This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Dennis Patrick Haro,
Beltrami County District Court
File No. K2-06-635
John M. Stuart, State Public Defender, Paul J. Maravigli, Assistant State
Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Timothy R. Faver, Beltrami County Attorney, Beltrami County Courthouse Annex, 619 Beltrami Avenue Northwest, Bemidji, MN 56601 (for respondent)
Considered and decided by Shumaker, Presiding Judge; Wright, Judge; and Parker, Judge.*
Appellant challenges his convictions of criminal sexual conduct and domestic assault, arguing that he was denied the Sixth Amendment right to the effective assistance of counsel when his trial counsel (1) failed to demand a speedy trial; (2) failed to give pretrial notice of a consent defense; (3) ineptly cross-examined the complainant; and (4) effectively conceded appellant’s guilt during closing argument. We affirm.
Respondent State of Minnesota charged appellant Dennis Haro with third-degree criminal sexual conduct, a violation of Minn. Stat. § 609.344, subds. 1(c), 2 (2004), and gross-misdemeanor domestic assault, a violation of Minn. Stat. § 609.2242, subd. 2 (2004). During the trial, Haro testified that he struck and digitally penetrated J.W., but he maintained that J.W. consented to the penetration. The jury found Haro guilty of both charges. This appeal followed.
D E C I S I O N
Haro challenges his
convictions, arguing that he received ineffective assistance of counsel in
violation of the Sixth Amendment to the United States Constitution. There is a strong presumption that counsel’s
performance fell within a range of reasonable assistance. Bruestle
v. State, 719 N.W.2d 698, 705 (Minn. 2006).
appellant who claims ineffective assistance of counsel bears the burden
of proof. Id. at 704. To
satisfy this burden, the appellant must establish that (1) counsel’s
performance was deficient, that is, counsel “made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment;” and (2) appellant was prejudiced because “there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland
v. Washington, 466
Haro’s first claim is premised on his counsel’s failure to demand a speedy trial. Haro has presented no argument or authority showing that this failure renders his counsel’s performance deficient or that it was prejudicial. Therefore, Haro has waived this argument. See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (holding that assignments of error based on mere assertion and not supported by argument or authority are waived).
Even if it were not waived, this
argument would fail. Both the
Even if we
assume for purposes of our analysis that counsel’s failure to demand a speedy
trial renders counsel’s performance deficient, Haro has not shown any resulting
prejudice. See Strickland, 466 U.S. at 692, 104 S.
Ct. at 2067; cf. Barker v. Wingo, 407
Next, Haro argues that his counsel’s failure to assert prior to trial Haro’s intent to rely on a consent defense constituted ineffective assistance of counsel. Decisions regarding which legal defenses to raise are tactical decisions that lie within the sound discretion of trial counsel and will not be reviewed later for competence. State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999). Moreover, because Haro’s counsel raised a consent defense during trial, Haro has not demonstrated any prejudice.
Haro also argues that his counsel ineffectively cross-examined J.W. in a “confirmatory rather than adversarial” manner. In his supplemental pro se brief, Haro further argues that his counsel failed to elicit testimony from J.W. that would reveal a motive to lie. But the manner in which a witness is questioned is a trial tactic; and, as such, it is not a basis for a claim of ineffective assistance of counsel. State v. Miller, 666 N.W.2d 703, 716-17 (Minn. 2003) (observing that decision not to cross-examine state’s witness on particular issue may be considered a tactical decision); see also State v. Best, 370 N.W.2d 691, 695-96 (Minn. App. 1985) (holding that failure to cross-examine victim about particular passage of her pretrial testimony could have been reasonable trial tactic and does not constitute ineffective assistance).
Finally, Haro argues that he
was denied the constitutional right to effective assistance of counsel when his
trial counsel effectively conceded Haro’s guilt during the closing
argument. When trial counsel
admits a defendant’s guilt without the defendant’s consent,
counsel’s performance is deficient and prejudice is presumed because the
decision to concede guilt is the defendant’s decision alone. Dukes v. State, 621 N.W.2d 246, 254 (
Haro argues that “counsel’s closing argument that the sexual penetration upset and surprised [J.W.] clearly depicted the act as nonconsensual,” which “was an unreasonable strategy [that] conceded guilt without . . . Haro’s consent.” This argument is founded on a mischaracterization of counsel’s closing argument. Although Haro’s counsel stated that J.W. became upset after Haro penetrated her, this statement did not suggest that the penetration was nonconsensual. Rather, Haro’s counsel maintained that J.W. was upset because Haro’s acceptance of her offer that he “check” whether she had engaged in sexual intercourse with another person by digitally penetrating her demonstrated his distrust of J.W. Haro’s counsel advised the jury, “[W]hen laying out all of the evidence you have seen and heard today and applying the law that the Judge has instructed you and will continue to instruct you, you will find that . . . Haro did not violate [J.W.] without her consent. [J.W.] just didn’t expect [Haro] to take her up on the offer.” Because the record establishes that Haro’s counsel did not concede Haro’s guilt, Haro’s ineffective-assistance-of-counsel claim on this ground also fails.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.