This opinion will be unpublished and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,
Joshua Jon Bluhm,
Filed March 16, 2004
Rice County District Court
File No. K3-02-1327
John M. Stuart, State Public Defender, Sara L. Martin, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
G. Paul Beaumaster, Rice County Attorney, 218 Northwest Third Street, Faribault, MN 55021; and
Mike Hatch, Attorney General, Cheri A. Townsend, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Harten, Judge.
On direct appeal from a conviction for fleeing a police officer and driving after revocation, Joshua Bluhm argues that he was denied the effective assistance of counsel. We affirm.
On 4 June 2002, a police officer attempted to pull over a speeding car that executed a left turn without stopping for a stoplight. Although the officer had activated her light bar and siren, the driver of the car led the officer on a chase along a number of streets and through the parking lots of an apartment building and a truck stop. When the car finally stopped, the officer activated her spotlight and “take-down” lights, which illuminated the interior of the stopped car. The officer was able to observe four white males in the car. She then observed the driver of the car crawl over the front-seat passenger and flee on foot.
The remaining passengers were handcuffed and transported by police to the law-enforcement center for interviews. During the interviews, one passenger identified the driver as Bluhm, another passenger identified the driver as “Jon,” and the third passenger refused to speak to police. Approximately three weeks later, one of the passengers was shown a photographic line-up that included a picture of Bluhm. The passenger did not identify Bluhm as the driver, but the officer recognized Bluhm as the driver.
Bluhm was charged with fleeing a peace officer and driving after revocation. At trial, the officer was the first witness to testify; she identified Bluhm as the car’s driver. During cross-examination, defense counsel asked the officer: “[T]he reason that you realized that or believed that it was Josh Bluhm [driving the car] is that he was identified by the remaining occupants of the vehicle; is that correct?” The officer replied, “[w]ith the name they gave and I looked up a booking photo, yes.” On redirect, the prosecution then questioned the officer further about the passengers’ statements regarding the identity of the driver.
The three passengers were subpoenaed to testify at trial. Two of the passengers testified but the passenger who identified Bluhm as the driver failed to appear at trial. A jury found Bluhm guilty on all charges, and the court sentenced Bluhm to 19 months’ imprisonment. Bluhm appeals directly from the final judgment, arguing he was denied effective assistance of counsel when defense counsel elicited the hearsay identification testimony at trial.
D E C I S I O N
To prevail in a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel’s conduct was deficient and fell below an objective standard of reasonableness and that counsel’s representation resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). To obtain relief, a defendant must satisfy both prongs of the Strickland test. Gates v. State, 398 N.W.2d 558, 562 n.1 (Minn. 1987). There is a strong presumption that an attorney’s performance falls within a wide range of reasonable assistance. State v. Quick, 659 N.W.2d 701, 717 (Minn. 2003). An attorney’s decisions regarding trial tactics, such as what evidence to present at trial, 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).
Generally, it is inappropriate to raise issues of ineffective assistance of counsel on appeal without having sought a post-conviction hearing because “we do not have the benefit of all the facts concerning why defense counsel did or did not do certain things.” State v. Zernechel, 304 N.W.2d 365, 367 (Minn. 1981). But when an appellant requests this court to consider the claim on direct appeal, and where the record is sufficient to allow proper review of the claim, it may be brought on direct appeal. Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001). In such circumstances, an appellant must show that nothing his counsel could have said at a post-conviction hearing would have justified counsel’s performance at trial. See, e.g., State v. Tienter, 338 N.W.2d 43, 44 (Minn. 1983).
In this case, no evidence in the record conclusively establishes defense counsel’s trial strategy. But the record supports a strong inference that the decision to elicit the testimony at issue was part of defense counsel’s trial strategy.
Immediately after questioning the officer about her identifying Bluhm only because a passenger had stated Bluhm was the driver, defense counsel questioned the officer about her report, which indicated that the “occupants” of the vehicle identified Bluhm as the driver. Counsel asked: “[Bluhm] wasn’t identified by the occupant was he? He was identified only by one occupant; is that correct?” The officer replied, “That’s correct.” Defense counsel also questioned the officer about her failure to note in her report that another passenger had identified a person named “Jon” as the driver: “[The passenger] was saying [the driver’s name] was Jon, and when you made out this report, you didn’t—you didn’t mention that when you said that it was the remaining occupants that identified Josh Bluhm, did you?” The officer replied, “No.”
This exchange indicates that defense counsel discussed the passenger’s identification of Bluhm to discredit the officer’s testimony. This exchange shows that the officer was inaccurate when she noted in her report that more than one passenger identified Bluhm as the driver and that the officer failed to note that one passenger identified somebody named “Jon” as the driver. In addition, defense counsel may have been attempting to weaken the state’s case by emphasizing that only one of three passengers identified Bluhm as the driver. It is also possible that defense counsel questioned the officer about the identification in an effort to address it before the passenger who identified Bluhm testified. At the time of the officer’s testimony, the parties were not aware that the passenger would fail to appear for trial.
It was reasonable for defense counsel to (1) draw attention to the errors in the officer’s report; (2) emphasize that only one of the three passengers identified Bluhm as the driver; and (3) address the identification before the passenger who identified Bluhm was scheduled to testify at trial. Because Bluhm is challenging defense counsel’s trial strategy, which this court will not review, Bluhm has failed to show ineffective assistance under the deficiency prong of the Strickland test.