This opinion will be unpublished and

may not be cited except as provided by

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




Eric Dion Davis, petitioner,



State of Minnesota,


Filed November 24, 1998


Willis, Judge

Ramsey County District Court

File No. KX943803

Eric Dion Davis, #181403, Minnesota Correctional Facility, P.O. Box 55, Stillwater, MN 55082 (pro se appellant)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 and Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, St. Paul, MN 55102 (for respondent)

Considered and decided by Willis, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.



Appellant Eric Dion Davis appeals from an order denying, without a hearing, his second petition for postconviction relief. We affirm.


On November 20, 1994, three police officers responded to a call regarding a possible rape in progress at a St. Paul home, where they discovered two male suspects, as well as the female victim, on the front porch. One of the suspects, Davis, zipped up his pants upon the officers' arrival. The men were arrested, and Davis was charged with first-degree criminal sexual conduct, second-degree assault, and possession of a short-barreled shotgun.

At trial, the state presented the results of DNA testing of menstrual blood and semen found on Davis's T-shirt, underwear, and trousers. The testing identified the victim and the second male suspect as the sources; no material genetically matched the blood sample provided by Davis.

The jury, rejecting Davis's "sex-for-crack" defense, found him guilty on all three counts. The trial court sentenced Davis to 142 months on the conviction of first-degree criminal sexual conduct and a year and a day on the conviction of possession of a short-barreled shotgun. The court did not sentence Davis on the charge of second-degree assault, a lesser-included offense of first-degree criminal sexual conduct.

Davis appealed, alleging the trial court erred in an evidentiary ruling, in sentencing, and in entering judgments of conviction of first-degree criminal sexual conduct and second-degree assault. We affirmed on the first two issues but vacated the conviction of second-degree assault as a lesser-included offense. State v. Davis, 546 N.W.2d 30, 36-37 (Minn. App. 1996), review denied (Minn. May 21, 1996).

Davis filed a petition for postconviction relief, claiming ineffective assistance of trial counsel in failing to cross-examine the victim and ineffective assistance of appellate counsel in failing to raise trial counsel's ineffectiveness. The postconviction court, which also had been the trial court, denied the petition without a hearing, and we affirmed. Davis v. State, C9-97-362, 1997 WL 644971 (Minn. App. Oct. 21, 1997).

Davis then filed a second postconviction petition, claiming (1) he was denied a fair trial by the trial court's failure to conduct, on its own motion, a pretrial hearing on the admissibility of the DNA evidence; (2) he was denied his right to the effective assistance of trial counsel; (3) he was denied his right to be present at all stages of trial; and (4) he was denied his right to the effective assistance of appellate counsel. The same postconviction court denied the petition without a hearing, and Davis again appeals.


There shall be a hearing on a petition for postconviction relief "[u]nless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief." Minn. Stat. § 590.04, subd. 1 (1996). In addition,

[t]he court may summarily deny a second * * * petition for similar relief on behalf of the same petitioner and may summarily deny a petition when the issues raised in it have previously been decided by [this court] in the same case.

Id., subd. 3. An evidentiary hearing is not required unless the petition sets forth facts that "if proved by a fair preponderance of the evidence" would afford the petitioner the relief requested. Roby v. State, 547 N.W.2d 354, 356 (Minn. 1996).

On review, this court questions only whether there is sufficient evidence to sustain the findings of the postconviction court. Fox v. State, 474 N.W.2d 821, 824 (Minn. 1991). The court's decision, therefore, will not be disturbed unless there has been an abuse of discretion. Wieland v. State, 457 N.W.2d 712, 714 (Minn. 1990); see also King v. State, 562 N.W.2d 791 (Minn. 1997) (affirming summary denial of petition for postconviction relief in circumstances nearly identical with those here).

I. Procedural Bar

The supreme court has noted that all issues raised on direct appeal--including those known but not raised--are procedurally barred in a petition for postconviction relief. Id. at 795 (applying rule to claim of ineffective assistance of counsel).

An appellate court may, nevertheless, review postconviction claims as justice requires. Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997). But this exception applies only if "the petitioner did not `deliberately and inexcusably' fail to raise the issue on direct appeal." Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995) (quoting Fox, 474 N.W.2d at 825). Also, the general rule of preclusion will not apply to a claim of ineffective assistance if "the reviewing court needs additional facts to explain the attorney's decisions." Black v. State, 560 N.W.2d 83, 85 n.1 (Minn. 1997).

Nothing in the record suggests that Davis's claims regarding the admission of DNA evidence, the effective assistance of trial counsel, and the right to be present at all stages of trial are so novel that the legal bases were not reasonably available to him at the time of his direct appeal. Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990) (allowing postconviction relief only where claim so novel that legal basis not reasonably available at time of direct appeal). Further, there is no basis to conclude that the interests of justice require this court to allow those claims to proceed. Davis's first three claims are, therefore, procedurally barred.

