This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Duaine Anthony Sims,
Hennepin County District Court
File No. 01075848
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Minge, Presiding Judge, Kalitowski, Judge, and Hudson, Judge.
After being convicted of pattern harassing conduct, appellant requests a new trial on the ground that he did not have effective legal representation. Because his attorney’s representation was neither deficient nor affected the outcome, we affirm.
Duaine Anthony Sims was charged with pattern harassing conduct under Minn. Stat. § 609.749, subd. 5 (2002) for repeatedly following a young woman. Sims targeted the young woman on the bus, and on one occasion exposed his genitals to her. The young woman notified law enforcement of Sims’ behavior and an officer arrested Sims when the officer observed Sims following the young woman and then lingering in an area in which she worked.
The district court ordered a psychological evaluation pursuant to Rule 20 of the Minnesota Rules of Criminal Procedure. The report concluded that although Sims was competent to stand trial he would most likely have difficulty communicating with anyone in the legal system. The public defender who assigned Sims’ case also noted Sims’ difficulty in communicating and requested that the court find Sims incompetent to stand trial on the grounds that Sims could not adequately understand the proceedings and could not contribute to his defense. The court determined that, based on the psychological evaluation, Sims was competent to stand trial.
Sims’ attorney played an active role in the bench trial. He cross-examined witnesses, made objections, and made a successful motion in limine. Sims’ attorney informed the court that he and Sims disagreed over questioning of the witnesses, that he told Sims that it was within an attorney’s discretion to determine which questions to ask the witnesses, that he asked Sims whether Sims wanted him to continue the representation, and that Sims did not ask him to withdraw. The attorney, however, told the court that he wished to withdraw. The court denied the attorney’s request. Despite never requesting the removal of his attorney or the appointment of substitute counsel, Sims frequently complained about the manner in which the trial was conducted and repeatedly asked the court if he could question witnesses. Ultimately, the court allowed Sims to cross-examine three key witnesses after his attorney had cross-examined them.
At the end of the trial, Sims’ attorney again requested the court to declare Sims incompetent to stand trial. The court again denied the motion, found that the state had proven beyond a reasonable doubt that Sims had engaged in a pattern of harassing conduct, and sentenced him to 43 months in prison.
In this direct appeal, Sims requests that his conviction of a pattern of harassing conduct be reversed and that he be granted a new trial on the ground that he did not have effective assistance of counsel. The United States Supreme Court has articulated a two-prong test to determine whether a defendant should be granted a new trial because of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). A defendant must affirmatively prove both prongs. Id. The first prong requires the defendant to show that his counsel’s performance was deficient; under the second, the defendant must show the deficient performance so prejudiced his defense as to materially affect the outcome of the trial. Id.
In applying the Strickland test, Minnesota case law has fleshed out the first prong. Opinions have stated that the test for deficient performance is whether the attorney acted within an objective standard of reasonableness and provided “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); Gates v. State, 398 N.W.2d 558, 562 (Minn. 1987).
Minnesota courts have further stated that there is a presumption of prejudice from ineffective assistance when the circumstances or defense counsel’s conduct are completely “antithetic to effective assistance.” Cooper v. State, 565 N.W.2d 27, 31 (Minn. App. 1997) (quotation omitted), review denied (Minn. Aug. 5, 1997). This court has denied a new trial where “there was no explicit request for a change in counsel [,] no showing of improper representation,” and where appellant did not challenge the sufficiency of the evidence. State v. Lamar, 474 N.W.2d 1, 3 (Minn. App. 1991), review denied (Minn. Sept. 13, 1991). The Lamar court concluded that “any error, therefore, was harmless.” Id.
Sims argues that he is entitled to a new trial because the court never questioned him about the difficulties he experienced with his attorney and instead permitted him to question witnesses and to testify in a narrative form. Although Sims and his attorney may not have had a cordial or comfortable working relationship, this is not required by the Sixth Amendment cases just discussed. See generally State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999) (holding that unless issues go to attorney’s ability or competence, “personal tension” between counsel and client is not enough), aff’d 627 N.W.2d 642 (Minn. 2001). Sims does not point to any specific attorney errors. Rather, the record discloses that his attorney cross-examined witnesses, made objections and effective motions, and gave a reasonable closing argument which supported Sims’ defense. Although Sims disagreed with his attorney about which questions to ask the witnesses, we do not view the choice of questions as error because it is a tactical decision within the attorney’s discretion. State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). Furthermore, Sims was allowed to cross-examine the witnesses after his attorney had done so. The record shows that Sims’ attorney exercised reasonable diligence under the circumstances and that his representation was not deficient. Thus, we find that Sims did not prove the first prong of the Strickland test.
Sims does not identify any way in which his questioning of witnesses or narrative testimony contributed to his conviction. Sims does not show how his attorney’s representation prejudiced his case. In fact, Sims does not dispute the sufficiency of the evidence. Rather, the record supports a conviction of a pattern of harassing conduct. Even if Sims had satisfied the first Strickland prong by showing attorney error, he has not shown how these errors would have prejudiced his case.
Our review of the record shows that Sims’ attorney acted within an objective standard of reasonableness and that Sims’ defense was not prejudiced by any unprofessional attorney conduct. We affirm the conviction.