State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (201 8).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0608

State of Minnesota,
Respondent,

vs.

Payam Naderipour,
Appellant.

Filed May 4, 2020
Reversed and remanded
Bjorkman Judge

Clay County District Court
File No. 14-CR-16-4433

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Brian J. Melton, Clay County Attorney, Pamela Foss, Chief Assistant County Attorney,
Moorhead, Minnesota (for respondent)

Joseph A. Gangi, Farrish Johnson Law Office, Chtd., Mankato, Minnesota; and

Geoffrey Sorkin (pro hac vice), Zulu Ali Law Office, Riverside, California (for appellant)

Considered and decided by Slieter, Presiding Judge; Johnson, Judge; and Bjorkman,
Judge.

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U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant challenges his convictions for attempted first-degree murder of his
parents. H e asserts that the district court erred by (1) allowing appellant to discharge his
attorneys and represent himself at trial and (2) considering the report of an expert who did
not testify at the omnibus hearing . Because appellant did not validly waive his right to
counsel, we reverse and remand for a new trial.
FACTS
On December 25, 2016, Moorhead police officers were dispatched to an apartment
where appellant Payam Naderipour had doused his parents with gasoline and was trying to
set them on fire. In a police interview the following day, he made several bizarre
statements, including that his parents were watching him, his mother had voodoo powers
and tainted his food, and his phone was bugged. Naderipour’s two court -appointed
attorneys moved to have his mental competency evaluated pursuant to Minn. R. Crim.
P. 20.01 and to establish a mental-illness defense under Minn. R. Crim. P. 20.02.
Two psychologists evaluated Naderipour in 2017. The court-appointed examiner,
Dr. Krislea Wegner, met Naderipour in February. She diagnosed Naderipour with major
depressive disorder; post-traumatic stress disorder; and alcohol-, methamphetamine-, and
cannabis-use disorders . But she c oncluded Naderipour was competent to proceed to trial
and his mental state at the time of the offenses did not negate criminal responsibility.
Naderipour retained his own expert, Dr. Paul Reitman, who reviewed his medical
records—including Dr. Wegner’s report —and examined him in May. Dr. Reitman

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diagnosed Naderipour with bipolar affective disorder with manic and psychotic symptoms;
generalized anxiety di sorder; and alcohol -, methamphetamine -, and cannabis -use
disorders. He concluded that Naderipour’s mental -health conditions did not affect his
competency, stating “because he is on psychiatric medications he is able to as sist with his
own defense.” Based on the two reports, the district court found Naderipour competent to
stand trial.
At the October 9 contested omnibus hearing, the district court considered whether
Naderipour validly waived his Miranda rights before being interviewed by police.
Dr. Reitman testified that Naderipour was unable to knowingly and intelligently waive
those rights. Dr. Wegner did not testify, but Dr. Reitman considered her previously filed
mental-competency report in forming his opinion. Over Naderipour’s objection, the
district court considered portions of Dr. Wegner’s report. The court ultimately concluded
that Naderipour validly waived his Miranda rights.
Naderipour’s attorneys moved for a second rule 20.01 evaluation in March 2018.
The district court appointed Dr. Nanc y Hein-Kolo, who diagnosed Naderipour with
unspecified personality disorder with antisocial and narcissistic traits, unspecified
depressive disorder and anxiety disorder, and substance -abuse disorders. Dr. Hein-Kolo
opined that he was competent to stand trial. At the beginning of the June competency
hearing, defense counsel withdrew his motion, stating that “ [a] number of things have
changed since we had asked for this hearing and we don’t believe that it’s necessary at th is
time.”

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During an October pretrial settlement conference , Naderipour asked the district
court to dismiss his attorneys and allow him to represent himself. He told the court that he
did not trust his attorneys, that they did not explain his rights with respect to a letter he
received from Homeland Security stating that he was “already convicted of a first -degree
murder,” and that he was “just sick and tired of mind games.” Naderipour’s written waiver
form stated that he was not currently “receiving treatment for mental or emotional
problems,” had received treatment “only in jail,” had not taken any medication in the last
24 hours, and did not have any “psychological disabilities that may affect [his] ability to
understand what is happening in court.” The district court asked Naderipour whether
doctors had prescribed medications that he was not taking. Naderipour responded, “To be
honest with you, Your Honor, I have no idea.” He stated that his decision to represent
himself was not coerced , that he had a post high -school education and understood the
charges, proceedings, and penalties he was subject to, and that he was aware that he would
be held to the same standards as an attorney.
The district court then thoroughly advised Naderipour of his duties in representing
himself and told him that the trial would be bifurcated to address his mental-illness defense
separately from other trial issues. In granting Naderipour’s request to represent himself,
the district court stated, “Fortunately, I don’t have to make a finding that [that] waiver[]
[is] intelligent, because, frankly, I don’t know that I’d ever be able to make that find ing,
especially in very complicated cases like this.” As his first act as a self-represented party,
Naderipour waived his mental-illness defense saying he just wanted a “normal” trial.

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The jury found Naderipour guilty on both counts of attempted first-degree murder .
Naderipour appeals.
D E C I S I O N
Naderipour did not validly waive his right to counsel.

