This opinion will be unpublished and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

A03-934

 

Anthony Daniel Johnson, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed April 27, 2004

Affirmed

Wright, Judge

 

Hennepin County District Court

File No. 98019401

 

 

Bradford Colbert, 875 Summit Avenue, Room 254, St. Paul, MN  55105 (for appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Suite 425, Minneapolis, MN  55487 (for respondent)

 

 

            Considered and decided by Willis, Presiding Judge; Schumacher, Judge; and Wright, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

In this postconviction appeal, appellant challenges the district court’s denial of his request to withdraw his guilty pleas and vacate his convictions based on a claim of ineffective assistance of counsel.  We affirm.

FACTS

 

Appellant Anthony Johnson was involved in a shooting that took the lives of two men.  Johnson admitted in a statement to police that he acted as a lookout during the shooting.  On October 19, 1998, Johnson pleaded guilty to two counts of second-degree unintentional murder and received two consecutive sentences of 150 months’ imprisonment. 

On June 5, 2002, Johnson filed pro se a petition for postconviction relief, seeking to withdraw his guilty pleas.  Johnson’s petition alleged that (1) he was denied effective assistance of counsel and (2) his guilty pleas were involuntary and entered without knowledge of the consequences.  Johnson filed a second postconviction petition with the assistance of counsel.  In the second petition, Johnson claimed that his trial counsel had provided ineffective assistance by failing to (1) communicate with him about the case or (2) engage in adequate investigation or preparation of the case.  On March 28, 2003, the district court denied the petition without conducting an evidentiary hearing.  In the accompanying memorandum, the district court concluded that Johnson’s claim of ineffective assistance of counsel lacked factual support, and the record established that Johnson was “fully informed” when he voluntarily entered his pleas. 

On April 26, 2003, Johnson filed a motion to reconsider and attached three affidavits.  Johnson alleged that his trial counsel failed to communicate with him, failed to investigate or research his case, and failed to make an adequate argument for the suppression of his incriminating statements.  After considering the newly introduced affidavits, the district court again denied Johnson’s petition for postconviction relief on July 14, 2003.  This appeal followed.

D E C I S I O N

 

I.

 

Johnson argues that the postconviction court abused its discretion by summarily denying postconviction relief.  Asserting that he presented a sufficient factual basis to warrant an evidentiary hearing on his ineffective-assistance-of-counsel claim, Johnson also contends that, if his trial counsel had conducted an adequate investigation and argued in support of his motion to suppress Johnson’s statement, he would not have pleaded guilty.  

A hearing shall be held on a postconviction petition, unless the petition and the record of the proceeding “conclusively show that the petitioner is entitled to no relief.”  Minn. Stat. § 590.04, subd. 1 (2002); Sessions v. State, 666 N.W.2d 718, 721 (Minn. 2003).  When there is “no factual dispute and the legal issues present only questions of law,” an evidentiary hearing is unnecessary.  Bailey v. State, 414 N.W.2d 503, 505 (Minn. App. 1987).  When the postconviction court denies postconviction relief without a hearing, we review the evidence to determine whether the postconviction court abused its discretion.  Sessions, 666 N.W.2d at 721.  On issues of fact, we determine whether the evidence is sufficient to sustain the postconviction court’s findings; on issues of law, we exercise de novo review.  Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003).

The United States and Minnesota constitutions guarantee that a defendant shall have effective assistance of counsel.  U.S. Const. amend. VI; Minn. Const. art. I § 6.  Strickland v. Washington provides a two-part test to determine whether the defendant received ineffective assistance of counsel.  466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).  The defendant must first show that counsel failed to provide an objectively reasonable level of representation.  Then the defendant must show a reasonable probability that, but for the unreasonable representation, the outcome of the proceeding would have been different.  See State v. Rhodes, 627 N.W.2d 74, 86 (Minn. 2001).

The objective standard of reasonableness is met when counsel’s representation is that “of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances.”  State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quoting State v. Gassler, 505 N.W.2d 62, 70 (Minn. 1993)).  “There is a strong presumption that counsel[’s] performance [is] reasonable.”  Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001).  If ineffective assistance of counsel induced a guilty plea, the defendant must show with “reasonable probability” that, but for errors of counsel, the defendant would not have pleaded guilty.  Johnson v. State, 673 N.W.2d 144, 148 (Minn. 2004).

When determining whether investigation of a case meets an objectively reasonable level of representation, defense counsel receives a “heavy measure” of deference.  Strickland, 466 U.S. at 691, 104 S. Ct. at 2066.  In the exercise of reasonable professional judgment, counsel may make strategic choices without resorting to a complete investigation of the case.  Id. at 690-91.  The defendant has an affirmative obligation to show there were witnesses capable of providing testimony that would have changed the outcome at trial.  See Gates v. State, 398 N.W.2d 558, 563 (Minn. 1987).  The possibility of favorable testimony cannot be based on speculation.  Id. 

When the district court initially denied Johnson’s motion for a postconviction hearing, it found no facts supporting his claim of inadequate investigation by defense counsel.  To address the factual deficiency found by the district court, Johnson filed a motion to reconsider with his affidavit, along with those of his postconviction counsel and an investigator.  Johnson contends that these affidavits allege facts warranting an evidentiary hearing. 

