This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).





State of Minnesota,
Andrew Mark Broden,

Filed on September 11, 2007

Dietzen, Judge


Polk County District Court

File No. K0-05-100


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Gregory A. Widseth, Polk County Attorney, 223 East Seventh Street, Suite 101, Crookston, MN 56716 (for respondent)

Mark D. Nyvold, 332 Minnesota Street, Suite W-1610, St. Paul, MN 55101 (for appellant)


            Considered and decided by Halbrooks, Presiding Judge; Dietzen, Judge; and Muehlberg, Judge.*


U N P U B L I S H E D   O P I N I O N


Appellant challenges his convictions of first-degree burglary, third-degree assault, and the denial of his petition for postconviction relief, arguing that the ineffective assistance of counsel and unobjected-to prosecutorial misconduct deprived him of a fair trial.  Because the district court properly applied the law and did not abuse its discretion, we affirm.


            In the early morning hours of January 25, 2005, Polk County deputies responded to a report of an assault.  When the police interviewed the victim, he indicated that appellant Andrew Mark Broden had entered his residence uninvited and assaulted him.  Sherriff’s deputies then located appellant, who was at his house with two friends, Troy H. and Joe T.  Eventually, appellant came out of the house and was informed that the deputies were investigating an assault.  Because appellant appeared intoxicated and agitated, he was placed in handcuffs, but he was told that he was not under arrest.  Appellant stated that he intended to cooperate with the investigation, then asked for an attorney and refused to talk to the deputies.  Following an investigation, appellant was charged with first-degree burglary and third-degree assault.

At trial, Heather L., who worked as a bartender at Glenn V.’s bar that evening, testified that she overheard Glenn V. state that he would like someone to beat up the victim for “messing around” with his girlfriend.  She also observed appellant, Joe T., and Troy H. leave together.  The arresting deputy testified regarding his interviews of Heather L., the victim, appellant, Glenn V., and Troy H.  The victim testified about the assault and his injuries, and a handwritten note that he had received from appellant.  The note stated, “You have no idea how bad I feel . . . .  I pray one day you can forgive me for what I’ve done.  You didn’t do anything wrong, and don’t let anyone tell you different.”  Appellant admitted that he went to the victim’s residence with Joe T. and Troy H. that evening and that he warned him that Glenn V. was offering to pay someone to beat him up.  Appellant testified that the conversation became heated, that the victim attacked appellant, and that appellant was forced to defend himself.

The jury found appellant guilty of first-degree burglary and third-degree assault.  Appellant filed an appeal, arguing prosecutorial misconduct, and then filed a petition for postconviction relief arguing the ineffective assistance of counsel.  This court stayed the appeal pending completion of the postconviction proceedings.[1]

At the postconviction hearing, appellant’s trial counsel testified that he has practiced criminal defense law since 1988, that he has tried approximately 30 to 50 criminal cases, and that he represented co-defendant Joe T. on the same charges in a previous trial and obtained an acquittal after a jury trial.  As a result, he was familiar with the testimony of the state’s witnesses and the prosecutor’s trial strategy.  He stated that appellant agreed that the trial strategy was to argue self-defense.  Based on the trial strategy, he did not object to the hearsay testimony of Heather L. and the deputy, the prosecutor’s “testimony” that the state intended to file charges against Glenn V., or the prosecutor’s cross-examination of appellant eliciting testimony that he told the police he would cooperate but then requested an attorney and refused to answer questions.

Following the postconviction hearing, the court denied appellant’s request for relief.  This appeal then proceeded.



Appellant argues that unobjected-to prosecutorial misconduct deprived him of a fair trial.  We review unobjected-to prosecutorial misconduct for plain error.  State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006); State v. Griller, 583 N.W.2d 736 (Minn. 1998).  In Ramey, the supreme court stated that the overarching concern regarding prosecutorial misconduct “is that such misconduct may deny the defendant’s right to a fair trial.”  Id. at 300.  “Prosecutors have an affirmative obligation to ensure that a defendant receives a fair trial.”  State v. Henderson, 620 N.W.2d 688, 701-02 (Minn. 2001).

