State of Minnesota,

1
STATE OF MINNESOTA

IN SUPREME COURT

A20-0669
Olmsted County McKeig, J.

State of Minnesota,

Respondent,

vs. Filed: June 16, 2021
Office of Appellate Courts
Malcolm Jammal Woods,

Appellant.
________________________

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

Mark A. Ostrem, Olmsted Coun ty Attorney, James E. Haas e, Senior Assistant County
Attorney, Rochester, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
State Public Defender, Saint Paul, Minnesota, for appellant.
________________________
S Y L L A B U S
1. Appellant did not make a valid request for advisory counsel to assume full
representation of his defense.
2. The record supports the district c ourt’s finding that a ppellant voluntarily
waived his constitutional right to counsel.
3. The district court violated Minn. Stat. § 609.04 (2020), when it entered a
conviction for the offense of second-degree intentional murder.
Affirmed in part, reversed in part, and remanded.

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O P I N I O N
McKEIG, Justice.
Malcolm Jammal Woods brings this direct appeal after being convicted of first-
degree premeditated murder, seco nd-degree intentional murder, and bein g an ineligible
person in possession of a firearm. Woods rais es three issues on appeal. First, Woods
argues that the district court erred in denying two requests for advisory counsel to assume
full representation of his defens e. Second, he argues that his waiver of counsel was
involuntary. Last, he argues that the distri ct court violated Minn. Stat. § 609.04 (2020)
when it entered a conviction fo r the offense of second-degre e intentional murder. We
conclude that Woods did not make a valid re quest for advisory coun sel to assume full
representation, that the record supports the district court’s finding that Woods voluntarily
waived his right to counsel, and that the en try of a conviction for the offense of second-
degree intentional murder violated section 609.04. We therefore affirm in part, reverse in
part, and remand.
FACTS
On September 9, 2018, Rochester police found Woods’ grandmother naked and
unresponsive in her bedroom. Family members falsely believed that she was drugged and
sexually assaulted by her neighbor, Brandon Matthew Arndt. The next day, someone
knocked on the back door of Arndt’s home. As Arndt opened the door, he was fatally shot.
Arndt’s mother saw her son fall backwards and called 911. After the investigation into
Arndt’s death focused on Woods, officers found a handgun in Woods’ backpack.

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An Olmsted County grand jury indict ed Woods for first-degree premeditated
murder, second-degree intentional murder, and being an ineligible person in possession of
a firearm. See Minn. Stat. §§ 609.185, subd. (a)(1), 609.19, subd. 1(1), 624.713, subd. 1(2)
(2020). At his first appearan ce, Woods applied for the services of the public defender.
After reviewing his application, the district court appointed two public defenders to
represent him. Between Octo ber 2018 and June 2019, the public defenders represented
Woods at several hearings.
On June 4, 2019, Woods appeared before the district court with his public defenders.
After his public defenders informed the court that Woods intended to waive the omnibus
hearing, Woods expressed a desire to “remove ” the public defenders without identifying
any specific dissatisfaction with their represen tation. When the dist rict court asked if
Woods intended to retain privat e counsel, he replied, “No. I’m planning on doing this
myself.” The court continue d the hearing to provide Wood s more time to consider his
decision to waive his right to counsel 1 and time to fill out written petitions 2 for self-
representation.
The next day, Woods appeared before the di strict court with his public defenders.
After one of the public defe nders explained that Woods’ request to remove them was
motivated by a disagreement over a strategi c decision, Woods asked for more time to

1 Under the Sixth Amendment, Wood s is entitled to represent himself. Faretta v.
California, 422 U.S. 806, 819 (1975); State v. Rhoads, 813 N.W.2d 880, 885 (Minn. 2012).

2 Multiple petitions were necessary because Woods was also a defendant in a separate
criminal case that proceeded at the same time as the murder case.

