This opinion will be unpublished and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

C5-00-2055

 

 

Terri Gustafson,

petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed May 22, 2001

Affirmed
Foley, Judge
*

 

Itasca County District Court

File No. K8961642

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

 

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

 

John J. Muhar, Itasca County Attorney, Itasca County Courthouse, 123 Fourth Street NE, Grand Rapids, MN 55744 (for respondent)

 

 

Considered and decided by Lansing, Presiding Judge, Anderson, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant, who previously filed a direct appeal, challenges the district court’s order denying her petition for postconviction relief, arguing that she received ineffective assistance of counsel at trial.  We affirm. 

FACTS

            Appellant Terri Gustafson was convicted of assault in the first and second degree in violation of Minn. Stat. §§ 609.221; 609.222, subd. 2; 609.11 (1996).  On the evening of October 12, 1996, appellant and her husband, Tim Peterson, began arguing after a bout of drinking that led to later events at their home.  The facts of the case are fully discussed in State v. Gustafson, 610 N.W.2d 314, 316-18 (Minn. 2000).

            At some point, appellant was inside the couple’s home holding a gun while her husband was outside seeking entrance.  Appellant knew that the person outside the door was not an intruder, but her husband who had equal access to the home.  Several moments after Peterson entered, the gun discharged, striking him in the leg.  From the beginning, appellant maintained that the shooting was an accident. 

            The case eventually reached the supreme court, which affirmed the decision of this court, but declined to reach the issue of ineffective assistance of counsel.  Id.  Thereafter, appellant petitioned for postconviction relief.  The postconviction court denied relief concluding that appellant failed to demonstrate that her counsel’s representation fell below an objective standard of reasonableness or that the outcome of her trial would have been different but for counsel’s alleged errors.  This appeal followed.

D E C I S I O N

            We review a postconviction proceeding to determine whether the evidence is sufficient to sustain the findings of the postconviction court.  Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).  Absent an abuse of discretion, a postconviction court’s decision will not be disturbed on appeal.  McMaster v. State, 551 N.W.2d 218, 218 (Minn. 1996). 

            To succeed on a claim of ineffective assistance of counsel, petitioner must demonstrate that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s errors, the proceeding’s outcome would have been different.  King v. State 562 N.W.2d 791, 795 (Minn. 1997). 

I.

            Appellant argues that her attorney was deficient in failing to request an instruction on self-defense modified for accident.  But "[t]here is a strong presumption that a counsel’s performance falls within the wide range of ‘reasonable professional assistance.’” State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). 

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) (citation omitted)).  Here, the judge presiding over the postconviction court was the same judge who presided over appellant’s trial and, therefore, had the opportunity to observe both appellant and defense counsel with respect to the specific areas in which appellant claims her attorney’s counsel was ineffective. 

            Ordinarily, decisions about

[w]hat evidence to present to the jury, including which defenses to raise at trial and what witnesses to call, represent an attorney’s decision regarding trial tactics which lie within the proper discretion of trial counsel and will not be reviewed later for competence. 

 

Voorhees, 596 N.W.2d at 255 (citation omitted).  Accordingly, defense counsel’s conduct regarding a possible self-defense claim falls squarely within the realm of trial tactics.  At the postconviction hearing appellant’s counsel declined to characterize the reasons for not pursuing self-defense modified for accident as tactical or strategic decisions.  This, however, does not negate the fact that appellant’s counsel, in pursuing accident as the most viable defense, made a choice based on the totality of the evidence. 

            “[F]ailure of defense counsel to interpose defenses * * * which on the record would have been without merit does not constitute inadequate representation.”  State v. Roberts, 279 Minn. 319, 323, 156 N.W.2d 760, 763 (1968) (citations omitted).  A defendant is entitled to an instruction on his or her theory of the case if there is evidence to support it.  State v. Blasus, 445 N.W.2d 535, 542 (Minn. 1989). 

            Appellant elected not to testify, thereby foregoing any opportunity to explain her subjective belief that she was in danger of immediate bodily harm or death.  No evidence was offered to show that Peterson assaulted, endangered, or threatened appellant during the two to five minute time period after he gained entry into his own home.  No evidence was presented of any history of spousal abuse or of previous threatening behavior.  The 911 tape, on which appellant can be heard repeatedly stating that the shooting was an accident, was admitted into evidence.  Appellant did not argue self-defense at trial, or otherwise suggest a reliance on self-defense in questions to witnesses.

