This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-99-1522

 

Charles Ray Wright, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed July 25, 2000

Affirmed

Randall, Judge

 

Dakota County District Court

File No. K1-97-0218

 

 

Michael C. Davis, Special Assistant State Public Defender, 46 East Fourth Street, Suite 1042 Minnesota Building, St. Paul, MN 55105 (for appellant)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

James Backstrom, Dakota County Attorney; Phillip D. Prokopowicz, Assistant Dakota County Attorney, Dakota County Government Center, 1560 Highway 55, Hastings, MN 55033-2392 (for respondent)

 

 

Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Willis, Judge.


U N P U B L I S H E D O P I N I O N

RANDALL, Judge

In this appeal from a denial of a petition for postconviction relief, appellant challenges his convictions of aiding and abetting attempted murder in the second degree, aiding and abetting assault in the second degree, and aiding an offender. Appellant argues that the evidence was not sufficient to support the convictions. In his pro se brief, appellant contends that the district court committed prejudicial error by admitting expert testimony concerning appellant's alleged gang affiliation. He asserts further that he was denied effective assistance of counsel. We affirm.

FACTS

In January 1997, Gyasi Lymon and Sophia Madison attended a movie at the Burnsville mall. As Lymon was leaving the theater, he passed appellant Charles Wright, Aaron Boone, and a third man identified only as "Troy." The three men got into a white car and drove toward him. Lymon observed a gun being pointed at him from the front passenger window of the car. The shooter opened fire, and Lymon was struck in the leg after 13 to 15 shots were fired in his direction. The car then sped away.

The next day, police arrested Wright and Boone after the two were discovered at a motel in Minneapolis where Boone had registered on the day of the shooting. In the hatch of Boone's car, police recovered a steering wheel. In addition, a set of keys was recovered from the nightstand in the motel room in which Wright was found.

Wright admitted that he was at the Burnsville movie theater with Boone and Troy on the afternoon of the shooting. Wright claimed that as the three men were getting into his car, he heard a "commotion" that he believed might have been gunshots. He denied that anyone shot a gun from his car, but later stated that if someone did, he did not have control over anyone in his car. According to Wright, the three men drove to a house in Minneapolis where Wright let Troy use his car. Then, he and Boone drove to a motel in Boone's car. Wright stated that he did not know where his car was, but he was expecting a call from Troy, who would let him know the whereabouts of the car. Wright claimed that he did not know Troy's last name or where Troy lived.

The police found Wright's car several days later, abandoned on a street in Bloomington with its steering wheel missing. A movie-ticket stub was found in the car and police determined that the steering wheel found in the trunk of Boone's car fit the steering column on Wright's car. Keys from the set of keys found on the motel nightstand fit Wright's car and the steering-column lock on the car.

Madison testified that as she walked to Lymon's car, she saw Wright's white car drive in the direction of Lymon's car. She heard one of the men in the car say, "[H]e's going to his car, he's going to his car, Loc." She also testified that she heard someone say, "Get it out, get it out, he's going to his car." Madison testified that "Loc" is a term that "Crips" gang members use to refer to each other. She stated that she saw a gun pointed out of the window of the car and that the car sped away after shots were fired. Another witness, Lawson McKenzie, testified that he was on his way into the theater when he heard eight to ten gunshots. He saw a gun, which was pointed out of the front passenger window of a white car, shooting at a maroon car. McKenzie went to help Lymon, who told him that if he became unconscious, McKenzie should tell police that it was "Charles" who shot him.

Wright was charged in Dakota County District Court with aiding and abetting attempted murder in the second degree, aiding and abetting assault in the second degree, and aiding an offender. Wright was convicted of all charges after a jury trial and was sentenced to an executed sentence of 163 months on Count I and to an executed sentence of one year and one day on Count III, to be served concurrently. The district court determined Count II, aiding and abetting second-degree assault, was a lesser-included offense and did not sentence Wright on that offense.

Wright brought a direct appeal but later asked this court to stay the appeal and remand to the district court for postconviction proceedings. This court dismissed Wright's appeal and remanded for postconviction proceedings. Wright then petitioned for postconviction relief. After an evidentiary hearing on his ineffective assistance of counsel claim, the district court denied Wright's petition. This appeal follows.


