This opinion will be unpublished and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

C8-99-910

 

 

State of Minnesota,

Respondent,

 

vs.

 

Shah Quran Ehassan Aziz,

Appellant.

 

Filed August 8, 2000

Affirmed

Shumaker, Judge

 

Hennepin County District Court

File No. 98063932

 

 

 

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103-2106, and

 

Amy Klobuchar, Hennepin County Attorney, Beverly J. Benson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)

 

Considered and decided by Klaphake, Presiding Judge, Crippen, Judge, and Shumaker, Judge.

 

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

Appellant Shah Aziz challenges his conviction for kidnapping and solicitation of prostitution, alleging various trial errors, prosecutorial misconduct, and ineffective assistance of counsel.  The supreme court remanded this court’s earlier opinion for reconsideration under the standard of review for direct appeals.  State v. Aziz, ___ N.W.2d ___ (Minn. June 13, 2000).  We affirm.

FACTS

The state charged appellant Shah Aziz with solicitation and inducement of prostitution, and kidnapping.

The complaining witness against Aziz was J. R., an 18-year-old woman.  She testified that she and her girlfriend, C. N., met Aziz in early May, 1998.  Aziz first persuaded the women to assist him in a scheme to defraud a bank.  At about the same time, he began to ask J. R. to work for him as a prostitute.  Initially J. R. thought Aziz was joking, but she realized he was serious when he took her to a “strip club” and told her about making money there.  He repeatedly asked her to become a prostitute, but she refused.

On June 24 or 26, 1998, Aziz coaxed J. R. to get into his car so they could talk.  C. N. was in the car with Aziz.  When J. R. got in, Aziz drove off.  J. R. became frightened because Aziz began to yell at her, claiming that she made him lose money.  He said he could either beat her or she could work to earn his money back.  Aziz had kicked and slapped her on a previous occasion.

As they drove, J. R. asked to be let out of the car.  Aziz refused.  He traveled to St. Paul and stopped at the home of a woman named Doris.  He told J. R. that she would have to go into Doris's house and perform oral sex on her for $200.  Aziz accompanied J. R. inside and told her to get undressed.  J. R. said she did not want to and Aziz began to take her clothes off.  She was scared and nervous.  After J. R.'s clothes were off, Doris said she wanted a blond.  J. R. got dressed and she and Aziz left.  They next went to a four-plex where a woman named DeeDee lived.  They went to an apartment across the hall from DeeDee's residence.  Aziz told J. R. to go into the bedroom and get undressed.  She did not want to do so but complied because she was scared and did not know where she was.  A female came into the bedroom and engaged in sexual contact with J. R. while Aziz watched.  The woman gave Aziz $200.  Before leaving the apartment, Aziz used the telephone to try to reach a man who he said would allow J. R. to earn money to repay Aziz.

Aziz, J. R. and C. N. next went to a convenience store.  J. R. was able to telephone her boyfriend and tell him she was being held against her will.  Eventually, the police arrested Aziz.

Aziz testified that J. R. and C. N. devised a scheme to work voluntarily as prostitutes.  Aziz was to provide start-up capital, place escort service ads, take customers' calls, and buy clothing and lingerie for the women.

To corroborate his contention that J. R. was a voluntary prostitute, Aziz proposed to call Doris Walker to testify.  The state moved to preclude Walker's testimony for failure to disclose her as a witness.  During the trial, the court held a hearing at which Walker testified.  She stated that she did not recall any incident in June 1998 when Aziz forcibly removed a young woman's clothing.  She did recall a time that Aziz brought a young woman to her home, and the woman removed her own clothing and made advances toward Walker.  Walker was not able to name the woman but gave a general physical description.

The court ruled that Walker's testimony would be precluded because of lack of foundation.  The court said:

She's not specific, really, as to the date.  And she basically says, “Somebody whose name I do not know came at a time I'm not sure of, took off the clothes voluntarily and tried to have sex with me.”

 

* * * I think there's insufficient evidence to show that the incident she's talking about is an incident that has been described in the government's case‑in‑chief.  Therefore, I think its relevance has not been established with the required foundation.

 

Defense counsel then proposed to lay sufficient foundation by calling J. R. and C. N. as witnesses and having them identify Doris Walker in the courtroom.  That would require a continuance from Friday until the following Monday.  The court stated that if it had additional testimony to consider it “would be forced to reconsider” its ruling but, depending on the circumstances, the court “wouldn't be inclined to change [its] mind.”

