This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Jorge Valdovinos Barajas, petitioner,


State of Minnesota,


Filed January 11, 2005


Wright, Judge


Martin County District Court

File No. K2-02-380



Arthur Martinez, 301 Fourth Avenue South, Suite 377, Minneapolis, MN  55415 (for appellant)


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


Terry Viesselman, Martin County Attorney, Michael Trushenski, Assistant County Attorney, 123 Downtown Plaza, Fairmont, MN  56031 (for respondent)



            Considered and decided by Kalitowski, Presiding Judge; Wright, Judge; and Crippen, Judge.*


U N P U B L I S H E D  O P I N I O N




In this postconviction appeal, appellant challenges the district court’s denial of his request for a new trial based on claims of ineffective assistance of counsel and prosecutorial misconduct.  We affirm.



Appellant Jorge Barajas was one of several passengers in a vehicle that was pulled over for speeding in Martin County on May 29, 2002.  The investigating officer asked for a driver’s license from the driver, Cynthia Gonzales, which she claimed not to have.  The officer subsequently determined via radio that Gonzales had given him a false name.  Gonzales was taken into custody to investigate her true identity and immigration status.  Having determined that Barajas had a valid Washington state driver’s license, the officer advised him to drive the vehicle to the law enforcement center in Fairmont.  After the officer was instructed by the Immigration and Naturalization Service (INS) to detain Gonzales for further investigation, he returned to the vehicle to retrieve her belongings.  The officer noticed an open alcoholic beverage container in the vehicle and asked all of the occupants to exit the vehicle.  As a rear seat passenger was exiting, the officer observed that she appeared to place something in her purse, which later proved to be cocaine.  A subsequent canine search of the vehicle confirmed the presence of cocaine.  All of the adult occupants of the vehicle were arrested, and Barajas was found to be carrying over $1900 in cash. 

Following a jury trial, Barajas was found guilty of first-degree controlled-substance crime and sentenced to 86 months’ imprisonment.  Barajas did not file a direct appeal of the conviction,[1] but he sought postconviction relief on several grounds.  In his petition for postconviction relief, Barajas alleged that he was denied effective assistance of counsel prior to and during his trial, that he was prejudiced at trial by prosecutorial misconduct, and that the district court made certain rulings that entitled him to postconviction relief.  The district court denied Barajas’s petition for postconviction relief.  This appeal followed. 



Barajas argues that the district court erred in denying postconviction relief based on ineffective assistance of trial counsel and prejudicial prosecutorial misconduct.  Postconviction relief is available to a defendant convicted of a crime for whom direct appellate relief is no longer available when the conviction or sentence violated the defendant’s constitutional rights.  Minn. Stat. § 590.01, subd. 1 (2002).  We will not disturb a postconviction court’s decision absent an abuse of discretion.  Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995).  We review de novo legal determinations of a postconviction court.  Berkow v. State, 573 N.W.2d 91, 95 (Minn. App. 1997), aff’d, 583 N.W.2d 562 (Minn. 1998).  But as to factual findings, our “scope of review is limited to whether there is sufficient evidence in the record to sustain the postconviction court’s findings.”  State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993). 


The Sixth Amendment to the United States Constitution guarantees the right to effective assistance of counsel.  Id.  To prevail on an ineffective-assistance-of-counsel claim, a defendant must allege facts that demonstrate that (1) counsel’s performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s errors, the outcome of the trial would have been different.  Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001).  “Both prongs must be satisfied to grant relief.”  Kaiser v. State, 621 N.W.2d 49, 54 (Minn. App. 2001) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)), aff’d, 641 N.W.2d 900 (Minn. 2002). 

Generally, we indulge a strong presumption that counsel’s performance falls within “the wide range of professionally competent assistance.”  Strickland, 466 U.S. at 690, 104 S. Ct. at 2066; accord State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).  The Minnesota Supreme Court has stated that

[t]o act within an objective standard of reasonableness, an attorney must provide his or her client with the representation that an attorney exercising the customary skills and diligence . . . [that a] reasonably competent attorney would perform under similar circumstances. 


State v. Gustafson, 610 N.W.2d 314, 320 (Minn. 2000) (quotation omitted).  An attorney’s decision not to pursue a particular theory of defense does not constitute ineffective assistance of counsel when the decision could have been made for strategic reasons or because of counsel’s professional judgment that raising the issue or defense would have been futile.  State v. Grover, 402 N.W.2d 163, 166 (Minn. App. 1987).

            Barajas contends that his trial counsel’s efforts did not satisfy the objective standard of reasonable competence because his counsel failed to (1) seek suppression of the evidence obtained during the search of the vehicle; (2) object more frequently during the prosecutor’s direct examination of witnesses; (3) conduct more thorough cross-examination of those witnesses; and (4) seek a “mere presence” jury instruction addressing possession of the controlled substance.

