This opinion will be unpublished and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,
Lionel Lee Washington,
Filed August 3, 2004
Washington County District Court
File No. K3-02-2622
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and
Doug Johnson, Washington County Attorney, Heather Pipenhagen, Assistant County Attorney, 14949 – 62nd Street North, P.O. Box 6, Stillwater, Minnesota 55082-0006 (for respondent)
John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)
Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his convictions of first-degree and third-degree criminal sexual conduct, claiming that the trial court erred by: (1) admitting Spreigl evidence of his 1984 convictions of third-degree criminal sexual conduct and first-degree witness tampering; and (2) sentencing appellant to the statutory maximum 30 years on count one, the statutory maximum 10 years on count seven, and running the sentences consecutively. We affirm the trial court’s decision to admit the Spreigl evidence, and we reverse appellant’s 40-year sentence and remand for sentencing in light of the United States Supreme Court’s decision in Blakely v. Washington.
In January 2000, M.D. was living with her mother, Darlene Daniels; her two younger sisters; and appellant, Lionel Washington. One night in early January, M.D. sneaked out of the apartment to meet her boyfriend. When M.D.’s mother discovered that she was gone, she sent appellant to look for M.D. As M.D. was walking home, appellant picked her up. When she got into the car, appellant told M.D. that he would not take her home because her mother was very angry with her. Instead, appellant took M.D. to the attic of a duplex in St. Paul. Appellant told M.D. that because she was so interested in sex, he would show her “what it’s like.” He told her that she could not tell anyone about what was going to happen. Appellant then made M.D. take her shirt and pants off and made M.D. perform oral sex on him, telling her he was going to teach her how to do it properly. Appellant also performed oral sex on M.D. and touched her vagina with his fingers. Appellant told M.D. that if she told her mother about the abuse he would hurt her and her sisters and that even if he went to jail there would always be people watching them. Appellant kept M.D. in the duplex for three to four days and repeated the same sexual abuse throughout this period. Appellant eventually brought M.D. back to her mother’s apartment in Cottage Grove.
Over the next few months, appellant found excuses to bring M.D. back to the duplex and continued to sexually abuse her. Appellant began bringing a camera to the duplex and made M.D. pose for pictures nude while spreading her legs. After each incident, appellant would require M.D. to take a bath or shower, telling her that if she did not, people would know what they had done.
Over time, appellant began sexually abusing M.D. at the Cottage Grove apartment, as well. M.D. testified that this went on for months, happening one to three times per week. Appellant repeatedly told M.D. that if she ever disclosed the abuse, he would kill her or her family.
In March 2001, M.D. told her mother about the abuse, but her mother did not believe her. M.D. then attempted suicide by cutting her wrists with a razor. Appellant insisted that they not take M.D. to the hospital out of fear of what she might tell the staff. M.D. attempted to commit suicide a second time by overdosing on pills. Appellant again insisted that M.D. not be taken to the hospital, and M.D. testified that she drank some type of drug to induce vomiting. After the suicide attempts, appellant stopped abusing M.D. for a while, but after some time, he began abusing M.D. again.
In 2001, appellant and M.D.’s mother ended their relationship, and appellant moved out of the apartment. But one night at a family party, M.D. and her mother were having problems and had a fight. M.D.’s mother called appellant and told him to come get M.D. “because [she] wasn’t acting right.” M.D. left the party and her cousin followed her and convinced her to go to her uncle’s house. M.D. went to her uncle’s house and told her uncle about the abuse. The following day M.D. made a report to the Minneapolis police. Minneapolis police referred the report to the Cottage Grove Police Department. A Cottage Grove police investigator contacted appellant, and he denied the allegations. Appellant was charged with ten counts of sexual abuse: three counts of first-degree criminal sexual conduct; three counts of second-degree criminal sexual conduct; and four counts of third-degree criminal sexual conduct.
At a pretrial hearing, the state moved to present evidence of Washington’s 1984 convictions of third-degree criminal sexual conduct and first-degree witness tampering as Spreigl evidence. The incidents involved M.K., whom Washington victimized when she was 15 years old. M.K. was a runaway and Washington offered her a place to live, but required her to prostitute herself. Washington drove M.K. to the customers’ homes where she would have sex while he waited, and then he required her to shower. M.K. testified that after appellant initially forced her to prostitute herself, she tried to leave his house, but he choked her or beat her when she attempted to leave. Washington became very controlling and would not let M.K. out of his sight. During the time M.K. stayed with Washington, he forced her to perform oral sex on him, telling her he wanted to teach her how to perform it properly. Washington also took photos of M.K. in her “nightie.” After every encounter, appellant would force M.K. to take a shower or a bath. Eventually, M.K. was able to run away and made it to a friend’s house. Washington came to the friend’s house with a handgun, but the police were called, and when they arrived M.K. reported the sexual abuse.
