This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).


Larry Richard Hackler,


State of Minnesota,

Filed September 24, 1996
Harten, Judge

Crow Wing County District Court
File No. K7-94-443

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2829 University Avenue S.E., #600, Minneapolis, MN 55414 (for Appellant)

Hubert H. Humphrey, III, Attorney General, James P. Spencer, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)

Donald F. Ryan, Crow Wing County Attorney, 326 Laurel St., Brainerd, MN 56401 (for Respondent)

Considered and decided by Schumacher, Presiding Judge, Norton, Judge, and Harten, Judge.


Appeal from postconviction proceedings wherein the postconviction court found that appellant had not proved ineffective assistance of counsel at trial. We affirm.

On March 9, 1994, appellant Larry Richard Hackler stabbed Donald Augustine numerous times with a knife. Both men had been drinking. Hackler was charged with attempted first- and second-degree murder and first- and second-degree assault. The jury convicted Hackler on all four counts.
Hackler appealed his convictions. This court affirmed, but vacated the attempted second-degree murder conviction as a lesser-included offense. State v. Hackler, No. C9-94-1626 (Minn. App. Apr. 25, 1995). We also held that the district court had properly denied the motion for a voluntary intoxication jury instruction. Id. Finally, we deferred consideration of Hackler's ineffective assistance of counsel claim in favor of a subsequent postconviction relief proceeding. Id. The supreme court granted review for the limited purpose of vacating the second-degree assault conviction. State v. Hackler, No. C9-94-1626 (Minn. June 2, 1995) (order op.).
Hackler brought the instant postconviction proceeding, claiming that he was denied effective assistance of counsel at trial. Following a hearing, the postconviction court denied Hackler's claim and dismissed his petition. Hackler appeals.

Hackler contends that the postconviction court erred by determining that he had not proved ineffective assistance of trial counsel.
In postconviction proceedings, the petitioner bears the burden of proving entitlement to relief by a fair preponderance of the evidence. Minn. Stat. §subd. 3 (1994). On appeal from a denial of postconviction relief, the reviewing court is limited to determining whether there is sufficient evidence to sustain the findings of the postconviction court. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). Absent an abuse of discretion, a postconviction court's decision will not be disturbed on appeal. Id. In order to prove ineffective assistance of counsel, a party must prove that his trial
counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional 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 reviewing court considers the totality of the evidence. Id. at 562. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. State v. Smith, 476 N.W.2d 511, 515 (Minn. 1991) (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065)..
Hackler argues that his trial counsel failed to interview thoroughly, or call as witnesses, all the people who witnessed the incident, and otherwise failed to investigate whether Hackler was under the influence of alcohol or heroin at the time of the incident. Hackler further asserts that counsel's advice that he not testify personally was improper. Finally, he faults counsel for failure to notify the prosecution of an intoxication defense, which resulted in the district court's refusal to give an intoxication instruction.
First, Hackler claims that his trial counsel failed to interview or call all the witnesses he had identified.
Which witnesses to call and what evidence to present to the jury are matters of trial strategy, which are within the discretion of trial counsel.

State v. Bliss, 457 N.W.2d 385, 392 (Minn. 1990). At the postconviction proceeding counsel testified that Hackler had identified four witnesses. Counsel interviewed one of the witnesses who told him that he did not believe Hackler was under the influence. Another of the witnesses was called by the state; counsel believed that it was more effective to cross-examine her than to call her as a defense witness. Counsel stated that he was familiar with both of the other individuals and knew that they were impeachable. A decision not to call certain witnesses is reasonable when the attorney has serious qualms about the witnesses' credibility. Gustafson v. State, 477 N.W.2d 709, 713 (Minn. 1991); see also Bliss, 457 N.W.2d at 392 (tactical decision to call only 2 of 14 witnesses suggested by defendant does not make counsel's representation incompetent).
Counsel also did not interview the examining physician or investigate Hackler's alleged heroin use. Counsel testified, however, that he was never told that Hackler had been using heroin. "It is within trial counsel's discretion to forgo investigation of leads not reasonably likely to produce favorable evidence." Gustafson, 477 N.W.2d at 713. Counsel did not talk to the bartenders or bouncers who were present at the time of the incident. From their police statements, however, he was familiar with what their testimony would be. They had told police that they did not believe Hackler was intoxicated. Based on his conversations with Hackler and Hackler's statements to the police, counsel had determined that Hackler was not too intoxicated to form intent.
Moreover, counsel testified that he made a tactical decision to defend Hackler based on self-defense rather than voluntary intoxication, although intoxication was alluded to at trial. Counsel testified that he had been informed by Hackler that Hackler received social security disability for a lung condition, rather than for chemical dependency. Hackler also failed to reveal his use of heroin to counsel. This information would not establish that Hackler was under the influence of alcohol or heroin at the time of the incident.
[E]vidence that a person was drinking does not create a presumption of intoxication and intoxication does not create a presumption that a person is rendered incapable of intending to do a certain act.

State v. Hackler, No. C9-94-1626, unpub. op. at 4 (Minn. App. Apr. 25, 1995) (quoting State v. Lund, 277 Minn. 90, 92, 151 N.W.2d 769, 771 (1967)). Counsel testified that he felt the facts better established self-defense. Counsel stated that based on his experience, juries typically did not absolve an accused of a serious crime on the grounds of voluntary intoxication. Therefore, we conclude these matters of trial strategy were well within trial counsel's discretion.
Second, Hackler claims that counsel's representation was ineffective because counsel advised him not to testify. Counsel explained that one of his reasons for advising his client not to testify was to avoid impeachment by Hacker's criminal record. Counsel did not seek a ruling by the district court as to whether the previous convictions would have been admissible because, based on his previous experience with the particular district court judge, counsel felt that the convictions would have been admitted. Advising a client not to testify does not render an attorney incompetent. See State v. Armstrong, 282 Minn. 100, 102, 163 N.W.2d 67, 69 (1968).
Finally, Hackler argues that because counsel improperly failed to provide notice of a voluntary intoxication defense, the district court refused to instruct the jury on intoxication. Counsel explained at the hearing that he had no tactical reason not to provide such notice. This court on direct appeal held that the district court properly refused the instruction because (a) counsel had not provided notice and (b) the evidence did not accommodate such an instruction. Hackler, unpub. op. at 4. "A lawyer cannot create an issue the facts will not support." State v. Amos, 347 N.W.2d 498, 503 (Minn. Because there was insufficient evidence to support an intoxication defense, counsel did not act unreasonably by failing to provide notice.
We conclude that the postconviction court correctly found that Hackler had not proved ineffective assistance of counsel. Accordingly, we affirm the postconviction court's denial of Hackler's petition.