This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed June 14, 2005
File No. K4-02-136
Mike Hatch, Attorney General, Kimberly Parker, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101-2134; and
Craig S. Nelson, Freeborn County Attorney, Freeborn County Courthouse, 411 South Broadway, Albert Lea, MN 56007 (for respondent)
Considered and decided by Klaphake, Presiding Judge, Shumaker, Judge, and Crippen, Judge.
Appellant disputes the district court’s postconviction determination that he waived his right to testify at his 2002 trial. Because the decision is supported by the record, we affirm. We also find no merit in appellant’s additional arguments that his conviction should be reversed because his trial counsel failed to conduct reasonable investigation and because of allusions in the testimony of prosecution witnesses to prior bad acts of appellant.
On October 30, 2002, appellant Dennis Bluhm was convicted of first-degree sale of a controlled substance, in violation of Minn. Stat. § 152.021, subds. 1(1), 3(a) (2000). The district court imposed a 98-month sentence with nearly 33 months of supervised release and a fine of $100. Our review is prompted by a 2003 appeal from the conviction and an appeal from the same district court’s later denial of postconviction relief, determined while the direct appeal was stayed.
courts “review a postconviction court’s findings to determine whether there is
sufficient evidentiary support in the record.”
Dukes v. State, 621 N.W.2d 246, 251 (
The defendant in a criminal case
has a constitutional right to testify in his or her own defense. Rock v.
Because the right to testify is
rooted in the Constitution, waiver of the right must be made voluntarily and
The postconviction court found that appellant “failed to meet his burden of proof regarding a denial of his right to testify.” The court determined that appellant’s testimony at the postconviction hearing was inconsistent and that he “failed to remember several meetings and appearances . . . before the court.” The court also noted that appellant’s trial counsel “clearly recalled and had documentation” of his meetings with appellant and that on September 10, 2002, trial counsel discussed with appellant his right to testify. These findings are sustained by the record. Appellant offers no citation of authority for his added assertion that there must be proof of an ultimate waiver decision after the state rests in the course of the trial.
Appellant also challenges the postconviction court’s additional observations that the waiver of his right to testify is supported by his familiarity with the court system and by his other cases where he was represented by the same trial counsel. Because we are satisfied with the postconviction court’s findings with respect to the occurrence of waiver, the weight of the court’s decision is not diminished by these additional findings.
Appellant argued that there must be an express
waiver of the right to testify on the record, equating the right to testify
with the right to counsel and the right to a jury trial. But caselaw does not sustain that
Appellant additionally argues that he was provided ineffective assistance of counsel because his counsel failed to make any reasonable effort to locate a potential alibi witness. But the record indicates that appellant told his trial counsel about the potential alibi witness only six days before trial, and appellant admitted that he did not know where the witness was. Appellant’s trial counsel hired an investigator to locate the witness, but the investigator was unable to find her before trial.
ineffective assistance of counsel, appellant must first show by a preponderance
of the evidence that his attorney’s performance fell below an “objective
standard of reasonableness.” Carney v. State, 692 N.W.2d 888, 890-91
Appellant also challenges the admission of certain trial testimony by two police officers. First, an officer testified that a confidential informant was familiar with appellant because he had “done business” with him. Another officer later testified that he knew what appellant looked like because he had seen appellant’s mug shots.
Given the evidence that the state did not intend
to introduce suggestion of bad acts and the small likelihood of prejudice, the district
court’s decision must be affirmed. Although
we recognize that it is the prosecution’s duty to control its witnesses, the
prosecutor’s failure to do so here is offset by the district court’s
determination, justified by the record, that both counsel did as much as they
could to avoid potential prejudice. Any
possible error here is harmless in light of the curative instructions given by
the district court and the weight of the evidence.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.