This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
COURT OF APPEALS
State of Minnesota,
Filed December 31, 2007
Olmsted County District Court
File No. TX057454
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Terry L. Adkins, Rochester City Attorney, Michael J. Spindler-Krage, Assistant City Attorney, 201 Southeast 4th Street, Room 247, Rochester, MN 55904 (for respondent)
I. Chris Ritts, Dunlap & Ritts, P.A., 7000 Flour Exchange Building, 310 Fourth Avenue South, Minneapolis, MN 55415 (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Toussaint, Chief Judge; and Harten, Judge.*
On the evening of June 28, 2005, A.Q. was driving northbound on Highway 52 on his way home from work in Rochester. He exited on 37th Street and continued heading north on the frontage road. As A.Q. approached the 41st Street intersection, he drew abreast of another northbound vehicle in the lane immediately to his left; the driver was later identified as appellant Alireza Matloobi. While A.Q.’s vehicle was still adjacent to appellant’s vehicle, appellant activated his right-hand turn signal, indicating that he intended to move into A.Q.’s lane. When appellant realized his vehicle’s proximity to A.Q.’s vehicle, he honked his horn at A.Q. A.Q. then held up the third finger of his hand.
In response to the gesture, appellant cut A.Q. off at the intersection of 41st Street. Appellant then stopped and got out of his vehicle, uttered a profanity at A.Q., and punched A.Q. in the face through an open window. As appellant returned to his vehicle, A.Q. noted the vehicle’s license-plate number. He immediately called the police on his cell phone and gave them the license-plate number and a description of appellant and appellant’s vehicle. A.Q. then drove a short distance to his residence. Rochester Police Officer Phillip Paschal arrived about 20 minutes later to take his statement regarding the incident.
A.Q. told Officer Paschal that the person who had punched him was an Indian or Arab male with an accent who was approximately six feet tall, had dark hair, and weighed roughly 170 pounds. This description closely matched appellant’s appearance, although appellant is of Iranian descent. Officer Paschal, who located appellant’s address by running a computer check of the license-plate number, went to appellant’s home and questioned him about his conduct that evening. Appellant denied any involvement in the incident, stating that he had been at the mall, shopping at the time of the alleged assault.
Officer Paschal constructed a six-person black-and-white photo lineup at the police station and then returned to A.Q.’s residence to show him the lineup. Without hesitation, A.Q. indicated that he was positive that the photo of appellant was the individual who had assaulted him earlier in the evening.
Officer Paschal then returned to appellant’s residence and issued him a citation, charging him with fifth-degree assault and disorderly conduct. At trial, appellant and a friend testified that they were together at the mall shopping at the time that A.Q. was assaulted. The jury subsequently convicted appellant. This appeal follows.
Appellant claims that the district court abused its discretion by admitting A.Q.’s identification of appellant in the photographic lineup. Appellant argues that the lineup was unnecessarily suggestive and conducive to irreparable mistaken identification in violation of his due-process rights.
Generally, “[e]videntiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). But because the admission of identification evidence that is derived from suggestive identification procedures may violate a defendant’s constitutional due-process rights, State v. Roan, 532 N.W.2d 563, 572 (Minn. 1995), the facts surrounding the identification must be independently reviewed to determine, as a matter of law, whether the evidence requires suppression. State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999).
In making this determination, we apply a two-part test. Id. Under the first prong of the test, we evaluate whether the identification procedure was unnecessarily suggestive. Id. The focus of this part of the test is whether the procedure used by law enforcement influenced the witness’s identification of the defendant. Id. Due process does not demand that a photographic display be comprised of “exact clones of the accused.” Roan, 532 N.W.2d at 572 (quotation omitted). “It is sufficient if all the people in the display bear a reasonable physical similarity to the accused.” Seelye v. State, 429 N.W.2d 669, 672-73 (Minn. App. 1988).
Should this inquiry lead to a conclusion that the identification procedure was unnecessarily suggestive, the identification may still be admissible “if the totality of the circumstances establishes that the evidence was reliable.” State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995) (citing Manson v. Brathwaite, 432 U.S. 98, 116, 97 S. Ct. 2243, 2253-54 (1977)). If the witness’s identification had an adequate independent basis, it is deemed reliable, notwithstanding the procedure’s suggestiveness. Manson, 432 U.S. at 116, 97 S. Ct. at 2253-54; Ostrem, 535 N.W.2d at 921. Ultimately, the “test is whether the suggestive procedures created a very substantial likelihood of irreparable misidentification.” Ostrem, 535 N.W.2d at 921.
In State v. Bellcourt, 312 Minn. 263, 264, 251 N.W.2d 631, 633 (1977), the supreme court outlined five factors to be used in evaluating whether an identification is reliable, despite its suggestiveness. The factors are: the opportunity of the witness to view the suspect at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the suspect, the level of certainty demonstrated by the witness during the photo display, and the time between the crime and the confrontation. Bellcourt, 312 Minn. at 264, 251 N.W.2d at 633 (citing Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, (1972)).
