This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-00-1101

 

 

Preston Tuley Ridsdale III, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed January 30, 2001

Affirmed

Schumacher, Judge

 

Stearns County District Court

File No. K2964201

 

 

John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy Public Defender, Jodie L. Carlson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

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

 

Roger S. Van Heel, Stearns County Attorney, 448 Administration Center, 705 Courthouse Square, St. Cloud, MN 56303-4773 (for respondent)

 

 

            Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Amundson, Judge.


U N P U B L I S H E D   O P I N I O N

SCHUMACHER, Judge

            Appellant Preston Tuley Ridsdale, III challenges his convictions for terroristic threats, theft, and receiving stolen property, claiming that (1) a warrant to search his residence was not sufficiently specific and the executing officers exceeded the scope of the warrant, (2) the district court abused its discretion in declining to grant a continuance so that Ridsdale's attorney would have adequate time to prepare for trial, and (3) he was denied the effective assistance of counsel.  We affirm.

FACTS

Ridsdale became romantically involved with R.J. and moved into her home.  In November 1996, the couple quarreled and R.J. left her home to stay with friends. Ridsdale made several phone calls to R.J., telling her to return home or he would come to get her.  Fearing harm, R.J. contacted the police.  She told the police that there were certain items in her home that she believed Ridsdale had stolen, including items from vehicles owned by U.S. West and a cable television company.  The police described these events and statements in an application for a warrant to search R.J.'s home.  The application also referenced an attached police report, which delineated a list of items recently stolen from a U.S. West vehicle near R.J.'s home.

            The warrant was issued to search R.J.'s home for the listed items.  Finding Ridsdale at R.J.'s home, the police provided him with a copy of the search warrant but not a copy of the referenced police report.  The police seized items that they determined to be of the same kind that might be found in a U.S. West vehicle or a cable television vehicle.  Also, during the search, R.J. spoke to the police over the telephone and informed them of additional items she believed that Ridsdale had stolen and asked that they be removed from her home.  The police complied.  Local individuals and business owners identified much of the seized property as their own.  Two employees of U.S. West identified many of the seized tools as having been stolen from their company vehicles in separate thefts. 

On November 19, 1996, Ridsdale was charged with terroristic threats, theft, and receiving stolen property.  On November 7, 1997, the district court set a trial date for January 27, 1998.  On January 12, 1998, Ridsdale retained a private attorney and fired his court-appointed attorney.  His new attorney subsequently moved for a continuance in order to have more time to prepare for trial but at the same time stated that he could, if necessary, be prepared for trial by January 27.  The district court denied the request for a continuance, finding that either attorney could be prepared for trial by the scheduled date and that Ridsdale would have to choose between the two.    At trial, Ridsdale's attorney advised his client to stipulate that some of the items seized from R.J.'s home were stolen.  Also, his attorney advised Ridsdale to stipulate that he had committed prior similar crimes, bargaining with the prosecution to preclude evidence of other prior crimes.  Finally, concerned that Ridsdale's demeanor would damage his case, his attorney advised Ridsdale not to testify.  Ridsdale followed his attorney's advice on all these matters.

R.J. and her children testified that Ridsdale had stolen much of the seized property from the U.S. West vehicle, from businesses and from individuals.  U.S. West employees testified that many of the seized tools had been stolen from their company vehicles.  The jury found Ridsdale guilty on all counts.  Following a postconviction hearing, the district court determined that Ridsdale was not denied the effective assistance of counsel.  This appeal followed.

D E C I S I O N

1.         When examining pretrial orders on motions to suppress evidence, the reviewing court may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing or not suppressing the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

Ridsdale contends that the search warrant lacked specificity.  A search warrant must describe with particularity the items to be seized during the search to prevent general or exploratory searches by law enforcement officials.  State v. Mathison, 263 N.W.2d 61, 63 (Minn. 1978).  The degree of specificity required in a search warrant is flexible, and depends on the circumstances and types of items involved.  State v. Ruud, 259 N.W.2d 567, 573 (Minn. 1977).  A warrant which describes things in broad or generic terms may be valid "when the description is as specific as the circumstances and the nature of the activity under investigation permit."  State v. Hannuksela, 452 N.W.2d 668, 674 (Minn. 1990) (quotation omitted).  We conclude the description of the items to be seized was sufficiently specific.

