This opinion will be unpublished and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
Scott County District Court
File No. KX0110365
Mike Hatch, Attorney General, Suite 1800, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Pat Ciliberto, Scott County Attorney, Michael J. Groh,
Assistant County Attorney,
John M. Stuart, State Public Defender, Sara L. Martin,
Assistant Public Defender,
Considered and decided by Stoneburner, Presiding Judge; Lansing, Judge; and Willis, Judge.
On appeal from conviction of first-degree criminal sexual conduct, appellant argues that (1) his right to a speedy disposition under the Interstate Agreement on Detainers (IAD) was violated; (2) the prosecutor’s misconduct in obtaining a judge’s removal distorted the adversarial process and requires reversal; (3) the victim’s accounts of the incident were too inconsistent to support the conviction; and (4) in the alternative, that a remand is required for a postconviction hearing on appellant’s claim of ineffective assistance of counsel. Because we conclude that appellant waived timelines under the IAD, any misconduct on the part of the prosecutor was harmless error, the evidence was sufficient to support appellant’s conviction, and appellant has failed to establish the need for a hearing on his claim of ineffective assistance of counsel, we affirm.
Appellant Dwight Ford was charged with one count of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1(e)(i); subd. 2(a) & (b) (2000) (use of force or coercion to accomplish sexual penetration of an adult female that caused personal injury), and one count of criminal sexual conduct in the third degree in violation of Minn. Stat. § 609.344, subd. 1(c); subd. 2 (2000) (use of force or coercion to accomplish sexual penetration) in connection with an incident that occurred at the home of the victim, A.T., in May 2001. Appellant was in federal prison for a conviction of felon in possession of a firearm when he learned of the charges. Appellant’s request for final disposition of the state charges was filed on November 6, 2002. Appellant’s first appearance was on December 13, 2002, but trial did not occur until August 14, 2003.
Appellant, through counsel, requested some, caused some, and agreed to all of the several continuances of the pretrial hearings and trial dates that occurred in this case. On June 25, 2003, one of the trial dates agreed on by the parties, the retired judge who was assigned to the case discussed the case with counsel in chambers and indicated how he would rule on some of the issues. Based on appellant’s understanding of that discussion, appellant waived his right to a jury trial. Respondent moved for a continuance due to appellant’s last minute revelation of information about witnesses and his intent to assert the defense of fabrication. On June 27, the Scott County Attorney, in an ex parte discussion, asked the trial judge to recuse himself, and on June 30, the county attorney wrote a letter to the court administrator, copying the trial judge and appellant’s attorney, indicating that the trial judge had informed the county attorney that he was voluntarily recusing himself.
A different judge presided at a June 30 hearing on the state’s motion for a continuance. Defense counsel requested that this judge take the case and reasserted appellant’s right to a jury trial, based on the change in judges. This judge explained that due to his schedule, the earliest trial date would be August 12 if he took the case. Defense counsel and appellant had a discussion off the record. On the record, with appellant present, defense counsel stated:
COUNSEL: Judge, I have spoken to [appellant] about the situation. I have also spoken to him about his right to have a speedy decision. At this point he would agree that [sic] August 12th date with Your Honor.
COUNSEL: And we would waive any timelines.
Based on this discussion, trial was set for August 12. Defense counsel then asked the judge to adopt the rulings on pretrial motions that the recused judge had indicated he would be making. The judge declined to do so and, after hearing arguments on the motions, denied the state’s motion to admit appellant’s prior convictions as Spreigl evidence, but allowed two prior convictions to be used for impeachment. Two days before trial, on the record and after appropriate inquiry from the district court, appellant again waived his right to a jury trial.
At the bench trial, A.T. described how appellant came to her townhome intoxicated, asked to use her telephone, and then forced her to have sexual contact, hitting her three times and penetrating her with his finger and penis. The first police officer on the scene, the registered nurse who examined A.T. at the hospital, and a detective who interviewed A.T. testified about what A.T. had told them. There were some inconsistencies between A.T.’s testimony and the information A.T. gave to these witnesses, one being that A.T. told the first officer on the scene that appellant hit her once after the sexual contact.
Appellant testified that A.T. had left a message asking
him to come to her home because she had money to give him for some marijuana he
had previously left there. He testified
that A.T. was waiting for him and after they had talked and smoked a “blunt,”
she asked him to make love to her and they had consensual sex. He denied digitally penetrating A.T. Appellant testified that A.T. became angry
when he refused to spend the rest of the night, and that he struck her once
after she spat in his face. A defense
witness corroborated appellant’s claim that A.T. left a voicemail message for
appellant and testified that appellant was sober when he borrowed her car to go
to A.T.’s home. The district court
granted a three-day continuance in anticipation that a defense witness who was
The district court, acknowledging that the case turned entirely on the credibility of the witnesses and the reasonableness of their testimony, found that appellant intentionally sexually penetrated A.T. by force without her consent, causing personal injury. The court found appellant guilty of both counts of criminal sexual misconduct and ordered a pre-sentence investigation.
Defense counsel’s motions for acquittal or a new trial, based on allegations of insufficient evidence, prosecutorial misconduct, and ineffective assistance of counsel, were held to be untimely. Appellant was sentenced and this appeal followed.
Because appellant’s claim that he was denied a speedy disposition under the IAD is raised for the first time on appeal, we analyze the issue for plain error. Minn. R. Crim. P. 31.02 (providing that plain errors or defects affecting substantial rights may be considered by the court on appeal although they were not brought to the attention of the
trial court). “The plain error standard requires that the
defendant show: (1) error; (2) that was plain; and (3) that affected
substantial rights.” State v.