D E C I S I O N

Wright argues that the evidence is insufficient to support his convictions because the state failed to prove that he had actual knowledge that the shooter had committed a criminal act. Additionally, Wright asserts that the evidence is insufficient to prove that he concealed evidence or provided misleading information to the investigating police officers in order to assist the shooter.

In reviewing the sufficiency of the evidence, this court will determine whether the jury could reasonable find the defendant guilty beyond a reasonable doubt based on the evidence, and reasonable inferences from that evidence, when viewed in the light most favorable to the verdict. State v. Walen, 563 N.W.2d 742, 749 (Minn. 1997). The reviewing court is to assume that the jury believed the state's witnesses and did not believe contrary evidence. State v. Braylock, 501 N.W.2d 625, 628 (Minn. 1993).

Here, the state introduced three eyewitness accounts that the shots that struck Lymon were fired from the front passenger window of the vehicle driven by Wright. Lymon and Madison stated that they observed Wright get into a white car and drive over to the location of Lymon's vehicle before shorts were fired from Wright's vehicle. In addition, Madison testified that just before the shots were fired, she heard one of the men state, "Get it out, get it out, he's going to his car." Based on this evidence, the jury could reasonably have concluded that Wright intentionally assisted the shooter in attempting to assault and kill Lymon and to get away once the shots had been fired.

The evidence admitted at trial also supports the conclusion that Wright attempted to conceal the car. Although Wright's vehicle was found abandoned on a Bloomington street, the steering wheel found in the trunk of Boone's vehicle, which was parked at the motel in which Wright and Boone were staying, fit the steering column of Wright's vehicle. And although Wright claimed that he loaned his car to Troy and did not know its whereabouts, the keys to Wright's car were found on the nightstand next to Wright in the motel room. The jury was free to reject Wright's claim that he loaned his vehicle to Troy and did not know the whereabouts of Troy or the vehicle. See State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (holding reviewing court must assume jury believed state's witnesses and disbelieved contrary evidence). Based on the evidence, the jury could reasonably conclude that Wright, Boone, and Troy drove to pick up Boone's car after the shooting, drove to the location where Wright's car was later found, removed the keys and steering wheel, and went to the motel where Wright and Boone were found. We hold that the evidence was sufficient for the jury to conclude that Wright was guilty of aiding an offender.

Wright argues that he received ineffective assistance of trial counsel because his attorney admitted his guilt by conceding, without his consent, that the state had proved an essential element of the attempted murder charge, the intent of the shooter to cause Lymon's death. In determining whether a defendant has received ineffective assistance of counsel, this court determines whether counsel's representation "'fell below an objective standard of reasonableness'" and whether "'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

A defense attorney may not admit his client's guilt without the client's consent. State v. Wiplinger, 343 N.W.2d 858, 860 (Minn. 1984). As a trial strategy, a defense attorney may admit the defendant's guilt to one of two charges in order to attempt to increase the defendant's credibility with the jury. Id. at 861. If the defendant failed to object to such an admission at trial, the defendant is deemed to be in agreement with the strategy. See State v. Provost, 490 N.W.2d 93, 97 (Minn. 1992) (rejecting ineffective assistance of counsel argument where defendant did not object to counsel's admission of defendant's guilt to lesser offense).

Here, Wright did not object to his counsel's strategy until after the completion of the trial. In his closing argument, trial counsel admitted that the shooter (whoever that was) had the intent to either kill or injure Lymon. Wright contends that this statement contradicted his defense that he did not know of or did not control the shooter's actions. But counsel's closing argument, when taken as a whole, did not admit Wright's guilt. Counsel argued that while it was reasonable to believe that the intent of the shooter to injure or kill the victim was apparent, given the uncontested evidence of the 13 to 15 gunshots, the state failed to prove the remaining elements against Wright. Given the uncontested evidence showing that 13 to 15 shots were fired into and around Lymon's car while he was in it, it was reasonable for counsel to believe that choosing to ignore such evidence could result in lost or lowered credibility with the jury. We conclude that counsel's statement was within the range of permissible trial strategy and that Wright did not receive ineffective assistance of counsel.