Appellant’s sole basis for claiming that the photographic lineup was suggestive is that he “was the only Arab individual in the line-up.” While it may have been preferable for Officer Paschal to have included photos of men of similar ethnicity in the photo lineup, this single fact, under the particular circumstances of this case, does not make appellant’s photographic lineup unduly suggestive.
First, printing the photo lineup in black and white substantially mitigated the claimed suggestiveness of the lineup by minimizing, if not erasing, any differences in skin tone. We have viewed the original photo lineup, and it is difficult to discern any differences in ethnicity of the persons depicted in the six black-and-white photographs. The other individuals in the lineup were within four years of age of appellant, had dark hair, appeared to weigh approximately the same, and had no distinguishing facial features or facial hair.
This court has twice addressed the issue of a defendant having a different ethnic background from other individuals in a photo lineup. In both cases, we determined that the procedure used was not suggestive, despite the ethnic differences, because the other individuals looked reasonably similar to the defendant. See State v. Yang, 627 N.W.2d 666, 674 (Minn. App. 2001) (concluding that the lineup was not suggestive because even though the defendant was the only Hmong in the photo lineup, all the other photos were of Asian men of reasonably similar appearance), review denied (Minn. July 24, 2001); Seelye, 429 N.W.2d at 673 (concluding that the photo lineup was not unnecessarily suggestive when appellant was Indian and other persons in display, who bore physical resemblance to appellant, were white). The same is true of the photo lineup used here. Appellant’s ethnicity did not stand out from the others, and the physical characteristics of height, weight, and age were very similar. As a result, we conclude that appellant’s due-process rights were not violated.
But even assuming arguendo that appellant’s photo lineup was unduly suggestive, it is still reliable under a Bellcourt analysis. Uncontradicted evidence established that A.Q. got an excellent look at appellant under good lighting conditions. Immediately after the assault, A.Q. used his cell phone to contact the police and gave them a physical description of his attacker, including gender, possible ethnicity, height, weight, accent, and hair color. This description closely matched appellant’s physical characteristics. When A.Q. was shown the photo lineup including appellant within hours of the incident, A.Q. stated without hesitation that he was positive that the photo of appellant depicted the person who assaulted him. Based on the Bellcourt analysis, A.Q.’s identification of appellant was reliable.
Appellant’s second argument is that he was denied his right to an impartial trial judge. The Due Process Clause provides criminal defendants with a constitutional right to a trial before an impartial judge. Cuypers v. State, 711 N.W.2d 100, 104 (Minn. 2006) (citing Bracy v. Gramley, 520 U.S. 899, 904-05, 117 S. Ct. 1793, 1797 (1997)). “When evaluating the impartiality of a judge presiding over a criminal jury trial, this court . . . look[s] to whether the judge’s conduct has prejudiced the jury.” McKenzie v. State, 583 N.W.2d 744, 747 (Minn. 1998). “A judge’s conduct must be fair to both sides, and a judge should refrain from remarks which might injure either of the parties to the litigation.” State v. Dorsey, 701 N.W.2d 238, 250 (Minn. 2005) (quotation omitted).
“There is the presumption that a judge has discharged his or her judicial duties properly.” State v. Mems, 708 N.W.2d 526, 533 (Minn. 2006). A defendant must assert allegations of impropriety sufficient to overcome this presumption. See McKenzie, 583 N.W.2d at 747. If a defendant submits to trial before a judge without objecting to the judge on the basis of bias, reversal of a defendant’s conviction is warranted only if the defendant can show actual bias in the proceedings. State v. Moss, 269 N.W.2d 732, 734-35 (Minn. 1978); State v. Plantin, 682 N.W.2d 653, 663 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004).
The Due Process Clause establishes the constitutionally acceptable floor, requiring that a judge have no actual bias against a defendant or an interest in the outcome of the particular case. Gramley, 520 U.S. at 904-05, 117 S. Ct. at 1797. The constitutional issue of whether a defendant’s due-process right to an impartial judge was violated is reviewed de novo. Dorsey, 701 N.W.2d at 249.
Constitutional errors can be divided into two categories: trial errors and structural defects. Arizona v. Fulminante, 499 U.S. 279, 309, 111 S. Ct. 1246, 1264-65 (1991). Trial errors, which occur during the presentation of evidence, allow courts to assess whether an error was harmless beyond a reasonable doubt by evaluating the error in the context of the remaining evidence. Id. at 307-08, 111 S. Ct. at 1264. In contrast, structural errors are “defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards.” Id. at 309, 111 S. Ct. at 1265. Two examples of structural error are the deprivation of the right to counsel at trial and the presence of a biased judge. Id. at 309, 111 S. Ct. at 1265 (citing Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963); and Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437 (1927)). Appellant claims the bias here was structural, requiring reversal.
