This opinion will be unpublished and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
Hennepin County District Court
File No. 99053658
Mike Hatch, Minnesota Attorney General, 1800
Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant Hennepin County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487-0201 (for respondent)
Deborah Ellis, 700
Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Ross, Judge.
Convicted murderer Richard Fink challenges the district court’s denial of his petition for postconviction relief, in which he argued that he is entitled to a new trial because he received ineffective assistance of trial counsel. Because Fink fails to establish either element necessary to sustain his claim of ineffective assistance of counsel, we affirm.
Richard Fink was sitting in the driver’s seat of his car at approximately 3:00 a.m. on June 1, 1999, when he shot and killed Craig Kallevig, who was standing just outside Fink’s car. Kallevig was allegedly demanding that Fink, from whom Kallevig had previously purchased drugs, provide him drugs on credit. Fink fled the scene of the shooting and police arrested him the following day. He pleaded not guilty and the matter proceeded to trial.
Every member of the jury venire was white. Kallevig was also white. Fink is African-American. The written jury questionnaire included two questions exploring the prospective jurors’ views on race: Question 68 asked, “What are your experiences with African-Americans?” and was followed by blank spaces labeled “Neighborhood,” “Work,” “Social,” and “Family”; Question 69 asked, “How, if at all, does an individual’s race or ethnic background shape your view of that individual?” During the individualized juror voir dire, Mark Bearss, Fink’s counsel, did not ask any of the prospective jurors to elaborate on their stated views on race as they had expressed them in responses in the questionnaire. Bearss did, however, have the court dismiss eight prospective jurors for cause.
At trial, Fink testified that he had brandished the gun only as a self-defensive gesture because he felt physically intimidated by Kallevig, who was six feet, four inches tall, weighed more than 300 pounds, and was aggressive and drunk at the time of the shooting. The autopsy confirmed intoxication, revealing that Kallevig’s blood-alcohol concentration was .16 percent at the time of his death. Fink testified that after he produced and cocked the weapon only to frighten Kallevig, Fink was attempting to disengage the gun’s firing mechanism when it accidentally discharged, killing Kallevig. Fink was the only defense witness. The district court allowed the state to impeach Fink’s credibility with evidence of a prior assault conviction.
The jury found Fink
guilty of second-degree intentional murder and second-degree unintentional
felony murder. See Minn. Stat. § 609.19, subds. 1(1)
(intentional murder), 2(1) (unintentional felony murder) (1998). The district court imposed a 326-month
sentence of incarceration for intentional murder. On direct appeal, we affirmed the conviction
and sentence. State v. Fink, No. C0-00-634, 2001 WL 218893 (Minn. App. Mar. 6,
2001), review denied (
In August 2002, Fink filed a petition for postconviction relief arguing, among other things, that he had received ineffective assistance of trial counsel. Fink argued that Mark Bearss had unreasonably failed to explore racial bias with prospective jurors during voir dire or to elicit any personal background information from Fink during direct examination. Fink claimed that background information would have given the jury reason to find Fink generally credible so as to then credit his testimony that he had acted in self-defense and that the gun accidentally discharged. The petition included the affidavit of Joseph Margulies, a criminal-defense attorney, stating that Bearss’s trial performance fell below the objective standard of reasonable competence in that Bearss (1) failed to explore racial bias among prospective jurors at voir dire and (2) failed on direct examination to elicit potentially favorable—and therefore credibility-enhancing—testimony concerning Fink’s personal background.
The district court dismissed the petition without a hearing in October 2002. On appeal, we affirmed in part, reversed in part, and remanded for an evidentiary hearing to address the merits of Fink’s claims that his trial attorney was ineffective because he failed to question jurors about racial bias during voir dire or to elicit background information from Fink during direct examination. Fink v. State, C5-02-2139, 2003 WL 21529838, at *3 (Minn. App. Jul. 8, 2003) (citations omitted). Fink’s trial counsel, Mark Bearss, testified at the hearing on remand that although race “can be” an issue in cases in which he “represent[s] a black man who shot a white person,” he believed that Fink’s case turned more on credibility than on race:
Often enough these cases focus on other facts that are more pertinent than race. This particular case, as I recall, focused on whether or not Mr. Fink was justified in doing what he did at the time this happened. And I don’t remember race as really being an issue in this particular case.
Discussing the importance of credibility, Bearss observed that “obviously, the jury would have had to have believed [Fink’s] side of the story. That is why he took the stand.”
