This opinion will be unpublished and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

C1-03-91

 

 

Maxxe Steven Jackson,

petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed November 4, 2003

Affirmed
Klaphake, Judge

 

Hennepin County District Court

File No. 01049213

 

 

Mitchel C. Chargo, Avery L.E. Appelman, Appelman, Chargo & Olson, P.A., 212 Butler North Building, 510 First Avenue North, Minneapolis, MN  55403 (for appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; 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, Toussaint, Chief Judge, and Halbrooks, Judge.


U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Maxxe Steven Jackson challenges the postconviction court’s denial, following an evidentiary hearing, of his petition for relief from his 2001 conviction for promoting the prostitution of T.M., his 17-year-old fiancee.  He argues that his right to counsel was directly violated when the district court denied his request for an additional continuance and forced him to proceed to trial with a public defender who claimed to be unprepared.  Appellant also challenges the effectiveness of his public defender and the sufficiency of the evidence to support his conviction.  Finally, appellant seeks a new trial due to improper and prejudicial comments made by the prosecutor during closing argument.  Because the postconviction court did not clearly err in its findings or otherwise abuse its discretion in denying relief, we affirm.

D E C I S I O N

            A reviewing court will not reverse the denial of a postconviction petition absent an abuse of discretion.  Hummel v. State, 617 N.W.2d 561, 563 (Minn. 2000); Wilson v. State, 582 N.W.2d 882, 884 (Minn. 1998); Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).  Great deference is given to a postconviction court’s findings, which are reviewed to determine whether there is sufficient evidentiary support in the record and which will not be overturned unless clearly erroneous.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).

I.

            Appellant argues that he is entitled to postconviction relief because his right to counsel was violated when the district court denied his request for a further continuance in order to obtain a private attorney.  He insists that the district court violated his right to counsel by forcing his public defender to trial, even though the public defender claimed he had not had an opportunity to prepare for trial.  Appellant cites State v. Graff, 510 N.W.2d 212, 216 (Minn. App. 1993), review denied (Minn. Feb. 24, 1994).  Graff, however, involved a pro se defendant who was forced to represent himself after the district court denied his late request for a public defender.  Id. at 218.

            The postconviction court here properly analyzed this issue under State v. Vance, 254 N.W.2d 353, 359 (Minn. 1977).  Vance involved a defendant’s request for a continuance for the purpose of obtaining substitute counsel.  Id.  The supreme court upheld the district court’s denial of the continuance because the defendant (1) was provided with a competent and able public defender who had thoroughly investigated the facts and was prepared for trial; (2) had 11 weeks to obtain private counsel but did not move for a continuance until a few days before trial; (3) was not certain that he could secure substitute counsel and merely claimed that someone would attempt to raise the money; and (4) had no cause to be dissatisfied with his assigned counsel.  Id.

            As the postconviction court here noted, the facts of this case are similar to those in Vance.  First, appellant’s public defender was experienced and competent, investigated the facts, made motions, and was adequately prepared for trial, despite his claim that he did not have an opportunity to prepare.  Second, appellant had over 13 weeks to obtain private counsel, but failed to even contact an attorney until one week before trial and failed to request a continuance until the date set for trial.  Third, appellant had 13 weeks to secure funds to retain a private attorney, but even on the day of trial could only state that he was trying to obtain funds or that it was likely he could raise the necessary funds in four to six weeks.  Fourth, appellant was not prejudiced in preparing or presenting his defense when, as the postconviction court found, the public defender “mount[ed] a competent defense,” succeeded in suppressing several items of evidence during a pretrial Rasmussen hearing, made reasonable objections during trial, conducted a competent voir dire examination, competently cross-examined the state’s witnesses, and gave good opening and closing arguments.

            Under these facts and circumstances, we cannot conclude that appellant’s right to counsel was violated or that the district court abused its discretion by denying appellant’s request for an additional continuance in order to obtain a private attorney.

II.

            Appellant argues that he received ineffective assistance of counsel because his public defender was not prepared to go to trial.  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).  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.  Id.

            In particular, appellant challenges the effectiveness of his public defender because he failed to seek suppression of appellant’s illegally seized cell phone, made improper comments during closing argument, and failed to insure that appellant was present for the reading of the verdict and polling of the jury.  With respect to each claim, the postconviction court found no deficiency in counsel’s performance or prejudice to appellant.  We find no fault with the postconviction court’s reasoning.

            First, appellant argues that had the public defender objected to the admissibility of the cell phone seized from him by a police officer on April 11, it would have been suppressed and the outcome of the trial would have been different.  The phone was seized during a “pat-down” search for weapons before appellant was placed in the back seat of the officer’s squad car for an interview on April 11.

            Even if the phone had not been seized, there was other evidence upon which the officer could have based his decision to detain and arrest appellant, including:  (1) 17-year-old T.M. and appellant were both staying in the hotel room that night; (2) T.M. admitted working for an escort service; (3) appellant and T.M. were engaged; (4) an ad for the escort service was found in the hotel room with a telephone number that was the same number given by T.M. to hotel staff as appellant’s; and (5) appellant became belligerent and defensive when the officer attempted to talk to him.  Thus, even if the cell phone was illegally seized, its suppression would not have changed the outcome of the trial, given other admissible evidence linking appellant to the crime of promoting prostitution.