The defense objected to this evidence, arguing that it was not proper Spreigl evidence and that it was more prejudicial than probative. The trial court determined that the Spreigl evidence was relevant and was proved by clear and convincing evidence, but reserved making an ultimate ruling on the admissibility until the state introduced its case in chief. At trial, after the state introduced its evidence, the trial court ruled that it would admit into evidence M.K.’s testimony and the testimony of the police officer who assisted with the 1984 investigation.
The jury returned a verdict of guilty on all counts. During sentencing, the prosecutor asked for an upward departure from the presumptive guidelines sentence. The trial court granted the request and sentenced appellant to the statutory maximum of 30 years on count one and a consecutive sentence of 10 years on count seven. This appeal follows.
Finally, in his pro se brief, appellant claims that: (1) the police completed an insufficient investigation of M.D.’s allegations; (2) his attorney had a conflict of interest and should have disqualified herself; (3) Washington County jail staff prevented him from contacting other attorneys and the trial court failed to assist him in this matter; (4) his attorney failed to complete a thorough investigation; and (5) he was denied the right to present an opening statement.
1. Insufficient investigation by the police
Appellant argues that because Detective Pete Koerner did not perform a complete investigation, appellant’s conviction should be overturned. We disagree.
Detective Koerner and the police spoke with the key witnesses in this case—M.D., appellant, and Darlene Daniels—and the police also spoke with the school social worker who had discussed the abuse with M.D. Further, during cross-examination of Koerner, appellant’s attorney clearly highlighted for the jury that the defense believed that the police did not complete a thorough investigation. All of this information was presented to the jury, and the jury made a credibility determination finding M.D.’s testimony credible and sufficient to convict appellant. See State v. Profit, 591 N.W.2d 451, 467 (Minn. 1999) (stating that the jury is in the best position to judge the credibility of witnesses).
2. Attorney conflict of interest
Appellant next argues that because his public defender stated that she could not represent him in a civil suit against the county, she should have disqualified herself from representing him in the criminal case. Although the record is not clear on the exchange that occurred between appellant and his attorney regarding the alleged conflict, there is no support in the record for appellant’s allegation that his attorney had a conflict of interest that prevented her from representing him in the criminal case.
3. Washington County prevented appellant from contacting lawyers
Next, appellant argues that the jail staff prevented him from contacting legal counsel to file a civil suit. Appellant raised this issue at the pretrial hearing, and the trial court explained to appellant that this was an issue between appellant and the jail staff and that the trial court could not modify the jail’s rules regarding phone use.
Significantly, the record shows that appellant was allowed to contact his public defender and seek legal advice in his criminal case. With regard to appellant’s contention that the jail would not allow him to use the phone to make non-collect calls in order to obtain counsel for a civil case, we decline to address this issue as it is not before this court on appeal.
4. Attorney failed to speak with witnesses
Next, appellant argues that his attorney failed to properly investigate his case. While appellant did not explicitly claim that his counsel was ineffective, it appears appellant’s complaint is essentially that his trial counsel was ineffective for failing to speak with various witnesses. To prevail on an ineffective-assistance-of-counsel claim, appellant “must affirmatively prove that his counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotations omitted.) When determining whether counsel’s representation fell below an objective standard of reasonableness, “[a] strong presumption exists that counsel’s performance fell within a wide range of reasonable assistance. Particular deference is given to the decisions of counsel regarding trial strategy.” State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998) (citation omitted).
This court may dispose of an ineffective-assistance-of-counsel claim when the appellant fails to prove that there was a reasonable probability that the outcome would have been different. See Gates, 398 N.W.2d at 563; see also Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2069-70 (1984).
Here, appellant was not prejudiced by his counsel’s failure to call certain witnesses. Darlene Daniels, one of the witnesses appellant’s counsel did not call, testified at the sentencing phase of the trial and requested that the trial court sentence appellant to a very long sentence. Thus, it does not appear her testimony would have been beneficial to appellant’s case. Moreover, it appears that attempts were made to interview appellant’s other witnesses and counsel chose not to call the witnesses at trial. Which witness to call at trial is a tactical decision of a trial attorney, and we do not review matters of trial strategy for competency. SeeState v. Bliss, 457 N.W.2d 385, 392 (Minn. 1990).
5. Opening statement
Finally, appellant argues that he was deprived a fair trial because his attorney refused to give an opening statement. Appellant relies on United States v. Hershenow, 680 F.2d 847 (1st Cir. 1982), for the proposition that his attorney’s failure to give an opening statement was “harmful error.” But in Hershenow,the court held that the trial court erred by refusing to allow the defendant in a criminal case to make opening statements to the jury; but concluded that because there was no prejudice the error was harmless. Id. at 858-59.
In this case, the trial court did not prohibit appellant from making an opening statement. Moreover, it is unlikely that failure to give an opening statement changed the outcome of the case because the jury appeared to find M.D.’s testimony persuasive and relied on her testimony to convict appellant.