This opinion will be unpublished and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
Jonathan Anthony Hall, petitioner,
Filed September 19, 2006
Ramsey County District Court
File No. KX-01-1487
Charles A. Ramsay, Rachel B. Rosen, Ramsay & Devore, P.A., 450 Rosedale Towers, 1700 West Highway 36, Roseville, MN 55113 (for appellant)
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
Considered and decided by Kalitowski, Presiding Judge; Randall, Judge; and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from the district court’s order denying a postconviction petition challenging appellant Jonathan Hall’s 2002 conviction for first-degree criminal sexual conduct, appellant argues that the district court erred in finding that he was not denied his right to the effective assistance of counsel. Appellant further maintains that the district court plainly erred in (1) failing to strike an allegedly biased juror and by hearing peremptory challenges within the jury panel’s hearing; (2) failing to rule on the admissibility of child protection records, which he asserts may have contained false claims of abuse by the complainant; and (3) admitting a redacted version of the complainant’s diary. Finally, appellant argues that the cumulative effect of the alleged errors requires a new trial. We affirm.
D E C I S I O N
A person convicted of a crime may
seek postconviction relief in order “to vacate and set aside the judgment . . .
or grant a new trial . . . or make other disposition as may be
appropriate.” Minn. Stat. § 590.01,
subd. 1 (Supp. 2005). Generally, “[t]he
decisions of a postconviction court will not be disturbed unless the court
abused its discretion.” Dukes v. State, 621 N.W.2d 246, 251 (
Appellant argues that he was denied his constitutional right to effective assistance of counsel because his attorney (1) improperly failed to strike a prospective juror for cause or exercise a peremptory challenge; (2) improperly failed to convey to appellant the terms of a proposed plea agreement; (3) failed to request a corrective instruction following the prosecutor’s improper rebuttal during closing argument; and (4) failed to present evidence that no significant relationship existed between appellant and the complainant. The postconviction court held an evidentiary hearing on the plea-agreement claim but denied a hearing on appellant’s other allegations of ineffective assistance of counsel.
A decision regarding a claim of
ineffective assistance of counsel involves mixed questions of law and fact and
is reviewed de novo. Opsahl v. State, 677 N.W.2d 414, 420 (
Appellant alleges that his counsel’s
performance fell below an objective standard of reasonableness when he failed
to remove, either for cause or by the exercise of a peremptory challenge,
prospective juror number two, who stated that her niece had been a victim of
sexual assault by the juror’s ex-husband.
But the record shows that defense counsel did move to strike the juror
for cause, that the prosecution then rehabilitated the juror, and defense
counsel did not elect to use a peremptory challenge to remove her from the
jury. In general, this court does not
pass judgment on defense counsel’s trial tactics. State
v. Ronquist, 578 N.W.2d 4, 7 (
Appellant also argues that his attorney improperly failed to communicate to him or to place on the record a plea offer made by the state, under which appellant would plead guilty to second-degree criminal sexual conduct with a 21-month stayed sentence and a cap of 120 days in the workhouse. He also contends that his attorney failed to inform him that he would be required to register for life as a sex offender. Defense counsel’s failure to communicate a plea offer to his or her client may constitute ineffective assistance of counsel. See Robinson v. State, 567 N.W.2d 491, 495 (Minn. 1997) (holding that petitioner’s claim that trial counsel was ineffective for failing to communicate two plea offers required additional fact-finding and was properly raised in petition for postconviction relief).
