This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
State of Minnesota,
Tesfa Kahsai Dirar,
Olmsted County District Court
File No. K6961534
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Raymond F. Schmitz, Olmsted County Attorney, Government Center, 151 4th Street SE, Rochester, MN 55904 (for respondent)
John M. Stuart, State Public Defender, Chad M. Oldfather, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Davies, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.
Appellant challenges his conviction for third-degree criminal sexual conduct, arguing that he was denied his right to effective assistance of counsel when, during direct examination, his attorney referred to an earlier alleged sexual encounter between appellant and the victim, which the parties had agreed not to introduce at trial. Appellant argues that the reference damaged his credibility, undercutting his theory of defense that the charged offense was a consensual encounter. Appellant also raises additional pro se issues. We affirm.
In September 1995, appellant Tesfa Kahsai Dirar was acting as a translator and handling some financial arrangements for Ahmed Al-Dossary, and his adult son, Jaber Al-Dossary. The Al-Dossarys, who are Saudi Arabian, were living in a condominium in Rochester, Minnesota, while Ahmed underwent medical treatment at the Mayo Clinic. In the course of his duties, appellant was allowed to use the condominium as an office.
R.L., the victim, worked as a personal-care attendant for Ahmed Al-Dossary from 8:00 a.m. to 4:00 p.m., six days a week. Appellant generally spent time in the condominium in the morning, making telephone calls and picking up messages. R.L. testified that her normal dealings with appellant consisted of “[j]ust chitchat,” but that there was no socializing.
On October 10, 1995, about two weeks after she had started working for the Al‑Dossarys, R.L. arrived at the usual time and made breakfast for Ahmed. Appellant arrived at approximately 9:30 a.m. and made some phone calls. After eating, Ahmed was tired, so R.L. put him to bed.
Appellant and R.L. testified to different versions of what happened next. Appellant testified that they sat and talked and then had consensual sex. R.L. testified that she was ironing in the kitchen when appellant came up behind her and began touching her. Despite her efforts to tell appellant to stop, he pushed her onto a bed located off the kitchen and forcibly raped her.
R.L. testified that she was crying uncontrollably following the rape, but that she tried to “pull herself together” before Jaber Al-Dossary awoke and found that his father’s lunch had not been prepared. R.L. did not mention the rape to a nurse who arrived about 1:00 p.m. But after her shift ended, R.L. called her friend, Marlene Fromdahl, and confided in her. Fromdahl, a nurse, told R.L. to call a rape-crisis hotline. R.L. made the call and was advised to go immediately to Methodist Hospital where she had a sexual assault examination that substantiated R.L.’s claim of forcible rape. Subsequent DNA testing provided a match to appellant. Officer Greg Meyer, who interviewed R.L. at the hospital, testified that her emotions vacillated between being upset and crying to expressing anger and disgust. Examining medical personnel also testified as to R.L.’s emotional demeanor.
Officer Daniel Pulford interviewed appellant on December 20, 1995, as to the events of October 10, 1995. During the tape-recorded interview, appellant denied having engaged in any kind of sexual activity with R.L. The content of appellant’s taped interview, which was played for the jury, was inconsistent with appellant’s testimony at trial that the sexual encounter was consensual.
In addition to the October 10, 1995 incident for which appellant was charged, R.L. also alleged that appellant had raped her on October 6, 1995. Prior to trial, the prosecutor and defense counsel entered into a Spreigl stipulation, agreeing that no evidence would be introduced concerning the alleged October 6, 1995 incident. The parties agreed not to ask any questions regarding the incident, and witnesses were instructed that they were not to mention it in their testimony.
During his direct examination of appellant, however, defense counsel inadvertently asked his client whether he had had sexual contact with R.L. prior to the October 10, 1995 incident for which he was on trial. The court recessed for the day shortly thereafter.
The following morning, defense counsel made a record of his mistake. The parties then discussed how to address the situation. It was agreed that the prosecutor would not address the alleged prior sexual contact in his cross-examination, but would briefly remark upon it during closing. During cross-examination, the prosecutor questioned appellant about his sexual “relationship” with R.L. without specifically referring to any incident before October 10, 1995. Consistent with the parties’ understanding, the prosecutor made a brief reference to the sexual “relationship” prior to October 10 in his closing argument. Appellant was convicted of criminal sexual conduct in the third degree. This appeal followed.
D E C I S I O N
1. Ineffective assistance of counsel
An appellant asserting a claim of ineffective assistance of counsel must demonstrate that the attorney’s representation “fell below an objective standard of reasonableness,” and there is a “reasonable probability” that “the outcome would have been different but for counsel’s errors.” State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998) (citing Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992), in turn citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). There is a “strong presumption” that an attorney’s performance “falls within the wide range” of what is “reasonable professional assistance.” State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).
The United States Supreme Court, in Strickland, set out a two-prong test for determining whether a defendant is entitled to a new trial because of ineffective assistance of counsel. In the first prong, the deficiency prong of the test, appellant must prove that his counsel’s representation fell below “an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S. Ct. at 2064.
