This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-02-485

 

Antonio Darrail Burton, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed October 15, 2002

Affirmed

Gordon W. Shumaker, Judge

 

Hennepin County District Court

File No. 96089251

 

 

Antonio Darrail Burton, Rush City Correctional Facility, 7600 525th Street, Rush City, MN 55069 (appellant pro se)

 

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103-2106; and

 

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

 

††††††††††† Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.

 

U N P U B L I S H E D†† O P I N I O N

 

GORDON W. SHUMAKER, Judge

Appellant challenges the district courtís denial of postconviction relief, claiming that he was denied effective assistance of appellate counsel and that he is entitled to a new trial based on newly discovered evidence.† Because appellate counselís performance was not deficient and because the allegedly newly discovered evidence would not likely have produced a more favorable result for appellant, we affirm.

FACTS

Appellant Antonio Burton was convicted of multiple counts of first-degree criminal sexual conduct, first-degree aggravated robbery, and first-degree burglary for breaking into the apartment of three women, holding them at knifepoint, raping two of them, and stealing their possessions.† Burton appealed his convictions challenging, among other things, the sufficiency of the evidence, evidentiary rulings, the effective assistance of trial counsel, and his sentence.† The Minnesota Court of Appeals affirmed in part, vacated one of Burtonís first-degree burglary convictions, and remanded the case for resentencing.† State v. Burton, No. C4-98-1283, 1999 WL 561932 (Minn. App. Aug. 3, 1999), review denied (Minn. Sept. 14, 1999).

Burton later petitioned the district court for postconviction relief, arguing that he was denied effective assistance of appellate counsel and that he was entitled to a new trial based on newly discovered evidence.† The district court interpreted Burtonís pro se arguments as an argument that he was denied effective assistance of trial and appellate counsel.† Relying on the Knaffla rule, the district court denied Burtonís petition.† Burton now appeals the district courtís denial of postconviction relief.

D E C I S I O N

1.†††††††† Ineffective Assistance of Appellate Counsel

Burton asserts on appeal that his Sixth Amendment rights were violated because of ineffective assistance of his appellate counsel.† The district court relied on State v. Knaffla and denied Burton relief, stating that further review of Burtonís claim was barred because it was either made or known to him at the time of direct appeal.† State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) (stating that where appellant has taken a direct appeal, all matters raised therein, and all claims known but not raised, will not be considered on a subsequent petition for postconviction relief).† The district courtís reliance on Knaffla in this instance was incorrect.† Minnesota courts have held that arguments as to ineffective assistance of appellate counsel are not barred by the Knaffla rule.† See, e.g., Robinson v. State, 567 N.W.2d 491, 495 (Minn. 1997); see also Hale v. State, 566 N.W.2d 923, 927 (Minn. 1997) (addressing appellantís claim of ineffective assistance of appellate counsel).† But the district courtís decision to deny Burton relief is ultimately correct.

The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the right to effective assistance of counsel.† Evitts v. Lucey, 469 U.S. 387, 396, 105 S. Ct. 830, 836 (1985).† To establish a violation of his due-process rights because of ineffective assistance of counsel, Burton

must affirmatively prove that his counselís representation ďfell below an objective standard of reasonablenessĒ and ďthat there is a reasonably probability that, but for counselís unprofessional errors, the result of the proceeding would have been different.Ē† A reasonable probability is a probability sufficient to undermine confidence in the outcome.

 

Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).† There is a strong presumption that counselís performance fell within the wide range of reasonable professional assistance.† Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.† Additionally, when an appellant and counsel disagree as to what issues should be raised on appeal, ďcounsel has no duty to include claims that would detract from other more meritorious issues.Ē† Pierson v. State, 637 N.W.2d 571, 580 (Minn. 2002) (citations omitted). Burtonís claim is based on his appellate counselís failure to raise several issues on direct appeal.

Burton first argues that appellate counsel was ineffective because he failed to argue that DNA evidence collected from a victimís vest should have been excluded from the trial.† Burton claims that, because the chain of custody for the vest was not proved at trial, the evidence was contaminated.† Whether appellate counsel argued specifically that the evidence was contaminated is unclear.† But appellate counsel did argue on direct appeal the DNA evidence was unreliable.† State v. Burton, No. C4-98-1283, 1999 WL 561932, at *1 (Minn. App. Aug. 3, 1999), review denied (Minn. Sept. 14, 1999).† This court determined that there was ample evidence on which to convict Burton of the criminal-sexual-conduct counts, including, but not limited to, the DNA evidence from the vest.† Id.† A deficient chain of custody might cause the exclusion of evidence, but counsel raised the issue of the reliability of that evidence, and the manner of doing so was not unreasonable.