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discuss the issue with his public defenders . The court granted Woods’ request for
additional time and the matter was continued.
When he appeared before the district court the next day, Woods said, “I am
removing [my public defenders],” and, “I’m going to take th is on my own.” Woods then
submitted his written petitions to proceed pro se and re present himself. Woods
acknowledged that he read the petitions, fu lly understood them, ha d no questions about
them, and was of clear mind and judgment in making his decision. The court then notified
Woods of the advantages and disadvantages of self-representation, the nature of the charges
against him and their corresponding punishments, the requirement that he adhere to the
rules of criminal procedure and evidence, and his constitutional right to self-representation.
Having fully advised Woods, the court asked if he still intended to exercise his
constitutional right to self-representation. Wo ods confirmed that he wanted to waive his
right to counsel and represen t himself. Finding that Woods’ waiver of counsel was
knowingly, intelligently, and voluntarily given, the court accepted the waiver, discharged
his public defenders, and took the issue of advisory counsel under advisement.
On June 7, 2019, the distri ct court told Woods that it had decided to appoint advisory
counsel under Minn. R. Crim. P. 5.04, subd. 2. In explaining its decision, the court said it
was concerned about fairness of the process. See Minn. R. Crim. P. 5.04, subd. 2(1). The
court also expressed concerns about delays in completing the trial, potential disruption by
Woods, and the complexity and length of the trial. See Minn. R. Crim. P. 5.04, subd. 2(2).
The court then appointed Z.B., a Minnesota a ttorney practicing at a private law firm, to

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serve as advisory counsel. When the court asked Woods if he had any questions, Woods
engaged in the following colloquy with the court:
Woods: Okay. See, I have a fourth gr ade reading level so I really don’t
know how to read or write.

Court: Okay.

Woods: So, you know, th e only reason why—I didn’t really want to
become my own lawyer. The only reason why I fired them is
because they wasn’t helping me . [My public defenders.] I
don’t have no education at all to be a lawyer myself.

Court: Right. And that’s what I wa s talking to you about yesterday,
Mr. Woods. That’s what that was all about. So are you telling
me that you want legal representation in this case?

Woods: Yes, I do.

Court: You just don’t want the public defenders; is that correct?

Woods: No. They woul d—no. They wasn’t help ing me. They wasn’t
helping me at all. They wasn ’t—they wasn’t informing me
about anything, about the court, the cases. They wasn’t—they
was basically waiving everyt hing without asking me about
anything. They wasn’t really working with me, Your Honor. I
was being—my mother said misrep—I don’t know how to say
the word. I was being misrepresented.

Advisory counsel interjected at this point, expressing a concern that Woods did not
actually want to represent himself. If Woods was actually seeking substitute counsel,
advisory counsel stated that he was not prepared to provide that level of representation.
Advisory counsel then suggested that the court appoint a public defender to act as advisory
counsel.
In response to advisory counsel’s concerns, the district court told Woods that if he
did not want to represent himself, he would be represented by the public defender’s office

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and that if he had concerns about his pub lic defender’s performance, he would need to
discuss those concerns with the supervisor of the public defender. If the supervisor failed
to address any serious concerns, Woods could then ask the court to intervene. Woods told
the court that he understood the process and that instead of going through that process, he
wanted to represent himself w ith the assistance of advisory counsel. Between June 2019
and October 2019, Woods and his advisory counsel appeared at several hearings.
On October 1, 2019, Woods asked the di strict court to reappoint the public
defender’s office to represent him and to disc harge his advisory counsel. Woods did not
express any concerns about advisory counsel’s performance. When Woods asked that his
former public defenders not be reappointed, the court reminded him that it did not control
public defender assignments and that any assi gnment concerns would need to be raised
with a supervisor at the public defender’s of fice. The court then reappointed the public
defender’s office and discharged advisory counsel.
On October 31, 2019, 30 days later, Woods appeared before the district court along
with his former public defenders and their supe rvisor. The supervisor told the court that
Woods did not want to be repr esented by his former public defenders and that instead he
wanted advisory counsel to assume full representation under Minn. R. Crim. P. 5.04, subd.
2(2)(b). Expressing a concern about “game[] playing,” the court said that it was not going
to consider any concerns Woods had regarding his former public defenders “on an ad hoc
basis” and that Woods would need to file a written motion detailing how his former public
defenders were providing ineffective assistan ce of counsel. Woods never filed a written
motion to remove his former public defenders.

