This opinion will be unpublished and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

A03-1007

 

David Arafan Kromah, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed July 20, 2004

Affirmed

Minge, Judge

 

Hennepin County District Court

File No. 99050466

 

 

Elizabeth A. Cloutier, Cloutier Law Offices, P.A., 250 Northstar East Building, 608 Second Avenue South, Minneapolis, MN 55402 (for appellant)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Harten, Presiding Judge; Halbrooks, Judge; and Minge, Judge.

 

 

  U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Appellant challenges the denial of his petition for postconviction relief and the limits placed on the postconviction hearing, and alleges that he was denied effective assistance of counsel.  Because the postconviction court did not abuse its discretion in denying appellant’s petition or in conducting the postconviction relief hearing, and because appellant failed to meet his burden in proving his attorney’s performance was deficient, we affirm.

FACTS

 

            On July 25, 2000, appellant David Arafan Kromah was convicted of one count of third-degree criminal sexual conduct.  At the jury trial, A.K., the teenage victim, testified that appellant, who was her mother’s boyfriend, had sexual intercourse with her twice. 

The victim’s mother testified that she witnessed the second incident when she came home, heard her daughter screaming, went into the bedroom, and saw appellant penetrating A.K.  Appellant testified that he did not have any physical contact with A.K. on either occasion.  With respect to the second incident, he claimed that when he arrived at the home on May 24, he lay down to rest and heard A.K.’s mother yelling in the hallway, accusing him of having sex with her daughter.  She began beating him while A.K. called 911.  He then ran to the basement, where he was later arrested. 

            After appellant was arrested, Sergeant Bernard Martinson interrogated him.  Part of the interrogation was videotaped.  During the part of the interrogation that was admitted at trial, appellant repeatedly denied having sexual contact with A.K., but eventually stated that he went into the room and took off his clothes with the intention of having sex with her.  He denied penetrating or even touching her.  At trial, appellant testified that parts of his confession were not true and implied that he was afraid he would be beaten during the interrogation.  At the end of the trial, appellant unexpectedly testified that he was impotent; however, no further testimony or exhibits were offered to support this claim.

            Biological samples collected from the victim only revealed a match for her DNA and did not detect the presence of semen.  Biological samples collected from appellant only showed his DNA and did not detect the presence of semen.  The condom appellant allegedly wore was tested, and only A.K.’s DNA match was found. 

            In his postconviction petition appellant alleged that he was denied effective assistance of counsel because his attorney failed to pursue the defense of impotency, failed to pursue the inconsistency of A.K. having a sexually transmitted disease that appellant did not, failed to object to the videotaped statement taken without the assistance of a qualified interpreter, and failed to secure a qualified interpreter at trial.  He also alleged that the district court erred in failing to suppress the videotaped statement and to have a qualified interpreter present for all portions of the proceedings.  Appellant appeals the denial of his petition and alleges the postconviction court abused its discretion by not allowing a full hearing. 

 

D E C I S I O N

 

On appeal from postconviction proceedings, this court’s review of the district court’s findings of fact is limited to determining whether they are supported by the evidence.  Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997).  The postconviction court’s decision will not be disturbed absent an abuse of discretion.  Voorhees v. State, 627 N.W.2d 642, 648 (Minn. 2001). 

I.

The first issue is whether the district court erred in admitting portions of appellant’s videotaped interrogation.  Appellant argues that his statements were involuntarily given because he did not have a qualified interpreter and that the interrogation violated the recording requirement of State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994). 

A.  Interrogation without an Interpreter

            Law enforcement officials must provide an interpreter before interrogating or taking a statement from a person “handicapped in communication.”  Minn. Stat. § 611.32, subd. 2 (2002).  A person is “handicapped in communication” if, because of a difficulty in speaking or comprehending English, he or she cannot fully understand the proceedings.  Minn. Stat. § 611.31 (2002).  “A violation of the interpreter statutes does not necessarily require exclusion of a defendant’s statements at trial.”  State v. Marin, 541 N.W.2d 370, 373 (Minn. App. 1996), review denied (Minn. Feb. 27, 1996).         

