This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).








State of Minnesota,





Dallas Wayne Smith,




Filed July 22, 2003


Robert H. Schumacher, Judge


Cass County District Court

File No. K1011174



Mike Hatch, Attorney General, Thomas R. Ragatz, Michele M. Owen, Assistant Attorneys General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Earl E. Maus, Cass County Attorney, Cass County Courthouse, 300 Minnesota Avenue, Post Office Box 3000, Walker, MN 56484-3000 (for respondent)


John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Dallas Wayne Smith challenges his conviction for first-degree criminal sexual conduct, arguing (1) he received ineffective assistance of counsel and (2) the district court abused its discretion by denying his discovery motion for an in camera review of certain evidence.  Smith also raises several arguments in his pro se supplemental brief.  We affirm.


As a result of events occurring during the evening of October 9-10, 2001,  Smith was charged with four counts of criminal sexual conduct:  two counts of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(c), (e)(i) (2000) (sexual penetration causing fear of great bodily harm and sexual penetration causing personal injury by use of force); one count of second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(e)(i) (2000) (sexual contact causing personal injury); and one count of third-degree criminal sexual conduct, in violation of Minn. Stat. § 609.344, subd. 1(c) (2000) (sexual penetration using force or coercion). 

            The complaint alleged the following facts:  near midnight on October 9, 2001, Cass Lake police officers responding to a residential call observed a woman later identified as S.W. walking west on Second Street.  The police also saw a man later identified as Smith walking approximately one block behind S.W.

            Approximately one hour later, police officers on routine patrol found S.W. lying in the street less than one block from where they had seen her earlier.  She was crying uncontrollably.  The police transported S.W. to the hospital, where she stated a man had grabbed her on the street and sexually assaulted her.  A vaginal swab of S.W. tested positive for semen.  The physical description S.W. gave of her assailant matched that of the man police had seen walking behind S.W.  Police identified the man as Smith, whom they arrested.

A DNA profiling analysis performed by the Bureau of Criminal Apprehension on a known sample of Smith's blood indicated the semen found in S.W.'s vagina was Smith's.

            Before trial began, Smith filed a discovery motion to compel the state to produce for in camera review

[a]ll psychological assessments, medical reports, or other documentation pertaining to [S.W.]'s mental or emotional condition, all of which may have a bearing on credibility, ability to remember or recall events, and her emotional state.


The state subsequently amended the complaint to eliminate any charge based on S.W.'s mental impairment or incapacitation.  The court denied Smith's discovery motion, reasoning Smith's mental state was not relevant. 

            At trial, Smith's counsel conceded intercourse had taken place, but argued the intercourse was consensual and therefore lawful.  Smith's counsel stipulated to the admission of the DNA evidence indicating the semen found in S.W. was Smith's.

            Smith testified he, S.W., and others had been drinking at a residence on Second Street on the evening of October 9.  He testified he left the residence on foot just after S.W. and caught up with her.  He testified he kissed S.W. but had no memory of having intercourse with her.  On cross-examination, Smith acknowledged it was possible he "held [S.W.] down and had intercourse against her consent."  

            The jury found Smith guilty of all counts except Minn. Stat. § 609.342, subd. 1(c) (sexual penetration causing fear of great bodily harm).  The court sentenced Smith to 146 months in prison.


1.         Smith argues he received ineffective assistance of counsel.  To prevail on this claim, he

must affirmatively prove that his counsel's representation fell below an objective standard of reasonableness, and but for counsel's errors, there is a reasonable probability that the results of the proceeding would have been different.  There is a strong presumption that a counsel's performance falls within a wide range of reasonable assistance and even if there were errors in the counsel's performance, the defendant must still show that he was prejudiced as a result.


State v. Quick, 659 N.W.2d 701, 717 (Minn. 2003) (citations omitted).  An attorney's decisions regarding trial tactics, such as what evidence to present at trial, what defenses to raise, and what witnesses to call, lie within the proper discretion of the attorney and will not be later reviewed for competence.  State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999).

            Here, Smith is raising his ineffective-assistance claim on direct appeal.  Generally, a postconviction evidentiary hearing is the preferred method for raising such claims.  See State v. Zernechel, 304 N.W.2d 365, 367 (Minn. 1981).  But where an appellant requests that we consider the claim on direct appeal and where the record "is sufficient to allow proper review" of the claim, it may be brought directly before this court.  Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001).  We conclude the record here is sufficient to allow proper review.  In order to prevail on an ineffective-assistance claim on direct appeal, Smith must show that nothing his counsel could have said at a post-conviction hearing would have justified counsel's performance at trial.  State v. Tienter,  338 N.W.2d 43, 44 (Minn. 1983).