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When Woods and the supervisor of his former public defenders appeared before the
district court two weeks later, on November 15, 2019, the supervisor explained that her
office rejected Woods’ request for a different public defender because his former public
defenders had “provided excellent representa tion to Mr. Woods.” During the hearing,
Woods did not express any serious concerns regarding his former public defenders.
Instead, he told the court that he again wanted to waive his right to counsel and exercise
his constitutional right to self-representation. Woods signed a second set of petitions for
self-representation, acknowledged that he read the petitions, fully understood them, had no
questions about them, and was of clear mind an d judgment in making his decision. The
district court again notified Woods of th e advantages and disadvantages of self-
representation, the nature of the charges against him and their corresponding punishments,
the requirement that he adhere to the rules of criminal procedure and evidence, and his
constitutional right to self-representation. Finding that Woods’ second waiver of counsel
was knowingly, intelligently, an d voluntarily given, the cour t accepted the waiver and
petitions for self-representation. The court then appointed Woods’ former public defenders
to serve as advisory counsel.3
The district court held a ju ry trial. Woods represented himself throughout the trial.
His former public defenders were present and available as advisory counsel throughout the

3 Although Minn. Stat. § 611.17(b)(4) (2020), prohibits district courts from
appointing public defenders to serve as advisory counsel, appointment of advisory counsel
is a procedural matter for “judicial dete rmination” and, thus, our rules regarding
appointment of advisory counsel “take[] pr ecedence” over the Legislature’s statutory
prohibition. State v. Clark, 722 N.W.2d 460, 466 (Minn. 2006). In simpler terms, district
courts may appoint public defenders to serve as advisory counsel.

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proceedings. The State presented numerous witnesses, including Woods’ half-brother, his
half-brother’s girlfriend, and an Olmsted Coun ty Deputy. Woods’ ha lf-brother testified
that Woods admitted to killing Arndt by saying, “I handled what needs to get handled and
that the guy was dead.” He also testified th at Woods threatened to kill him, his family
members, and his friends if he told anybody about the shooting. The girlfriend of Woods’
half-brother testified that Woods told her that he “put four bullets in this guy’s body.” An
Olmsted County Detention Deputy testified that, as she was walking through the unit where
Woods was located in jail, she overheard Woods tell two other inmates, “[T]hat [expletive]
killed my grandma. There’s no justice system for that so I killed hi m.” In addition, the
State introduced a jail call transcript into evidence. In it, responding to the question,
“[T]hey got the wrong person?”, Woods rep lied, “No. Come on now, woman, you know
they don’t.”
On the penultimate day of tr ial, Woods refused to leav e his jail cell to attend the
remainder of his trial. The district court excused the jurors for the day and held a hearing
in the Olmsted County Adult Detention Center beside Woods’ jail cell. The district court
told Woods, “If you continue to want to stay here at the jail and voluntarily be away from
your trial, then at this point the state is seeking to close the reco rd, meaning that there
would be no additional evidence.” The court also explained that Woods would forfeit his
right to present a defense if he chose to remain in his jail cell and not participate in his trial.
Woods did not respond to the district court.
The next day, on February 6, 2020, the district court reconvened the trial in the
courtroom. When Woods refused to leave his jail cell, the district court determined that

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Woods had voluntarily waived his right to tes tify and present a defense. The jury found
Woods guilty of first-degree premeditated murder, second-degree intentional murder, and
being an ineligible person in possession of a firearm.
When Woods appeared for sentencing, the district court entered convictions on all
three offenses. It imposed a sentence of life without the possibility of release for the
conviction of first-degree premeditated murder and a concurrent sentence of 60-months for
the conviction of being an ineligible person in possession of a firearm. The court did not
impose a sentence for the conviction of second-degree intentional murder.
ANALYSIS
On direct appeal, Woods makes three argum ents. First, Woods argues that he is
entitled to a new trial because he made two re quests for advisory coun sel to assume full
representation, which the district court erroneously failed to honor. Second, Woods argues
that a new trial is warranted because his se cond waiver of counsel was involuntary and
therefore invalid. Last, Woods argues that the district court erred by entering a conviction
for the offense of second-degree intentional murder. We consider each argument in turn.
I.
First, we determine whether Woods made a valid request for advisory counsel to
assume full representation of his defense unde r Minn. R. Crim. P. 5.04, subd. 2(2)(b).
Woods claims he made such a request on J une 7, 2019 and October 31, 2019. For the
reasons that follow, we conclude that Wood s never made a valid request for advisory
counsel to assume full representation of his defense.