In his pro se brief, Wright raises a number of arguments. After examining all of his arguments, we conclude that only two merit discussion. First, Wright argues that the district court committed prejudicial error by admitting into evidence expert testimony concerning his alleged gang affiliations.

Where the court errs of an evidentiary ruling, a reversal will only be warranted if the error influences the jury substantially to convict. State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981). This court has held that it was error for the district court to preclude testimony regarding the possible gang affiliation of witnesses because such testimony was relevant to the witnesses' possible bias. State v. Brown, 455 N.W.2d 65, 69 (Minn. App. 1990), review denied (Minn. July 6, 1990). Similarly, evidence of gang graffiti has been allowed into evidence to show that a murder was gang-related where the evidence "tended to prove motive." State v. Ferguson, 581 N.W.2d 824, 834 (Minn. 1998).

Here, the state introduced evidence regarding both Lymon's and Wright's gang affiliations. The evidence was presented to show the motive for the shooting because Wright and Lymon were members of rival gangs. In allowing the evidence, the district court gave a cautionary instruction to the jury instructing the members on how they should consider the testimony concerning gang involvement. See State v. Kennedy, 585 N.W.2d 385, 392 (Minn. 1998) (stating where district court gave cautionary instruction, probability of jury giving undue weight to particular evidence was lessened). Wright has failed to demonstrate that the evidence, even if erroneously admitted, influenced the jury substantially to convict. We conclude that the district court did not commit prejudicial error by admitting expert testimony concerning Wright's alleged gang affiliation. We continue to caution that "gang affiliation" testimony, although always colorful, runs the risk of being more prejudicial than probative. It should never be received merely because it is offered. It needs to be examined closely for true relevance. "Guilt by association" is not due process.

Second, Wright argues that he received ineffective assistance of counsel because (1) his trial attorney failed to challenge for cause two jurors, who initially indicated during voir dire that they believed African-Americans tend to be more violent than other racial or ethnic groups; and (2) he was advised not to testify on his behalf.

The test of whether a juror is impartial is whether the juror "'can lay aside his impression or opinion and render a verdict based on the evidence presented in court.'" State v. Andrews, 282 Minn. 386, 394, 165 N.W.2d 528, 534 (1969) (quoting Irvin v. Dowd, 366 U.S. 717, 723, 81 S. Ct. 1639, 1643 (1961) (citations omitted)). A juror may be rehabilitated by questioning during voir dire that shows the juror would be able to objectively evaluate the testimony of all witnesses without bias. See State v. Williams, 593 N.W.2d 227, 238 (Minn. 1999) (holding juror properly seated despite initial statement he would tend to believe police officers more than other witness where juror was rehabilitated by subsequent questioning demonstrating his ability to fairly weigh and consider evidence presented during trial), cert. denied, 120 S. Ct. 180 (1999).

Based on the answers supplied in response to additional questioning by Wright's attorney, the two jurors in question evidenced their ability to be fair and impartial in the decision-making process. Under the circumstances, we conclude that trial counsel's decision not to challenge the two jurors was within the "wide range of reasonable professional assistance" permitted under Strickland.

Wright also claims that he received ineffective assistance of counsel because his trial attorney allegedly advised him not to testify and that, if he had done so, the outcome of the trial would have been different. A new trial shall be granted where defense counsel refuses to permit a client to testify, but not where counsel merely advises a client not to testify. State v. Rosillo, 281 N.W.2d 877, 879 (Minn. 1979) (stating if defense counsel had refused to permit appellant to testify, a new trial would be granted, but concluding no error because record demonstrated defense counsel simply advised appellant against testifying).

Wright does not claim that he was prevented from testifying. In fact, at trial he personally requested that the district court not give the jury an instruction about his failure to testify. Wright's trial counsel filed an affidavit stating he gave Wright advice on whether to testify. There is no indication that Wright's waiver of his right to testify was anything other than knowing and voluntary. Wright was not denied effective assistance of counsel with respect to his right to testify.

Affirmed.