            The postconviction court found that

[t]he facts and circumstances of the case strongly support the defense of accident, not self-defense.  The evidence, including the testimony at the post conviction relief hearing, establishes that Attorney Gallagher decided to focus on accident because Attorney Gallagher believed that accident was the most persuasive defense available to [appellant]. 

 

* * * *

 

[Appellant’s counsel] properly had to consider all of the facts and evidence in deciding the approach to use in defending [appellant] to the jury.  [He] clearly decided that accident was the most persuasive defense available to [appellant].  His decision was reasonable. 

 

The evidence in the record supports this finding by the postconviction court.  Because the conduct of appellant’s attorney did not fall below an objective standard of reasonableness, the postconviction court did not abuse its discretion in concluding that the legal representation appellant received was not deficient. 

II.

            Even if appellant could show her attorney’s representation was deficient, she would have to demonstrate that she was prejudiced by her attorney’s failure to request the self-defense instruction.  Specifically, appellant must establish that the result of her trial would have been different but for her attorney’s failure to request the instruction.  See Scruggs, 484 N.W.2d at 25.  This 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). 

The elements of self-defense are:

(1) the absence of aggression or provocation on the part of the defendant; (2) the defendant’s actual and honest belief that he or she was in imminent danger of death or great bodily harm; (3) the existence of reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat to avoid the danger. 

 

State v. Basting, 572 N.W.2d 281, 285-86 (Minn. 1997) (citation omitted).  The fourth element is not at issue here because appellant and Peterson were cohabitants.  See State v. Carothers, 594 N.W.2d 897, 904 (Minn. 1999). 

Appellant has the initial burden of presenting evidence to support a self-defense claim.  See State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998).  Appellant must submit “reasonable evidence that the victim was committing an independent assault on [appellant] at the time [she] fired the gun.”  State v. Boitnott, 443 N.W.2d 527, 532 (Minn. 1989) (quotations omitted).  There is no such evidence in the record.  In addition to what has already been discussed, the record contains additional facts and evidence that would further undermine a self-defense argument. 

            Once Peterson gained entry to his own home by punching the latch, there is no evidence in the record of any threatening acts against appellant.  The record establishes that appellant knew it was Peterson breaking in and not an “intruder.”  The evidence indicates that the two had been yelling back and forth through the door for two to five minutes before he entered the home. 

            Appellant repeatedly changed her story as to what actually happened, both during the 911 call and in her inconsistent statements.  This inconsistency would have undermined her credibility if she had chosen to testify.  If it were truly self-defense, appellant would not, as overheard by the dispatcher, have begged Peterson to tell “them” it was an accident.  Neither would appellant have stated that the gun simply went off when Peterson was cleaning it and that he shot himself.  Appellant changed her story again when she told police that she had been awakened by an intruder breaking in.  This story was refuted by the testimony of the neighbors who heard a muffled female voice emanating from the cabin as appellant and Peterson yelled back and forth prior to his gaining entry into the house. One neighbor testified that “once [appellant] started screaming, ‘I can’t believe you did that to the door,’ from that time to the gunshot was more than two minutes.”  Appellant’s contention that she was reacting to an unknown “intruder” is untenable. 

            The record does not reveal evidence of imminent serious harm or death, or a history of spousal abuse, and there is no evidence that brandishing a shotgun was reasonably necessary to avert any objective potential danger.  Thus, even if appellant were able to meet her burden on the first two elements of self-defense, the record does not support the third element and self-defense, therefore, must fail.  There is simply nothing in the record that would support a reasonable conclusion that the outcome of the trial would have been different had there been a self-defense instruction.  Therefore, the postconviction court did not abuse its discretion in denying relief. 

            As for any failure to formally request an instruction for accident, the supreme court concluded in the first appeal that “the intent instructions, together with the closing arguments, made the jury aware that accident was a defense.”  Gustafson, 610 N.W.2d at 319.  We must therefore conclude that appellant was not prejudiced by the lack of an accident instruction. 

            Appellant’s argument that a self-defense instruction can be modified for the concept of accident is not without merit.  See State v. Malaski, 330 N.W.2d 447, 453 (Minn. 1983) (self-defense instructions defective because “the court failed to modify them to fit the contentions of the parties”); see also State v. Edwards, 343 N.W.2d 269, 277 (Minn. 1984) (“the trial court should use analytical precision in instructing on self-defense”).  But this presupposes that the self-defense theory is viable.  Here, it is not. 

            We affirm the postconviction court’s conclusion that appellant received effective assistance of counsel. 

            Affirmed



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.