This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Bruce Alvin Thompson,
Carlton County District Court
File No. K2-00-1311
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Marvin Ketola, Carlton County Attorney, Paul T. Shaffer, Assistant County Attorney, 202 Courthouse, Box 300, Carlton, MN 55718 (for respondent)
Bradford Colbert, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)
Considered and decided by Toussaint, Chief Judge; Schumacher, Judge; and Minge, Judge.
Appellant challenges the denial of his petition for postconviction relief, arguing he was denied effective assistance of counsel because his attorney improperly waived his opportunity to have a record made of the jury voir dire, represented both appellant and appellant’s wife on charges arising out of the same incident, and failed to adequately argue evidentiary issues. Because we conclude appellant has not shown that his legal representation violated his constitutional right to effective assistance of counsel, we affirm.
On November 13, 2000, three individuals went to the home of appellant Bruce Thompson to tow a vehicle they claimed belonged to them. Appellant pointed a shotgun at one of the individuals and made threatening statements to him. Then appellant pounded on the truck in which the other two individuals were waiting and threatened them. When law enforcement officers arrived, they searched the area and the Thompsons’ home for a gun, but they did not find one. They arrested appellant and his wife.
Appellant’s attorney also represented appellant’s wife, who was tried separately for crimes related to the same incident. At a November 2000 hearing, appellant and his wife stated that they waived any potential conflicts that could arise from having the same attorney. The trial of appellant’s wife concluded before appellant’s trial started, and appellant’s wife was convicted.
After the district court entertained pretrial motions, the district court asked both the prosecutor and defense attorney whether they would like the court reporter to record the jury voir dire. Both attorneys declined. During the jury voir dire, the prosecutor exercised peremptory challenges to remove the two Native Americans from the jury pool. On the record after the jury voir dire, appellant’s attorney asserted that the prosecutor’s peremptory challenges were racially motivated. The prosecutor explained that he had challenged these two prospective jurors because both had served previously on juries that acquitted criminal defendants, because one of them had a bad relationship with a law enforcement officer, and because the other knew appellant and many of the defense witnesses. The district court concluded appellant did not establish that the prosecutor’s reasons for striking either juror were improper.
Appellant’s attorney did not object to several items of evidence offered by the state. During pretrial arguments on the admissibility of some of appellant’s prior convictions, appellant’s attorney conceded that two of appellant’s prior convictions could be used to impeach appellant if he testified at trial. When questioned during the trial by the prosecutor, a law enforcement officer testified as to what a dispatcher told him an eyewitness had said, what eyewitnesses told him on the scene, and what a deputy sheriff told him an eyewitness had said. Appellant’s attorney did not object. Appellant’s attorney also failed to object when the prosecutor asked prosecution witnesses if their testimony at trial was the same as statements they had made to the police and in other legal proceedings related to the case.
After a jury trial, appellant was found guilty of one count of assault in the second degree and two counts of assault in the fifth degree. The district court sentenced appellant to 36 months in prison.
Appellant filed a direct appeal with the court of appeals, but the court stayed the appeal at appellant’s request so appellant could file a petition for postconviction relief. After a hearing, the district court denied appellant’s petition. This appeal follows.
The issue we face is whether appellant’s conviction should be reversed because his legal counsel was ineffective. The United States and Minnesota constitutions grant defendants the right to be represented by counsel in criminal prosecutions. U.S. Const. amend. VI; Minn. Const. art. I, § 6. The constitutional right to counsel has been interpreted to mean that defendants have the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 2063 (1984). To make a successful claim that a criminal defendant was denied effective assistance of counsel, he or she must allege facts that affirmatively show that (1) counsel’s representation fell below an objective standard of reasonableness; and (2) but for counsel’s errors, there is a reasonable probability that the result of the proceedings would have been different. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland, 466 U.S. at 688, 694, 104 S. Ct. at 2064, 2068). We need not address both elements “if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. “When assessing the representation of counsel, a strong presumption exists that the attorney’s conduct “falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S. Ct. at 2065; State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998). In Minnesota, when an attorney exercises the customary skills and diligence that a reasonably competent attorney would exercise under the circumstances, the attorney acts within the objective standard of reasonableness. State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999).
