This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Eric M. DeRoos,
Ramsey County District Court
File No. K700268
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
Craig E. Cascarano, 333 South 7th Street, Suite 2890, Minneapolis, MN 55402 (for appellant)
Considered and decided by Willis, Presiding Judge, Halbrooks, Judge, and Hanson, Judge.
Following his conviction of a felon in possession of a firearm, appellant challenges the sufficiency of the evidence and the denial of his motion for new trial based on ineffective assistance of trial counsel. Because the record supports the conviction and the trial court acted within its discretion, we affirm.
Appellant Eric Michael DeRoos sold a car to Matthew Jacob. Because Jacob failed to complete payment, appellant, along with friends James Lindell and Scott Popa, went to Jacob’s residence between midnight and 2:00 a.m. on July 21, 1999, and repossessed the car. A number of Jacob’s possessions were in the car, including a handgun. Missing from the car was a stereo system. Jacob reported the car and his possessions as stolen and subsequently had multiple conversations with appellant in an attempt to work things out.
On January 23, 2000, at approximately 9:00 p.m., appellant and Nicholas Keilen went to Jacob’s residence with the intent of exchanging Jacob’s handgun for the missing stereo. Keilen handed the loaded gun to Jacob, who verified that it was his. Appellant grabbed the gun from Jacob and then waited in the car for Jacob to bring out the stereo. Jacob went inside, purportedly to get the stereo, but instead called the police to report that there was a man with a handgun in a white car parked outside his house.
Officers Sean Burton and John Linssen responded to the call and drove up behind the only white car on the street. As they approached, appellant got out of the car and began walking down the street. Burton called out for appellant to stop, but appellant took off running.
While chasing the appellant, Burton heard what sounded like an object hitting something wooden. Burton lost sight of appellant as he fled and gave up the chase, but stayed in the area where he heard the sound. Appellant was subsequently apprehended by other officers. Burton followed appellant’s tracks through the snow to a wooden fence where he found Jacob’s handgun in a depression in fresh snow adjacent to the fence.
Appellant was placed under arrest and charged with possession of a firearm by an ineligible person, in violation of Minn. Stat. §§ 624.713, subds. 1(b) and 2, and 609.11, subd. 5(b) (1998). Appellant stipulated at trial that he was ineligible to possess a firearm on January 23, 2000, but denied any knowledge of the gun. Following his conviction, appellant brought a motion for a new trial on the ground of ineffective assistance of counsel that was denied. This appeal follows.
D E C I S I O N
Appellant challenges his conviction of unlawful possession of a firearm on the ground it is unsupported by the evidence. Our review of the sufficiency of the evidence is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, sufficiently supports the verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). Circumstantial evidence is entitled to as much weight as other evidence. Id. We must view the evidence in the light most favorable to respondent and assume the jury believed respondent’s witnesses and disbelieved any contrary evidence. State v. McKenzie, 511 N.W.2d 14, 17 (Minn. 1994); State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). This court will not disturb a verdict if the jury acted with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt. State v. Davidson, 481 N.W.2d 51, 58 (Minn. 1992).
Here, the record contains both direct and circumstantial evidence that appellant was in possession of Jacob’s gun on January 23, 2000. Jacob testified that appellant took the gun from Jacob’s hands. The police arrived at Jacob’s residence in response to Jacob’s call concerning a man in a car with a gun. Officers Burton and Linssen saw appellant get out of the car and take off running when they announced themselves. Burton pursued appellant. Burton testified that he heard an object hit something wooden in the vicinity of a wooden fence along the path on which appellant was running. Although Burton did not actually see appellant toss the gun, he and another officer later found the gun in fresh snow beside the fence, in the same area the sound came from.
“Deciding the credibility of witnesses is generally the exclusive province of the jury.” State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999) (citations omitted). Here, the jury likely believed the testimony of Jacob and the law enforcement officers and disbelieved any contradictory evidence. In fact, the reviewing court must make this assumption. State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997). “A conviction can rest on the uncorroborated testimony of even a single credible witness.” State v. Head, 561 N.W.2d 182, 188 (Minn. App. 1997).
Appellant argues that, without the testimony of Jacob, the case is circumstantial. Part of the defense’s theory was that Jacob had a continuing feud with appellant and, therefore, had reason to want to impute possession of the firearm to appellant. But the jury determines the credibility and weight to be given the testimony of individual witnesses. State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990); State v. Buchanan, 431 N.W.2d 542, 547 (Minn. 1988). Appellant’s challenge to Jacob’s credibility is without merit given our standard of review, which requires that we assume the jury believed the state’s witnesses.