Second, Burton argues that appellate counselís performance was deficient because of his failure to challenge the district courtís denial of a Frye hearing regarding DNA evidence.† The Minnesota Supreme Court has determined that DNA typing using RFLP analysis, which was used in this case, is generally accepted under the Frye standard.† State v. Schwartz, 447 N.W.2d 422, 425 (Minn. 1989).† But the supreme court has also held that admissibility of specific test results in a particular case depends in part on the laboratoryís compliance with appropriate standard and controls.† Id. at 428.

Burton contends that the vest was contaminated because the laboratory did not comply with appropriate standards and controls.† He bases his argument on evidence that a lab technician made errors in two unrelated cases.† But the vest in question was positively identified at trial as belonging to one of the victims, and Burton provided no evidence of contamination.† Because Burton offered no evidence that the laboratory failed to follow appropriate standards and controls in this case, a Frye hearing was likely unjustified, and it was not unreasonable for appellate counsel to decline to make this argument on direct appeal.

But even if the district court erred by denying Burton a Frye hearing, the outcome of Burtonís direct appeal supports the conclusion that there is no reasonable doubt that, even without the DNA evidence, Burton would have been convicted.† Burton, 1999 WL 561932, at *1-*2.† Therefore, if there were error in the denial of a Frye hearing, it was harmless.† See State v. Starkey, 516 N.W.2d 918, 927 (Minn. 1994) (erroneous admission of evidence is harmless if there is no reasonable doubt the result would have been different had the evidence been excluded).

Third, Burton argues that his appellate counsel was ineffective for failing to argue on appeal that trial counsel was ineffective because of his failure to insist that two of Burtonís co-defendants, the stateís witnesses, testify so that their testimony could be impeached.† Which witnesses to call at trial are questions of trial strategy.† State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999).† Questions of trial strategy are left to the discretion of trial counsel, and this court will not review later for competence.† Id.† In this case, Burtonís co-defendants were prepared to testify against Burton, and even if their testimony might have been impeached, it would likely have been damaging to Burton.† Because the argument that trial counsel was ineffective for failing to call these witnesses would likely be unpersuasive on appeal, we hold it was reasonable appellate strategy for appellate counsel to decline to make this argument.

Because the choices appellate counsel made regarding which issues to raise were reasonable appellate strategy, we find that Burton has failed to establish that his appellate counsel was ineffective.† And even if some deficiency existed, substantial evidence in the record supports Burtonís convictions, and thus the cited evidentiary deficiencies caused him no prejudice.† Therefore, Burton is not entitled to relief based on ineffective assistance of appellate counsel.

2.†††††††† Newly Discovered Evidence

Burton also argues that following his direct appeal he discovered new evidence entitling him to a new trial.† Although the district court did not identify this argument, we elect to address it in the interests of justice.† Minn. R. Civ. App. P. 103.04 (the appellate court ďmay review any other matter as the interest of justice may requireĒ).

A new trial may be granted based on the discovery of new evidence if the defendant proves (1) that the evidence was not known to the defendant or defendantís counsel at the time of trial; (2) that the evidence could not have been discovered through due diligence before trial; (3) that the evidence is not cumulative, impeaching, or doubtful; and (4) that the evidence would probably bring about an acquittal or a more favorable result.† Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997).

Burton asserts that he found, among his co-defendantís discovery materials, a supplementary police report, which shows that, with regard to a vest belonging to one of the victims, the chain of custody was broken and the evidence contaminated.† Burton argues, therefore, that the evidence of his DNA collected from the vest should have been excluded.† The report describes an officerís act of removing the vest from an evidence bag, photographing it, and returning it to the bag.†

It is unclear which of Burtonís co-defendants had this police report.† Burton does not offer a copy of this report, nor does he offer evidence as to when it was discovered, and, therefore, it is unclear whether it was available at the time of trial.† Further, the excerpt merely shows that an officer removed the item from the evidence bag, photographed it, and returned it to the bag.† Nothing in the record suggests that this action broke the chain of custody or contaminated the vest.† Because the record is devoid of evidence that this report would have resulted in Burtonís acquittal, or a more favorable result, Burton is not entitled to a new trial based on newly discovered evidence.

Affirmed.