Appellant claims that he was denied effective assistance of counsel because his attorney improperly waived his opportunity to have a record made of the jury voir dire, represented both appellant and appellant’s wife on charges arising out of the same incident, and failed to adequately argue evidentiary issues. We will address each of appellant’s claims in turn.
A. Record of Jury Voir Dire
We first address whether the failure of appellant’s attorney to request that a record be made of the jury voir dire precludes appellant from contesting the peremptory challenges and whether the failure to make such a record constitutes ineffective assistance of counsel. A party may not use peremptory challenges to discriminate by race or gender. Minn. R. Crim. P. 26.02, subd. 6a; State v. White, 684 N.W.2d 500, 504-05 (Minn. 2004). Therefore, a party may challenge the opposing party’s use of peremptory challenges to strike jurors because of their race. State v. Reiners,664 N.W.2d 826, 831 (Minn. 2003) (quoting Batson v. Kentucky, 476 U.S. 79, 85-86, 106 S. Ct. 1712, 1717 (1986) (an objection to the improper use of preemptory challenges is known as a Batson challenge)). Once a party makes a Batson challenge, the court uses a three-step process to determine whether a peremptory challenge is racially discriminatory. White, 684 N.W.2d at 504. First, the party making the Batson challenge must make a prima facie case of racial discrimination. Id. at 504-05. Then the party who made the peremptory challenges has the burden to show a race-neutral explanation for striking the prospective juror. Id. at 505. Finally, the district court must decide whether the party making the Batson challenge has proved purposeful discrimination. Id.
The Minnesota Supreme Court has said that “in every criminal prosecution the trial court as a general matter ought to require the presence of a court reporter at voir dire.” State v. Benedict, 397 N.W.2d 337, 340 (Minn. 1986). But the lack of a voir dire transcript does not necessarily preclude raising a Batson challenge. See generally Benedict, 397 N.W.2d at 340 (determining whether the court was required to hold a hearing to determine juror misconduct for impeaching a verdict). In Benedict, although no transcript of the jury voir dire existed, the Minnesota Supreme Court examined the record as it existed to determine whether a juror’s answers to voir dire questions required the district court to order a hearing. Id.
Here, not only is there sufficient evidence in the record for a court to review, but appellant actually did make a Batson challenge that the district court examined both during the trial and again on the petition for postconviction relief. The record includes the statement of appellant’s attorney as to why she made the Batson challenge, the prosecutor’s descriptions of what the two potential jurors in question said during voir dire, and the prosecutor’s explanations of why he used peremptory challenges to strike the potential jurors. While appellant’s attorney should have requested that a record be made of the jury voir dire and the district court should have required that such a record be made, the failure to record voir dire did not prejudice appellant. Because appellant cannot show there is a reasonable probability that the result of the proceedings would have been different if appellant had made a record of jury voir dire, we conclude the district court’s decision on this part of the right-to-effective-counsel issue was not error.
B. Conflict of Interest
The second part of the effective counsel issue is whether appellant’s attorney had a conflict of interest because she represented his wife at an earlier trial. The constitutional right to counsel includes the right to representation free from any conflicts of interest. State v. Brocks, 587 N.W.2d 37, 43 (Minn. 1998). The right “extends to any situation in which a defendant’s counsel owes conflicting duties to that defendant and some other third person.” Id. (quotation omitted). For a defendant to effectively waive a potential conflict of interest, the district court must follow the procedure set forth in Minn. R. Crim. P. 17.03, subd. 5. On the record, the district court should advise each defendant of the dangers associated with dual representation and allow the defendant to ask the court about dual representation. Minn. R. Crim. P. 17.03, subd. 5. The district court should also elicit statements from the defendants, acknowledging that they understand their rights, understand the details and potential dangers of dual representation, have discussed the issue with counsel, and voluntarily waive the Sixth Amendment protections. Id. If the required advisories and acknowledgments are not made on the record, the state must demonstrate that no prejudicial conflict of interest existed. State v. Olsen, 258 N.W.2d 898, 907-08 (Minn. 1977).