            Appellant next argues that his public defender was ineffective because during his closing argument, he made improper and prejudicial remarks that included referring to appellant as a “pimp.”  While the reference, by itself, may appear prejudicial, when the public defender’s closing argument is read in its entirety, his reference to “pimp” appears to be a legitimate trial tactic.  The public defender used the same characterization of appellant that the prosecutor had used in an attempt to argue that the state failed to prove the elements of this crime beyond a reasonable doubt.  The public defender gave a reasonable argument that the state failed in its burden because its evidence merely showed that appellant was present at the scene or that he was merely acquiescing in T.M.’s activities.

            Appellant finally argues that his public defender’s performance was defective because he allowed the verdict to be read while appellant was not present.  However, an attorney’s presence at the reading of a verdict may be sufficient if the defendant “‘voluntarily and without justification absents himself or herself after trial has commenced.’”  State v. Worthy, 583 N.W.2d 270, 277 (Minn. 1998) (quoting Minn. R. Crim. P. 26.03, subd. 1(2)).

            The record here shows that the public defender instructed appellant to appear at 9:00 a.m. on Monday, October 22, 2001, because he expected the jury to return with a verdict.  Appellant merely claimed that he had not spoken with his public defender since October 19, the preceding Friday.  Appellant did not give the public defender a number to reach him at over the weekend, nor did he attempt to contact the public defender over the weekend.  The postconviction court did not clearly err or otherwise abuse its discretion in determining that appellant failed to show that his absence was not voluntary or that his public defender’s performance in this regard was deficient or otherwise ineffective.

III.

            Appellant challenges the sufficiency of the evidence to support his conviction for promoting prostitution of an individual under the age of 18.  On review of a challenge to the sufficiency of evidence to support a conviction, this court must view the evidence in the light most favorable to the conviction and determine whether the evidence reasonably supports that conviction.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  Determinations involving the credibility, reliability, and weight of testimony of any witness lie with the jury alone.  State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980).  A reviewing court must assume that the jury believed all of the state’s witnesses and disbelieved all testimony and other evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

            Appellant was convicted of intentionally promoting the prostitution of an individual under the age of 18 years.  Minn. Stat. § 609.322, subd. 1(2) (2000).  A defendant “promotes the prostitution of an individual” when he or she knowingly “[p]rovides, leases or otherwise permits premises or facilities . . . controlled by the person to aid the prostitution” or “[t]ransports an individual from one point . . . to another point . . . to aid the prostitution of the individual.”  Minn. Stat. § 609.321, subd. 7(2), (6) (2000).

            With respect to the incident that occurred on April 11, 2001, appellant argues that the evidence fails to establish that he “knowingly” provided the premises or facilities for T.M. to commit an act of prostitution because she testified that appellant did not know about her prostitution activities.  By reaching the verdict that it did, however, the jury obviously chose to disbelieve T.M.’s testimony and to infer from the other evidence that appellant knew about T.M.’s prostitution activities and provided the premises for her to engage in those activities.

            With respect to the incident that occurred on June 14, 2001, appellant argues that there is no evidence that he controlled the premises at the hotel room in Minneapolis, which was leased by law enforcement as part of a sting operation.  But when the evidence is viewed in the light most favorable to the verdict, the jury could reasonably find that appellant transported T.M. from a motel room in Roseville that he had leased to downtown Minneapolis so that she could engage in prostitution.

IV.

            Appellant argues that he is entitled to a new trial due to improper and prejudicial comments made by the prosecutor during closing argument.  See State v. Salitros, 499 N.W.2d 815, 817-18 (Minn. 1993) (setting out standards for proper closing arguments to juries).  A district court’s denial of a new trial motion based on alleged prosecutorial misconduct will be reversed only “when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.”  State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000).

            Appellant first claims that the prosecutor improperly expressed her own personal opinion as to the falsity of T.M.’s testimony when she implored the jury to disbelieve T.M.’s claim that appellant had nothing to do with her prostitution activities and that she was running her own business and working on her own.  In particular, the prosecutor asked the jury to compare T.M.’s and appellant’s demeanor and speech on the witness stands:  T.M., the prosecutor asserted, “could barely walk, barely make it from the witness stand to the door yesterday after she was done testifying,” compared to appellant’s very “calm and deliberate manner.”

            Appellant next claims that the prosecutor “continued to improperly stoke the passions and/or prejudice of the jury” by her repeated use of the term “pimp” and inference that appellant was T.M.’s “pimp.”  Finally, appellant claims that the prosecutor either misstated the factual significance of certain evidence or misled the jury into making an improper inference when she noted that “Mark Johnson,” a name that was mentioned during the testimony of various witnesses with links to T.M.’s prostitution activities, “has the same initials” as appellant, Maxxe Jackson.

            In denying the petition for postconviction relief, the court concluded that the prosecutor’s comments were not patently objectionable.

Contrary to [appellant’s] contention, the State did not express an opinion as to [appellant’s] guilt or the falsity of testimony.  [Appellant] cites a series of rhetorical questions that the State asked the jury, such as “Could [T.M.] run her own business?” and “Is [appellant] a victim of [T.M.]?” as expressing the prosecutor’s belief in [appellant’s] guilt.  However, these comments were reasonable inferences drawn by the State from the facts in the record, and did not express any personal beliefs.  See State v. Ashby, 567 N.W.2d 21, 28 (Minn. 1997) (“A prosecutor may draw reasonable inferences from the evidence produced at trial.”).  [Appellant] was free to draw opposite inferences from the same facts in his argument to the jury.

 

Because the prosecutor’s comments were based on reasonable inferences from the evidence that was presented, we cannot conclude that he was denied a fair trial or that the postconviction court abused its discretion in denying his motion for a new trial.

            Affirmed.