            Smith first argues his attorney's decision to concede intercourse, but argue it was consensual and therefore not criminal, fell below an objective standard of reasonableness because (1) the concession contradicted Smith's own testimony; (2) Smith never agreed to the consent defense on the record; and (3) the concession constituted an admission of guilt. 

Trial tactics such as the choice of legal defense are generally not reviewable for competence.  See Voorhees, 596 N.W.2d at 255.  We further conclude Smith's arguments are without merit.  First, the concession did not contradict Smith's own testimony, which did not deny intercourse took place.  On direct examination, Smith testified he could not remember what happened after he kissed S.W.; on cross-examination, he acknowledged intercourse might have occurred.

            Second, there is no requirement that a defendant affirmatively consent on the record to his attorney's trial strategy.  On the contrary, it is the dissatisfied defendant's obligation to affirmatively object to defense counsel's strategy at trial.  See State v. Provost, 490 N.W.2d 93, 97 (Minn. 1992) (rejecting ineffective-assistance claim where record does not "disclose that defendant had any objection to or dissatisfaction with [the] trial strategy" and refusing to adopt rule "that there must be a 'contemporaneous' record made of the defendant's consent to his counsel's strategy").  There is no evidence on the record here that Smith objected to the consent defense at trial.

            Third, Smith's assertion that his attorney admitted his guilt is not supported by the record.  It is true that "[a]dmitting a client's guilt without the client's consent or acquiescence is deemed ineffective assistance of counsel and is grounds for a new trial."  Provost,  490 N.W.2d at 97.  But the admission that Smith had intercourse with S.W. was not an admission of guilt here because Smith's guilt depended on the lack of consent, not the fact of intercourse. 

            Smith presents no compelling evidence he was prejudiced by the consent strategy or the outcome would have been different had his counsel not used that strategy.  There was eyewitness testimony, DNA evidence, and circumstantial evidence tending to establish Smith's guilt.  Smith has not met either element of the ineffective-assistance test.

            Smith next contends he was denied effective assistance of counsel because his attorney stipulated to the admission of DNA evidence.  The supreme court has specifically held an attorney's decision to stipulate to the admission of DNA evidence is not objectively unreasonable in the context of a consent defense to a charge of criminal sexual conduct.  King v. State, 562 N.W.2d 791, 796 (Minn. 1997).  We therefore need not address whether Smith was prejudiced by the stipulation.  See State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003) (stating court performing ineffective-assistance analysis "need not address both the performance and prejudice prongs if one is determinative"). 

2.         Smith argues the district court abused its discretion by denying his discovery motion to compel in camera review of S.W.'s privileged medical records related to her mental health and emotional condition.  Evidentiary rulings are reviewed for an abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).   

            Minn. Stat. § 595.02 subd. 1(d) and (g) (2002), prohibits unauthorized disclosure of privileged medical and psychiatric or psychological information.  A defendant may nonetheless request that the district court screen the confidential material in camera to determine whether the material is necessary to the defense.  State v. Hummel,  483 N.W.2d 68, 71-72 (Minn. 1992).  A defendant seeking in camera review of a confidential file must establish "a basis for his claim that it contains material evidence" by making a "plausible showing" that the information sought would be "both material and favorable to his defense."  Id. at 72 (citations omitted).  The request must be specific.  See  State v. Paradee, 403 N.W.2d 640, 641 (Minn. 1987) (allowing in camera review of welfare records when defendant requested specific information).

Smith's discovery motion was insufficient to warrant in camera review of S.W.'s records.  First, the request was for "[a]ll psychological assessments, medical reports, or other documentation pertaining to [S.W.'s] mental or emotional condition" and as such lacked any degree of specificity.  Second, S.W.'s mental state was not material to the resolution to this case because none of the charges in the amended complaint were based on any mental impairment.  Smith has shown no evidence supporting his argument that S.W.'s records were relevant to her credibility, her memory, or her ability to consent to sex. 

Third, Smith was not prejudiced by the district court's refusal to conduct an in camera review of S.W.'s records.  Smith's attorney cross-examined S.W. at trial concerning her mental and emotional condition, and was not prevented from presenting any defenses.  The district court acted within its discretion by denying Smith's discovery motion.

3.         Smith raises several arguments in his pro se supplemental brief, including claims that he received ineffective assistance of counsel, that the trial was marred by judicial and prosecutorial misconduct, that the evidence was insufficient to support the verdict, and that various witnesses gave false testimony.  We have considered these arguments and conclude they are without merit.