A criminal defendant has a right to counsel under the United States and Minneso ta
Constitutions. U.S. Const. amends. VI, XIV; Minn. Const. art. 1, § 6. But a defendant also
has the right to represent himself so long as his waiver of the right to counsel is voluntary,
knowing, and intelligent. Minn. R. Crim. P. 5.04, subd. 1(4) (requiring a defendant facing
a felony charge to voluntarily and intelligently waive the right to counsel); Faretta v.
California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541 (1975); Burt v. State, 256 N.W.2d 633,
635 (Minn. 1997).
The district court must ensure that a defendant’s waiver is valid. State v. Bauer, 245
N.W.2d 848, 858 (Minn. 1976). A defendant is required to submit a written waiver of his
right to counsel. Minn. Stat. § 611.19 (2016); Minn. R. Crim. P. 5.04, subd. 1(4) . Before
accepting the waiver, the court must advise the defendant of the
(a) nature of the charges;
(b) all offenses included within the charges;
(c) range of allowable punishments;
(d) there may be defenses;
(e) mitigating circumstances may exist; and
(f) all other facts essential to a broad understanding of
the consequences of the waiver of the right to counsel,
including the advantages and disadvantages of the decision to
waive counsel.

Minn. R. Crim. P. 5.04, subd. 1(4).

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We review for plain error a district court’s finding that a defendant validly waived
his right to counsel. State v. Rhoads, 813 N.W.2d 880, 885 (Minn. 2012). “A finding is
clearly erroneous when there is no reasonable evidence to support the finding or when an
appellate court is left with the definite and firm conviction that a mistake occurred.” Id.
When the facts are not in dispute, we review de novo whether the waiver of counse l was
valid. Id.
Whether a defendant’s waiver of counsel satisfies the constitution and was
intelligently made “ depends on the facts and circumstances of the case, including the
background, experience, and conduct of the accused.” Id. at 884; see State v. Worthy, 583
N.W.2d 270, 275 -76 (Minn. 1998) (considering “the particular facts and circumstances
surrounding [a] case, including the background, experience, and conduct of the accused”
in evaluating a request to waive the right to counsel (quotation om itted)). A defendant’s
competency is one of the circumstances district courts may consider. State v. Camacho ,
561 N.W.2d 160, 171 (Minn. 1997). 1
Naderipour contends that the district court clearly erred by failing to ensure that his
waiver of the right to counsel was intelligent. This argument has merit. Rule 5.04 requires
that such waivers be voluntary and intelligent. Minn. R. Crim. P. 5.04, subd. 1(4). And

1 The parties dispute whether a heightened waiver standard applies when a defendant’s
mental capacity could affect his ability to validly waive his right to counsel and to represent
himself. The United States Supreme Court held that “the Constitution permits States to
insist upon representation by counsel for those competent enough to stand trial . . . but who
still suffer from severe mental illness to the point where they are not competent to conduct
trial proceedings by themselves.” Indiana v. Edwards, 554 U.S. 164, 178, 128 S. Ct. 2379,
2388 (2008). We need not reach this issue because we conclude that the district court did
not ensure Naderipour’s waiver of his right to counsel was intelligent.

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the district court is responsible for “assuring an adequate waiver.” Bauer, 245 N.W.2d
at 858. Here, the distric t court provided all of the advisories set out in rule 5.04 and
questioned Naderipour at length about his desire to represent himself. But the district court
expressly disclaimed any need or ability to determine whether Naderipour’s waiver was
intelligent. This is error. The state urges us to view the district court’s statement that
“[f]ortunately, I don’t have to make a finding that [that] waiver[] [is] intelligent, because,
frankly, I don’t know that I’d ever be able to make that finding,” as inadvertent speech.
Given the centrality of legal representation to a fair and impartial trial and the well-
documented concerns about Naderipour’s mental status, we are inclined to take the district
court at its word, and afford Naderipour a new trial.
This conclusion is further supported by the totality of the facts a nd circumstances.
Naderipour’s competency and potential lack of criminal responsibility due to mental illness
figured prominently throughout the proceedings. The district court was well aware of
concerns about Naderipour’s mental health, including Dr. Reitman’s opinion that
Naderipour “is able to assist with his own defense” because “he is on psychiatric
medications.” Yet, Naderipour’s written waiver of his right to counsel state d he was not
receiving treatment or medication. And when the district court asked him if there were
prescribed medications he was not taking, Naderipour responded, “I have no idea. I haven’t
seen a doctor.”2

2 Naderipour was released on bail in April 2018; he asked to dismiss his attorn eys in
October 2018.

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The record also provide s reason to question Naderipour’s knowledge of criminal
law and procedure. He had a criminal-history score of zero , wrote “???” next to four items
on the waiver-of-counsel form , and acknowledged his legal ignorance when he told the
district court that he “d[id]n’t want to have not a lawyer, because I don’t understand the
law.” And Naderipour’s conduct at the hearing raised substantial concerns about his ability
to represent himself. H is statements to the district court , some absurd, show dubious
reasoning and overall lack of ability to intelligently waive the right to counsel. For
example, when he immediately waived his mental-illness defense, Naderipour ’s stated
reason was that he wanted a “regular trial, just like everybody else.” He did not apparently
appreciate the significance of this waiver, which gave up , arguably, his best—and possibly
only—viable defense.
Taken collectively, the facts present a significant question as to whether
Naderipour’s waiver of his right to counsel was intelli gent. This is particularly true when
the record shows he was not taking the medications his own expert deemed necessary for
Naderipour to even assist his lawyers. We are mindful of the unique challenges presented
in this case. But we are not persuaded that Naderipour’s waiver of his constitutional right
to counsel is valid. Accordingly, we reverse and remand for a new trial.3
Reversed and remanded.

3 Because we reverse and remand for a new trial, we need not address the evidentiary issue.