Bearss testified that he did not ask prospective jurors at voir dire whether their views on race would affect their ability to assess witness credibility because he had “reviewed the answers that they gave in the written questions about race,” and he had “decided it was not necessarily appropriate for [him] to ask them questions about that in voir dire.” He added, “[I]f I thought based on the answers in the questionnaire that the witness [sic] I was questioning was a witness [sic] that I wanted to ask more questions about with respect to race personally while they were on the stand I would have asked those questions.”
Concerning his decision not to elicit personal background information from Fink on direct examination, Bearss testified that “the focus of this case revolved around the issues at the time of the incident, the shooting, not Mr. Fink’s background. . . . [M]y main focus was for Mr. Fink to tell the jury what he was doing at the time [of the shooting] and why.” Bearss testified that presenting evidence of Fink’s good character would “open the door to [his] character [leaving him] wide open for attacks from the state about the same issues,” and he added that “it is difficult to imagine in the last 15 trials I have had that opening the door to a defendant’s character is ever a good idea. It is almost always bad news.” Bearss stated that although the district court had admitted evidence of a prior assault conviction only to impeach Fink’s testimony, the conviction might have been admissible as substantive Spreigl evidence—allowing the jury to learn its underlying facts—had he elicited testimony of Fink’s background. Bearss acknowledged that Fink had given him a list of character witnesses whom Fink believed might help his case (Fink later testified that there were four names on the list), but Bearss stated that he could not remember whether they “would have been helpful for the defense” and that at least one of them “was not a credible witness [and] would not have helped Mr. Fink.”
Joseph Margulies testified and reiterated the objections to Bearss’s representation that were raised in Fink’s petition for postconviction relief. Margulies’s direct examination was devoted largely to a review of each selected juror’s answers to questions 68 and 69 on the jury questionnaire. Margulies commented that in every case, the answers were so uninformative that no objectively reasonable basis existed for Bearss not to follow up on the issue of racial bias through oral questioning at voir dire. Margulies opined that because questions 68 and 69 are simply variations on the questions “[C]an you be fair[?], [A]re you a racist[?],” they consistently, and predictably, elicit the socially expected response “which is I can be fair, I am not a racist.” He also stated that every juror “seems to have misunderstood the question in the same way. And what they do is appraise the quality of the experience and not say what the experiences are. And everyone gives what one expects the response to be, which is I am fine, I don’t have any problems.” Therefore, Margulies continued, “[t]his is a classic example of a case in which you would want to explore [the potential juror’s] racial bias” at voir dire.
Margulies testified that given the questionnaire’s improperly phrased questions and the uninformative answers, Bearss should have used voir dire to “explore and alert jurors to the possibility that they harbor preconceived notions about the defendant and, therefore, may prejudge [him] or not be able to judge [his] testimony fairly, at least not in comparison to the testimony of white witnesses or the conduct of the decedent from the suburbs.” He stated that by not using voir dire to follow up on the jurors’ declarations that they can be fair, Bearss missed the opportunity to “explore and ascertain the existence either of subconscious or conscious biases that will influence [the jurors’ credibility determinations] in a negative way.”
Margulies testified concerning Fink’s background that eliciting testimony from Fink about “his life, his connection to the community, his relationships with his family, his work history, his school history, the fact that he held positions of responsibility [would have had] the effect of humanizing him and establishing a more nuanced picture of who he is,” thereby enhancing his credibility. He asserted that given the importance of credibility in the case, he could think of no “sound, strategic reason not to ask Mr. Fink some questions about his background.”
value of Margulies’s testimony faced sharp challenges. Margulies acknowledged on cross-examination that
he has been trial counsel on “more than ten” jury trials, which is
“substantially fewer than Mr. Bearss.” He
disclosed that only “three or four” of these were homicide trials and that he has
tried only one homicide case—a nonjury
Fink also testified at the hearing. He discussed his upbringing, his employment history, and the events on the night of the charged offense. He testified about Bearss’s insistence that his trial testimony focus on the few minutes surrounding the actual shooting and his unsuccessful attempts before the trial to convince Bearss to draw testimony about Fink from various character witnesses. On cross-examination, Fink acknowledged that had Bearss presented character witnesses, the state could have presented evidence that he had previously been convicted of second-degree assault of a police officer and that for more than a year before the charged offense, he had been working as a full-time drug dealer. Fink also conceded that there were discrepancies between his employment history as described to a pre-sentence investigator and as described in his testimony at the postconviction hearing.
