This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-95-2467

State of Minnesota,

Respondent,

vs.

Marvin Lee Jones,

Appellant.

Filed October 22, 1996

Affirmed

Klaphake, Judge

Ramsey County District Court

File No. K1-95-1352

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, 50 W. Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for Respondent)

John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Thoreen, Judge.[*]

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

Marvin Lee Jones appeals from a judgment of conviction for the second-degree intentional murder of Mark Kelsey and for the second-degree assault on Gerald Robbins. See Minn. Stat. SSSS 609.19(1) & .222, subd. 1 (1994). Because the trial court properly instructed the jury, the evidence was sufficient to sustain the convictions, and appellant has not otherwise demonstrated that he is entitled to a new trial, we affirm.

D E C I S I O N

1. Appellant argues that the trial court committed reversible error by failing to instruct the jury sua sponte on the lesser-included offense of second-degree felony murder. Appellant waived his right to raise this issue, however, by failing to request such an instruction. See State v. Sutherlin, 396 N.W.2d 238, 242 (Minn. 1986) (while trial court may sua sponte submit lesser offense without request if instruction justified by evidence, defendant who fails to request such an instruction generally cannot obtain new trial on that ground or raise it as issue on appeal); see also State v. Morales, 324 N.W.2d 374, 376 (Minn. 1982).

Even if appellant had properly raised this issue, he could not demonstrate prejudice. Appellant requested and received an instruction on the lesser-included offense of second-degree manslaughter. The jury's rejection of this lesser-included offense and finding of second-degree intentional murder are "strong and sufficient indication" that appellant was not prejudiced by the absence of an instruction on the other lesser-included offense of second-degree felony murder. See State v. Shepherd, 477 N.W.2d 512, 516 (Minn. 1991).

Finally, the trial court could have declined to give such an instruction even if requested. The test used in determining appropriate instructions on lesser-included offenses is whether the evidence would both reasonably support a conviction on that lesser offense and justify acquittal on the charged offense. See State v. Leinweber, 303 Minn. 414, 422, 228 N.W.2d 120, 125-26 (1975). Because there was ample evidence of appellant's intent to kill, the jury could not have rationally acquitted him on the intentional murder charge. See State v. Dukes, 544 N.W.2d 13, 20 (Minn. 1996). That evidence included appellant's preparatory acts of arming himself with a knife, removing it from his pocket, and opening the hinged blade before killing Kelsey. See State v. Bock, 490 N.W.2d 116, 121 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992). Intent to kill may also be inferred from the nature and placement of the wound: Kelsey died from a single stab wound to the heart, administered with enough force to penetrate his sternum. See, e.g., State v. Thompson, 544 N.W.2d 8, 12 (Minn. 1996) (absence of multiple blows does not negate intent to kill); State v. Merrill, 428 N.W.2d 361, 370 (Minn. 1988) (single fatal stab wound passing through breast bone and into heart sufficient to support intent to kill); State v. Andrews, 388 N.W.2d 723, 728-29 (Minn. 1986) (intent to kill shown by single stab wound). Finally, appellant's callousness is consistent with intent to kill: after fatally stabbing Kelsey, appellant stabbed Robbins,[1] stood defiantly with an angry look, and threatened another bar patron. See, e.g., State v. Plan, 316 N.W.2d 727, 728 (Minn. 1982).

2. Appellant argues the evidence was insufficient to sustain the murder conviction because the state failed to show intent to kill and, at most, proved he was guilty of first-degree manslaughter. He also argues that he should have been acquitted because he acted in self-defense.

As noted above, the evidence amply supports the jury's finding that appellant intended to kill Kelsey. In addition, even if a first-degree manslaughter instruction had been requested and presented to the jury, there was no evidence to support such a verdict. The evidence shows that the crimes were committed when bar employees and patrons were attempting to remove appellant and his friends from the bar. While a bar patron used physical force in an attempt to remove the knife from appellant's hand, appellant was successfully led outside the premises. He soon re-entered, however, and the brawl resumed, only to end with the stabbings of Kelsey and Robbins. Under these circumstances, there was insufficient provocation for a person of ordinary self-control to act as appellant did. See, e.g., State v. Robinson, 539 N.W.2d 231, 238-39 (Minn. 1995) (victim's acts of arguing, throwing keys, and threatening to kill were insufficient provocation to support use of deadly weapon); State v. Buchanan, 431 N.W.2d 542, 545-46, 549 (Minn. 1988) (no provocation when weaponless victim approached defendant and threatened to kill him).

