This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-96-667

Jacob Joseph Wiherski, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed January 7, 1997

Affirmed

Peterson, Judge

Anoka County District Court

File No. K5912964

Allan H. Caplan, Harlan M. Goulett, Allan H. Caplan & Associates, P.A., 525 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for Appellant)

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

Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303 (for Respondent)

Considered and decided by Peterson, Presiding Judge, Klaphake, Judge, and Davies, Judge.

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

PETERSON, Judge

On appeal from an order denying his petition for postconviction relief, appellant argues that (1) his waiver of his right to testify was invalid; (2) his trial counsel should not have been compelled to testify at the postconviction hearing; and (3) he received ineffective assistance of counsel. We affirm.

FACTS

A jury convicted appellant Jacob Joseph Wiherski of two counts of second-degree criminal sexual conduct. Appellant did not testify at his trial. At the postconviction hearing, appellant testified as follows about his waiver of his right to testify. Prior to trial, appellant and his attorney, Marc Kurzman, had only one brief discussion about appellant's right to testify. Kurzman told appellant that if he testified, Kurzman would go over his testimony with him. Appellant and Kurzman had only one other discussion about appellant's right to testify, which occurred during trial. Kurzman told appellant that when the judge had asked whether appellant would testify, Kurzman told the judge that he did not think appellant would testify. Kurzman never explained that appellant had a right to testify or not testify or that the decision was appellant's to make.

Kurzman's testimony at the postconviction hearing contradicted appellant's. Kurzman testified as follows. He had four discussions with appellant about whether appellant would testify at trial. Shortly after appellant retained him, Kurzman advised appellant that he had a right to testify if he chose to testify and that he also had a right not to testify if he chose not to testify. Kurzman framed this first discussion in terms of appellant's right. About one week before trial began, while going over the facts of the case with appellant, Kurzman again discussed appellant's right to testify or not testify. Kurzman again informed appellant that he had a right to testify or not testify and that it was appellant's decision to make. During trial, while the state was presenting its case, Kurzman discussed with appellant the advantages and disadvantages of appellant testifying. At the end of the state's case, Kurzman informed appellant that he felt the information essential to appellant's defense had been presented through the state's witnesses and that if appellant testified, Kurzman was concerned the jury might interpret appellant's hobby of making and designing doll clothes as indicating pedophilic tendencies. Kurzman then asked appellant whether he wanted to testify, and appellant asked for Kurzman's recommendation. Kurzman explained to appellant that he could only give advice to appellant about whether to testify and could not make the decision for appellant. Appellant asked for Kurzman's recommendation. Kurzman recommended that appellant not testify, and appellant decided to follow Kurzman's recommendation.

D E C I S I O N

This court reviews a postconviction proceeding only to determine whether there is sufficient evidence to sustain the postconviction court's findings, and a postconviction court's decision will not be disturbed absent an abuse of discretion.

Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

1. At a postconviction hearing, defendant has the burden of proving "that his trial counsel denied him his right to testify in his own behalf at trial." State v. Jensen, 322 N.W.2d 608, 609-10 (Minn. 1982). If defendant proves that defense counsel refused to allow him to testify, defendant automatically is entitled to a new trial. State v. Smith, 299 N.W.2d 504, 506 (Minn. 1980). Violation of a defendant's right to testify is not subject to harmless error analysis. State v. Rosillo, 281 N.W.2d 877, 879 (Minn. 1979).

The decision whether to testify at trial must be made by defendant after full consultation with defense counsel. Id. The "right to testify in one's own defense is a personal right," which cannot be waived by defense counsel. Id. at 878. Although defense counsel cannot prohibit defendant from testifying, defense counsel can advise defendant against testifying. Id. at 879.

Appellant argues that it is undisputed that Kurzman explained to appellant the right to testify in purely tactical terms and that Kurzman did not inform appellant that appellant could reject Kurzman's recommendation. But Kurzman testified that during two pretrial discussions, he advised appellant that appellant had a right to testify or not testify and that the decision was appellant's to make. Kurzman specifically testified that he framed the first discussion in terms of appellant's right. Kurzman also testified that he explained to appellant that he could only advise appellant about whether to testify and could not make the decision for appellant.

