This opinion will be unpublished and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

C4-96-2610

Antonious B. El-X, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed August 26, 1997

Affirmed

Toussaint, Chief Judge

Kanabec County District Court

File No. K5-95-228

Mark D. Nyvold, Special Assistant State Public Defender, Suite 654, 386 North Wabasha, St. Paul, MN 55102 (for appellant)

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

Norman J. Loren, Kanabec County Attorney, 19 North Vine Street, Mora, MN 55051 (for respondent)

Considered and decided by Peterson, Presiding Judge, Toussaint, Chief Judge, and Amundson, Judge.

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

TOUSSAINT, Chief Judge

After Kanabec County Deputy Sheriff Louis Dahlen received a call to remove Antonious El-X from the home of Daisy Williams, a struggle ensued between El-X and Deputy Dahlen. Deputy Dahlen's testimony describing the arrest of El-X contrasted with the testimony of Daisy Williams; El-X's girlfriend, Ellen Williams, and a neighbor Patty Morris. However, all testified that El-X had Dahlen's gun. The jury found El-X guilty of aggravated robbery, but they were unable to reach a verdict on the assault charge. This appeal followed the denial of El-X's postconviction motions.

El-X argues in his appeal that (1) the postconviction court erred by denying his motion for a new trial together with allowing the introduction of inadmissible evidence during trial, (2) he was not provided effective assistance of counsel, and (3) the prosecutor committed misconduct by introducing inadmissible evidence. Because we conclude that the trial court did not err in denying El-X's motion for new trial or in its evidentiary rulings and there was no prosecutorial misconduct, we affirm.

D E C I S I O N

El-X contends on appeal that he did not have the effective assistance of counsel and the postconviction court erred in denying his motion for new trial. Generally, 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).

To obtain a new trial on the grounds of ineffective assistance of counsel, a defendant must prove two things: (1) that his counsel's representation "fell below an objective standard of reasonableness" and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984). With respect to the first prong of the test, an attorney provides effective representation if the attorney "exercise[s] the customary skill and diligence a reasonably competent attorney would exercise under similar circumstances." State v. Heinkel, 322 N.W.2d 322, 326 (Minn. 1982). With respect to the second prong of the test, "a reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland at 466 U.S. 104 S. Ct. at 2068. El-X contends that his trial attorney failed to object to Sheriff Von Thompson's and Deputy Tom Wachsmuth's testimony. Sheriff Thompson testified (1) that following the alleged robbery and assault, when he and Deputy Wachsmuth took El-X to the hospital in Mora, Minnesota, for a blood test, El-X stated, "When I had that gun, I should have killed that [expletive]" and (2) to other statements made by El-X regarding El-X's views about all police officers. Deputy Wachsmuth corroborated Sheriff Thompson's testimony and added that EL-X stated that if he could get out of his handcuffs, he would "kick the shit out of all of us." The state offered this testimony to rebut appellant's self-defense theory.

El-X sought to demonstrate that African American men have reasonable fears of police that white persons do not. El-X called Robin Magee, a law school professor, to testify about how African Americans as a class have been treated unfairly by police in this country, and that, as a result, they have a justifiable fear of police.

The postconviction court determined that defense counsel's failure to object to Sheriff Thompson's and Deputy Wachsmuth's testimony was not unreasonable because the evidence was relevant in that it rebutted El-X's claim of self defense and established his motive for allegedly assaulting and robbing Deputy Dahlen. Moreover, the postconviction court observed that El-X's statements on the way to the hospital were consistent with his claim, that as an African American, he perceives police differently from the way white persons do.

The postconviction court did not err in denying El-X's ineffective assistance of counsel because the testimony counsel did not object to was admissible to rebut appellant's self-defense claim and addressed El-X's views concerning white police officers. See State v. McDaniel, 534 N.W.2d 290, 293 (Minn. App. 1995) (appellant's theory of defense is relevant to cross-examination and not objectionable when invited by that theory) review denied (Minn. Sept. 20, 1995). Critically, however, even if the evidence were inadmissible, El-X failed to show that his defense counsel's failure to object would have changed the results of his conviction. See Strickland, 466 U.S. at

695, 104 S. Ct. at 2068-69 (defendant must show that "there is a reasonable probability that, absent the errors, the fact-finder would have had a reasonable doubt respecting guilt").

El-X also alleges that the postconviction court abused its discretion by not finding that the prosecutor's introduction of Sheriff Thompson's and Deputy Wachsmuth's testimony was misconduct and by not finding that the trial court's admission of the testimony was plain error sufficient to warrant a new trial. The determination of whether a prosecutor acted improperly is a matter of discretion for the trial court and will not be reversed unless the misconduct, viewed in light of the whole record, appears to be inexcusable and so serious and prejudicial that the defendant's right to a fair trial was denied. State v. Wilford, 408 N.W.2d 577, 580 (Minn. 1987). The test for determining the existence of plain error is whether there was a reasonable likelihood that the error substantially affected the verdict. State v. Glidden, 455 N.W.2d 744, 747 (Minn. 1990).

As discussed above, the prosecutor's introduction of this testimony was not misconduct and admitting this testimony was not plain error because the evidence was relevant to rebutting appellant's self-defense claim. Moreover, notwithstanding the admissibility of the testimony, El-X has failed to prove that he was deprived of a fair trial by virtue of the introduction or admission of this evidence. As discussed above, if the jury, after hearing Sheriff Thompson's and Deputy Wachsmuth's testimony, was unable to convict appellant of assault of Deputy Dahlen, then it is unlikely the introduction or admission of the evidence caused El-X prejudice.

Affirmed.