This opinion will be unpublished and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

C4-01-954

 

Thor Christian Gunderson, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed April 2, 2002

Affirmed

Lansing, Judge

 

Hennepin County District Court

File No. 99124107

 

Marc S. Berris, David G. Roston, Segal, Roston & Berris, PLLP, 250 Second Avenue South, Suite 225, Minneapolis, MN  55401-2161 (for appellant)

 

William G. Clelland, Anna Krause Crabb, Carson, Clelland & Schreder, 6300 Shingle Creek Parkway, Suite 305, Brooklyn Center, MN  55430 (for respondent)

 

            Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

 

A jury convicted Thor Gunderson of fifth-degree assault.  In a postconviction proceeding, Gunderson contended that he was denied his constitutional right to effective assistance of trial counsel when counsel failed to request a trial continuance and failed to object to testimony that included a statement that “this has happened before.”  Because the postconviction court did not abuse its discretion, misapply the law, or make unsupported findings, we affirm the denial of postconviction relief.

F A C T S

 

At the two-day jury trial on the fifth-degree assault charge, cab driver Eric Palmer testified that he picked up Thor Gunderson and Gunderson’s girlfriend at a hotel in Brooklyn Center.  Brooklyn Center police had arranged for a cab after assisting hotel management in removing the two guests because their loud arguments were disturbing other people at the hotel.  Palmer testified that he has a specially designed mirror that allows him to view the entire backseat of his cab.  He heard Gunderson twice tell his girlfriend, “You should shut up or I’ll have to kick your a-s,” in a threatening and assertive manner.  Each time Gunderson made this threat, Palmer observed Gunderson lean over and place his right hand on his girlfriend’s throat; the second time, Palmer heard her gasp for air.  Palmer then saw both passengers go to the left side of the cab, felt the car shift to the left, and heard a thud.  Palmer stopped the cab, and Gunderson fled on foot.

According to Palmer, while they waited for police to arrive, the girlfriend told him, “[T]his has happened before, it was over between them.”  Defense counsel for Gunderson did not object to Palmer’s testimony about the conversation.

When police arrived, the girlfriend told them Gunderson grabbed her by the neck, choked her, and slammed her head against the interior of the cab.  She had red marks on her neck near her collarbone, scratches on both sides of her neck, and a bump on the crown of her head.  When police arrested Gunderson a short time later, he had a small cut above his right eye, dried blood under one nostril, and a cut at the base of a knuckle.

In her trial testimony, Gunderson’s girlfriend recanted her statement to police.  She stated that she was the aggressor, she had hit Gunderson several times, and her injuries were caused by Gunderson holding her against the cab while she was swinging at him.  This account was consistent with Gunderson’s testimony that his girlfriend had attacked him and that they both received injuries when he tried to ward her off while in the cab.

When Gunderson appeared for trial he had obvious facial wounds, including two black eyes with one swollen shut, from an unrelated assault that occurred two days before trial.  He was also taking Vicodin, a painkiller.  Defense counsel did not ask for a continuance, but, at counsel’s request, the court instructed the jury that Gunderson’s injuries had nothing to do with the case and the jury should disregard them.  Defense counsel asked Gunderson a series of questions relating to his injuries and any effect that the medication might have on his ability to participate in the trial.

Gunderson testified the painkiller was “not giving me a real clear thought process and how I can talk and function.”  But upon more specific questioning, he stated he could proceed with his testimony, he recalled the events in the cab, and the painkiller did not affect his ability to understand questions or participate in his defense.  The court also asked Gunderson questions about the painkiller’s effect, and Gunderson responded, “It’s a combination of not being able to see out of one eye.  That’s more of a depth problem than anything else.”

            Following his conviction, Gunderson brought a direct appeal but later incorporated that appeal into this postconviction proceeding.  At the postconviction hearing, Gunderson presented two issues: (1) whether he was denied effective assistance by trial counsel’s failure to seek a continuance because of Gunderson’s physical and mental condition, and (2) whether he was denied effective assistance by trial counsel’s failure to object when the cab driver testified that the girlfriend said, “[T]his has happened before, it was over between them.”  The district court denied postconviction relief, and Gunderson appeals.

D E C I S I O N

 

We review decisions of a postconviction court for abuse of discretion.  Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997).  A postconviction court’s factual findings will be sustained if they are supported by sufficient evidence, but we independently determine the law as it applies to the facts.  Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

            To obtain postconviction relief on the grounds of ineffective assistance of counsel, the appellant must show the representation “fell below an objective standard of reasonableness” and “there is a reasonable probability that, but for his [lawyer’s] unprofessional errors, the result of the proceeding would have been different.”  Scruggs 484 N.W.2d at 25 (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).

In assessing whether the representation fell below the objective standard of reasonableness, there is a “strong presumption” the conduct of defense counsel falls within “the wide range of reasonable professional assistance.”  Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.  Generally, tactical decisions are within the discretion of defense counsel and are not a basis for ineffective-assistance claims.  State v. Lahue, 585 N.W.2d 785, 789-90 (Minn. 1998); see also State v. Vick, 632 N.W.2d 676, 688 (Minn. 2001) (“[A]ppellate courts do not review matters of trial strategy for competency.”) (citation omitted).