The court denied defense counsel's motion for continuance.  Aziz then testified for the balance of the day and the court recessed until Monday.

On Monday, defense counsel told the judge and prosecutor that he had received a voice-mail message from Walker stating:  “I know I'm supposed to be there but I think you guys are probably not going to get started until about noon.”

Defense counsel asked for some time to locate Walker.  The court replied, “We are not going to wait until she chooses to be here.”

The court and counsel then discussed the jury instructions.  Trial resumed at 10:33 a.m.  The court told defense counsel that he could call his next witness.  Counsel looked in the hallway, returned, and said: “We have no other witnesses, Your Honor.  Defense rests.”

Aziz alleges that the prosecutor made four prejudicial statements during his final argument: (1) that the defense demonstrated a “flexibility with the truth” when the defense attorney urged the jury to consider the lesser offense of false imprisonment; (2) that the defendant raised inconsistent theories of defense; (3) that Aziz had a major motivation to commit perjury because no one had more to gain or lose than he; and (4) that it was sick for defendant to have watched two women engage in sex.

On appeal, Aziz contends the trial court erred in refusing to grant a continuance; he was denied effective assistance of counsel because his attorney failed to subpoena Doris Walker; and the prosecutor committed prejudicial misconduct in his final argument.

D E C I S I O N

Continuance Request

A ruling on a request for continuance is within the trial court's discretion, and a conviction will not be reversed for denial of the request unless the denial is a clear abuse of discretion.  State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987).  On appeal, we must determine whether the denial was so prejudicial as to have materially affected the outcome of the case.  State v. Lloyd, 345 N.W.2d 240, 247 (Minn. 1984).

When assessing the significance of the denial of a continuance requested for the purpose of locating a witness

we must consider whether [the defendant] sufficiently showed, when he moved for the continuance, that the missing witness would be found within a reasonable time and would provide favorable, noncumulative evidence.

 

State v. King, 414 N.W.2d 214, 219 (Minn. App. 1987).

Defense counsel made no showing that he could produce Walker within a reasonable time.  She did not appear on Monday morning for the start of trial.  Her message did not state that she would be late, or that she had a problem coming to court, or even that she intended to appear.  She had not arrived by 10:33 a.m.  Nor had she appeared by the conclusion of the case.  Counsel suggested nothing that would support an inference that Walker would arrive within a reasonable time or at all.  Aziz thus failed to satisfy the first criterion of King.

Defense counsel hoped that he would be able to lay sufficient foundation to persuade the trial court to change its ruling and to allow Walker to testify.  The record contains only counsel's hope and wish.  It reveals nothing to suggest that counsel could in fact lay the requisite foundation.  Without some showing beyond defense counsel's surmise, the second criterion of King fails.  It should be noted that Aziz does not challenge the trial court's exclusion of Walker as a witness.  The trial court did not abuse its discretion in denying counsel's motion to continue the trial.

Prosecutor's Final Argument

Whether a new trial should be granted because of misconduct of the prosecuting attorney is governed by no fixed rules but rests within the discretion of the trial judge, who is in the best position to appraise its effect.  The trial court's determination should be reversed on appeal only where the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that defendant's right to a fair trial was denied.  State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980).

The test of determining whether prosecutorial misconduct was harmless depends partly upon the type of misconduct with which we are dealing.  That is, the more serious the misconduct, the more certain of its effect this court has felt that it should be before labeling the error harmless.  Thus, in cases involving unusually serious prosecutorial misconduct this court has required certainty beyond a reasonable doubt that the misconduct was harmless before affirming.  * * * On the other hand, in cases involving less serious prosecutorial misconduct this court has applied the test of whether the misconduct likely played a substantial part in influencing the jury to convict.

 

State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974).

Defense counsel objected only to the reference that Aziz was the person who had the most to gain or lose in the case.  The ground offered for the objection was that the statement was an “[a]d hominem argument.”  The court's response was:  “Why don’t you just go on with your facts?”  Defense counsel did not object to any of the other three allegedly improper comments.

Although defense counsel did not object to the prosecutor's opinion that watching two women have sex is sick, the court itself intervened, saying that what bothers the prosecutor is not important.