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“We review the interpretation and application of the rules of criminal procedure de
novo.” State v. Chavez-Nelson , 882 N.W.2d 579, 586 (Minn. 2016). Rule 5.04,
subdivision 2, of the Minnesot a Rules of Criminal Procedur e allows the appointment of
advisory counsel and mandates certain warnings regarding the situations in which advisory
counsel will assume full repres entation, despite the defendant ’s earlier assertion of the
constitutional right to self-representation. The rule provides in part:
Subd. 2. Appointment of Advisory Counsel. The court may appoint
advisory counsel to assi st a defendant who volu ntarily and intelligently
waives the right to counsel.
. . .

(2) If the court appoints advisory counsel because of concerns
about delays in completing the trial, the potential disruption by
the defendant, or the complexity or length of the trial, the court
must state that on the record.

The court must then advise the defendant and advisory counsel
on the record that advisory counsel will assume full
representation of the defendant if the defendant:

. . .

(b) requests advisory counsel to take over
representation during the proceeding.

Minn. R. Crim. P. 5.04, subd. 2(2)(b) (e mphasis added). As the mandated warning
explains, one way a defendant’s self-representation can end is when (1) advisory counsel
is appointed based on concerns about delays in completing the trial, the potential disruption
by the defendant, or the comple xity or length of the trial, and (2) the defendant requests
that advisory counsel assume full representation. In Chavez-Nelson, we concluded that the
language of Minn. R. Crim. P. 5.04, subd. 2(2), creates a rule-based right to request that an

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appointed advisory counsel assume full representation. 882 N.W.2d at 586. We now turn
to the two instances in which Woods claims that he made a valid request for advisory
counsel to assume full representation of his defense.4
A.
Woods claims that he made a valid request for counsel to assume full representation
on June 7, 2019, when engaged in the following colloquy with the district court:
Woods: Okay. See, I have a fourth gr ade reading level so I really don’t
know how to read or write.

Court: Okay.

Woods: So, you know, th e only reason why—I didn’t really want to
become my own lawyer. The only reason why I fired them is
because they wasn’t helping me . [My public defenders.] I
don’t have no education at all to be a lawyer myself.

Court: Right. And that’s what I wa s talking to you about yesterday,
Mr. Woods. That’s what that was all about. So are you telling
me that you want legal representation in this case?

Woods: Yes, I do.

Court: You just don’t want the public defenders; is that correct?

4 Woods also claims that the district c ourt erred on June 7, 2019, when it stated on
the record, and within a written order, that it may deny a reque st for advisory counsel to
assume full representation in the future. The district court’s statement was consistent with
the language of Minn. R. Crim. P. 5.04, subd . 2(1), which provides that “decisions about
the use of advisory counsel may affect a later request by the defendant to allow the advisory
counsel to assume full representation.” See Chavez-Nelson , 882 N.W.2d at 586 n. 3
(observing that, had the distri ct court appointed advisory counsel under subdivision 2(1),
rather than subdivision 2(2) of Rule 5.04, th e district court may have had more discretion
in determining whether advisory counsel woul d assume full representation of his case).
But no such language appears in Minn. R. Crim. P. 5.04, subd. 2(2). Because we conclude
that Woods never made a valid request for advi sory counsel to assume full representation
under Minn. R. Crim. P. 5.04, subd. 2(2), the district court’s overly broad description of its
discretion does not warrant a new trial.

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Woods: No. They woul d—no. They wasn’t help ing me. They wasn’t
helping me at all. They wasn ’t—they wasn’t informing me
about anything, about the court, the cases. They wasn’t—they
was basically waiving everyt hing without asking me about
anything. They wasn’t really working with me, Your Honor. I
was being—my mother said misrep—I don’t know how to say
the word. I was being misrepresented.