In addition to the direct evidence, the circumstantial evidence also supports the jury’s verdict. Even in cases based on circumstantial evidence, “[a]s in all cases, the jury determines the credibility and weight given to the testimony of individual witnesses.” Bias, 419 N.W.2d at 484 (citations omitted). Here, the jury could have reasonably concluded that appellant threw the firearm into the snow as he was being chased by the police.
Appellant has failed to point to any evidence in the record that is consistent with a rational theory other than guilt. No alternative explanation has been offered as to how Jacob’s gun wound up by the fence in otherwise undisturbed snow near the path appellant took to evade the police. There is sufficient evidence in the record, both direct and circumstantial, to support the jury’s verdict.
Appellant next challenges the trial court’s denial of his motion for a new trial based on ineffective assistance of counsel. An individual asserting ineffective assistance of counsel must first demonstrate that the attorney’s representation “fell below an objective standard of reasonableness.” State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998) (citations omitted). There is a “strong presumption” that an attorney’s performance “falls within the wide range” of what is “reasonable professional assistance.” State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).
The objective standard of reasonable representation 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) (quotation omitted)). An attorney’s decisions regarding trial tactics “lie within the proper discretion of trial counsel and will not be reviewed later for competence.” Id. (citing Jones, 392 N.W.2d at 236). “Particular deference is given to the decisions of counsel regarding trial strategy.” Lahue, 585 N.W.2d at 789.
Which witnesses to call at trial and what information to present to the jury are questions that lie within the proper discretion of the trial counsel.
Jones, 392 N.W.2d at 236; see also Voorhees, 596 N.W.2d at 255 (stating that defense counsel’s failure to call certain witnesses did not constitute ineffective performance and represented a matter of trial strategy that the court will not review for competence).
Appellant must also establish that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984). Reasonable probability is that probability “sufficient to undermine confidence in the outcome.” Id. In addition, the 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).
[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.
Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
Appellant’s ineffective assistance of counsel claim is based on three arguments: (1) failure to call Keilen, an allegedly exculpatory witness; (2) telling the jury that Keilen would be called and then not doing it; and (3) providing counsel for the state with a copy of appellant’s counsel’s notes made as a result of interviewing Keilen. Keilen’s name appeared on the state’s witness list, but not on appellant’s.
During his opening statement, appellant’s counsel stated:
Mr. Keilen and [appellant] went over and you will hear from Mr. Keilen, he’s going to testify. Now Mr. Keilen has given a couple different versions as to [w]hat happened, but I will believe he would testify that there was no gun for a stereo deal that was going on[, that appellant] didn’t possess a gun that night * * * . In fact, it was Mr. Jacob that brought the gun forward and brought it out and that Mr. Jacob then was responsible for calling the police and was responsible for telling the police that [appellant] possessed the gun on that night.
The only person that is going to be able to testify or say anything that is going to suggest that [appellant] possessed that gun, is Mr. Jacob.
We find the opening statement of appellant’s counsel, as it relates to the potential testimony of Keilen, to be equivocal and that it cannot be properly characterized as a “promise.” Respondent correctly points out that the opening statement of appellant’s counsel could just as easily have been interpreted by the jury to mean that appellant’s counsel anticipated that the state would call Keilen to testify as part of its case.
In order for appellant to establish that he was prejudiced by his counsel’s failure to call Keilen, appellant must, at a minimum, establish that Keilen’s testimony would have indeed been exculpatory. Based on the record, it is evident that Keilen’s version of events was, at best, inconsistent. Appellant acknowledges this inconsistency. Keilen’s statement to the police indicated that appellant possessed the handgun. This statement would surely have been used to impeach Keilen had he testified to the contrary.
Appellant has failed to point to evidence in the record that would establish Keilen as an exculpatory witness. In addition, trial counsel’s decision not to call Keilen can be characterized as trial strategy. Given the inconsistency in Keilen’s version of events, it was arguably a good idea to keep him off the stand.
Appellant also contends that when his attorney gave the state a copy of the notes he had taken during an interview with Keilen, he disclosed attorney work product. In general, notes taken by defense counsel are not discoverable “to the extent they contain the opinions, theories, or conclusions of the defendant or defense counsel or persons participating in the defense.” Minn. R. Crim. P. 9.02, subd. 3. Appellant has not established that the notes in question contained the thoughts or opinions of appellant’s counsel required to characterize the notes as work product. Appellant states that “[o]ne can only speculate what those notes say.” Because the notes in question are not part of this record, it would be speculation on our part to conclude that they were work product.