The district court denied Fink’s petition for postconviction relief. Although the court did not specifically grant or deny the state’s motion to strike Margulies’s testimony, it wrote that it would not consider the testimony, which was “not dispositive in this proceeding,” because Margulies has tried jury cases in Minnesota only three or four times and has never heard from jurors how they feel about being questioned about race. The court further noted that Bearss had challenged eight prospective jurors for cause and did not believe that race was the central issue in the case. The district court also stated, “Additionally, the court concludes that Mr. Margulies’s testimony would not assist the court in its determination of effectiveness of counsel in light of this court’s experience with multiple felony cases tried before the court.” As to the substantive issue of Bearss’s competence, the court concluded that both Bearss’s decision not to question jurors about race during voir dire and his decision to limit his direct examination of Fink to the period immediately before the shooting were sound strategic decisions that did not fall below an objective standard of reasonableness. The court also concluded that even if Bearss’s performance did fall below that standard, Fink was not prejudiced by it. Fink’s appeal follows.
Fink challenges the district court’s denial of his
petition for postconviction relief based on Bearss’s alleged ineffective
assistance at trial. A postconviction
decision regarding a claim of ineffective assistance of counsel involves mixed
questions of fact and law and is reviewed de novo. Opsahl
v. State, 677 N.W.2d 414, 420 (
Fink argues initially that the district court analyzed
his petition under the wrong standard of proof.
To prevail on his petition for postconviction relief, Fink bore “the
burden of establishing, by a fair preponderance of the evidence, facts that
A. Margulies’s testimony
Fink argues first that the district court abused its
discretion by declining to consider Margulies’s testimony on the grounds that it “would
not assist the court in its determination of effectiveness of counsel.” The
district court has broad discretion whether to admit expert testimony. State v.
Lopez-Rios, 669 N.W.2d 603, 612 (
believe Fink’s arguments are flawed. First,
“[t]he credibility of the witnesses and the weight to be given their testimony
are determinations to be made by the factfinder.” DeMars
v. State, 352 N.W.2d 13, 16 (
Fink exaggerates the district court’s emphasis on its experience by
disregarding the context of the reference.
Before stating that her experience trying cases would assist her in determining
the effectiveness of counsel in this case, the district court judge first observed
that Margulies had little experience selecting juries, that he had never had
feedback from jurors about their reaction to being asked in voir dire for their
views on race, that he acknowledged that asking questions about race in voir
dire may alienate jurors, and that Bearss essentially was suggesting a defense
theory different from the one Margulies espoused. The judge’s noted experience was the last of
a list of reasonable factors that led the district court to discount Margulies’s
testimony. And although Fink asserts accurately
that “[j]udicial impartiality is the very foundation of the American legal
system,” he does not provide any meaningful support for his argument that a fact-finding
judge who brings her judicial experience to bear in crediting testimony and
weighing evidence necessarily exhibits bias or prejudice. See
B. Ineffective assistance of counsel
that he received constitutionally deficient assistance of counsel, Fink must
show that his “counsel’s representation ‘fell below an objective standard of
reasonableness’ [the performance prong] and ‘that there is a
reasonable probability that, but for [Bearss’s] unprofessional errors, the
result of the proceeding would have been different’ [the prejudice prong].” See
Gates v. State, 398 N.W.2d 558, 561 (
consider the totality of the evidence presented to the district court in
determining whether Bearss’s performance was ineffective, Gates, 398 N.W.2d at 562, but we need not address both the
performance and prejudice prongs if one is determinative. Strickland,
Fink first challenges Bearss’s decision not to explore potential juror bias at voir dire by asking follow-up questions of jurors whose written responses to questions 68 and 69 of the questionnaire appeared incomplete or otherwise nonresponsive. We share Fink’s concern that his trial counsel did not take the opportunity to learn more about potential racial bias from each prospective juror, not merely because of the racial composition of the principals in the shooting but also because of Bearss’s own acknowledgement that race can affect a jury’s credibility determinations. Upon close consideration, however, we conclude that Bearss’s representation of Fink at voir dire reflected a reasonable strategy and did not constitute ineffective assistance of counsel. Just as a jury’s potential racial bias can be a genuine concern, so can potential racial alienation. While completely failing to explore jurors’ racial views might expose a defendant to latent racial bias, probing jurors too invasively about bias might inadvertently expose a defendant to now-offended jurors. This is no novel concern: “Because, upon challenges for cause shewn, if the reason assigned prove insufficient to set aside the [potential] juror, perhaps the bare questioning his indifference may sometimes provoke a resentment.” William Blackstone 4, Commentaries *347 (1769). Margulies himself conceded at the postconviction hearing—and we have no reason to disagree—that confronting jurors about their racial bias during voir dire might alienate them.
