This opinion will be unpublished and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,
Victor Lawrence Burke,
Filed November 18, 2003
Ramsey County District Court
File No. K30228
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent); and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)
John Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Wright, Presiding Judge; Harten, Judge; and Anderson, Judge.
G. BARRY ANDERSON, Judge
Appellant, Victor Lawrence Burke, was convicted by a jury of both first and fifth-degree controlled substance crimes, in violation of Minn. Stat. §§ 152.021, subd. 1(1) and § 152.025, subd. 2(1) (2000). Appellant was sentenced by the district court for a term of 98 months on the first-degree conviction, with a concurrent stayed term of 15 months on the fifth-degree conviction.
Appellant appeals, seeking a new trial on the grounds that (1) the district court abused its discretion by admitting evidence of appellant’s prior, stale, drug-related convictions; and (2) appellant received ineffective assistance of counsel because his attorney, in final argument, conceded that appellant was guilty of the lesser charge. Appellant also asserts three pro se arguments in his supplemental brief, arguing that prosecutorial misconduct occurred, witnesses gave inconsistent testimony at trial, and the jury improperly heard arguments that tainted appellant’s trial. We affirm, but preserve appellant’s right to pursue an ineffective assistance of counsel claim in a petition for postconviction relief.
On November 13, 2001, a narcotics officer for the Metropolitan Airports Commission identified a package at the St. Paul airport Federal Express (“FedEx”) facility as fitting the profile of a narcotics shipment. The package, sent from Phoenix, was addressed to Danielle Keller, 756 Manomin, St. Paul. After obtaining a search warrant, the officer took the package to the Ramsey County Sheriff’s Office, where law enforcement personnel opened it. The package contained approximately one kilogram of cocaine.
After determining that Victor Burke (“Burke”), not “Danielle Keller,” resided at 756 Manomin, the police obtained a search warrant for the house, contingent upon delivery of the package.
Posing as a FedEx delivery driver, Deputy Bradley Otremba (“Otremba”) delivered the package to Burke’s house. Otremba wore a body wire during the delivery, but only for the purpose of monitoring the conversation, not recording it. After a brief discussion with Burke, Otremba put the package down on the front porch and left.
The police continued to monitor Burke’s house, and shortly after Otremba left, officers saw Burke get into his car and drive away. The police stopped Burke after following him for several blocks. After searching Burke’s car, the police found the unopened FedEx package in a bag in the car’s trunk. Police arrested Burke and returned Burke to his house where they executed the search warrant and found marijuana.
The state charged Burke with possession with intent to sell cocaine and possession of marijuana. At the in limine hearing, the district court ruled that the prosecution could use Burke’s 1988 felony convictions for sales of a controlled substance as impeachment evidence.
At trial, both Otremba and Officer Springer, one of the officers who monitored the conversation between Otremba and Burke, testified to one version of the conversation that took place during the staged delivery, while Burke, testifying in his own defense, presented a different and contradictory version of the events.
During closing argument, Burke’s counsel told the jury that Burke was not denying the charges stemming from the marijuana found in his house. In fact, Burke’s attorney told the jury that it should find Burke guilty of the marijuana charges, but that Burke was not guilty of the more serious cocaine offense.
At the close of the trial, the district court gave the following cautionary instruction to the jury: “[Y]ou must be especially careful to consider any previous conviction only as it may affect the weight of the defendant’s testimony. You must not consider any previous conviction as evidence of guilt of this offense for which the defendant is on trial.”
Whether the probative value of the prior conviction outweighs its prejudicial effect is a matter within the discretion of the trial court, State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985). A trial court’s ruling on the impeachment of a witness by prior conviction is reviewed under a clear abuse of discretion standard. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).
Minn. R. Evid. 609(a) provides:
(a) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect . . . .
In the case of a conviction that is more than ten years old, the conviction is not admissible “unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” Minn. R. Evid. 609(b). According to the committee comment on Rule 609(b):
The rule places a ten year limit on the admissibility of convictions. This limitation is based on the assumption that after such an extended period of time the conviction has lost its probative value on the issue of credibility. Provision is made for going beyond the ten year limitation in unusual cases where the general assumption does not apply.
Minn. R. Evid. 609(b) 1989 comm. cmt.
In deciding whether the probative value of a conviction that is more than ten years old outweighs its prejudicial effect, the district court must evaluate five factors. The court must determine:
(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime . . . , (4) the importance of the defendant’s testimony, and (5) the centrality of the credibility issue.
State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978).
In examining the second, third, and fourth of the Jones factors, the district court concluded that all three favored excluding the impeachment evidence. But, the district court also determined that credibility was a central issue in the case, and that the impeachment evidence was probative of Burke’s credibility. The district court concluded that the probative value of the evidence substantially outweighed the prejudicial effect of the evidence. A prior conviction as impeachment evidence is proper when credibility is a central issue; in fact, “if the issue for the jury narrows to a choice between defendant’s credibility and that of one other person—then a greater case can be made for admitting the impeachment evidence, because the need for the evidence is greater.” State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980) (holding that a prior conviction for rape admitted as impeachment evidence in a criminal sexual conduct trial was not an abuse of discretion).
