro se before his counsel was
discharged by the court, which had the correct maximum and minimum sentencing range
as well as most of the information the district court failed to mention . Southern notified
the district court that he had eno ugh time to review the peti tion, that he understood the
petition, that he needed to discharge his attorney because he disagreed with him on how to
proceed with his case, that he had given his decision adequate and sufficient consideration,
and that the choice was not a choice that he made easily. Southern then signed the petition
on the record and in front of the district court.
Because the totality of the facts and circumstances indicate that Southern was
making a knowing, intelligent, and voluntary decision when he waived his right to counsel,
the district court did not err in finding the waiver valid.
II. The district court did not err by failing to order a transcript of voir dire.

Southern argues that the district court erred by not ordering a transcript of voir dire
for his appeal. Southern is incorrect in arguing that ordering any trial transcript is the
district court’s responsibility. The Minnesota Rules of A ppellate Procedure require that

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the “appellant shall” order parts of the tra nscript, “which are deemed necessary for
inclusion in the record.” Minn. R. Civ. App. P. 110.02, subd. 1(a); see also Minn. R. Crim.
P. 28.02, subd. 9 (stating that the rules of civil appellate procedure “govern preparation of
the transcript of the proceedings”).
Southern had the opportunity to order the transcript covering voir dire, but he
decided not to do so. The decision is his mistake, and his mistake alone, and means any
claim regarding alleged error during voir dire is waived. See State v. Barnes, 713 N.W.2d
325, 337 (Minn. 2006).
III. The district court did not have a disqualifying appearance of bias during the
trial.
Southern alleges that the district court created an appearance of bias because the
judge who presided over his jury trial also p resided over some of his “sobriety court
appearances.” When a defendant does not preserve his judicial bias claim, the alleged
judicial bias claim will be reviewed under a plain -error standard. State v. Finch , 865
N.W.2d 696, 701 n.3 (Minn. 2015).
Under plain-error review, we consider whether (1) there was an error; (2) which was
plain; and (3) which affected the defendant’s substantial rights. State v. Schlienz, 774
N.W.2d 361, 366 (Minn. 2009). If each of these three prongs are satisfied, then we consider
whether it is necessary to address the error to ensure the fairness and integrity of the judicial
proceedings. Id. An error by the district court is plain if it “contravenes case law, a rule,
or a standard of conduct.” State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). An error

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affects the defendant’s substantial rights when the error, “was prejudicial and affected the
outcome of the case.” State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998).
Whether a district court judge was disqualified due to an appearance of impartiality
under the Minnesota Code of Judicial Conduct is a question of law we review de novo.
State v. Dorsey, 701 N.W.2d 238, 246 (Minn. 2005) . A judge “must not preside at a trial
or other proceeding if disqualified under the Code of Judicial Conduct. ” Minn. R. Crim.
P. 26.03, subd. 14(3). Moreover, a judge “shall disqualify himself or herself in an y
proceeding in which the judges impartiality might reasonably be questioned.” Minn. Code
Jud. Conduct Rule 2.11(A). Judges are presumed to have the ability to “approach every
aspect of each case with a neutral and objective disposition.” Dorsey, 701 N.W.2d at 247
(quotation omitted). But a judge is disqualified for lack of impartiality under rule 2.11(A)
if a “reasonable examiner ,” from the perspective of an objective “layperson with full
knowledge of the facts and circumstances,” would “question the judge's impartiality.”
State v. Pratt, 813 N.W.2d 868, 876 & n. 8 (Minn. 2012) (quotation omitted). A particular
litigant’s subjective belief that a judge is or may be partial does not create a reasonable
basis to question the judge’s impartiality. State v. Burrell, 743 N.W.2d 596, 601-02 (Minn.
2008).
Southern argues that the district court judge should have recused himself sua sponte
because he presided over both this trial and some of Southern’s sobriety court appearances.
However, judges commonly have repeated contacts with individual litigants in different
judicial settings. See, e.g., Rossberg v. State , 874 N.W.2d 786, 790 (Minn. 2016)
(assigning both trial and postconviction proceeding does not present an adequate ground

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for disqualification by itself). A review of the record indicates that the district court judge
acted impartially throughout the process, including by re solving more than a dozen
evidentiary objections in Southern’s favor.
Since Southern has not identified any error s, his claim fails and it is not necessary
to consider whether his rights were substantial ly impacted. See State v. Brown , 815
N.W.2d 609, 620 (Minn. 2012) (“If [an appellate court] conclude[s] that any prong of the
plain error analysis is not satisfied, [the court] need not consider the other prongs.”).
IV. The postconviction court did not abuse its discretion by denying Southern’s
postconviction petition based on prosecutorial misconduct claims.