The plain-error doctrine requires (1) error; (2) that is plain; and (3) the error must affect the defendant’s substantial rights.  Griller, 583 N.W.2d at 740.  If all three prongs are satisfied, the court then assesses whether the error should be addressed to ensure fairness and the integrity of the judicial proceedings.  Id. at 740.  An error is plain if it is clear or obvious under current law.  Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 1549 (1997); State v. Strommen, 648 N.W.2d 681,688 (Minn. 2002).  Usually, this is shown if the error “contravenes case law, a rule, or a standard of conduct.”  Ramey, 721 N.W.2d at 302.  The nonobjecting defendant has the burden of showing that error has occurred and that the error is plain.  But “when the defendant demonstrates that the prosecutor’s conduct constitutes an error that is plain, the burden would then shift to the state to demonstrate lack of prejudice; that is, the misconduct did not affect substantial rights.”  Id.  Thus, “the state would need to show that there is no reasonable likelihood that the absence of the misconduct in question would have had a significant effect on the verdict of the jury.”  Id. (quotations omitted).

A.        Appellant’s Right to Remain Silent

 First, appellant argues that the prosecutor’s cross-examination of appellant about his refusal to speak to the deputies and his request for an attorney was misconduct.  Both the United States Constitution and the Minnesota Constitution guarantee a defendant’s right to remain silent.  U.S. Const. amend. V; Minn. Const. art. I, § 7.  “Evidence that a defendant exercised his rights to remain silent or to have an attorney present for questioning is generally inadmissible at trial.”  State v. Penkaty, 708 N.W.2d 185, 199 (Minn. 2006).  Therefore, a prosecutor “may not refer to or elicit testimony about a defendant’s post-arrest silence and/or request for counsel.”  State v. Dobbins, 725 N.W.2d 492, 509 (Minn. 2006). 

Appellant testified that when the deputies arrived at his house, he “told them right away that [he] wanted an attorney.”  On cross-examination, the prosecutor asked and appellant agreed that “this whole thing could have perhaps been cleared up” if appellant had given the police his side of the story on the night of the incident.

The parties dispute whether appellant was in custody at the time of the questioning.  A Miranda warning is required any time a suspect is in custody and subject to interrogation.  Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966).  Custody can include, among other things, a restraint on a suspect’s freedom by an officer, the presence of multiple officers, or an officer’s gun pointing at a suspect.  State v. Staats, 658 N.W.2d 207, 211 (Minn. 2003).

The district court concluded that appellant was in custody and that Miranda applied.  We agree.  When appellant asked for an attorney, there were multiple officers present, appellant was in handcuffs, and the officers were holstering their guns.  On this record, we agree that appellant was in custody and subject to interrogation and, thus, should have received a Miranda warning.  In addition, the deputies had taken actions that would likely induce a suspect to remain silent.  See State v. Morrison, 351 N.W.2d 359, 360-61 (Minn. 1984). 

References to a defendant’s silence may be appropriate if a defendant has opened the door to impeachment by giving inconsistent testimony or false testimony regarding his or her silence.  See Harris v. New York, 401 U.S. 222, 225-26, 91 S. Ct. 643, 645-46 (1971).  And “the constitution does not bar the use of postarrest silence to impeach the defendant’s credibility where no Miranda warning was given.”  Dobbins, 725 N.W.2d at  510 (quotation omitted); see also Morrison, 351 N.W.2d at 361 (stating that “the constitution does not bar the use of a defendant’s prearrest silence to impeach his credibility, [provided] the police did nothing to induce the defendant to remain silent.”). 

Appellant did not give false or inconsistent testimony regarding his request for an attorney and, therefore, he did not open the door to this line of questioning.  Further, evidence that appellant exercised his right to remain silent or to have an attorney present for questioning is not admissible to dispute the truth or falsity of appellant’s testimony.  See Penkaty, 708 N.W.2d at 199-200 (stating that evidence showing that a defendant requested counsel is inadmissible if it gives rise to an inference of culpability).  Thus, we conclude that the prosecutor’s questions constituted plain error.

On this record, we conclude that the state has established that the misconduct did not have a significant effect on the outcome of the case.  Here, the state’s references to this testimony were few and isolated.  More importantly, the other evidence presented by the state against appellant was significant.  Appellant admitted that he was at the victim’s residence and was involved in an altercation with the victim.  The state presented appellant’s handwritten note to the victim, photographs of the victim’s injuries, and overturned furniture inside his house. 

B.        Prosecutor’s “Unsworn Testimony”

            Appellant argues that the prosecutor committed misconduct when he gave “unsworn testimony” regarding the state’s intent to file conspiracy charges against Glenn V.  A prosecutor may not interject personal opinion, become an unsworn witness or “otherwise personally attach himself or herself to the cause which he or she represents.”  State v. Everett, 472 N.W.2d 864, 870 (Minn. 1991).

