This opinion will be unpublished and

may not be cited except as provided by

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






Richard Fink, petitioner,





State of Minnesota,



Filed July 8, 2003

Affirmed in part, reversed in part, and remanded
Klaphake, Judge


Hennepin County District Court

File No. 99053658


Deborah K. Ellis, 700 Saint Paul Building, Six West Fifth Street, St. Paul, MN  55102 (for appellant)


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


Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


            Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Richard Jason Fink was found guilty by a jury of two counts of second-degree murder for shooting a man during a drug deal.  See Minn. Stat. § 609.19, subds. 1(1) (intentional murder), 2(1) (unintentional felony murder) (1998).  The district court imposed a 326-month sentence on appellant for intentional murder.  On direct appeal, this court affirmed the conviction and sentence.  State v. Fink, No. C0-00-634, 2001 WL 218893 (Minn. App. Mar. 6, 2001), review denied (Minn. May 15, 2001) (“Fink I”).

            In this petition for postconviction relief, appellant challenges the composition of the jury as a violation of his right to a fair trial and alleges ineffective assistance by his trial attorney.  The postconviction court summarily denied the petition, concluding that “all of the issues raised * * * have already been decided on direct appeal or were known or should have been known but [were] not raised on direct appeal.”

            Because appellant actually challenged the racial composition of the jury on direct appeal and because there is no legal basis to challenge the intentional murder conviction due to the timing of the jury’s return of that verdict, we affirm on those issues.  But because fairness requires that the postconviction court consider the merits of appellant’s claim that his trial attorney was ineffective due to his failure to explore possible racial bias during voir dire and to ask appellant about his education, family, and background during direct examination, we reverse on those issues and remand for an evidentiary hearing.


            On June 1, 1999, at approximately 3:00 a.m., appellant shot a man in the neck while he was leaning inside the driver’s side window of appellant’s car.  The victim died at the scene.  Appellant fled and was arrested the following day.

            At the time of the shooting, the victim was trying to convince appellant to sell him drugs and to allow him to pay for the drugs the next day.  The victim was a large white man, who was six feet, four inches tall and weighed more than 300 pounds; a subsequent autopsy revealed that his alcohol concentration was .16.

            Appellant, an African-American, claimed that he was afraid of the victim and was acting in self-defense.  At trial, appellant testified that he was attempting to safely discharge the gun and that he did not intend to shoot the victim, only scare him away.  The state was allowed to impeach appellant with evidence of a prior assault conviction.  An all-white jury returned two guilty verdicts against appellant.


            Absent an abuse of discretion, this court will not reverse a postconviction court’s denial of a petition for 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.  Doppler v. State, 660 N.W.2d 797, 801 (Minn. 2003) (citing State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)); Sanders v. State, 628 N.W.2d 597, 600 (Minn. 2001).

            In his petition for postconviction relief, appellant alleges that his constitutional rights were violated by Hennepin County’s systematic exclusion of minorities from its jury pools.  This claim was raised on direct appeal in appellant’s pro se supplemental brief.  Examination of that brief demonstrates that appellant’s argument was thorough, reasoned, and supported by data compiled by appellant and included in the appendix to his pro se brief.  This court addressed the argument and rejected it, stating that “appellant presents a number of statistics but does not link the alleged disparities to a systematic exclusion of minorities over a period of time.”  Fink I, at **3 (emphasis in original).  Indeed, the Hennepin County jury selection procedure has withstood several constitutional challenges.  See, e.g., Hennepin County v. Perry, 561 N.W.2d 889, 896 (Minn. 1997); State v. Willis, 559 N.W.2d 693, 700 (Minn. 1997).  Because this issue was raised and addressed on direct appeal, we affirm the postconviction court’s refusal to consider it again.

            Appellant’s petition also challenges his trial attorney’s failure to request vacation of the verdict finding him guilty of intentional murder, which, according to handwritten notations on the verdict forms, was reached approximately one hour after the jury reached its verdict finding him guilty of unintentional felony murder.  On direct appeal, appellant argued that he was convicted of two charges of second-degree murder in violation of Minn. Stat. § 609.04 (1998) (“Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both.”).  This court concluded that his claim was without merit because “the record indicates the district court properly adjudicated formally and imposed sentence on only one count.”  Fink I at **3 (citing State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984)).

            Appellant attempts to recast the issue and now argues that the two verdicts were legally inconsistent because one found the murder intentional while the other verdict found it unintentional.  But the supreme court has held that guilty verdicts for intentional murder and unintentional felony murder are not legally inconsistent.  State v. Cole, 542 N.W.2d 43, 50-51 (Minn. 1996).  This is so because “[l]ack of intent is not an element of second-degree felony murder.”  Id. at 516 (citation omitted).  In addition, the timing or sequence of the verdicts does not render the one reached last illegal or void.  As this court determined on direct appeal, the district court properly adjudicated appellant guilty and imposed sentence only on one count.  See Fink I at **3.  We therefore affirm the postconviction court’s refusal to reconsider this issue.

            Finally, appellant argues that his trial attorney was ineffective because he failed to explore racial bias with prospective jurors during voir dire or to elicit any personal background information from him during direct examination, which he claims would have bolstered his credibility.  In support of these two claims, appellant has submitted an affidavit from an attorney who has practiced criminal defense for 13 years and states that “it was objectively unreasonable for defense counsel not to give the jury any reason whatsoever to credit [appellant’s] trial testimony” and for counsel “not to explore the issue of racial bias with the prospective jurors.”

            While these two issues were or should have been known at the time of the direct appeal, we conclude that fairness now requires their consideration.  See Doppler, 660 N.W.2d at 801 (recognizing exception to Knaffla rule where claim known at time of direct appeal may receive postconviction review when fairness so requires and petitioner did not deliberately and inexcusably fail to raise issue on direct appeal); Sanders, 628 N.W.2d at 600.  Appellant’s failure to raise these claims on direct appeal appears excusable and inadvertent.  See Gassler v. State, 590 N.W.2d 769, 771 (Minn. 1999).  Moreover, these claims are appropriate for postconviction review because they will benefit from additional fact finding in order to explain counsel’s decisions and to determine whether any sound strategic reason existed to support those decisions.  See Robledo-Kinney, 637 N.W.2d at 585.

            We therefore affirm in part, reverse in part, and remand for an evidentiary hearing to address the merits of appellant’s claims that his trial attorney was ineffective because he failed to question jurors about racial bias during voir dire or to elicit background information from appellant during direct examination.

            Affirmed in part, reversed in part, and remanded.