Appellant asserts that the district court made several statements that were prejudicial. As the district court was administering the preliminary oath to the jury pool, it stated, “I see some familiar faces back there. We’re kind of recycling our juries.” Appellant contends that this statement is indicative that the judge may have known of possible tampering with the jury pool but proceeded with jury selection anyway. Second, at the end of the first day of trial, the district court stated, in front of the jury, “I’ve had so many trials this week I don’t know what I said.” This comment was made in response to defense counsel’s reminder to the district court to explain to the jurors why the attorneys could not acknowledge the jurors outside of the courtroom. Appellant contends that the jurors may have inferred from this statement that the judge was not paying attention because she believed that the appellant was guilty. Finally, appellant claims that the judge’s body language, facial expressions, and certain unspecified gestures made during trial indicated to the jury that the judge was hostile to the appellant and believed him to be guilty. There is nothing in the record concerning the district court’s alleged facial expressions or gestures. At no time did appellant object to any such conduct or otherwise document it for possible review on appeal.
Appellant’s bare allegations do not overcome the presumption that the district court discharged its judicial duties without bias, Mems, 708 N.W.2d at 533, much less demonstrate the actual bias required to warrant relief. Moss, 269 N.W.2d at 735. There is nothing in the record to support appellant’s speculative arguments. We therefore conclude that appellant’s due-process rights were not violated, see Gramley, 520 U.S. at 904-05, 117 S. Ct. at 1797 (due process establishes the “floor” of acceptable judicial conduct), and that no structural error occurred.
Appellant claims that he was denied his right to effective assistance of counsel because his trial counsel failed to call three possible alibi witnesses and failed to make a Batson challenge during jury selection.
Claims of ineffective assistance of counsel are mixed questions of law and fact, which we review de novo. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003). To support a claim of ineffective assistance of counsel, the burden of proof is on the petitioner to demonstrate that (1) his counsel’s performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that the result of the trial would have been different but for counsel’s errors. State v. Miller, 666 N.W.2d 703, 716 (Minn. 2003). “We need not address both the performance and prejudice prongs if one is determinative.” Rhodes, 657 N.W.2d at 842 (citing Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2069 (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). “There is a strong presumption that an attorney acted competently.” Id. Generally, what evidence to present, which witnesses to call at trial, and the extent of any investigation are all tactical decisions properly left to the discretion of trial counsel. Mems, 708 N.W.2d at 534; State v. Opsahl, 677 N.W.2d 414, 421 (Minn. 2004). Courts must distinguish between the professional performance of counsel and these tactical decisions. See Opsahl, 677 N.W.2d at 421. It is not an appellate court’s function to second-guess counsel’s tactical decisions involving trial strategy with the benefit of hindsight. Miller, 666 N.W.2d at 717.
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). “The reviewing court considers the totality of the evidence before the judge or jury in making this determination.” Rhodes, 657 N.W.2d at 842.
A. Failure to call three additional alibi witnesses
Appellant argues that, had his trial counsel called three “alibi” witnesses, they would have corroborated the testimony of appellant and his friend that they were both at the mall at the time that A.Q. was assaulted. The “alibi” witnesses were two store clerks and a customer at Barnes and Noble. While appellant argues that all three witnesses would have placed appellant at the mall at the time A.Q. was assaulted, there is nothing in the record to support his contention.
It is appellant’s burden to demonstrate on appeal that a reasonably competent attorney would have called the witnesses and that his failure to do so prejudiced him. But a decision about what witnesses to call at trial is generally considered a tactical one properly left to the discretion of trial counsel. There are certainly multiple strategic reasons that could explain why appellant’s trial counsel did not call these witnesses. Without showing that these witnesses’ testimony would in fact have supported his alibi defense, appellant has no basis to argue that his trial counsel’s failure to call them prejudiced him.
B. Failure to make a Batson challenge during jury selection
Appellant also claims that his trial counsel was ineffective for failing to make a Batson challenge during jury selection. During voir dire, a party may not use preemptory challenges to strike jurors on the basis of race. Minn. R. Crim. P. 26.02, subd. 6a; State v. White, 684 N.W.2d 500, 504-05 (Minn. 2004). Therefore, pursuant to Batson v. Kentucky, a party may challenge the opposing party’s use of peremptory challenges that appear to strike jurors based on race. 476 U.S. 79, 96-100, 106 S. Ct. 1712, 1723-25 (1986); see also State v. Reiners, 664 N.W.2d 826 (Minn. 2003) (applying Batson).
Appellant alleges that his jury was composed entirely of individuals of Caucasian descent. But he has provided no transcript of voir dire nor any juror questionnaires supporting this contention. Accordingly, there is no evidence in the record of the racial makeup of the jury empanelled for appellant’s trial, and this court cannot presume this fact on appeal. See State v. Taylor, 650 N.W.2d 190, 204 n.12 (Minn. 2002) (“An appellate court may not base its decision on matters outside the record on appeal.”).
But even if appellant was tried before an all-white jury, his claim still fails. In arguing that the all-white jury was the result of ineffective assistance of counsel, appellant—without providing any evidence—invites us to conclude that this outcome resulted because the prosecutor struck potential jurors based on their race and that his trial counsel did not object to these strikes. We decline to do so. It appears from the record that only one potential juror was struck by either side during voir dire, and it was appellant’s trial counsel who struck that potential juror. Appellant’s allegations regarding this matter are not supported by the record and will not sustain his ineffective-assistance-of-counsel claim.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.