Appellant’s counsel cross-examined the deputy about the lack of charges against Glenn V., stating that “there must not be much seriousness involved in his association with this whole incident.”  The district court overruled the prosecutor’s objection to this line of questioning and allowed the testimony.  On redirect, the prosecutor asked the deputy whether the prosecutor had “discussed the fact that after this matter is resolved, [the state] intend[ed] to file charges against [Glenn V.].”  On this record, appellant opened the door to the prosecutor’s question.

C.        Prosecutor’s Closing Argument

Appellant argues that the prosecutor engaged in misconduct during closing argument.  In closing argument, 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.”  State v. Wahlberg, 296 N.W.2d 408, 419 (Minn. 1980).  We review “the closing argument as a whole, rather than just selective phrases or remarks that may be taken out of context or given undue prominence.”  State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993). 

First, appellant argues that the prosecutor engaged in misconduct by referencing the deputies’ testimony that the state intended to file charges against Glenn V.  But appellant opened the door to this line of questioning on cross-examination, and the prosecutor’s comments did not go beyond the deputy’s testimony.

Second, appellant argues that the prosecutor engaged in misconduct by referring to appellant’s silence at the time of his arrest.  We agree.  But the prosecutor’s argument on this topic was limited and constituted about five lines of a 25-page closing argument.  Viewing the closing argument as a whole, we see no prejudice. 


Appellant argues that the postconviction court erred in determining that he was not deprived of the effective assistance of counsel.  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 (Minn. 2004). 

In order to support a claim of ineffective assistance of counsel, a petitioner must allege facts that demonstrate “(1) that his counsel’s performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel’s errors, the result of the . . . trial would have been different.”  Hummel v. State, 617 N.W.2d 561, 564 (Minn. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)).  Under the first prong, “an attorney acts within the objective standard of reasonableness when he provides his client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances.”  Dukes v. State, 621 N.W.2d 246, 252 (Minn. 2001) (quotations omitted).  But there is “a strong presumption that an attorney acted competently.”  Id.  And “trial strategy lies within the discretion of trial counsel.”  Schleicher v. State, 718 N.W.2d 440, 447 (Minn. 2006).  “Under the second prong, the defendant must show by a preponderance of the evidence that his counsel’s error so prejudiced the defendant at trial that a different outcome would have resulted but for the error.”  Dukes, 621 N.W.2d at 252 (quotation omitted).

First, appellant argues that his trial counsel failed to object to:  (1) alleged hearsay testimony by Heather L. that she overheard Glenn V. state that he wanted someone to beat up the victim; (2) double hearsay testimony of the investigating deputy that reported Heather L.’s statement of what Glenn V. stated at the bar; and (3) the investigating deputy’s testimony that Glenn V. told him that appellant had returned to the bar to collect $100. 

Respondent argued, and the postconviction court agreed, that the decision of appellant’s trial counsel not to object to the statements constituted trial strategy that “did not fall below an objective standard of reasonableness.”  The record supports the district court.  Appellant defended the charge on the basis of self defense and made a reasonable strategic decision that this testimony did not matter, was probably admissible and, therefore, did not object. 

Second, appellant argues that trial counsel’s failure to object regarding the state’s intent to charge Glenn V. constituted ineffective assistance of counsel.  But appellant opened the door to the prosecutor’s questions by asking the deputy about the lack of charges.  Therefore, the failure to object to this line of questioning was within the reasonable judgment of trial counsel.

Third, appellant argues that the failure of his trial counsel to object to the prosecutor’s questions regarding appellant’s silence was error.  Because we have concluded that it was error for appellant’s counsel to not object, we turn to the second prong of the Strickland test.

The district court concluded that appellant failed to show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.”  We agree.  Here, the prosecutor’s references to appellant’s right to remain silent were isolated and minor.  Further, the other evidence strongly support the conviction.  On this record, appellant failed to show that the result would have been more favorable had trial counsel acted differently.

Finally, appellant argues that the postconviction court erred in determining that it was unnecessary to consider his alternative argument that the jury’s consideration of the evidence to which trial counsel failed to object constituted plain error.  Because “both the plain error and ineffective assistance of counsel tests require a showing of prejudice, it is redundant to address this claim under plain error.”  State v. Rhodes, 657 N.W.2d 823, 839 n.7 (Minn. 2003).  Therefore, we see no abuse of discretion.


* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Appellate courts generally grant motions to stay or dismiss direct appeals to allow appellants to further develop ineffective-assistance-of-counsel claims during postconviction proceedings.  State v. Riendeau, 603 N.W.2d 341, 342 (Minn. App. 1999) (citing State v. Steele, 449 N.W.2d 157, 157 (Minn. 1989)).  Appellate courts will then allow the parties to raise all issues on appeal after the conclusion of the postconviction proceedings, if necessary.  Id.