            To establish that his counsel’s failure to seek suppression of the evidence constitutes ineffective assistance of counsel, Barajas must demonstrate that his counsel’s performance was unreasonable and “that but for the errors the result of the proceeding probably would have been different.”  Gates v. State, 398 N.W.2d 558, 562 (Minn. 1987).  In support of his argument, Barajas contends that suppression would have resulted because his “mere presence” in a stopped car where contraband is found does not create probable cause to arrest.  Cf. State v. Slifka, 256 N.W.2d 90, 90-91 (Minn. 1977) (holding that open-bottle offense, where passenger did not keep alcohol on person, did not supply probable cause for arrest of passenger).  Barajas argues that an “astonishingly similar” case, State v. Albino, 384 N.W.2d 525 (Minn. App. 1986), would have “dictated” suppression of the evidence. 

There are considerable differences between the facts in Albino and those of the present case.  The defendant in Albino was arrested as a passenger in a truck that was stopped for a broken taillight.  Id. at 526.  The driver was detained under an outstanding arrest warrant, and when the police told Albino that the truck would be towed, she stated that she would walk home and departed.  Id.   When the officers found drugs during their inventory search of the truck, they brought back Albino for questioning and arrested her on suspicion of possession.  Id.  During her subsequent detention, the police found illegal drugs on her person, and it was that evidence on which her conviction for controlled-substance possession was based.  Id. at 528.  We reversed that conviction because the officers had no evidence that Albino had constructively possessed the drugs found in the truck, and therefore they had no probable cause to arrest her.  Id.  Notably, Albino was not involved in any traffic infraction, nor did the owner of the truck link her to the drugs found therein.

Here, the investigation that led to the discovery of cocaine arose from the partially consumed alcoholic beverage on the front-seat floor of the vehicle that Barajas had just driven to the law enforcement center.  In the course of investigating the open-container offense, the officer observed the concealment of cocaine by another passenger.  When the officer questioned Gonzales about the cocaine, she incriminated herself, Barajas, and the passenger who had cocaine on her person.  These additional incriminating circumstances constitute more than “mere presence.”  On these facts, Barajas has neither established that his counsel’s performance was objectively unreasonable nor has he established a reasonable probability that moving to suppress the evidence would have changed the outcome of this case.  See Gates, 398 N.W.2d at 562.  Accordingly, we conclude that counsel’s decision not to seek suppression of the evidence obtained in the search does not entitle Barajas to postconviction relief on the ground of ineffective assistance of counsel.

In counsel’s opening argument, he introduced the defense theory of the case—namely, the only evidence of possession was the testimony of the others in the car, which lacked credibility.  Barajas’s counsel did not cross-examine Gonzales.  But immediately before her testimony, he cross-examined the investigating officer regarding the numerous misrepresentations Gonzales made to the officer.  Thus, questions as to Gonzales’s credibility were effectively raised for the jury’s consideration.  Furthermore, Barajas’s counsel made several objections during the direct examination of Gonzales and elicited during cross-examination of the other passenger her admission that she did not know who brought the cocaine into the car.  In the jury-charge conference, Barajas’s counsel objected to instructing the jury that they could draw a permissive inference of knowing possession of a controlled substance by multiple persons.  The district court ultimately instructed the jury correctly that “[p]ossession need not be by the defendant alone, but may be shared with others.”  See State v. Barnes, 618 N.W.2d 805, 812 (Minn. App. 2000) (stating that “[a] person may constructively possess drugs jointly with another person”).

            Given the apparent competence with which Barajas’s counsel presented the defense at trial, the record does not support a conclusion that the district court abused its discretion in denying the petition for postconviction relief with respect to the ineffective assistance of counsel claim.  Because counsel’s representation at trial did not fall below an objective standard of reasonableness, we do not reach the second prong of the ineffective-assistance-of-counsel test.  The district court did not err in denying postconviction relief based on Barajas’s claim of ineffective assistance of counsel.


Prosecutorial misconduct occurs when the state appeals to passion or prejudice and distracts the jury from deciding whether the state has met its burden of proof beyond a reasonable doubt.  State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997).  When misconduct is alleged, the defendant cannot rely on a few isolated statements.  Rather, the misconduct must be considered in the context of the parties’ arguments and the entire trial.  State v. Powers, 654 N.W.2d 667, 679 (Minn. 2003).  When serious misconduct is established, a new trial is required unless the error was harmless beyond a reasonable doubt.  State v. Roman Nose, 667 N.W.2d 386, 401 (Minn. 2003).  In cases of less serious misconduct, a new trial is required only if the error was likely to have affected the verdict.  Id. 

Barajas argues that the prosecutor’s reference to the INS at several points during the trial incited racial bias and thereby constituted prejudicial misconduct.  From our careful review of the record, it is evident that each reference to the INS by the prosecutor was in the context of his description of the circumstances of Gonzales’s detention.  Barajas was neither linked nor compared to Gonzales, and his nationality and immigration status were never addressed at trial.  Information regarding Gonzales’s detention was relevant because it explained the circumstances leading to the discovery of cocaine in the vehicle.  When taken in context, we do not construe the prosecutor’s statements as inflammatory.  On this record, the district court did not abuse its discretion by denying the petition for postconviction relief based on this claim of prosecutorial misconduct.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]  Barajas presented evidence at his postconviction hearing that he had retained a lawyer for a direct appeal of his conviction, but no such appeal was filed.