In assessing whether there is a reasonable probability the trial result would have been different in the absence of alleged errors, “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.  The issue is whether the error “so prejudiced the case that a different outcome would have resulted but for the errors.”  Vick, 632 N.W.2d at 688.  Prejudice should be determined by examining the totality of the circumstances.  Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.

I

The postconviction court found that defense counsel’s failure to seek a continuance because of Gunderson’s facial injuries was a tactical decision, was reasonable, and did not prejudice the outcome of the trial.  We agree.  First, defense counsel requested and received a cautionary instruction on Gunderson’s appearance.  Second, the court noted that defense counsel may have thought the injuries would engender jury sympathy or lead jurors to believe the charged assault was relatively minor.  It is also plausible that defense counsel thought that presenting Gunderson as an injured person might reinforce his self-defense theory, make him look more vulnerable than aggressive, and offset the contrast between his stature—6’4’’, 250 pounds (with three years of body-building), and his girlfriend’s—5’5’’ and 150 pounds. 

The postconviction court also found that defense counsel’s decision not to seek a continuance because of the effect of painkillers was reasonable and did not prejudice the outcome of the trial.  This decision was well within the discretion of the postconviction court.  As the court outlined, little credible evidence supported Gunderson’s argument that the painkillers impaired his ability to participate in his own defense.  Defense counsel and the district court carefully questioned Gunderson about the possible effect of the painkillers, and Gunderson stated the painkiller would not interfere with the presentation of his defense.  The postconviction court, that had presided over the jury trial, noted that Gunderson provided detailed testimony at trial, used clear language, spoke at a normal pace, appeared alert and oriented, and that he had showed no signs of confusion, disorientation, or inability to participate in his defense.  Neither Gunderson nor his expert, a retired district court judge, were able to point to anything in the trial transcript that supported his allegation that the painkillers interfered with his ability to participate in his defense.

Gunderson did not demonstrate how continuing the trial for either of these purposes would have resulted in a different outcome.  The cabdriver and the police officers presented strong evidence of Gunderson’s guilt, and their testimony was consistent with the physical evidence of red marks on the girlfriend’s throat in the area of the collarbone and a visible bump on her head.  The jury could reasonably have rejected the girlfriend’s recantation in light of her continued employment for Gunderson and the stark discrepancies between her statements at the time of the incident and her testimony at trial.

II

            The remaining ineffective-counsel issue that Gunderson raised in his postconviction petition was defense counsel’s failure to object to the cab driver’s testimony that the girlfriend said, “[T]his has happened before, it was over between them.”  The postconviction court determined that the failure to object was tactical, reasonable, and did not prejudice the outcome of the trial.

            A decision not to object to references to other-crime evidence may represent a strategic decision.  Vick, 632 N.W.2d at 689 (citing State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999)).  The postconviction court reasoned that the failure to object was an objectively reasonable option because, under these circumstances, an objection may have highlighted the comment.  See Vick, 632 N.W.2d at 690 (noting that failure to object to unanticipated other-crime evidence was not unreasonable when objection may have highlighted unsavory aspects of the charged offense).  An additional strategic reason not to object is that the comment “this has happened before” does not identify whether “this” refers to previous strife in the relationship or to a previous physical assault.  The district court properly concluded that an objection would not have affected the outcome of the trial because the statement was admissible on a number of other grounds, including that the comment was not hearsay because it was not admitted for the truth or falsity of the matter asserted and that, if hearsay, the comment falls within the excited utterance exception.  Minn. R. Evid. 801(c), 803(2); see also Minn. Stat. § 634.20 (2000) (permitting evidence of prior conduct of domestic abuse).

Gunderson’s final argument on appeal is that his counsel was ineffective because he failed to request a cautionary instruction.  This was not one of the bases listed in Gunderson’s postconviction review petition, and it was not referred to by his attorney when he outlined the arguments at the beginning of the postconviction proceeding.  See State v. Collard, 414 N.W.2d 733, 737 (Minn. App. 1987) (petitioner may not raise on appeal issues that were not raised in postconviction petition or decided in the postconviction proceeding).

Even if the issue had been properly raised, we would not decide differently.  Gunderson reasons from State v. Ridley, No. C2-00-635 (Minn. App. May 7, 2001), an unpublished opinion of this court, that failure to request a cautionary instruction on evidence of past bad acts is ineffective assistance that requires a new trial.  Ridley is well reasoned and persuasive authority for the facts set forth in Ridley, but the facts are substantially different in this case.  In Ridley, the testimony involved detailed descriptions of past sexual abuse on a number of occasions, the defendant had no notice of the testimony on these acts, and defendant’s attorney failed to request that the court apply a Spreigl analysis or provide a limiting instruction.  In those circumstances, failure to request a cautionary instruction reasonably required a new trial.  In this case however, the cab driver’s limited reference to the girlfriend’s comment that “this has happened before” does not require the same result.  For the same reason that the defense attorney would make a tactical choice not to call attention to the limited reference, the attorney could decide not to request an instruction to the jury on alleged other-crime evidence.  The postconviction court did not abuse its discretion, misapply the law, or make unsupported findings in its decision to deny postconviction relief.

            Affirmed.

 



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