Finally, the evidence was sufficient to prove that appellant's actions were not justified by self-defense. See Minn. Stat. SSSS 609.06 & .065 (1994). Appellant was the aggressor and provoked the confrontation by re-entering the bar and then refusing to leave. There is no evidence to show that, at the time of the stabbings, his actions were necessary to avert death or grievous bodily harm; rather, appellant's path to the outside door was unobstructed, and the crimes could have been easily avoided had appellant simply exercised his duty to retreat. Thus, the evidence was sufficient to prove beyond a reasonable doubt that appellant was guilty of second-degree intentional murder and second-degree assault. See State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978).

3. Appellant argues that he should have received instructions on the lesser-included offense of first-degree manslaughter, the defense of "unconsciousness," and self-defense. Contrary to appellant's contention, a self-defense instruction was given to the jury. And, again, because appellant never requested the other two instructions, he has forfeited his right to raise these issues on appeal. Finally, even if he had requested an instruction on first-degree manslaughter, the record, as already discussed, lacked sufficient evidence of provocation to fulfill the necessary elements of that offense. With respect to an instruction on "unconsciousness," such a defense does not exist; even if it did, appellant was not "unconscious" when he removed the knife from his pocket, opened it, and stabbed Kelsey and Robbins.

4. Appellant argues he is entitled to a new trial because of "false" police reports that construed statements by witnesses who testified at trial contrary to statements they had made to investigating officers. However, appellant cannot demonstrate he was prejudiced in any way by these police reports because the witnesses' trial testimony was actually favorable to him.

5. Appellant argues he was denied a fair trial due to prosecutorial misconduct during final argument, when the prosecutor allegedly used the knife blade as a pointer on the autopsy photos and created the inference of a wound-to-blade match. The trial transcript, however, fails to describe or document this alleged action by the prosecutor. Even if true, any prejudice arising from the prosecutor's conduct was fully negated by the medical examiner's testimony and the prosecutor's own acknowledgement to the jury that no match could be made.

6. Appellant finally claims ineffective assistance of trial counsel and alleges that his counsel failed to: (1) inform him that a self-defense instruction would not be given unless he testified; (2) introduce evidence of a lack of wound-to-blade match; (3) introduce evidence of Kelsey's intoxication; and (4) request an instruction on first-degree manslaughter. As already noted, a self-defense instruction was given. And evidence of the lack of a wound-to-blade match was essentially introduced during cross-examination of the medical examiner. See Weaver v. State, 408 N.W.2d 200, 202 (Minn. App. 1987) (decision to forego cumulative evidence falls within range of reasonable trial strategy), review denied (Minn Aug. 12, 1987). Further, any decision appellant's attorney might have made not to introduce evidence of Kelsey's alleged intoxication amounts to a reasonable judgment, particularly given its marginal relevance. Finally, ineffective assistance of counsel is not created by an attorney's failure to request an instruction on a lesser-included offense that is not justified by the evidence. State v. Witucki, 420 N.W.2d 217, 223 (Minn. App. 1988), review denied (Minn. Apr. 15, 1988). Thus, the concerns appellant raises about his attorney's performance do not constitute errors in professional judgment, but rather reasonable trial tactics. Such tactics cannot form the basis for a successful ineffective assistance of counsel challenge. See State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).

The judgment of conviction is affirmed.

Affirmed.

[ ]* 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 Most of the witnesses did not see both of the stabbings and were unsure whether Kelsey or Robbins was stabbed first. Bar patron William White, however, testified that he saw both stabbings and that appellant stabbed Kelsey first and then Robbins.