Here, the required advisories and acknowledgments are not present on the record, but the postconviction court concluded that the state showed that no prejudicial conflicts of interest arose from the same attorney representing both appellant and his wife in separate criminal proceedings arising out of the same incident. Appellant’s trial was held after his wife’s trial before a different judge and a different jury. Appellant’s wife did not testify at appellant’s trial. Because his wife’s trial was over at the time of appellant’s trial, the attorney no longer represented appellant’s wife and therefore had no continuing obligation to her to refrain from presenting evidence that would have undermined her defense. There is no apparent reason why appellant would be prejudiced by his attorney’s representation of his wife. Because appellant cannot show there is a reasonable probability that an attorney who had not represented appellant’s wife would have done anything differently, we conclude no conflict of interest arose and that the district court’s decision on this issue was not clearly erroneous.
We now address whether certain evidentiary strategies of appellant’s attorney constitute ineffective assistance of counsel. Appellant argues his attorney erred by allowing the state to introduce hearsay testimony, evidence of appellant’s prior convictions, and testimony from state witnesses vouching for their own credibility. He also argues his attorney erred by failing to request a jury instruction on the defense of property.
The decisions to object to evidence and to raise defenses are considered tactical matters and are not reviewed for competency. State v. Vick, 632 N.W.2d 676, 689 (Minn. 2001); State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999). Decisions regarding trial tactics lie within the discretion of trial counsel. State v. Jones,392 N.W.2d 224, 236 (Minn. 1986). An attorney could have legitimate reasons for not objecting to certain testimony and for not raising a certain defense, so the court should not second-guess the attorney’s decisions after the trial. See Voorhees, 596 N.W.2d at 255; Doppler, 590 N.W.2d at 635 (stating that appellate courts do not review matters of trial strategy for competency).
But in some cases, even isolated errors by counsel may support a finding of ineffective assistance of counsel. See Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 2649-50 (1986) (holding that a single egregious error may support a finding of ineffective assistance). The failure of counsel to thoroughly challenge a state expert or to counter important testimony may show that the level of counsel’s advocacy was unreasonable and affected the outcome of the trial. State v. Rhodes, 627 N.W.2d 74, 88 (Minn. 2001).
The mistakes alleged by appellant are not egregious. First, the hearsay to which appellant’s attorney did not object was statements made by one of the victims about what he saw the night of the assaults. However, because the victim was also a witness at the trial, he could have testified and been cross-examined as to what he saw that night. Thus, this hearsay problem is overcome.
Second, the prior convictions to which appellant’s attorney did not object were two felony convictions for fleeing a police officer. Appellant’s attorney noted that both convictions occurred in 1996, within the ten-year time limit for admissibility provided in Minn. R. Evid. 609(b). Although appellant’s attorney could have challenged their admissibility under the Jones factors that govern that determination, the convictions were substantially dissimilar to the charged offense, the two convictions had little bearing on veracity, and appellant’s version of events was thoroughly presented. See State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978). Thus, we conclude appellant has not shown prejudice from counsel’s failure to challenge this evidence.
Third, the testimony of the alleged victims vouching for their own credibility relied on out-of-court statements. See Minn. R. Evid. 801(d)(1). But appellant’s attorney may have had legitimate reasons for not objecting to its admission; for example, he may not have wanted to appear to be attacking the victims.
Finally, appellant’s attorney failed to request a jury instruction on the defense of property. A person may use reasonable force when the person is in lawful possession of property to resist “a trespass upon or other unlawful interference with such property[.]” Minn. Stat. § 609.06, subd. 1(4) (2002). It is unclear here whether appellant was in lawful possession of the vehicle he was protecting and questionable whether threatening others with a shotgun was reasonable force in the situation. Therefore, appellant has not shown that the strategy of not seeking a defense-of-property instruction was so unreasonable as to constitute ineffective assistance. Thus, we conclude the evidentiary strategies do not satisfy the test for ineffective assistance of counsel.
Because appellant has not shown that (1) counsel’s representation fell below an objective standard of reasonableness; and (2) but for counsel’s errors, there is a reasonable probability that the result of the proceedings would have been different, we affirm the denial of appellant’s petition for postconviction relief.