This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,





Kyle Jay Cigelske,




Filed July 25, 2000


Schumacher, Judge


Clay County District Court

File No. K8971984



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


Lisa N. Borgen, Clay County Attorney, Clay County Courthouse, 807 North 11th Street, Post Office Box 280, Moorhead, MN 56561 (for respondent)


John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Shumaker, Presiding Judge, Schumacher, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Kyle Jay Cigelske challenges his conviction of fleeing a police officer, arguing ineffective assistance of counsel and that the trial court erred by not dismissing the complaint due to destruction of evidence.  We affirm.


            On December 4, 1997, police officer Brian Dahl was patrolling Moorhead in a marked squad car when he observed a pickup truck that he recognized as belonging to Cigelske.  There was an arrest warrant out for Cigelske.  Dahl had been looking for Cigelske for about a week.  Dahl recognized Cigelske as the pickup driver. 

According to Dahl's trial testimony, when he got behind Cigelske, Cigelske was watching Dahl in his rearview mirror and in his side mirror on his left.  Dahl followed Cigelske for a block and then activated the squad car's emergency lights.  Cigelske made no attempt to stop, increased his speed, and continued to watch Dahl in his mirrors.  When Dahl caught up to Cigelske two blocks later, Dahl turned on the squad car's siren.  Cigelske turned right, drove a block, and drove through a stop sign.  He drove into the driveway of a residence and came to a stop. 

According to Dahl, Cigelske jumped out of the pickup truck and headed towards the front door of the house.  Dahl drove into the driveway, jumped out of his squad car, and hollered at Cigelske to stop.  Cigelske stopped but refused to tell Dahl his name or provide identification.  When Dahl asked Cigelske why he had not stopped, Cigelske said that he wanted to get the truck into the driveway so that it would not be impounded.

Cigelske testified that when he heard the siren, he slowed down but could not stop because the street was lined with parked cars.  He tried to stop at the stop sign but he slid through the intersection because the road was "pure ice."  He then "gunned it" to avoid an on-coming car and drove into his driveway.  He testified that all the mirrors on his truck were missing.  The truck was impounded and eventually sold.  The subsequent owner and several police officers all testified that the vehicle did in fact have outside and rearview mirrors when it was impounded and when it was sold.  An officer also testified that the roads were not particularly icy on December 4, 1997.

The complaint charged Cigelske with fleeing a police officer in violation of Minn. Stat. § 609.487, subd. 3 (1996).  Cigelske filed a motion to dismiss on the grounds that a dispatch tape recording no longer existed and that the police had sold his impounded truck.  The court issued a March 2, 1999 order denying the dismissal motion.  After the June 8, 1999 trial, the jury found Cigelske guilty of fleeing a police officer.  The court imposed a 30-day jail sentence but stayed it pending this appeal.


1.         The Due Process Clause of the Fourteenth Amendment imposes on the government a duty to deliver "exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system."  California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532 (1984); cf. Minn. R. Crim. P. 9.01, subd. 1(6) (requiring disclosure of exculpatory information).  A defendant claiming that the loss or destruction of evidence constitutes reversible error must show "that the destruction was intentional and that the exculpatory value of the evidence was apparent and material."  State v. Friend, 493 N.W.2d 540, 545 (Minn. 1992) (citing Trombetta, 467 U.S. at 488-89, 104 S.Ct. at 2533-34 (1984)).  The defendant must show bad faith on the part of the state to establish a due process violation.  State v. Schmid, 487 N.W.2d 539, 541 (Minn. App. 1992), review denied (Minn. Sept. 15, 1992).  Minnesota courts also examine the strength of the state's case if the evidence had not been destroyed.  State v. Harris, 407 N.W.2d 456, 460 (Minn. App. 1987), review denied (Minn. July 31, 1987).

            Cigelske first argues that destruction of the dispatch tape warrants reversal of his conviction.  At the omnibus hearing, Cigelske's counsel suggested that the tape would have been exculpatory because it would show when the chase began and when it ended. Fleeing involves increasing speed or using other means in an attempt to elude an officer following a signal given by the officer.  Minn. Stat. § 609.487, subd. 3 (1996).  The dispatch tape does not possess any apparent exculpatory value since the duration of the flight is not dispositive.  Cigelske would have to show bad faith to establish a due process violation, but there is no evidence of bad faith.  Finally, the state would have had a strong case even if the tape revealed that the pursuit took place over only a few minutes.

            Cigelske also argues that his conviction should be reversed because of the sale of the pickup truck.  He contends that if the pickup truck were available in the condition it was in at the time of the offense, he would have established that it lacked a rearview mirror.  But the truck's new owner testified at trial.  Three witnesses provided testimony indicating that the truck had rearview and side mirrors when it was impounded and when it was sold.  As with the tape, Cigelske is not able to establish the truck's materiality, any bad faith, or an otherwise weak case.

2.         Generally a direct appeal from conviction is not the most appropriate way to raise a claim of ineffective assistance of counsel, but we will address the issue at the request of an appellant where the existing record is adequate.  State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000).  To establish a claim of ineffective assistance of counsel, Cigelske must affirmatively show the representation "'fell below an objective standard of reasonableness'" and "'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)).  In this case, Cigelske contends his counsel's conduct was unreasonable and prejudicial since counsel did not attempt to obtain the tape and truck until a year after the complaint had been filed.  But because neither the tape nor the truck appears to be exculpatory, counsel's conduct does not fall outside the presumptive range of reasonableness.  See State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (strong presumption that counsel's performance falls within range of reasonableness).  Furthermore, absent a more concrete showing, Cigelske's speculative assertions as to the evidentiary value of the tape and truck do not suggest any prejudicial effect.  See Gates, 398 N.W.2d at 563 (improper to base reversal on speculation about what might have been; more concrete showing must be made).