This opinion will be unpublished and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

C5-96-381

Sharon Irene Miller, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed October 1, 1996

Affirmed

Parker, Judge

Washington County District Court

File No. K8943086

Marc S. Berris, Jerry Strauss, Strauss & Associates, 250 Second Avenue South, Suite 228, Minneapolis, MN 55401-2169 (for appellant)

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

Richard M. Arney, Washington County Attorney, Teresa R. Warner, Assistant County Attorney, Washington County Government Center, 14900 61st Street North, Stillwater, MN 55082 (for respondent)

Considered and decided by Crippen, Presiding Judge, Parker, Judge, and Thoreen, Judge.[*]

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

PARKER, Judge

Appellant Sharon Miller was convicted of first-degree assault in violation of Minn. Stat. § 609.221 (1994), second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (1994), reckless weapon handling in violation of Minn. Stat. § 609.66, subds. 1(a)(1) and 1(b)(2) (1994), pointing a dangerous weapon in violation of Minn. Stat. § 609.66, subds. 1(a)(2) and 1(b)(2) (1994), and reckless discharge of a firearm in violation of Minn. Stat. § 609.66, subds. 1a(a)(2) and 1a(b)(2) (1994). These convictions arose from the shooting of David Simonson. The trial court denied Miller's petition for postconviction relief. Miller appeals, arguing that she is entitled to a new trial because she was denied effective assistance of counsel. She also claims the trial court erred in admitting the statements she made to police at her residence. We affirm.

D E C I S I O N

1. Ineffective Assistance of Counsel

In postconviction proceedings, the petitioner bears the burden of proving, by a fair preponderance of the evidence, facts warranting relief. Minn. Stat. § 590.04, 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) (citing Gustafson v. State, 477 N.W.2d 709, 712 (Minn. 1991)). Absent an abuse of discretion, a postconviction decision will not be disturbed on appeal. Id. at 25.

An accused is guaranteed the right to effective assistance of counsel by the Sixth Amendment to the United States Constitution. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n.14 (1970). Resolution of an issue of effective assistance of counsel does not turn on whether counsel obtained a favorable result. White v. State, 248 N.W.2d 281, 285 (Minn. 1976). To support a claim of ineffective assistance of counsel, the defendant must show that (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Scruggs, 484 N.W.2d at 25 (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068 (1984)). When determining whether to grant a new trial based on ineffective assistance of counsel, appellate courts must apply the two-part Strickland test. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). Where a defendant has selected his own counsel, the supreme court has been reluctant to reverse convictions on the grounds of inadequacy of counsel "unless the alleged inadequacy is particularly flagrant." State v. Keenan, 289 Minn. 313, 317, 184 N.W.2d 410, 414 (1971).

The Minnesota Supreme Court has held:

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) (citing State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986)). Appellate courts will not use hindsight to review counsel's trial strategies. State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).

The postconviction court found that the representation Miller received was far from perfect. Applying the two-part Strickland test, however, the court concluded that Miller failed to establish that her trial counsel's performance fell below an objective standard of reasonableness such that there was a reasonable probability that, but for the alleged errors, the results of the proceeding would have been different.

Miller contends the postconviction court erred in concluding that she received effective assistance from her trial counsel. She argues that her trial counsel committed significant errors, demonstrating inadequate representation that affected the outcome of the case. She claims that these include trial counsel's (1) failure to object to or impeach police officers' testimony that the gunshot wound was not self-inflicted; (2) failure to establish that the officers neglected to conduct forensic testing on the firearm in question; (3) failure to present evidence that the victim had contacted an attorney about pursuing a civil action; and (4) failure to inform Miller of her constitutional right not to testify. Miller presented a well-qualified expert witness at the postconviction hearing who testified that, in his opinion, the outcome of her trial would have been different but for her counsel's unprofessional errors.