            In Marin, the court found that the officers immediately realized the defendant had difficulty speaking and understanding English because the defendant indicated he did not understand all of his rights, the police officers had to restate and describe defendant’s rights several times, and the defendant stated he understood his rights only after he was asked several times.  Id. at 373.  Further, the transcript demonstrated that Marin’s misunderstandings continued throughout the interrogation.  Id. at 373-74.

A native of Liberia, appellant’s first language is Susu.  After asking appellant several preliminary questions, Sergeant Martinson determined that appellant was capable of communicating with him in English.  Martinson stated: “I felt that he understood my questions and he could speak to me knowing everything that we were discussing.”  The transcript of the interrogation shows that appellant said that he understood English and answered all of Martinson’s questions appropriately.  The district court ruled that the videotape of the first part of the interrogation was admissible because appellant has “adequate command of the English language, is a very intelligent man, and there’s no doubt in the Court’s mind that he was able to fully comprehend the rights that were given to him.”  We conclude that the postconviction court did not abuse its discretion in determining that appellant was not handicapped in communication in the interrogation.

B.  Scales Violation

All custodial interrogations, including any information about rights, any waiver of those rights, and all questioning, must be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention.  Scales, 518 N.W.2d at 592.  “If law enforcement officers fail to comply with this recording requirement, any statements the suspect makes in response to the interrogation may be suppressed at trial.”  Id.

The interrogation in this case was videotaped for approximately 40 minutes before Sergeant Martinson terminated the interview to take appellant to the hospital to collect further evidence.  There was an approximately nine-minute portion of the interview when Martinson could be heard interrogating appellant outside the presence of the camera and prior to the camera being turned off.  The video then starts again, at which point appellant admits to having sexual intercourse with the victim on two occasions.  The district court found that the second half of the interrogation, which began when the two left the room and included the confession, was inadmissible because the interrogation procedure was inconsistent with the Scales rule.  See id.  Appellant makes no legal argument, and cites no legal authority, why the district court should have excluded the first portion of the tape under Scales,and the postconviction court did not abuse its discretion in denying his claim.

II.

            The next issue is whether the district court erred by not ordering appellant to testify at trial in Susu with English interpretation.  We note that the previous issue involved the availability of interpreters at the interrogation stage of the proceeding and not at trial.  The postconviction court found that appellant was provided with qualified interpreters at trial even though he wavered in his request for such services, and that throughout the proceedings, appellant demonstrated his ability to comprehend and speak English.  

As with interrogations, persons handicapped in communication are entitled to qualified interpreters in legal proceedings.  Minn. Stat. § 611.30 (2002).  As stated above, a person handicapped in communication is one who “because of difficulty in speaking or comprehending the English language, cannot fully understand the proceedings . . . or is incapable of presenting or assisting in the presentation of a defense.”  Minn. Stat. § 611.31.

 The Minnesota Supreme Court has enumerated recommended procedures and proposed questioning to ensure the qualifications of interpreters.  See Best Practices Manual on Interpreters in the Minnesota State Court System (May 1999).  The court is to guarantee that the interpreter has spoken with and is able to understand the defendant.  Further, the court should inquire into the interpreter’s education, ability to translate, and familiarity with the Code of Professional Responsibility for interpreters.  Id.

            Appellant stated at trial, through counsel, that he wanted to speak in English and that it was his right to do so.   Before appellant testified, his attorney stated he had interviewed appellant almost exclusively in English and that appellant “understands his credibility is at stake here and he wants to be able to speak directly to the jury about what happened . . . . he is choosing, and I think it is his right, to testify in English.  I have discussed this at some length with him.”  On redirect examination, his attorney noted that at times appellant answered questions on cross-examination in Susu and asked appellant whether he would be “more comfortable answering in Sussu [sic] and then having the interpreter explain it in English?”  Appellant stated several times that he would prefer to speak in English. 

