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be unpublished and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
State of Minnesota,
Anwar Ahmed Mohamed,
August 23, 2005
File No. 0306749
Mike Hatch, Attorney General, 1800 Bremer Tower, 445
Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist,
Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for
Barry V. Voss, 527
Marquette Avenue South, Suite 1050, Minneapolis,
and decided by Minge,
Presiding Judge; Lansing,
Judge; and Halbrooks,
U N P U B L I S H E D O P I N I O N
Following a jury
trial and the district court’s denial of his postconviction petition, appellant
Anwar Ahmed Mohamed argues that his conviction of possession of a controlled
substance in the first-degree should be reversed because of prosecutorial
misconduct during closing arguments. If
that relief is not granted, appellant requests that the matter be remanded to
the postconviction court for a hearing to determine whether his counsel was
ineffective. We affirm.
E C I S I O N
The first issue is
whether the prosecutor committed misconduct during closing arguments. Appellant alleges that the prosecutor improperly
shifted the burden of disproving elements of the crime to appellant during
closing arguments by stating that the case involves a credibility determination.
A defendant who fails
to object to prosecutorial misconduct at trial generally forfeits the right to
have it considered on appeal. State v. Blanche, 696 N.W.2d 351, 375 (Minn. 2005); State
v. Sanders, 598 N.W.2d 650, 656 (Minn.
1999). Appellate courts may, however,
review claims of prosecutorial misconduct under a plain-error analysis to
determine whether “the alleged conduct was so clearly erroneous under
applicable law and so prejudicial to the defendant’s right to a fair trial that
the defendant’s right to a remedy should not be forfeited.” Blanche,
696 N.W.2d at 375 (quoting State v. Hunt,
615 N.W.2d 294, 302 (Minn.
2000)). The appellate court will reverse
the conviction only if the misconduct impaired the defendant’s right to a fair
trial. Id; State v. Powers, 654
N.W.2d 667, 678 (Minn.
claims of prosecutorial misconduct regarding closing arguments, the court views
the argument “as a whole rather than focus on particular ‘phrases or remarks.’”
v. Johnson, 616 N.W.2d 720, 728 (Minn.
2000) (quoting State v. Walsh, 495
N.W.2d 602, 607 (Minn.
1993)). During closing argument, the
prosecutor is afforded considerable latitude, and the law does not require that
a colorless argument be made. State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996). The prosecutor has “the right to present to
the jury all legitimate arguments on the evidence, to analyze and explain the
evidence, and to present all proper inferences to be drawn therefrom.” Id. A prosecutor may attack the merit of a
particular defense or argument in light of the evidence, but may not belittle a
defense in the abstract. State v. Williams, 525 N.W.2d 538, 549 (Minn. 1994).
that during the state’s closing argument, the prosecutor committed misconduct
by stating that “this is really an issue of credibility, that this is really a
determination by you as to who you believe.”
Appellant claims that this phrase positioned the state’s witness against
the defense’s witnesses, distracted the jury and subtly shifted the state’s burden
of proof. However, these comments relate
to the prosecutor’s attack on the credibility of appellant’s testimony, which
directly contradicted the officer’s testimony.
Generally attacks on witness credibility are permissible. See
State v. Dupay, 405 N.W.2d 444, 450 (Minn. App. 1987) (concluding that attack
on timeliness of alibi defense is permissible attack on witness’s
credibility). The prosecutor also stated
that the judge instructs on the law, acknowledged that the state has to prove the
elements of the offense, and argued that the state proved those elements beyond
a reasonable doubt. Therefore, the
prosecutor’s comments during closing arguments were not error.
second issue is whether the district court abused its discretion by summarily denying
appellant’s postconviction petition, alleging ineffective assistance of counsel
without a hearing.
In Minnesota, a criminal
defendant is permitted to seek postconviction relief under Minn. Stat. § 590.01,
subd. 1 (2004). A petitioner seeking
postconviction relief bears the burden of establishing the facts alleged in the
petition by a fair preponderance of the evidence. Minn. Stat. § 590.04, subd. 3 (2004).
When a district
court summarily denies a postconviction petition, the appellate court reviews
the denial under an abuse of discretion standard. Powers
v. State, 695 N.W.2d 371, 374 (Minn.
2005). “On appeal from a summary denial
of postconviction relief, we examine whether sufficient evidence exists to
support the postconviction court's findings and will reverse those findings
only upon proof that the postconviction court abused its discretion.” Id. (quoting Ives
v. State, 655 N.W.2d 633, 635 (Minn.
2003)). The postconviction court is
required to hold an evidentiary hearing “[u]nless the petition and the files
and records of the proceeding conclusively show that the petitioner is entitled
to no relief.” Minn. Stat. § 590.04,
subd. 1 (2004); see also Powers, 695
N.W.2d at 374; Ives, 655 N.W.2d at
635; Roby v. State, 531 N.W.2d 482,
483 (Minn. 1995).
An evidentiary hearing is necessary
whenever “there are material facts in dispute that must be resolved to
determine the postconviction claim on its merits.” Powers,
695 N.W.2d at 374.
Amendment guarantees a defendant the right to reasonably effective assistance
of trial counsel. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct.
2052, 2063 (1984). We review ineffective
assistance of counsel claims de novo. See State
v. Rhodes, 657 N.W.2d 823, 842 (Minn.
2003). The appellate court’s obligation
in considering postconviction proceedings is to review both questions of law
and questions of fact. Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003). Legal issues are reviewed de novo. Id. But the review of factual issues is limited
to “whether there is sufficient evidence in the record to sustain the
postconviction court’s findings.” Id.
The test for
determining whether a defendant was denied effective assistance of trial
counsel is whether counsel’s performance was deficient and, if so, whether
there is a reasonable probability that the verdict would have been different
but for this deficiency. State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (citing Strickland,
466 U.S. at 687, 104 S. Ct. at 2064).
The court uses an objective standard of reasonableness in examining the
attorney’s performance. State v. Blom, 682 N.W.2d 578, 624 (Minn. 2004). As part of this evaluation, “counsel must
have the discretion and flexibility to devise a trial strategy that best serves
the client.” State v. Brocks, 587 N.W.2d 37, 43 (Minn. 1998).
that he was denied the effective assistance of counsel because his trial
counsel failed to pursue a motion to suppress the narcotics found as a result
of the traffic stop. “A claim of
ineffective assistance of counsel may not rest on the failure of an attorney to
make a motion that would have been denied if it had been made.” Johnson
v. State, 673 N.W.2d 144, 148 (Minn.
2004). It is undisputed that appellant
was properly stopped for committing several traffic violations. Appellant told the officer that he did not
have his driver’s license with him, and when the officer questioned him about
his age and date of birth, appellant gave conflicting information. The officer properly suspected that the
information was false because appellant gave the officer a date of birth that
would result in his age being 23, but then told the officer that he was
20. Therefore, appellant has failed to
demonstrate that the seizure was improper and that his trial counsel was
ineffective because he failed to bring a motion to suppress. Consequently, we conclude that the district
court did not abuse its discretion by denying appellant a hearing.