Burke argues that the court’s credibility analysis was flawed—he contends that this was not a case where the jury had to choose between Burke’s credibility and the credibility of one other person; in this case, Otremba’s testimony about the events on the porch was corroborated by a fellow officer who had listened in on the wire Otremba wore. Burke argues that, for this reason, the court incorrectly determined the probative value of the prior convictions, and that admitting the convictions into evidence was error. But the state contends that Burke’s refutation of Otremba’s testimony, and Burke’s insistence that he did not make the statements that Otremba says he did, places credibility squarely at issue. The district court properly found that Burke’s credibility was a central issue in the case.
The district court specifically found that the second, third, and fourth Jones factors weighed in favor of excluding the evidence; the first factor and the fifth factor, however, weighed heavily in favor of admitting the impeachment evidence. The district court evaluated all five of the Jones factors and concluded that, in the interests of justice, the probative value of appellant’s earlier convictions on drug charges substantially outweighed the prejudicial effect of the evidence. Recognizing the risk of prejudice to the defendant, the court gave the jury a limiting instruction to use the impeachment evidence only for impeachment, not substantive purposes. We conclude on this record that the district court did not abuse its discretion in admitting the impeachment evidence and we decline to reverse the district court.
We turn next to Burke’s argument that he received ineffective assistance of counsel. Minnesota follows the Strickland v. Washington test for claims of ineffective assistance of counsel. See Dukes v. State, 660 N.W.2d 804, 811-12 (Minn. 2003) (“Dukes II”). Strickland establishes a two-prong test for ineffective assistance of counsel claims. 466 U.S. at 687, 104 S. Ct. at 2064. First, “[t]he defendant must affirmatively prove that his counsel’s representation ‘fell below an objective standard of reasonableness[,]’” and, second, “‘there [must be] a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2086).
Although we use the Strickland test in evaluating claims of ineffective assistance of counsel, some Sixth Amendment right to counsel violations result in presumed prejudice to a defendant under the Strickland test. Dukes v. State, 621 N.W.2d 246, 254 (Minn. 2001) (“Dukes I”). The Minnesota Supreme Court has determined that when counsel admits his client’s guilt without consent, counsel’s performance is deficient and prejudice is presumed. See State v. Jorgensen, 660 N.W.2d 127, 132 (Minn. 2003); Dukes I, 621 N.W.2d at 254; State v. Wiplinger, 343 N.W.2d 858, 861 (Minn. 1984). This rule is grounded in the philosophy that to concede a defendant’s guilt is solely the defendant’s decision to make. Jorgensen, 660 N.W.2d at 132. Based on these principles, the Supreme Court has held that a defendant is entitled to a new trial if counsel concedes defendant’s guilt without his permission. Id.
But this general principle is subject to an acquiescence exception. This court cannot, however, determine whether Burke acquiesced to his counsel’s concession. The Minnesota Supreme Court has held “that an appeal from a judgment of conviction is generally not the proper method of raising an issue concerning the effectiveness of defense counsel because of the difficulty an appellate court has in determining the facts regarding the representation.” State v. Christian, 657 N.W.2d 186, 194 (Minn. 2003). The Supreme Court has clearly declared that “[t]he preferred procedure is to raise the issue of ineffective assistance in a petition for postconviction relief in the district court.” Id.
Because this court cannot decide on the record before it if Burke admitted that he understood that his guilt was being conceded in his attorney’s closing statement, we do not reach the merits of his claim of ineffective assistance of counsel. Burke’s remedy is to pursue the ineffective assistance of counsel claim in a petition for postconviction relief.
Burke’s three pro se arguments are without merit. He alleges prosecutorial misconduct, but appellate courts reviewing claims of prosecutorial misconduct “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). Burke does not demonstrate any impairment of a right to a fair trial by the prosecutor’s statements. Burke’s other two assertions, inconsistent testimony by witnesses and arguments improperly heard by the jury, are without merit. Further, he fails to demonstrate any prejudice resulting from any of the claims raised in his pro se brief.
 Referred to as the Jones factors.
 466 U.S. 668, 104 S. Ct. 2052 (1984).
 If defense counsel uses the strategy of conceding defendant’s guilt throughout the trial and defendant never objects, the defendant has acquiesced to the trial tactic. Jorgenson, 660 N.W.2d at 132-33. Additionally, if the defendant’s acquiescence “when admitting guilt was an ‘understandable’ strategy, and defendant was present at the time the concessions were made and admits that he understood that his guilt was being conceded, but did not object,” the defendant has acquiesced to the concession. Id. at 133 (citing State v. Pilcher, 472 N.W.2d 327, 337 (Minn. 1991)).
 Burke’s appeal based on ineffective assistance of counsel is analogous to Dukes I, a case recently decided by the Minnesota Supreme Court. In Dukes I, Dukes’s counsel changed trial strategy during the trial, arguing that his client was innocent until the closing argument, where counsel made statements that impliedly admitted that Dukes was guilty of at least some of the elements of the crimes with which he was charged. See Dukes I, 621 N.W.2d at 254. Because of this late change in strategy, and because Dukes had not listened to admissions of guilt throughout trial without objecting, but only during closing arguments, the Supreme Court concluded that “the postconviction court need[ed] to consider testimony from Dukes and his counsel in addition to reviewing the trial record before it [could] decide the merits of [the ineffective assistance of counsel] claim.” Id. at 255. The Supreme Court remanded “to the postconviction court for further proceedings regarding Dukes’s claim that he was denied effective assistance of counsel because his counsel conceded his guilt to [one of the crimes].” Id.