This opinion will be unpublished and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
State of Minnesota,
Lois Christi Graff,
Clay County District Court
File No. K8012283
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Lisa N. Borgen, Clay County Attorney, Brian J. Melton, Assistant County Attorney, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56561-0280 (for respondent)
John M. Stuart, State Public Defender, Mary M. McMahon, Special Assistant State Public Defender, 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Parker, Judge.*
U N P U B L I S H E D O P I N I O N
On appeal from her conviction of child endangerment and contributing to the delinquency of a minor, appellant Lois Graff claims that she was denied a fair trial due to prosecutorial misconduct and the ineffective assistance of her trial counsel. We affirm.
D E C I S I O N
reviews claims of prosecutorial misconduct and will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.
State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003) (citation omitted). If the misconduct is serious, it is harmless beyond a reasonable doubt only if the verdict rendered was “surely unattributable” to the error. Id. For less serious misconduct, the standard is “whether the misconduct likely played a substantial part in influencing the jury to convict.” Id. (quotation omitted).
Here, the district court issued a pretrial order barring the prosecutor, should he call J.D. as a witness during his case in chief, from using the substance of her inconsistent statements to police to impeach her on the stand. The district court did allow the prosecutor to question police witnesses about the investigation and the existence of the inconsistent statements. Only the substance of those statements was hearsay that the prosecutor could not introduce. During his opening statement, the prosecutor made reference to the fact that J.D. had given inconsistent statements and that he would not call her as a witness because she was not credible. He subsequently questioned the police witnesses in accordance with the order, referring to inconsistent statements by J.D. but not going into their substance.
Appellant claims that the prosecutor’s comments during his opening statement were misconduct because they made reference to inadmissible evidence. We disagree. The opening argument did not violate the pretrial order. Moreover, during the trial the jury was properly made aware during witness examination that J.D. had given inconsistent statements. Thus we conclude the comments during the opening statement were not misconduct.
To prevail on a claim of ineffective assistance of counsel, an appellant must show that (1) trial counsel’s representation “fell below an objective standard of reasonableness”; and (2) “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).
Appellant claims her trial counsel was ineffective because (1) he failed to object to the prosecutor’s statements during opening arguments; (2) he opened the door to the introduction of J.D.’s incriminating statements about appellant, which were otherwise inadmissible; and (3) he called J.D. as a witness, allowing her to be impeached with her inconsistent statements.
This court does not engage in evaluating the trial strategies of attorneys. Voorhees v. State, 627 N.W.2d 642, 651 (Minn. 2001). Matters of trial strategy include what evidence to present and which witnesses to call. State v. Lahue, 585 N.W.2d 785, 789-90 (Minn. 1998). Appellant’s trial counsel made successful pretrial motions on her behalf, fully examined and cross-examined witnesses, presented a defense, made numerous objections at trial, and moved for a judgment of acquittal after the guilty verdict was returned. There is no suggestion that, even though ultimately unsuccessful, counsel’s strategy and performance fell below an objective standard of reasonable professionalism. Moreover, other testimonial evidence presented at trial was sufficient to support a guilty verdict, with or without J.D.’s testimony or the revelation of her prior, incriminating statement. Thus, even if we were to conclude counsel’s performance was substandard, appellant has failed to show that but for strategic errors by her counsel she would not have been found guilty.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.