It is undisputed that Bearss’s conduct at voir dire was motivated by the trial strategy he articulated at the postconviction hearing, and as such it is entitled to a presumption of competence. That the questionnaires address juror’s attitudes about race demonstrates that Bearss did not disregard the possibility that racial biases might influence the jury’s perception of Fink. Instead, he decided as a tactical matter to pose follow-up questions to individual jurors only if alerted to do so by their written responses. Fink does not assert that the decision was not strategic; he argues that it was an unreasonable strategy. Reasonable trial tacticians might agree or disagree with Fink’s assertions that the veniremembers’ responses to questions 68 and 69 of the questionnaire were “non-responsive and anything but informative,” “cryptic,” or otherwise insufficient to allow Bearss to determine clearly whether prospective jurors’ biases would prevent their objective reception of Fink’s testimony. But it is the case that Bearss, who testified repeatedly that he did not believe race to be the primary or central issue in the case, believed as a matter of strategy that the answers at voir dire were satisfactory. Perfectly executed or not, we do not believe that Bearss’s use of and reliance on the written questions concerning potential racial bias amount to a constitutional failure.
we may not be immediately impressed that the limited inquiry into potential
juror bias by the written questionnaire was the model approach, we also cannot conclude
on the entire record before us that counsel’s failure to orally explore the
issue further with individual jurors creates a presumption that Fink was
prejudiced such that the outcome of the trial would have been different but for
this strategy. In some cases, such a
presumption may be warranted, and the failure to sufficiently examine the
venire pool might compel a finding of prejudice. In United
States v. Bear Runner, cited by Fink at oral argument, the Eighth Circuit
considered such a case. 502 F.2d 908
(8th Cir. 1974). There, Bear Runner, an
American Indian, was tried for killing a calf on the same reservation where the
well-publicized and racially charged Indian occupation of Wounded Knee had
occurred just months earlier.
overall circumstances here do not permit a presumption of prejudice similar to
that triggered in Bear Runner. As Bearss stated at the postconviction
hearing, the possibility of racial bias may always be a general concern where
the defendant is African-American and the victim is white. But this is not a case in which aggravating
circumstances highlight a special concern about racial bias. It is not remotely similar to Bear Runner, where “both the trial court
and counsel were well aware of the recent [racially inflammatory] events
involving members of the [defendant’s] race.”
Fink also argues that Bearss’s performance fell below an objective standard of reasonableness because he did not elicit testimony from Fink on direct examination about Fink’s background in order to humanize him and make him more credible. We disagree. The district court specifically credited Bearss’s testimony that “opening the door” to Fink’s background by asking him questions about his supposedly humanizing background would have allowed the state to introduce even more damaging character evidence. The court also decided that Bearss had made a tactical decision to concentrate Fink’s testimony on the few minutes surrounding the shooting.
be that with the ease of hindsight, and particularly with the knowledge of the
trial’s outcome, Bearss’s decision concerning Fink’s testimony appears unwise
to Fink and Margulies (or even to Bearss himself). But although “[i]t is all too tempting for a
defendant to second-guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining counsel’s defense after
it has proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable,” reviewing courts must “judge the reasonableness of
counsel’s challenged conduct on the facts of the particular case, viewed as of
the time of counsel’s conduct.” See Strickland, 466
Fink has also failed to show that he was prejudiced by Bearss’s decision to limit the scope of direct examination. Fink argues that his “postconviction hearing testimony readily proved that he was prejudiced by the ineffective presentation of his trial testimony.” The argument follows that presentation of biographical information to a properly screened jury “would have resulted in the jury crediting his self-defense and accident claims resulting in acquittals on both count[s].” Fink’s prejudice argument depends entirely on the assumptions that (1) race is the primary factor affecting a jury’s credibility determinations and (2) the jury would have accepted all of his favorable character evidence, rejected the state’s unfavorable character evidence, and believed his version of events on the basis of his good character. These assumptions are far too speculative to create a reasonable probability that had Bearss conducted the trial in the manner Fink now claims he should have, the result would have been different. We agree with the district court’s observation that “jurors rely on myriad factors to judge a witness’s credibility, not the least of which includes observing a witness’s demeanor on the stand.” And although it is impossible to know how the jury might actually have weighed the background testimony Fink offered at the postconviction hearing, there does not appear to be a reasonable probability that, but for Bearss’s failure to elicit that testimony at trial, the verdict would have been different. This is particularly so in light of the damaging rebuttal evidence the state indicated it was prepared to present and the fact that two people who witnessed the shooting testified at trial.