The postconviction court held an evidentiary hearing on appellant’s claim and found that no question of material fact existed on this issue. Appellant’s trial counsel testified that he conveyed to appellant the existence of the plea offer, which he believed to be a strong offer, but that appellant chose not to accept the offer. The trial prosecutor also testified that although he recalled general discussion about a plea offer, the offer was not placed on the record because it was clear that appellant was not interested in a plea. The defense attorney further testified that he would not have told appellant of a legal requirement for lifetime sex-offender registration because such a requirement did not exist. The postconviction court was entitled to find the testimony of the two attorneys credible and that of appellant not credible. See Opsahl v. State, 710 N.W.2d 776, 782 (Minn. 2006) (stating that the appellate standard of review gives “considerable deference” to the postconviction court’s credibility determinations, noting that the district court “is in a unique position to assess witness credibility”). Further, failure to request that a plea offer be entered into the record does not necessarily make counsel’s performance deficient because such negotiations normally take place in private. See Powell, 578 N.W.2d at 732 (rejecting defendant’s contention that plea offer had not been properly communicated, noting corroboration of defense counsel’s statement of communication with prosecutors’ affidavits, and stating that “negotiations on such matters usually take place in private and attorney-client privilege would normally constrain the court’s access to such conversations”). We conclude that the postconviction court did not err in determining that no material factual issue existed on appellant’s claim for ineffective assistance based on failure to communicate a plea offer.
Appellant also argues that defense
counsel’s failure to request a curative instruction after objecting to the
state’s rebuttal at closing argument constituted ineffective assistance. During rebuttal the prosecutor referred to
defense counsel’s comments that witnesses had testified to more information
than they had presented in earlier versions of events. The district court twice sustained defense
counsel’s objection to this rebuttal, but defense counsel did not request a
curative instruction. It is improper for
a prosecutor to suggest that the defense is offering a standard defense
argument used in criminal trials, such as shifting focus away from the
defendant. State v. Salitros, 499
N.W. 2d 815, 818-20 (
Appellant additionally argues that
defense counsel improperly failed to present evidence that a significant
relationship did not exist between appellant and the complainant, a required
element of appellant’s charged crime of first-degree criminal sexual conduct
when the complainant is under 16 years of age and the actor had a significant
relationship to the complainant. See Minn. Stat. § 609.342, subd. 1(g)
(2000); Minn. Stat. § 609.341, subd. 15 (2000) (defining significant
relationship). What evidence to present
to the jury is a matter of trial strategy, which is not reviewed for competency
in an ineffective-assistance claim. State
v. Vick, 632 N.W. 2d 676, 689 (
Appellant raises several
additional arguments, which the postconviction court either denied without a
hearing or declined to consider.
Appellant maintains that the district court’s failure, sua sponte, to
remove juror number two from the jury panel denied him the right to a fair
trial. Because appellant did not raise
this claim before the district court, we consider it only if the district
court’s action amounted to a plain error affecting appellant’s substantial
A jury challenge for cause must be
initiated by motion.
Appellant additionally argues that
he was deprived of his right to a fair trial because the Minnesota Rules of
Criminal Procedure require that peremptory challenges be exercised out of
hearing of the jury panel. See
Appellant also maintains that he was
deprived of his right to present a complete defense by the district court’s
failure to rule on the admissibility of child protection records from Ramsey
On the first day of trial, the district court indicated that it had not yet completed its in camera review of the confidential child protection records because of the difficulty of deciphering handwritten notes from Ramsey County. Appellant correctly asserts that the district court did not make a final recorded ruling on the admissibility of the records, which were not considered as evidence at trial. But even assuming that the district court erred by failing to rule on their admissibility, our review of the confidential child protection records supports the postconviction court’s determination that they do not contain facts indicating that the complainant had made false allegations of abuse. Therefore, the jury’s verdict was surely unattributable to the error, and any error by the district court was harmless beyond a reasonable doubt.
Appellant also asserts that the postconviction court erred in finding that the district court did not abuse its discretion by admitting into evidence parts of complainant’s computer diary with the redaction of other parts of the diary. We disagree.
The record shows that defense
counsel stipulated to the admission of the redacted diary, as long as adequate
foundation was laid to establish references to appellant. Because appellant failed to object to the
admission of the diary at trial, he waived the objection unless he can show
that the admission of the evidence constitutes plain error affectinghis substantial rights. Griller,
583 N.W.2d at 740. Our examination of
the diary reveals that the parts of the diary admitted into evidence relate
directly to the complainant’s activities with appellant and her feelings about
him, and the redacted parts deal with other matters not relevant to a
determination of the charges against appellant.
Appellant finally argues that the cumulative weight of
errors requires reversal or remand for a new trial. See,
e.g., State v. Underwood, 281 N.W.2d 337, 344 (