According to postconviction counsel’s affidavit, Johnson’s file lacks any indication that his trial counsel communicated with Johnson or conducted any investigation or research on the case.  Postconviction counsel also stated that, when questioned, Johnson’s trial counsel could not recall “much of anything regarding his representation.”  The investigator’s affidavit indicated that she had interviewed Johnson’s co-defendants, Diawain Adams and Edward Overs, who stated that Johnson “did not have anything to do with the murders.”  Adams also reported to the investigator that Johnson’s trial counsel never spoke with him about the murders.

Johnson argues that, if his trial counsel had conducted a complete investigation, he would have discovered the exonerating statements of Johnson’s co-defendants.  But as the district court reasoned, the investigator’s affidavit “addresses what Adams and Overs were saying in September 2002.  There is no evidence in the record that they were asserting [Johnson’s] innocence at the time of his plea.”  At the time Johnson entered his guilty pleas, Overs had given a statement to the police identifying Johnson as a lookout during the shooting.  And in testimony before the grand jury, Adams had implicated Johnson.  Both Adams and Overs were identified as witnesses for the state.  Although they provided exculpatory information to the investigator years after Johnson pleaded guilty, there is no evidentiary basis to conclude that Adams and Overs would have provided exculpatory testimony at trial.  On this record, Johnson fails to establish that his trial counsel’s performance fell below an objective standard of reasonableness. 

II.

 

If a claim of ineffective counsel is based on failure to litigate a constitutional issue, the defendant must show that the issue has merit and would affect the outcome of the case.  See Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S. Ct. 2574, 2586 (1986).  Here, Johnson argues that his trial attorney failed to brief and argue for suppression of his incriminating statements.  Johnsonclaims that police (1) did not obtain a valid waiver of his Miranda rights before proceeding with custodial interrogation and (2) continued interrogation after he invoked his right to remain silent.

To establish a valid waiver of Miranda rights, the state must show that a defendant made an informed decision without coercion.  See State v. Scott, 584 N.W.2d 412, 417 (Minn. 1998).  Waiver is considered in the context of the totality of the circumstances and may be inferred from the actions of the defendant.  North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 1757 (1979).  Once the state demonstrates a valid waiver, it is the defendant’s burden to establish that the waiver was improperly obtained.  State v. Linder, 268 N.W.2d 734, 735 (Minn. 1978).

When a defendant indicates an understanding of the Miranda rights but proceeds to make an incriminating statement, there is adequate proof of waiver.  State v. Jones, 566 N.W.2d 317, 322 (Minn. 1997).  If, after the defendant expressly acknowledges an understanding of the Miranda rights, an officer asks whether the defendant will answer questions, an equivocal or incoherent response generally will not invalidate this waiver.  See State v. Nelson, 257 N.W.2d 356, 359 (Minn. 1977) (finding waiver when, after officer asked defendant if he would answer questions, defendant said “it all depends”); State v. Smith, 374 N.W.2d 520, 524 (Minn. 1985) (finding waiver where intoxicated defendant understood Miranda warning but made some incoherent responses to questions).

During custodial interrogation, if a defendant invokes the right to remain silent, then interrogation must cease.  State v. Williams, 535 N.W.2d 277, 282 (Minn. 1995).  This invocation must be unambiguous and unequivocal.  Id. at 283.  An expression of desire to end the interrogation, by itself, is not sufficient.  See State v. Wilson, 535 N.W.2d 597, 602 (Minn. 1995) (finding no invocation where defendant said he “didn’t want to talk about” victim); Williams, 535 N.W.2d at 282-83 (finding no invocation where defendant said “I don’t have to take any more of your bulls—t” and left interview room).

Prior to admitting his involvement in the homicide, Johnson received a Miranda warning and acknowledged that he understood it.  The officer then asked Johnson if he would talk, and Johnson responded, “Doesn’t matter to me.”  During the interview, Johnson asked the officer, “Can I go now?”

Because Johnson received and understood the Miranda warning but went on to make incriminating statements, the state met its burden to show waiver.  The fact that Johnson initially expressed indifference toward questioning does not invalidate the waiver, and Johnson offers no other evidence to show that his waiver was uninformed or coerced.  Cf. State v. Nelson, 257 N.W.2d 356, 359 (Minn. 1977).  When Johnson later asked if he could leave, he may have expressed some desire to end the interrogation, but he did not unequivocally invoke any Miranda rights.  Therefore, further interrogation was not improper.  Cf. Williams, 535 N.W.2d at 282-83.

Johnson’s arguments for suppression are without merit.  Because the suppression arguments would not have affected the outcome of the case, Johnson fails to establish that it was objectively unreasonable that his trial counsel did not brief or orally argue these issues.  Likewise, Johnson has failed to meet his burden of showing that, but for the errors of trial counsel, he would not have pleaded guilty.  Because the record conclusively shows Johnson was not entitled to relief, it was not an abuse of discretion for the district court to deny postconviction relief without a hearing.

Affirmed.