This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Lee Charles Draughn,
State of Minnesota,
Filed May 6, 2003
Hennepin County District Court
File No. 95085109
Lee Charles Draughn, #187052, MCJ-Stillwater, 970 Pickett Street North, Bayport, MN 55003-1490 (pro se appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Stoneburner, Presiding Judge, Toussaint, Chief Judge, and Klaphake, Judge.
Lee Charles Draughn appeals pro se from the district court’s denial of his petition for postconviction relief. Draughn was convicted of second-degree murder for the shooting death of his live-in girlfriend in August 1995, and this court affirmed his conviction on direct appeal. State v. Draughn, C2-96-1519, 1997 WL 360594 (Minn. App. July 1, 1997) (rejecting challenges to district court’s admission of testimony relating to prior uncharged assault and failure to give requested jury instruction). Because the issues now raised by Draughn were either known at the time of his direct appeal or are otherwise without merit, we affirm.
Absent an abuse of discretion, this court will not reverse the district court’s denial of a petition for postconviction relief. Robledo-Kinney v. State, 637 N.W.2d 581, 585 (Minn. 2002). Where, as here, there has been a direct appeal, matters known at the time of the direct appeal are procedurally barred from postconviction review. Sanders v. State, 628 N.W.2d 597, 600 (Minn. 2001). An exception to this rule arises when fairness requires consideration of a claim because it is “so novel that the legal basis was not available on direct appeal” or because the defendant’s failure to raise the claim on direct appeal was excusable and not deliberate. Id. (citation omitted).
In this petition for postconviction relief, Draughn argues that (1) submission of the lesser-included offense of second-degree murder violated the protection against double jeopardy; (2) police unlawfully entered his residence without a warrant and without probable cause after discovery of the victim’s body; (3) his statement to police should have been suppressed because he was not given a Miranda warning and because he was distraught; (4) he was forced to testify due to an agreement between the prosecutor, court, and defense counsel; (5) the search warrants should not have been admitted into evidence; and (6) the district court improperly communicated with the jury in violation of Minn. Stat. § 631.09 (2002).
These claims were all known at the time of Draughn’s direct appeal but were not raised. None of the claims are novel, and Draughn offers no explanation or justification as to why the claims were not raised by his appointed counsel or in a pro se supplemental brief. Because Draughn failed to raise these claims in his direct appeal, we affirm the district court’s refusal to consider them in this subsequent petition for postconviction relief. See Gassler v. State, 590 N.W.2d 769, 771 (Minn. 1999).
Draughn also raised claims alleging ineffective assistance of counsel. These types of claims may be considered on direct appeal, but are more appropriately raised in a postconviction proceeding. Robledo-Kinney, 637 N.W.2d at 585.
To show ineffective assistance of counsel, a defendant must demonstrate that “counsel’s representation fell below an objective standard of reasonableness” and that, but for counsel’s errors, “a reasonable probability exists that the outcome [of the trial] would have been different.” State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998) (citations omitted). We presume that a counsel’s performance fell within the wide range of reasonable conduct and will not intervene in matters related to trial tactics or strategy, such as “[w]hich witnesses to call at trial and what information to present to the jury.” Id.
Draughn first asserts that his attorney was ineffective because he failed to object to the charges filed against him and to admission of the lesser-included offense of intentional second-degree murder. Contrary to Draughn’s assertion, however, his attorney moved to dismiss the indictment and argued in support of that motion at length prior to trial. Any decision to request the submission to the jury of lesser degrees is an issue of trial tactics and does not involve attorney competence. Morgan v. State, 384 N.W.2d 458, 460 (Minn. 1986). Moreover, a district court has the duty to submit the lesser-included offenses to the jury when the evidence reasonably supports such a submission. State v. Leinweber, 303 Minn. 414, 421, 228 N.W.2d 120, 125 (1975). Finally, Draughn fails to explain how he was prejudiced by the district court’s actions, so as to meet the requirements of the test for ineffective assistance of counsel. See Lahue, 585 N.W.2d at 790.
Draughn next asserts that his attorney “forced” him to testify as a result of an agreement between the attorney, the prosecutor, and the district court. Absent evidence in the record to the contrary, a defendant’s decision to testify is presumed to be voluntary and intelligent. State v. Smith, 299 N.W.2d 504, 506 (Minn. 1980). A reading of the transcript of Draughn’s testimony fails to suggest any duress or hesitation on his part. To the contrary, his detailed and lengthy testimony appears to have been freely given and demonstrates his desire to have his version of the events heard by the jury.
Finally, Draughn makes vague assertions regarding the admission of several search warrants at trial and allegedly improper communication between the court and the jury. He fails to explain why introduction of the warrants was erroneous or prejudicial. The warrants themselves appear to be supported by probable cause and to have been properly executed. See State v. Wiley, 366 N.W.2d 265, 269 (Minn. 1985). With respect to his allegation of improper communications between the court and the jury, Draughn argues that the court violated Minn. Stat. § 631.09 (2002), which deals with jury sequestration. Draughn offers no evidence to support his assertion, and nothing in the record indicates that any improper communications occurred.
We therefore affirm the district court’s denial of Draughn’s petition for postconviction relief.