Strommen, 648 N.W.2d 681, 686 (
“The [IAD] is a compact among 48 states, the
It is undisputed that the IAD applies to appellant, who
was serving a sentence in federal prison for a felon-in-possession-of-a-firearm
conviction at the time he requested final disposition of the criminal sexual
conduct charges pending in
This case is similar to Wells. Defense counsel agreed to extend the deadlines on some occasions and counsel caused a delay by failing to timely disclose information about defenses to be raised and witnesses. And, the second judge directly questioned defense counsel in appellant’s presence about the delay that would be caused by his accepting the case, as defense counsel requested, after the first judge recused himself. Defense counsel conferred with his client off the record and on the record agreed to waive any timelines. We conclude that there is not plain error in this case regarding the IAD timelines because appellant both implicitly and explicitly waived his rights under the IAD.
II. Prosecutorial misconduct
of prosecutorial misconduct regarding the prosecutor’s role in the first
judge’s recusal was not raised until after the verdict was issued. “When
assessing prosecutorial misconduct, the reviewing court must first examine the
challenged conduct to determine whether the prosecutor erred, and then, only if
there is error must the court decide whether the conduct was so prejudicial in
light of the entire record that the defendant was denied a fair trial.” State v. Ford, 539 N.W.2d 214, 228 (
Minnesota Rule of
Professional Conduct 3.5(g), states that a lawyer will not communicate as to
the merits of a case with the judge of the pending proceeding except for
communications made in the course of official proceedings, in a letter also
provided to opposing counsel, and other circumstances not applicable to this
case. Appellant argues that the
prosecutor improperly contacted the first judge, and this error is a
“structural defect” in the adversarial process, not subject to the harmless error
analysis and requiring reversal. See
Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S. Ct. 1246, 1265 (1991)
(stating that some constitutional errors are not subject to harmless error
analysis and distinguishing between “trial errors” which are subject to
harmless error review and “structural errors” which are not). We disagree.
Structural defects are defects that make the trial process an unreliable
vehicle to determine guilt or innocence; and make the criminal punishment
appear fundamentally unfair. Fulminante,
inappropriate, the ex parte contact involved in this case did not affect the
fairness of appellant’s trial. Appellant
was tried by a judge whose participation he requested and who made de novo
rulings on all issues involving the trial.
Appellant does not assert any defects that made the trial unreliable for
determination of guilt or innocence.
“Ensuring all litigants a fair trial is a central goal of the
judiciary.” State v. Erickson,
589 N.W.2d 481, 484 (
III. Sufficiency of the evidence
When the sufficiency of the evidence is raised on appeal,
this court’s standard of review is the same for bench trials as it is for jury
trials. State v. Cox, 278 N.W.2d
62, 65 (
Appellant argues that A.T.’s testimony was inconsistent
and could not sustain the convictions, or at most, could only sustain a
conviction of third-degree criminal sexual conduct. There are minor inconsistencies
in the accounts A.T. gave at trial and the accounts she gave to the state’s
other witnesses. But A.T. consistently
reported that the sexual contact was not consensual, appellant hit her,
penetrated her with his finger and his penis on the floor of her living room,
and once it was over, called her a “‘ho.”
Only one witness testified that A.T. told him that appellant only struck
her once after the sexual contact. The
outcome of this trial, as acknowledged by the trial court, turned on witness
credibility, and this court defers to the credibility determinations of the
fact finder. See Dale v. State,
535 N.W.2d 619, 623 (
IV. Ineffective assistance of trial counsel
Appellant asserts several areas in which he claims he received ineffective assistance of counsel. Appellant’s first claim, that he was pressured into waiving his right to a jury trial, is without merit. The district court appropriately discussed the waiver with appellant on the record at length. The record demonstrates that appellant’s waiver was knowing, intelligent, and voluntary. Likewise, the waiver of timelines under the IAD occurred in appellant’s presence with appellant’s explicit consent or implicit consent though silence. The psychological assessment of appellant, completed in connection with sentencing, found that appellant was very capable of making and understanding his legal decisions. The record does not demonstrate that counsel pressured appellant into waiving the IAD timelines, and the decision to waive the timelines constitutes trial strategy not ineffective assistance of counsel.
Appellant’s argument that defense counsel did not properly
research A.T.’s former allegations of rape against another man and her crime of
dishonesty also fails to establish a claim of ineffective assistance of
counsel. “The extent of counsel’s
investigation is considered a part of trial strategy.” Opsahl v. State, 677 N.W.2d 414, 421 (
While failure to file a timely motion for a new trial fell below an objective standard of reasonableness, in this case, there is not a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different. The motion was based on sufficiency of the evidence, alleged prosecutorial misconduct regarding the recusal of a judge, and ineffective assistance of counsel, and we have determined that none of these claims warrant reversal or a new trial. Appellant has failed to demonstrate a need for a hearing to resolve any issues involving his claim of ineffective assistance of counsel, and the record does not support his claim.
 The judge wrote a letter responding to the count attorney’s letter, stating that on the ex parte request of the county attorney the judge had agreed to recuse himself, but the recusal was not at the judge’s initiative, and the judge anticipated the request would be calendared to permit defense counsel to have an opportunity to be heard on the record before the judge placed the recusal on the record. The county attorney responded that his understanding of Minn. R. Crim. P. 26.03, subd. 13(5), is that a judge may voluntarily recuse himself, and a formal removal hearing was not necessary. The judge recused himself by order dated July 22, 2003.