This opinion will be unpublished and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 February 14, 2006
Hennepin County District Court
File No. 03026165
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Davi E. Axelson,
Assistant Public Defender,
Considered and decided by Halbrooks, Presiding Judge; Klaphake, Judge; and Crippen, Judge.*
Appellant challenges his conviction of second-degree aggravated robbery, arguing that he was denied his right to effective assistance of counsel when his attorney failed to object to the prosecutor’s conduct in calling a defense investigator as a witness, highlighting the investigator’s errors, and arguing that appellant’s alibi defense was fabricated. We affirm.
about 4:10 p.m. on April 3, 2003, a masked man robbed Johnson Meat Company in
Soon thereafter, the police and the company vice-president arrived; the vice-president located a copy of appellant’s driver’s license photo in his employee file and showed it simultaneously to Britton and Benjamin. Britton identified appellant as the robber. Benjamin also identified appellant as the robber, although he stated that he was not positive about the identification.
The police awakened appellant sometime after 11:10 p.m. on April 15, asked him about his whereabouts on the day of the robbery, and subsequently arrested him. An officer later testified that appellant told him that he had been working at Volt Service Group that day, but the officer determined that appellant’s last day at Volt was actually April 2, 2003, the day before the robbery.
was charged with second-degree aggravated robbery. Appellant presented an alibi defense at trial,
claiming that he had interviewed for a job at Phoenix Direct (f/k/a/ Phoenix
Document Services) in
trial, the state questioned Stark about the inaccuracies in her reports and
about her reports’ statement that Flaa told her that appellant left
During closing argument, the state highlighted the inaccuracies in Stark’s reports and the inconsistencies between Stark’s reports and other witnesses’ testimony. The state argued that Stark had misrepresented certain things and that she had “tailor[ed] her summary to fit a time frame that would support the defendant’s latest alibi.”
The jury found appellant guilty of second-degree aggravated assault, and the district court sentenced appellant to 39 months in jail. Appellant filed a motion with this court to stay his appeal; we granted the motion, allowing appellant to seek postconviction relief. Appellant petitioned for postconviction relief, alleging ineffective assistance of counsel. The district court denied appellant’s petition for postconviction relief. We granted appellant’s motion to reinstate his appeal, and this appeal follows.
alleges that he was denied effective assistance of counsel when his attorney
failed to object to the prosecutor’s trial conduct in calling Lisa Stark,
highlighting her alleged errors, and arguing that appellant’s alibi defense was
fabricated. Because “ineffective
assistance of counsel claims involve mixed questions of law and fact, our
standard of review is de novo.” State
v. Rhodes, 657 N.W.2d 823, 842 (
Sixth Amendment guarantees appellant the right to effective assistance of counsel. Strickland v.
scrutiny of counsel’s performance must be highly deferential.” Strickland,466
contends that his counsel was ineffective for failing to object to the
admission of the alibi notice that Stark prepared and by failing to object to
the state’s remarks in closing argument concerning Stark’s mistakes. A decision not to object to argument or
evidence is generally a matter of trial strategy. See
also argues that the state impermissibly focused, without defense counsel’s
objection, on Stark’s mistakes—instead of appellant’s guilt or innocence—and
that Stark’s mistakes are unconnected to appellant’s alibi defense. In addition, appellant argues that the alibi
notice was improperly admitted in evidence.
But the state contends that the alibi defense notice containing the
admitted mistakes is a party admission, usable to impeach appellant’s alibi
defense. Courts in other states have
reached that conclusion. People v. McCray, 630 N.W.2d 633, 636-37
at the trial in its entirety, we conclude that appellant has not met his burden
to establish by a preponderance of the evidence that his counsel’s performance
fell below an objective standard of reasonableness. But even if appellant satisfied that burden,
in order to prevail appellant must also demonstrate “that a reasonable
probability exists that the outcome would have been different but for counsel’s
errors.” Blanche, 696 N.W.2d at 376.
“A reasonable probability is a probability sufficient to undermine
confidence in the outcome.’” Gates v.
State, 398 N.W.2d 558, 561 (
Defense counsel responded ably to the allegedly questionable evidence and argument in his opening statement, in his examination of Stark, and in his statements to the jury. And the state presented the eyewitness testimony of two Johnson Meat Company employees, both of whom identified appellant as the individual who committed the robbery. Appellant raises several questions about alleged weaknesses in the witnesses’ testimony, but the jury was in the proper position to evaluate that testimony and determine witness credibility. Appellant merely reargues the case, without demonstrating that the outcome would have been different but for the allegedly questionable evidence and argument. Appellant has not demonstrated by a preponderance of the evidence “that a reasonable probability exists that the outcome would have been different but for counsel’s errors.” See Blanche, 696 N.W.2d at 376.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.