Ridsdale also claims that the executing officers exceeded the scope of the warrant by seizing items not specifically listed therein.  The items seized, however, were of the type described in the warrant and were in fact later identified as having been stolen.  See Hannuksela, 452 N.W.2d at 674 (upholding district court's decision not to suppress evidence, described generally as any property of victim found on premises, where all property seized was either described in warrant or was imprinted with victim's name and later determined to be owned by the victim).  As for the items seized that were not described in the search warrant, those items were properly seized in the course of a consent search after R.J. had given the police her express permission to take those particular items from her home.  See State v. Richards, 552 N.W.2d 197, 203 (Minn. 1996).

2.         The decision to grant a continuance is vested in the sound discretion of the trial court and will not be reversed absent an abuse of discretion.   State v. Miller, 488 N.W.2d 235, 239 (Minn. 1992).  A reviewing court examines the circumstances surrounding the requested continuance and whether the denial was so prejudicial to the preparation of an adequate defense as to materially affect the outcome of the trial.  Id.  The supreme court held that no prejudice resulted from a trial court's refusal to grant a continuance where the defendant's newly-appointed counsel had only 19 days to prepare for trial, reasoning that "this is a factor that appellant should have considered when he changed counsel at such a late date."  State v. Sanders, 598 N.W.2d 650, 655 (Minn. 1999).  Here, Ridsdale was charged with the offenses on November 19, 1996, and on November 7, 1997, a trial date was set for January 27, 1998. Ridsdale's substitute attorney stated to the court that, if necessary, he could be ready for the January 27, 1998 trial date.  We conclude that no prejudice resulted from the trial court's denial of the motion for a continuance.

3.         Ridsdale claims the trial court erred in denying his motion for a new trial based on his claim of ineffective assistance of counsel.  On an appeal from a denial of postconviction relief, the reviewing court's role is limited to determining whether there is sufficient evidence to support the postconviction court's findings. Zenanko v. State, 587 N.W.2d 642, 644 (Minn. 1998).  The postconviction court's decision will not be reversed absent an abuse of discretion.  Id.

Claims of ineffective assistance of counsel present a mixed question of law and fact, Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052, 2070 (1984), which we review de novo.  Meyering v. Wessels, 383 N.W.2d 670, 672 (Minn. 1986); see also Barger v. United States, 204 F.3d 1180, 1181 (8thCir. 2000) (“An ineffective assistance of counsel claim presents a mixed question of law and fact.  The ineffective assistance claim is reviewed de novo, while the district court’s factual findings are reviewed for clear error.”).

In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), the United States Supreme Court articulated a two-pronged analysis for determining whether a criminal defendant should be granted a new trial because of counsel's deficient performance.  The test encompasses a deficiency prong and a prejudice prong.  Id.

Under the deficiency prong, a defendant must demonstrate that his counsel's performance "fell below an objective standard of reasonableness."  Id. at 688, 104 S. Ct. at 2064; Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).  In Minnesota, the standard is "representation by an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances."  State v. Gassler, 505 N.W.2d 62, 70 (Minn. 1993) (internal quotation and citation omitted).   There exists a strong presumption that a counsel's performance fell within the range of reasonableness.  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).  "Appellate courts, which have the benefit of hindsight, do not review for competency matters of trial strategy."  State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999).

Here, the district court determined that Ridsdale’s attorney was using trial strategy and tactics in advising his clients to make the stipulations at issue and in advising his client not to testify on his own behalf.  The stipulations were part of an overall strategy to preclude damaging evidence.  Advising his client not to testify on his own behalf was based on legitimate concerns that Ridsdale’s demeanor might damage his case.  Under these circumstances, we cannot say that his attorney’s performance fell below an objective standard of reasonableness.

Even if Ridsdale could show that his attorney’s performance was deficient, the district court determined that he suffered no prejudice as a result.  Under the prejudice prong of the Strickland test, a defendant must demonstrate “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  466 U.S. at 694, 104 S. Ct. at 2068; Gates, 398 N.W.2d at 561.  On review, an appellate court considers whether, under the totality of the circumstances, the result of the proceeding would have been different if counsel had not erred.  King v. State, 562 N.W.2d 791, 796 (Minn. 1997). Reviewing the evidence presented against Ridsdale at trial, we cannot say that his testimony or the removal of the stipulated facts would have changed the result.

4.         Ridsdale has filed a pro se supplemental brief and a reply brief.  To the extent that he raises legal issues in these briefs, most mirror those discussed at length in his main brief.  All other issues discussed therein were not argued below and are not supported in the record. 

Affirmed.