Generally, by failing to object at trial or to seek cautionary instructions, an appellant is deemed to have forfeited his right to have the issue considered on appeal.  State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980).  The Minnesota Supreme Court has stated:

[C]arefully worded instructions by the trial court can ameliorate the effect of improper prosecutorial argument.  Therefore, a defense counsel's failure to object or to request curative instructions normally weighs heavily in our decision whether or not to reverse on the basis of prosecutorial misconduct in closing argument.

 

State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984).

Even if a defendant fails to object to an improper argument, his conviction may be reversed if the prosecutor's comments were unduly prejudicial.  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997) (citations omitted).  On appeal, however, the trial court's determination should be reversed only if the misconduct

viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that defendant's right to a fair trial was denied.

 

Wahlberg, 296 N.W.2d at 420.

It is improper for a prosecutor to disparage a defendant's defense.  State v. Griese, 565 N.W.2d 419, 427 (Minn. 1997); State v. Williams, 525 N.W.2d 538, 549 (Minn. 1994).  Here the credibility of J. R. and of Aziz was critical to the case.  The prosecutor's comments about inconsistent theories, a lesser-included offense, and motivation to fabricate were all proper comments on issues of law or fact raised by Aziz. Although it is not legally impermissible for a criminal defendant to take alternative and inconsistent legal positions, doing so invites prosecutorial comment.  The prosecutor did not disparage the legal defenses but rather suggested that they shed light on Aziz's credibility.  This was not improper.

The prosecutor's statement of his own opinion that a person who watches two women having sex is sick was improper.  State v. Eling, 355 N.W.2d 286, 294 (Minn. 1984).  But the reference was isolated, fleeting, and was not sufficiently pervasive or egregious to constitute prejudicial misconduct.

Assistance of Counsel

Aziz contends that he was deprived of the effective assistance of counsel because his lawyer failed to subpoena Doris Walker.

To succeed on such a claim Aziz must affirmatively prove that his counsel's representation fell below an objective standard of reasonableness and that 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) (quotations omitted).  “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Id.

In determining whether counsel's representation fell below the requisite standard, we must first decide if the representation was “reasonable in light of all the circumstances.”  Dent v. State, 441 N.W.2d 497, 500 (Minn. 1989) (citation omitted). There is a strong presumption that a lawyer's performance falls within the range of reasonableness.  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).  In reviewing an attorney's performance at trial, this court recognizes that counsel must have discretion to determine trial strategy and must have the flexibility to represent a client to the fullest extent possible.  Id.

The supreme court has held that a claim of ineffective assistance of counsel should generally be raised in a postconviction petition, rather than on direct appeal.  State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000).  A postconviction hearing provides the court with additional facts necessary to explain trial counsel’s actions. Id.  But here Aziz has failed to show any prejudice from his attorney’s failure to subpoena Walker.  See Jones at 236-37 (holding that even if counsel made errors, conviction will not be reversed unless the errors prejudiced the defendant). 

Walker appeared in court for the motion in limine hearing regarding the admissibility of her testimony.  She did so at defense counsel's request.  There is nothing in the record to suggest that her court experience was threatening or opprobrious.  She apparently agreed to return on Monday.  Furthermore, she was a friend of Aziz and was ostensibly giving testimony in his favor.  It is speculative to say that defense counsel's failure to subpoena Walker resulted in her failure to appear.  Moreover, the trial court had excluded Walker's testimony and had stated that it was not inclined to permit it even on reconsideration.  Even if Walker had obeyed a subpoena and come to court, it remains speculative whether the trial court would have changed its ruling and allowed her to testify.  Therefore, Aziz has failed to show prejudice from any error of counsel in failing to subpoena Walker.

Pro se Issues

In his pro se supplemental brief, Aziz claims the trial court erred in allowing one accomplice to testify in corroboration of another; in admitting Spreigl evidence; and that defense counsel failed to cross-examine J. R. and to call other defense witnesses.

We find no merit in these claims.  Aziz has failed to show that J. R. and C. N. were accomplices.  The Spreigl evidence, on this record, was admissible.  Defense counsel did in fact cross-examine J. R. on all relevant points.  Which witnesses to call is part of a lawyer's trial strategy.  Aziz has not shown that he was prejudiced by that strategy.

Affirmed.