A postconviction court has discretion to determine witness credibility. See State v. Robb, 292 Minn. 409, 412-13, 195 N.W.2d 587, 589-90 (1972) (discretion given postconviction court in judging credibility required affirmance of decision denying withdrawal of guilty plea). The district court found Kurzman's testimony credible and based on that testimony, determined that appellant did not satisfy his burden of proving that Kurzman denied him his right to testify. The district court's determination was proper. See Jensen, 322 N.W.2d at 610 (affirming conviction when postconviction court believed trial counsel's testimony and found that defendant knew he had the right to testify and that trial counsel never told defendant he could not testify); Irwin v. State, 400 N.W.2d 783, 786 (Minn. App. 1987) (defendant's right to testify was not violated when record supported postconviction court's finding that defendant was advised of right to testify and agreed to proceed with stipulated court trial), review denied (Minn. Mar. 25, 1987).

Relying on cases from other jurisdictions, appellant argues that his conviction should be reversed because the district court did not conduct an on-the-record inquiry of appellant during trial to determine whether his waiver of his right to testify was knowing, intelligent, and voluntary. Under Minnesota law, however, the district court is not required to conduct such an inquiry. See Smith, 299 N.W.2d at 506 (when record is silent, court must presume that decision not to testify was made by defendant intelligently and voluntarily); Rosillo, 281 N.W.2d at 879 (when defense counsel stated on the record at trial that he recommended against defendant testifying and that if defendant testified, it would be because defendant insisted on testifying and defense counsel's statement at trial was consistent with his testimony at the postconviction hearing, district court did not err in denying postconviction relief).

2. Appellant argues that this court should adopt a requirement that the state cannot subpoena defense counsel to testify against their former clients unless the state shows a compelling need for the testimony. The authorities cited by appellant to support his argument involve subpoenaing defense counsel to testify at grand jury proceedings or criminal trials, both of which are initiated by the state. See Ullmann v. State, 647 A.2d 324, 325 (Conn. 1994) (criminal trial); In re Grand Jury Investigation, 556 N.E.2d 363, 364-65 (Mass. 1990) (grand jury). The concern in such cases is that requiring defense counsel to testify against a client could interfere with a client's Sixth Amendment right to choose his counsel. See generally Fred C. Zacharias, A Critical Look at Rules Governing Grand Jury Subpoenas of Attorneys, 76 Minn. L. Rev. 917 (1992).

This concern does not arise when, as in this case, an action by defendant, not the state, created the need for defense counsel's testimony. The need for Kurzman's testimony was created by appellant filing a petition for postconviction relief on grounds that his trial counsel was ineffective and did not adequately advise him about his right to testify. We decline to adopt the requirement urged by appellant.

3. To establish an ineffective assistance of counsel claim,

[t]he defendant 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 unprofessional errors, the result of the proceeding would have been different." "A reasonable probability is a probability sufficient to undermine confidence in the outcome."

Gates v. State, 398 N.W. 2d 558, 561 (Minn. 1987) (citations omitted) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).

Appellant argues he received ineffective assistance of counsel because when cross-examining a clinical psychologist who examined H.B., Kurzman elicited testimony that the psychologist believed H.B. was "bright," "mature intellectually and emotionally," and "clear in her mind." Appellant argues that Kurzman's cross-examination of the psychologist opened the door to evidence regarding the psychologist's assessment of H.B.'s credibility. But, as the state argues, similar evidence was elicited during the prosecutor's direct examination of the psychologist. On direct examination, the psychologist testified that H.B. was "bright," was "highly consistent over time," "[had] a good high level of moral development," and "[felt] very strongly about honesty and what's right." Appellant does not object to this evidence being admitted during the psychologist's direct testimony. Even if Kurzman erred in cross-examining the psychologist about H.B., the error was harmless.

Affirmed.