            Further, the record shows that care was given to ensure that appellant could understand his translators.   When appellant indicated four months after the case was filed that he wanted an interpreter, one was located.  When appellant declined the first interpreter, a second interpreter was located.  Before the jury was selected, the judge asked the interpreter if he and appellant could communicate effectively, and the interpreter answered yes.  Before appellant testified, the district court asked if appellant had any concerns about the translation.  Appellant’s counsel answered in the negative.  This questioning revealed that the interpreter could communicate with appellant and was qualified to translate such court proceedings.

Finally, the record shows that appellant understood the proceedings and communicated effectively.  On direct examination, appellant answered questions in English before they were translated, and the record shows appellant gave no inappropriate answers reflecting a lack of understanding.  See State v. Yang, 627 N.W.2d 666, 676 (Minn. App. 2001) (recognizing district court’s discretion in judging nonverbal indicators of language abilities), review denied (Minn. July 24, 2001).  Therefore, we conclude the postconviction court did not abuse its discretion in upholding the manner in which interpretation was handled at trial.

 

III.

            The next issue is whether the postconviction court abused its discretion in establishing the procedure for appellant’s postconviction proceedings.  Appellant argues that he was prejudiced in his ability to present his postconviction claims because the court limited the hearing to only a few hours of testimony, limited appellant’s testimony, did not allow all the witnesses to testify, and did not consider appellant’s medical records. 

            But Minn. Stat. § 590.04, subd. 3 (2002), provides that “[i]n the discretion of the court, it may receive evidence in the form of affidavit, deposition, or oral testimony.”  The procedural history of this postconviction proceeding is long, and the record is extensive.  Because of the substantial time involved, the postconviction court limited the evidence to affidavits and depositions and certain live testimony. 

In reviewing this proceeding, we first note that appellant caused many of the delays in the proceeding: his counsel failed to file the necessary paperwork to ensure appellant’s transport from prison for the hearing, delayed the ordering of the trial transcripts, failed to provide a witness list and to detail their anticipated testimony, and failed to produce appellant’s medical records until the day of the hearing.  Second, after determining that it did not have the time required to allow appellant to introduce all of his witnesses or to allow the state to present its witnesses, the postconviction court kept the record open to allow the introduction of that evidence through affidavits of witnesses.  Additionally, the court allowed the parties to schedule depositions and to submit deposition testimony.  The court stated that it reviewed all of the documents submitted for the postconviction proceeding.  The record reflects that the postconviction court acted within its discretion, and appellant has not shown how these actions prejudiced him. 

IV.

The final issue is whether appellant is entitled to a new trial because he was denied effective assistance of counsel.  He argues his attorney was ineffective due to his failure to investigate and present the impotency and sexually transmitted diseases defenses, did not raise the interpreter argument when objecting to the videotape of appellant’s statement, and did not object to the district court allowing appellant to testify in English.

When making a claim of ineffective assistance of counsel, a defendant must show that (1) his counsel’s representation fell below an “objective standard of reasonableness”; and (2) there is a reasonable probability that, but for counsel’s performance, the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2064 (1984).  An attorney acts within the objective standard of reasonableness when he “exercis[es] the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances.”  Voorhees, 596 N.W.2d at 255 (quotation omitted).  Courts presume that counsel’s performance falls within the wide range of reasonable professional assistance.  State v. Vick, 632 N.W.2d 676, 688 (Minn. 2001).  

A. Impotency

 

            Appellant argues that his attorney should have requested a continuance to investigate after appellant testified at trial that he was impotent.  The postconviction court found that appellant failed to provide any evidence that the attorney’s representation fell below an objective standard of reasonableness, and, because there was sufficient evidence of digital penetration, which satisfied the definition of third-degree criminal sexual conduct, it was unlikely that the outcome would have been different.