Following this exchange, the district court said, “[I]f you want a lawyer, the lawyer
you get is the public defender, and you don’t get to fire them and have [advisory counsel]
come in just because you want a different lawyer.”
Woods contends that the statements he made during this colloquy constitute a
“request” that advisory counsel assume full representation of his de fense, and that the
district court’s final statement was a denial of his request. The State counters that Woods’
statements are “hardly [a] . . . request[.]” We agree with the State.
Simply put, the statements Woods points to as indicia of his request do not articulate
a “request” for purposes of Minn. R. Crim. P. 5.04, subd. 2(2)(b). Our decision in Chavez-
Nelson illustrates how a “request” under Rule 5.04, subdivision 2(2)(b), is validly made.
In that case, the defendant “direct[ed] the dist rict court’s attention to Minn. R. Crim. P.
5.04, subd. 2(2)” and specifically requested that his advisory counsel assume full
representation. 882 N.W.2d at 585. The defendant in Chavez-Nelson invoked both Rule
5.04, subdivision 2(2), and its substance. That is not the case here.
5

5 At oral argument, counsel for Woods cl aimed that Rule 5.04, subdivision 2(2)(b),
does not require Woods to cite the rule itself or use any particular “magic words” to validly
make a request. We agree. But a defendant must invoke the substance of the rule to receive
its protection, and Woods did not do that here.

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Accordingly, we conclude that the statem ents Woods made on June 7, 2019, were
not a valid request, and theref ore did not invoke the rule-bas ed right to have advisory
counsel assume full representati on. The district court’s ruli ngs on that date regarding
Woods’ court-appointed attorneys were not erroneous.
B.
Woods also claims that he made a valid request for advisory counsel to assume full
representation of his defense on October 31, 2019. In support of his claim, Woods points
to the following statements made by the supervisor of his former public defenders:
I did discuss with [Woods], the fact [that] I understand he had advisory
counsel prior to this and I asked Mr. Wo ods if when he was last in court he
asked the court as is allowed under the Form 11 petition that he filed number
17i. The court can appoint the advisory counsel to represent him and he
indicated to me he was not aware of that fact. I also told him that is covered
under Minnesota Rules of Criminal Procedure, 5.04, subdivision 2(2)(b) also
allows for appointment of advisory counsel.

My understanding is, and Mr. Woods ca n correct me if I’m wrong, he still
does not wish to be represented [by his former public defenders]. And he
would ask the court to appoint advisory counsel pursuant to the form that he
signed when he discharged the public defender the first time and pursuant to
Minnesota Rule of Criminal Procedure 5.04, subdivision 2(2)(b). I know he
did have advisory counsel the last time he was in the court. And, I think, had
he been aware of the fact that he coul d assert the right to have the advisory
counsel represent him, he would have done that.

We conclude that the supervisor’s statem ents do not constitute a valid request to
invoke the rule-based right to have advisory counsel assume full representation of Woods’
defense, but for different reasons than the June 7, 2019, request. On October 31, there was
no advisory counsel appointed to assume full representation. As mentioned above, a valid
request under the rule-based right requires (1) advisory counsel be appointed based on

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concerns about delays in completing the trial, the potential disruption by the defendant, or
the complexity or length of the trial, and (2 ) the defendant requests that advisory counsel
assume full representation. Minn. R. Crim. P. 5.04, subd. 2(2). On October 31, 2019, at
Woods’ request made 30 days prior, there wa s no longer appointed advisory counsel.
Accordingly, Woods fails the first requirement to validly request advisory counsel assume
full representation of his defense under the Rule.
We conclude that Woods’ Rule 5.04 ar guments do not entitle him to a new trial
because he never made a valid request to in voke the rule-based right to have advisory
counsel assume full responsibility of his defense. The district court’s rulings in this regard
were not erroneous.
II.
Next, we turn to Woods’ argument that he is entitled to a new trial because his
second waiver of counsel was involuntary and therefore invalid. Specifically, Woods
argues his second waiver of counsel was invo luntary because he faced an “unfair and
improper choice: either proceed to his first- degree murder trial with the assistance of
inadequate counsel or proceed without any co unsel at all.” The State argues that a new
trial is not required because the record suppo rts the district court’s finding that Woods
voluntarily waived his constitutional right to counsel.
The Sixth Amendment provides criminal de fendants the right to an attorney.
Gideon v. Wainwright, 372 U.S. 335, 344–45 (1963); State v. Worthy , 583 N.W.2d 270,
275 (Minn. 1998). A waiver of counsel must be made knowingly, intelligently, and