We address each of Miller's arguments of ineffective assistance of counsel separately. First, Miller's trial counsel initially objected to the officer's testimony that the victim's gunshot wound was not self-inflicted. The prosecutor asked nine more questions before the testimony was admitted into evidence. It is pure speculation that continued objections to this testimony would have caused the jury to reach a different result. Second, trial counsel presented the testimony of a forensic science expert to challenge the police officers' conclusions. While counsel did not cross-examine police as to why they failed to conduct forensic tests on the weapon, this was a strategic choice falling within the discretion of Miller's trial counsel. See Jones, 392 N.W.2d at 226 (trial tactics are within the discretion of the trial attorney). Third, Miller's trial counsel attempted to present evidence that the victim had contacted an attorney about pursuing a civil action. The victim admitted that he consulted an attorney, but stated that the consultation was unrelated to the shooting. It is speculative that any further cross-examination would have caused the witness to change his testimony, and the mere fact that counsel was unable to compel the victim to admit he consulted an attorney regarding a civil action does not indicate that counsel's assistance fell below "an objective standard of representation." Fourth, the apparent failure by Miller's trial counsel to inform her of her constitutional right not to testify (if true) is, we conclude, harmless error. Upon Miller testifying, the jury resolved many of the crucial fact issues in her favor, finding her not guilty of the two most serious felony charges and not guilty of intentionally discharging a firearm. Thus, her testimony did not prejudice the result of her trial but appears to have been notably effective.

The jury's determinations were a reasonable reconciliation of the conflicting testimony of the victim and the defendant; without her testimony, the jury may well have accepted fully that of the victim.

The record demonstrates that Miller's trial counsel, while not beyond criticism, prepared and executed a reasonable defense strategy. Their performance did not fall below an objective standard of reasonableness, let alone constitute the "particularly flagrant" inadequacy necessary to be shown where, as here, defendant has selected her own counsel; nor has she demonstrated that, but for trial counsel's errors, the result of the proceeding would have been different. Therefore, we conclude that the postconviction court did not abuse discretion in holding that Miller was not denied effective assistance of counsel.

2. Evidence/Custodial Interrogation

Miller argues that the trial court erred in admitting into evidence statements to police officers obtained prior to a Miranda warning. Miller contends these statements should have been suppressed, because they were obtained during a custodial interrogation. Miller reasons that, because she was directed into her living room by the officers and not allowed to talk to her brother, she was deprived of her freedom and was therefore in custody.

An appellate court will affirm the trial court's determination of custodial status unless the trial court clearly erred in making the determination. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). When the proper legal standard is applied, considerable but not unlimited deference is given to a trial court's fact-specific determination of whether a person was in custody. State v. Champion, 533 N.W.2d 40, 44 (Minn. 1995) (citing Minnesota v. Olson, 495 U.S. 91, 100, 102, 110 S.Ct. 1684, 1690, 1691 (1990)).

A Miranda warning is required for custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612 (1966). The test, whether a person is in custody for purposes of Miranda, is whether that person is restrained to a "degree associated with a formal arrest" and whether the person has an objectively reasonable belief that he or she is not free to leave. State v. Rosse, 478 N.W.2d 482, 484 (Minn. 1991). In this regard, the court must examine "all of the surrounding facts to determine whether there is a formal arrest or restraint comparable to a formal arrest." State v. Voigt, 486 N.W.2d 793, 795 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992) (citing Rosse, 478 N.W.2d at 484).

Custodial interrogation is distinguished from "general, on-the-scene questioning as to the facts surrounding the crime or other general questioning of citizens in the fact-finding process." Miranda, 384 U.S. at 477, 86 S.Ct. at 1629. A Miranda warning is not necessary in such general investigation-questioning situations because the compelling atmosphere of custodial interrogation is not necessarily present. Id. at 436; State v. Harris, 298 N.W.2d 356 (Minn. 1980).

The record establishes that when the officer spoke with Miller, he was merely trying to identify the parties, ascertain the location of any weapons, and gain a preliminary assessment of what had occurred. This was general, on-the-scene questioning concerning the facts of the crime. Miller voluntarily made the statements in her own home during this period of initial assessment. Therefore, we hold that her statements were not the product of custodial interrogation.

Accordingly, the trial court did not clearly err in determining that Miller's statements to police were not the product of a custodial interrogation and therefore were admissible even in the absence of a Miranda warning.

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.