We review the denial of a petition for postconviction relief without an evidentiary
hearing for an abuse of discretion. Buckingham v. State, 799 N.W.2d 229, 231 (Minn.
2011). But we review the underlying issues of law de novo. Leake v. State, 737 N.W.2d
531, 535 (Minn. 2007). Additionally, evidentiary hearings are not required by the
postconviction court if “the petition and the files and records of the proceeding
conclusively show that the petitioner is entitled to no relief.” Minn. Stat. § 590.04, subd.
1 (2016). Thus, it is the defendant’s burden to allege facts that, if true, would entitle the
defendant to relief. Nissalke v. State, 861 N.W.2d 88, 91 (Minn. 2015).
In his postconv iction petition, Southern argued that the prosecution engaged in
misconduct: (1) by telling Southern that he could not discuss certain witnesses’ plea
agreements or inconsistent statements to police during his trial; (2) by withholding
potentially exculpatory evidence; (3) by having witnesses travel together in violation of a
sequestration order; and (4) by having Sergeant Guida, an investigator for the state, threaten

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one of his witnesses. He claims these alleged violations denied him due process and a fair
trial and that they should not have been dismissed without an evidentiary hearing . As
explained below, the district court did not err in dismissing the postconviction petition
without an evidentiary hearing. Each of Southern’s specific instances of alleged
prosecutorial misconduct is analyzed in turn.
Improper Legal Advice
Southern alleges that the prosecutor privately told him that he “could not discuss the
felonies or plea agreements of the witnesses becaus e that information was irrelevant and
that the inconsistencies in their statements were irrelevant.” The prosecution denied
Southern’s allegations, explaining that these allegations were regarding a motion in limine
in which the state asked the court to preclude Southern from asking S.M.J. or M.D. about
their involvement in a pending investigation or their use of drugs. Southern did not object
to this alleged instance of prosecutorial misconduct at trial, and thus it is reviewed under
the modified plain-error test. See Ramey, 721 N.W.2d at 302.
Southern provides no evidence other than his affidavit to support his assertion that
the prosecution discouraged him from asking these questions of the prosecution’s
witnesses. Regardless, the record demonstrates that even if Southern’s allegation was
accurate, this improper legal advice did not deter him from asking any of the witnesses
questions regarding their past criminal histories or their inconsistent statements. 2 Since

2 Southern asked J.C., S.M.J., and J.J. about their past criminal histories, and he asked
M.D., S.M.J., and J.C. about various inconsistencies in their respective statements to the
police.

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this alleged advice did not deter Southern from asking questions, we are convinced that
this alleged error, even if it occurred, did not impact his substantial rights. See State v.
Martin, 773 N.W.2d 89, 104 (Minn. 2009) (a plain error only “affects a defendant’s
substantial rights” when “there is a reasonable probability that the erro r actually impacted
the verdict .”). Thus, the postconviction court correctly denied this claim without an
evidentiary hearing.
Brady Violation
Southern alleges that the prosecution committed misconduct by improperly
withholding a photograph of an injury S.M.J. sustained , J.C.’s plea agreement, and a
written summary of the conversations that took pla ce between Southern’s wife and
Sergeant Guida. Southern alleges that this misconduct violated his right to due process as
defined in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).
Three elements must be established i n order to establish a Brady violation. See
Pederson v. State, 692 N.W.2d 452, 459-60 (Minn. 2005) (The three elements of a Brady
violation are: (1) the evidence is favorable to the defendant; (2) the evidence was
“suppressed by the state, either willfully or inadvertently;” and (3) prejudice to the accused
resulted.).
Southern claims that the prosecution wit hheld from him a photo depicting a bruise
to S.M.J.’s eye. However, according to the trial transcript , this photo was offered into
evidence by the prosecution and without any objection from Southern. From the record, it
also appears as though the photograph was turned over in the state’s initial disclosure.

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Thus, Southern has failed to establish that the photograph was “suppressed by the state.”
See id., 692 N.W.2d at 459.
In regards to the alleged withholding of J.C.’s plea agreement , Southern was
provided a copy of the transcript of J.C.’s guilty plea , along with J.C.’s sentencing
worksheet, the original criminal complaint, and a written copy of the plea offer J.C.
accepted. Later in the trial, Southern confirmed that he had the sentencing worksheet, offer
sheet, and the original complaint. In fact, Southern even examined J.C. regarding his plea
deal and submitted J.C.’s sentencing worksheet into evidence.
Southern also argues that the prosecution failed to dis close a written summary of
Sergeant Guida’s conversation with his wife. At trial, the district court noted that the
prosecution had made an adequate disclosure of the conversation and its contents . In
addition, Southern later cross-examined Sergeant Guida at trial regarding the conversation.
From the record, it does not appear that any evidence that Southern alleges was withheld
was actually withheld from him.
Sequestration Claim
On July 6, 2016, the state moved to, among other things, hav e trial witnesses
sequestered. The district court granted that motion.
At the end of the second day of trial, Southern told the district court that he wanted
J.C. to remain available to testify in his case-in-chief. Southern, the district court, and the
prosecution then discussed how J.C. would be transported back to the courthouse the next
day. Southern advised the district court that J.C. had been transported by Sergeant Guida.