15
voluntarily.6 State v. Jones , 772 N.W.2d 496, 504 (Minn. 2009). A district court must
evaluate the totality of the ci rcumstances in determining whether a defendant’s waiver of
counsel is voluntary. State v. Miller, 573 N.W.2d 661, 672 (Minn. 1998). “A defendant’s
refusal without good cause to proceed with able appointed counsel constitutes a voluntary
waiver of that right.” State v. Krejci, 458 N.W.2d 407, 413 (Minn. 1990) (citation omitted)
(internal quotation marks omitted).
We will overturn a district court’s finding that the defendant voluntarily waived his
right to counsel only if that finding is clearly erroneous. Jones, 772 N.W.2d at 504. “A
finding is clearly erroneous when there is no reasonable evidence to support the finding or
when an appellate court is le ft with the definite and fi rm conviction that a mistake
occurred.” State v. Rhoads, 813 N.W.2d 880, 885 (Minn. 2012).
After a detailed review of the record in this case, we conclude that the district court’s
finding that Woods voluntarily waived his right to counsel is not clearly erroneous. Woods
never raised a serious allegation of inadequate representation or any other good cause not
to proceed with his former public defenders.7 Instead, the record suggests that Woods was
simply upset because his former public defenders failed to provide him advance notice of

6 Woods does not allege that his waiver of counsel lacked knowledge or intelligence;
he argues only that his waiver of counsel was involuntary.

7 Because Woods failed to allege “serious allegations of inadequate representation,”
the district court was not required to engage in a “searching inqui ry” before refusing to
appoint new public defenders. State v. Munt, 831 N.W.2d 569, 586 (Minn. 2013) (citation
omitted) (internal quotation marks omitted) (explaining that a searching inquiry is required
only when the defendant raises serious compla ints about the effec tiveness of appointed
counsel’s representation).

16
their strategic decision to waive the omnibus hearing. In addition, Woods failed to act even
after the district court provided him an oppor tunity to file a written motion setting forth
any concerns he might have with his former public defenders. Because the district court
fully advised Woods of the consequences of waiving counsel, and Woods refused without
good cause to proceed with able appointed counsel, we conclude that his waiver of counsel
was voluntary and, thus, valid.8
III.
Finally, we turn to Wood s’ argument that the district court violated Minn.
Stat. § 609.04 when it entered a conviction for the offense of second-degree intentional
murder because it was included in the offense of first-degree premeditated murder.
Minnesota law permits a conviction “of e ither the crime charged or an included
offense, but not both.” Minn. Stat. § 609.04, subd. 1 (emphasis added). Whether an offense
is a lesser-included offense of the charged offense is a legal question, which we review de
novo. State v. Cox, 820 N.W.2d 540, 552 (M inn. 2012). We have previously held that a
district court errs when it convicts a defendant of first-degree murder and second degree-
murder. See, e.g., id. at 552–53; State v. Johnson, 773 N.W.2d 81, 89 (Minn. 2009) (“[T]he
State could not convict [the defendant] of both first-degree murder and the lesser-included
offense of second-degree murder.”). The reme dy for such an error is a remand to the

8 Woods also argues that his waiver of c ounsel was involuntary because the district
court denied his requests to invoke his rule-bas ed right to have advi sory counsel assume
full representation of his defense. This argument is unavailing because, as discussed above,
Woods never made a valid request to invoke his rule-based right to have advisory counsel
assume full representation of his defense.

17
district court to vacate the conviction entered on the lesser-included offense while leaving
the guilty verdict in place. See State v. Balandin , 944 N.W.2d 204, 222 (Minn. 2020).
Because the district court committed reversible error when it entere d a conviction for the
offense of second-degree intentional murder, we remand to the district court to vacate the
conviction for seco nd-degree intentional mu rder, but we leave the other convictions and
sentences in place.
CONCLUSION

For the foregoing reasons, we affirm in part, reverse in part, and remand to the district
court to vacate the conviction for second-degree intentional murder.
Affirmed in part, reversed in part, and remanded.