Trial counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.  Strickland, 466 U.S. at 691, 104 S. Ct. at 2066.  But “a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.”  Id.   The reasonableness of investigation decisions depends on the information given by the defendant.  Id.

Appellant relies on Foster v. Lockhart, 9 F.3d 722 (8th Cir. 1993) for the proposition that failure to investigate an impotency defense can be ineffective assistance of counsel.  The Eighth Circuit stated that the attorney’s decision not to pursue the theory in that case was unreasonable because he “lacked a reasonable basis for that decision.”  Id. at 726.  But there the appellant told his attorney of his impotency problems, requested scientific testing, and had given his attorney names of former girlfriends who could testify, all before the trial.  Id. at 725.

Here, it was only at the end of trial on redirect examination, when citing many of his medical ailments, that appellant first disclosed that he was impotent.  In a deposition of the appellant’s trial attorney incident to the petition for postconviction relief, the attorney stated that although appellant had described many of his medical ailments, he had never claimed to be impotent or mentioned the existence of any medical records bearing on such a claim.  Instead, appellant had described his sexual abilities and stated that he had a sexual relationship with A.K.’s mother.  See Russell v. Jones, 886 F.2d 149, 151-52 (8th Cir. 1989) (rejecting a claim of ineffective assistance of counsel when defendant did not inform trial counsel of a possible alibi defense until cross-examination, and trial counsel had no reason to suspect the defense existed before such testimony).   

Decisions regarding trial tactics lie within the discretion of trial counsel.  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).  Appellant’s trial attorney’s options were limited upon hearing this information minutes before the trial concluded.  His decision not to pursue this defense and instead to continue with the course he had followed throughout the trial was reasonable in light of the appellant’s previous statements regarding his sexual capabilities. 

The attorney’s decision also did not result in prejudice.  The testimony of A.K. and her mother, certain physical evidence, and appellant’s own statement that he entered the bedroom “with the intention to have sex with A.K.” support the conviction.  Further, in his police interrogation, appellant said he had sex with the victim’s mother, contradicting his claim of impotency.  Therefore, the postconviction court did not abuse its discretion in denying appellant’s claims. 

B. Sexually Transmitted Disease

            Appellant argues that his attorney should have offered evidence that appellant did not have a sexually transmitted disease for which A.K. tested positive.  The postconviction court found that his attorney’s reasons for not pursuing this tactic “fell squarely within the realm of trial strategy” and that appellant failed to establish that, but for the attorney’s decision to not introduce this evidence, the jury likely would have acquitted him. 

What defense to raise at trial is a trial strategy and will not be reviewed for competency.  Voorhees, 627 N.W.2d at 651.   Appellant’s trial attorney testified that appellant’s defense would not benefit from information on sexually transmitted diseases because it would not disprove the state’s argument.   He decided that “bringing out that kind of detail about a young girl” would only conflict with and harm the theory that he ultimately opted to pursue.  Further, appellant does not offer any evidence, beyond mere speculation, of how this information would have affected the outcome of the trial.  Therefore, the postconviction court did not abuse its discretion in dismissing appellant’s claim.

C.  Interpreters

Appellant also claims that he was denied effective assistance of counsel when his attorney failed to object to the admission of appellant’s statement to police on the grounds that he was not provided with an interpreter during the interrogation.  Although appellant’s attorney did not specifically object, we note that the trial attorney made several other objections to the admission of the police interrogation and succeeded in getting the second part of the interview excluded.  Further, because the interpreter statutes require a handicap in communication and because the district court made a specific finding that appellant was capable of understanding English, the outcome would not have been different even if his attorney had made the specific argument that the police interrogation violated the interpreter statutes.  Appellant also claims that his attorney was ineffective for failing to object to the lack of a qualified interpreter at trial.  But appellant failed to meet his burden of showing either that this constituted substandard legal representation or that such representation contributed to an adverse outcome.  Thus, the district court did not abuse its discretion in rejecting appellant’s claim of ineffective assistance of counsel. 

Affirmed.