In Minnesota, this objective standard is satisfied when an attorney provides representation “‘exercising the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances.’” State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999) (quoting State v. Gassler, 505 N.W.2d 62, 70 (Minn. 1993)). Trial tactics “lie within the proper discretion of trial counsel and will not be reviewed later for competence.” Voorhees, 596 N.W.2d at 255 (citing Jones, 392 N.W.2d at 236). Particular deference by the courts is given to the decisions of counsel regarding trial strategy. Lahue, 585 N.W.2d at 789.
In this case, appellant’s counsel’s mistake cannot be accurately characterized as trial strategy because it violated a pretrial agreement between defense counsel and the prosecutor. The following is the relevant part of counsel’s direct examination of appellant, which occurred immediately after appellant’s account of the October 10, 1995 sexual encounter:
Q. Now, had you had any type of contact like this with [R.L.] before that time, before October 10?
A. Oh, hugging, we hug every day. This is normal. I thought when she cry, you know, she come to me and feel comfortable.
Q. You hugged every day?
A. She hug me, yes.
Q. How many times?
A. Maybe twice. When she go home, when she comes. She call me on the phone she miss me.
Q. Had you ever had any type of sexual contact with her before that? Had you gone to bed with her before that day?
A. Before that day?
Appellant’s counsel acknowledged on the record that he had made an error when, on direct examination of appellant, he broached the subject of prior sexual contact between appellant and R.L. Appellant’s defense counsel characterized his mistake as follows:
[T]hen I asked him if he had any other sexual contact with the alleged victim, and he said yes, and that’s when I realized that I had perhaps violated the Spreigl stipulation that we originally entered into with the prosecutor. * * * It was unintentional. I spoke before I thought the issue through. It was sort of like in the heat of the moment type of question. As soon as I realized my mistake I stopped. I didn’t pursue the issue any further.
It is arguable that posing a question that violates a pretrial agreement between counsel falls below an objective standard of reasonableness. But even if counsel’s error can be characterized as professionally unreasonable, it must also have prejudiced the outcome of the trial for any relief to be warranted.
Under the second prong of the Strickland test, appellant must prove there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. This “reasonable probability” is that probability “sufficient to undermine confidence in the outcome.” Id. Analysis of prejudice must be made within the context of the “totality of the evidence before the factfinder.” Gates v. State, 398 N.W.2d 558, 563 (Minn. 1987).
Appellant contends that, following defense counsel’s error, the prosecution’s use of the word “relationship” connoted something other than a single incident and that the error was compounded by the prosecutor’s final argument, during which he argued:
Within two weeks, by October 10, the defendant claims that this relationship, this close personal relationship became a consensual sexual relationship within two weeks. Maybe even less than two weeks ‘cause the defendant claimed in his testimony that he’d had sex with her on another occasion. So less than two weeks [sic] the defendant is involved in a close personal sexual relationship with R.L. * * * Is that believable at all?
Respondent argues that defense counsel’s inadvertent reference to appellant’s prior sexual contact with R.L., and the subsequent reference by the prosecution to a “sexual relationship,” if it had any effect, served to bolster appellant’s contention that the sexual encounter on October 10, 1995, was consensual. We agree. Evidence of the victim’s previous sexual conduct with the defendant is admissible on the issue of consent. Minn. R. Evid. 412(1)(A)(ii). The prosecutor’s argument merely countered the benefit defense counsel’s error conferred on appellant’s case.
As part of the instructions, the jury was told that
[c]onsent does not mean the existence of a prior or current social relationship between the defendant and [R.L.], or that [R.L.] failed to resist a particular sexual act.
What this instruction did, in essence, was to focus the jury’s attention on the October 10, 1995 incident. An “assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision.” Strickland, 466 U.S. at 695, 104 S. Ct. at 2068. This means that it must be assumed that the jury followed the instructions given to it by the court. “[A] court should presume * * * that the judge or jury acted according to law.” Id. at 694, 104 S. Ct. at 2068. After hearing testimony from all the witnesses, including appellant and R.L., the jury credited the testimony of R.L., finding beyond a reasonable doubt that the encounter on October 10, 1995, was rape and not consensual sex. Appellant has not met his burden of proof on the second prong of the Strickland test.
2. Pro Se Issues
In his pro se supplemental brief, appellant raises several additional issues. Appellant argues that (1) his credibility was challenged by the contradictory testimony of another witness; (2) he was not provided a copy of his police statement until the day of the trial; (3) his attorney failed to object to a reference made to appellant’s presence at a halfway house; (4) he had difficulty understanding English; and (5) a Somali interpreter did not provide an accurate translation of another witness’s testimony.
We find no merit in these claims. First, it is the jury’s role to assess inconsistencies in testimony. Second, appellant’s police statement was made available to him or his counsel as required by statute. Third, appellant claims that his counsel erred by failing to object to a passing reference made by R.L. to appellant’s “halfway house.” But this was a brief and isolated reference. Defense counsel’s failure to object may have been due to the fact that he did not hear it, as appellant claims, or as a result of a tactical decision not to highlight the testimony by drawing the jury’s attention to it. Appellant has not met his burden to establish any prejudice from this reference. Fourth, defense counsel specifically advised the court at a pretrial hearing that appellant did not need an interpreter at trial. Appellant, himself, had previously worked as an interpreter. There is nothing in the record to support appellant’s claim that he could not understand English or appellant’s claim that the Somali interpreter for another witness was incompetent.