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The district court then ordered the sheriff’s office to transport J.C. to the courthouse the
next morning, to which Southern responded, “[T]hat’s fine.”
In his petition for postconviction relief and now on appeal, Southern argues that “the
State’s witnesses were transported to court together,” and that this arrangement vio lated
his right to a fair trial. Even assuming this allegation is true, Southern is not entitled to
relief.
In order to obtain relief from a violation of a sequestration order, the complaining
party is required to demonstrate “actual prejudice.” State v. Miller, 396 N.W.2d 903, 906
(Minn. App. 1986). Specifically, there “must be an indication in the record that statements
made in violation of a sequestration order were made in an attempt to influence the
testimony of other witnesses, or that the statem ents did influence the testimony of other
witnesses, before the trial court need even consider it as grounds for a new trial.” State v.
Erdman, 383 N.W.2d 331, 334 (Minn. App. 1986), review denied (Minn. April 24, 1986).
Southern’s postconviction petition does not allege any of the witnesses were influenced by
the words or testimony of another witness. Rather he simply states that the “State’s
witnesses were transported to court together.” Since Southern has not even alleged the
requisite facts that, if proven to be true, would warrant relief, it was not an abuse of
discretion for the district court to reject this claim without an evidentiary hearing.
Witness Interference
During trial, Southern made a discovery request for a written summary of a
conversation that took place between his wife and Sergeant Guida. The prosecution noted
that Sergeant Guida had already provided an oral summary of the conversation to Southern.

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The district court ruled that this disclosure was sufficient and noted that Souther n would
have ample opportunity to cross-examine the witness about his alleged statement.
On appeal, Southern argues that the exchange between Sergeant Guida and his wife
was “an attempt by a State actor to intim idate [his] witness.” During the trial, and before
any witness had testified, Southern alleged that Sergeant Guida tried to influence his wife’s
testimony through intimidation by implying she would likely perjure herself and that she
could lose her kids if she did perjure herself. Southern’s wife’s affidavit says that Sergeant
Guida told her, “I wouldn’t want you to perjure yourself on the stand because the kids need
a parent.”
Later in the trial, Southern did have the opportunity to cross -examine Sergeant
Guida about this conversation and Sergeant Guida replied by saying:
So [Southern’s] wife was in the courtroom. I hadn’t
seen her. I had been trying to get ahold of her. I approached
her and said, How you doing, [S.S.]? Just a little bit of small
talk. Your wife and I have talked to e ach other many, many
times. Not, she knows who I am, I know who she is, it’s not
like I approached a random stranger. And I said, [S.S.], I want
you to be careful because I don’t want you to perjure yourself
on the stand, you might have a lot to lose. I said there’s a lot
riding, at stake on your telling the truth here. And I was
worried that maybe your influence would cause her not to do
that.
Witness interference by a governm ent actor is analyzed under the
substantial-interference test. Colbert v. State, 870 N.W.2d 616, 623 (Minn. 2015). To
obtain a new trial under this test, a defendant must show (1) a government actor interfered
with a defense witness’s decision to testify, (2) the interference was substantial, and (3) the
defendant was prejudiced by the conduct. Id. at 625.

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Even assuming that Sergeant Guida’s conversation with S.S. was both (1) an
interference and (2) substantial, Southern’s argument fails because he cannot show that he
was prejudiced by Sergeant Guida’s statement to S.S . The testimony S.S. provided was
favorable to Southern’s defense as it provided him with an alibi during the assault.
Moreover, S.S. also noted that Sergeant Guida’s statement to her did not influence her
testimony in any way. Because he cannot show Sergeant Guida’s alleged statement had
any prejudicial impact, Southern has failed to satisfy the third requirement of the
substantial-interference test. Therefore, the postconviction court did not abuse its
discretion by summarily denying Southern’s claim that Sergeant Guida intimidated
Southern’s witness.
In sum, the postconviction court did not abuse its discretion in denying an evidentiary
hearing on any of Southern’s prosecutorial misconduct claims because the record
conclusively shows that Southern is not entitled to relief. 3
Affirmed.

3 To the extent that Southern argues that there has been cumulative error entitling him to
relief, he is incorrect. Trial errors that do not impact the outcome of a proceeding are not
sufficient to show cumulative error. State v. Erickson, 610 N.W.2d 335, 341 (Minn. 2000).
While Southern has not demonstrated error, even if he had, he has failed to claim or show
that any of these alleged errors were prejudicial to him. Without any prejudice shown or
alleged, Southern cannot receive any relief under a theory of cumulative error.