This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Gary Lynn Underdahl,




Filed June 5, 2001

Klaphake, Judge


Polk County District Court

File No. K396000793


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


Wayne H. Swanson, Polk County Attorney, Andrew R.K. Johnson, Assistant County Attorney, Crookston Professional Center, 223 East Seventh Street, #101, Crookston, MN  56716 (for respondent)


John M. Stuart, State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230; and


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


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

U N P U B L I S H E D   O P I N I O N


Gary Underdahl appeals from the denial of his petition for postconviction relief, in which he challenged his 1996 convictions for kidnapping, burglary, assault, harassment, criminal sexual conduct, and making terroristic threats, all stemming from his conduct towards his estranged girlfriend, the mother of his four children.  Appellant argues that the trial court erred in instructing the jury that it could consider the defense’s failure to provide notice before calling an alibi witness, as required by Minn. R. Crim. P. 9.02.  He also argues that he was denied his right to effective assistance of counsel because his attorney failed to subpoena another alibi witness and introduced character evidence that allowed the state to present evidence of his prior criminal conviction.  Finally, appellant has filed a pro se brief raising various challenges, including ineffective assistance of counsel, judicial misconduct, insufficiency of evidence, failure of the state to disclose exculpatory evidence, admission of altered records, denial of access to the district court, and delay of this appeal. 

            Because the jury instruction was a proper statement of the law and a proper sanction for the defense’s failure to provide notice of the alibi witness, appellant is not entitled to postconviction relief on that issue.  Because the record reveals that appellant received effective assistance of counsel and that the issues raised in appellant’s pro se brief are without merit, we also affirm on those issues.  


This court reviews a postconviction court’s decision only to determine whether sufficient evidence supports the court’s findings.  We overturn a postconviction court’s decision only if the court abused its discretion. 


Hummel v. State, 617 N.W.2d 561, 563 (Minn. 2000) (citations omitted).

            1.         Jury Instructions 

            Appellant claims that the trial court erred in instructing the jury by allowing it to consider the defense’s failure to provide notice to the state until the day before trial that Beverly Peterson, appellant’s current girlfriend, would be an alibi witness.  Under Minn. R. Crim. P. 9.02, subd. 1(3)(c), the defense must inform the state of its alibi, the circumstances surrounding the alibi, and the "names and addresses of the witnesses the defendant intends to call" to testify to the alibi.  Under the rules, a trial court may impose sanctions for the failure to comply with these disclosure requirements.  See Minn. R. Crim. P. 9.03, subd. 8 (upon violation of discovery rules, court may “enter such order as it deems just in the circumstances”). 

            A trial court also has "significant discretion" in fashioning jury instructions.  State v. Broulik, 606 N.W.2d 64, 68 (Minn. 2000).  The instructions must accurately and fairly state the law, and where they do so, this court will not reverse.  Id.  Here, the trial court, to give consequence to the defense’s failure to follow rule 9.02, instructed the jury on the substance of the rule and the defense’s failure to comply with it, and then stated that the jury could consider the defense’s failure to comply with the rule “when deciding the validity of the defendant’s alibi defenses or in assessing the credibility of the defendant’s alibi witnesses.”

            Appellant claims that this instruction deprived him of his right to present a defense to the burglary charge because it effectively eliminated his alibi to that offense.  The instruction was both an accurate statement of the law and a measured response to the discovery violation, however.  The instruction did not direct the jury to find Peterson’s testimony not credible; it merely informed the jury of the defense decision to call Peterson in violation of the discovery rules. 

            Appellant also claims that the court’s instruction impermissibly shifted the burden of proof on the element of lack of consent to him.  We disagree; the instruction merely allowed the jury to consider the timing of the alibi disclosure in assessing the validity of the alibi.  The instruction was accurate when read in conjunction with the rest of the charge, which included a separate instruction on the burden of proof.  Under these circumstances, the trial court did not abuse its discretion in giving the instruction.

            2.         Ineffective Assistance of Counsel Claim

            Appellant claims that the postconviction court erred in concluding that he had failed to establish an ineffective assistance of counsel claim.  He alleges that his counsel was ineffective by failing to subpoena a second alibi witness to testify and by improperly placing appellant’s character in issue when eliciting character testimony from another defense witness.  To establish an ineffective assistance claim, appellant must show that "defense counsel’s performance was deficient, and * * * that the deficient performance prejudiced the defense."  State v. Gustafson, 610 N.W.2d 314, 320 (Minn. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)); see Hummel, 617 N.W.2d at 564.  Counsel’s performance must violate a standard of reasonableness that reflects “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) (quotation omitted).  Trial tactics, including what evidence to present to a jury and which witnesses to call, are decisions for trial counsel.  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).

            Appellant’s attorney testified at the postconviction evidentiary hearing that he did not subpoena Jeff Lucken, the second alibi witness, because he believed that obtaining Lucken’s appearance in that manner could alienate him as a witness.  The attorney also testified that appellant participated in the tactical decision to instead proceed with Peterson as the alibi witness, rather than seek a continuance to obtain Lucken.  Because these decisions were tactical, they do not constitute ineffective assistance of counsel.  See Scruggs v. State, 484 N.W.2d 21, 26 (Minn. 1992) (trial counsel has discretion to decide scope of evidence to present and which witnesses to call at trial); Jones, 392 N.W.2d at 236 (same).

            Likewise, the decision on whether to elicit character evidence from another defense witness, Kenneth Bradwick, was a tactical decision.  Bradwick was an established business owner who had known appellant for 30 years and who had employed appellant in the past.  Through Bradwick’s testimony, defense counsel hoped to prove that the victim habitually lied to hurt appellant.  In eliciting Bradwick’s testimony, appellant’s counsel balanced the harm that could be inflicted by the jury’s learning of appellant’s 1988 possession of a firearm conviction against the opportunity to establish his theory of the case.  This was also a tactical decision that does not constitute ineffective assistance of counsel.                

            3.         Appellant’s Pro Se Issues  

            Appellant also raises numerous issues in his pro se brief, many of which were presented to and determined by the postconviction court.  We have fully considered these issues and conclude that they are without merit.  See State v. Patterson, 577 N.W.2d 494, 499 (Minn. 1998).