This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Thomas Joseph Hussman,
Filed November 20, 2007
Hennepin County District Court
File No. 05052708
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Kevin W. DeVore, 450 Rosedale Towers, 1700 West Highway 36, Roseville, MN 55113 (for appellant)
Considered and decided by Ross, Presiding Judge; Kalitowski, Judge; and Worke, Judge.
On appeal from a conviction of terroristic threats and an order denying a postconviction challenge of that conviction, appellant argues that the district court erred by denying his petition without an evidentiary hearing. Appellant contends that his trial counsel was ineffective in interrupting his testimony describing his version of the incident, failing to elicit his version of events, and failing to adequately cross-examine the alleged victim. We affirm.
D E C I S I O N
Appellant Thomas Joseph Hussman challenges the district court’s denial, without an evidentiary hearing, of his petition for postconviction relief, alleging ineffective assistance of counsel. To warrant an evidentiary hearing on a postconviction petition, a petitioner must allege facts that, if proved, would entitle him to the requested relief. State v. Kelly, 535 N.W.2d 345, 347 (Minn. 1995); Minn. Stat. § 590.04, subd. 1 (2004). A postconviction 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 (Minn. 2004).
A defendant asserting ineffective assistance of counsel “must affirmatively prove that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s  errors, the result of the proceeding would have been different.’” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)). The defendant must rebut a “strong presumption that counsel’s performance fell within a wide range of reasonable assistance.” Gail v. State, 732 N.W.2d 243, 248 (Minn. 2007). “A court may address the two prongs of the [Strickland]testin any order and may dispose of the claim on one prong without analyzing the other.” Schleicher v. State, 718 N.W.2d 440, 447 (Minn. 2006).
Appellant argues that he is entitled to an evidentiary hearing because the record shows that his counsel interrupted his testimony and deprived him of the opportunity to explain his version of the incident, which effectively denied him the right to testify in his own defense. A defendant has a constitutional right to testify on his behalf, and an attorney’s denial of that right is not subject to a harmless-error analysis. State v. Walen, 563 N.W.2d 742, 750 n.3 (Minn. 1997).
Here, the complainant testified that appellant “cut [him] off” as the complainant was making a turn. The complainant testified that following the turn, he stopped a safe distance behind appellant’s truck at a stop light. Appellant put his head out the window, stared at the complainant for a few seconds, reached into the vehicle, and “hung out” of the window pointing a pistol at the complainant while “screaming obscenities and something that sounded like he said he was a police officer.” The complainant testified that he took appellant’s picture with his cell-phone and called 911 to report “a person waving a gun around.”
Appellant, a retired police officer and certified firearms instructor, testified in his own defense. Appellant denied that he had “cut off” the complainant’s car. Instead, appellant testified that a light-colored car proceeded through an intersection and tailgated him. Appellant testified that the complainant got out of his car and approached appellant’s truck, at which time appellant took his gun out for self-defense. Appellant denied that he yelled or pointed the gun at the complainant.
The record shows that the following exchange took place between appellant and his attorney:
Q. How far away from your driver’s door was [the complainant]?
A. His—The first approach—At his first approach, he stopped behind me much in the same manner that a police officer would act. Stopped behind me and I was—I was looking at him like this here (indicating) and I was looking at the –at the rearview mirror to try to see his hand movement and he crossed his arms like this here (indicating) and—
Q. Let me—
Q. If you opened your driver’s side door, would you have touched him?
A. Oh, yes.
The district court determined that appellant’s attorney’s decision to discontinue appellant’s narrative testimony was trial strategy, which is not ineffective assistance. We agree. A disagreement over trial strategy does not constitute ineffective assistance of counsel State v. Berry, 309 N.W.2d 777, 785 (Minn. 1981); see also State v. Brocks, 587 N.W. 2d 37, 43 (Minn. 1998) (stating that “[i]n reviewing counsel’s performance at trial, we have recognized that counsel must have the discretion and flexibility to devise a trial strategy that best serves the client”). “Trial tactics should not be confused with competence.” Brown v. State, 292 Minn. 174, 177, 193 N.W.2d 613, 616 (1972). The record shows that appellant’s attorney interrupted only when appellant testified in a narrative fashion and used gestures to show what happened during the encounter with the complainant. Counsel’s decision to use an examination style that limited a narrative response was a trial strategy. The attorney could have anticipated that appellant might testify in a way detrimental to his defense. In addition, allowing appellant to continue with a narrative response could have invited an objection from the prosecution. See 5 Roger S. Haydock and Peter B. Knapp, Minnesota Practice, § 8.7.2 (2007) (stating that a narrative objection may be made to an answer that tells “a long, uncontrolled story”).
Appellant also argues that after the interruption, counsel failed to allow him to finish testifying about his version of events. But the record shows that appellant’s attorney elicited testimony consistent with appellant’s self-defense theory. Additionally, appellant testified on cross-examination that he saw the complainant get out of his car holding “something shiny.”
Finally, appellant argues that his counsel’s performance was deficient because he failed to highlight for the jury a discrepancy between the complainant’s testimony that he did not leave his car and the transcript of the 911 call, which shows that the complainant reported that appellant “cut [him] off and then waved [the gun] in [his] face and told [him] to get back in my car or [he] was going to be shot.” But whether a discrepancy existed is unclear because “getting back in the car” could have referred to part of the complainant’s body going back into the car after he leaned out to take the cell-phone picture. Any prejudice was minimized because the 911-tape transcript was read to the jury, and the tape was available during deliberations. Thus, the jury was in a good position to evaluate any discrepancy. Therefore, under the second prong of the Strickland test, the record does not show the existence of facts that, if proved, would have affected the outcome of the proceeding, and the district court did not err by denying an evidentiary hearing on appellant’s ineffective-assistance claim.