But, by their nature, claims of ineffective assistance of appellate counsel cannot be raised on direct appeal. Garasha v. State, 393 N.W.2d 20, 22 (Minn. App. 1986). Thus, Davis's fourth claim is not subject to the same procedural bar.

II. Ineffective Assistance of Appellate Counsel

Davis claims that appellate counsel provided ineffective assistance by failing to raise on appeal the issue of trial counsel's ineffectiveness based on his failure to request a hearing on admissibility of the DNA evidence.[1]

The supreme court has held that the admissibility of DNA evidence "hinges on the laboratory's compliance with appropriate standards and controls, and the availability of their testing data and results." State v. Schwartz, 447 N.W.2d 422, 428 (Minn. 1989). In Schwartz, the court reaffirmed its adoption of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (stating standard for hearing to determine whether foundation exists for novel scientific evidence). 447 N.W.2d at 424.

Despite the evolution of DNA testing, the supreme court has continued to recognize the right to a Frye hearing but has limited the hearing to a determination of "whether the laboratory which did the testing was in compliance with the appropriate standards and controls." State v. Jobe, 486 N.W.2d 407, 420 (Minn. 1992) (noting Frye hearing is not proper forum to challenge reliability of DNA evidence).

The United States Supreme Court announced the standard for proving claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). To prevail, a petitioner must demonstrate:

(1) that the counsel's representation fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for the counsel's errors, the outcome of the proceedings would have been different.

King, 562 N.W.2d at 795 (applying Strickland, 466 U.S. at 688, 694, 104 S. Ct. at 2064-65, 2068) (citation omitted). Nevertheless, appellate counsel is under no duty to raise all appealable issues and may choose to argue only those with the most merit. Id. at 796-97.

Appellate counsel raised three issues in Davis's direct appeal but did not argue trial counsel's ineffectiveness. As this court noted in Davis's first appeal from the denial of postconviction relief, "appellate counsel could reasonably have determined not to raise an ineffective trial counsel issue because it `would detract from other * * * meritorious issues.'" Davis, 1997 WL 644971, at *3 (quoting Black, 560 N.W.2d at 86); see also King, 562 N.W.2d at 797 (presuming appellate counsel determined Frye issue had been waived and, thus, had no merit). Davis has not shown that, by not raising a claim of trial counsel's ineffectiveness, appellate counsel's representation fell below an objective standard of reasonableness.

And, Davis has set forth no facts demonstrating that, but for appellate counsel's failure to raise the issue of trial counsel's ineffectiveness, the outcome on appeal would have been different. See id. (noting appellant's failure to show how outcome would have been different had appellate counsel raised Frye issue).

We conclude that the postconviction court properly denied Davis's claim of ineffective assistance of appellate counsel.

III. Merits of Procedurally Barred Claims

In the interest of providing a complete analysis, we conclude that even if Davis's first three claims were not procedurally barred, each fails on its merits.

A. Admissibility of DNA Evidence

As in King, Davis neither requested a Frye hearing nor objected to the trial court's admission of the DNA evidence. Id. at 794. Nevertheless, Davis contends the trial court denied him a fair trial by failing to conduct such a hearing on its own motion.

The supreme court noted in King that the failure to object to the admission of evidence generally constitutes a waiver of that issue on appeal. Id. at 795. But if the failure to object was a plain error by counsel that substantially affected a defendant's rights, denying a fair trial, the issue is reviewable. Id. In light of Davis's defense, the failure to object does not meet the plain-error standard. To the contrary, Davis, believing the DNA evidence would be helpful, specifically waived his right to a speedy trial to await the test results. By failing to object at trial to the admissibility of the DNA evidence, Davis has waived that issue on appeal.

B. Ineffective Assistance of Trial Counsel

Davis also claims his trial counsel provided ineffective assistance by failing to request a hearing on the admissibility of the DNA evidence. This claim also is analyzed by application of the Strickland test. See id. (applying Strickland, 466 U.S. at 688, 104 S. Ct. at 2064-65).

A reviewing court must ask whether, in light of all the circumstances, counsel's representation was reasonable. Id. (citing Dent v. State, 441 N.W.2d 497, 500 (Minn. 1989)). Appellate courts recognize a strong presumption that a counsel's performance was reasonable and recognize that counsel must have broad discretion in determining trial strategies. Id.

It is evident from the record that Davis's trial counsel sought to exclude evidence, made arguments in opposition to the state's pretrial motions, formulated a trial strategy, and offered a theory in Davis's defense. In fact, Davis's lone criticism of trial counsel in his second postconviction petition is counsel's failure to request a hearing on the admissibility of the DNA evidence.

Davis's trial defense was that he and his friend were to have consensual intercourse with the victim in exchange for providing her with drugs. Davis testified that shortly before the police arrived his friend had intercourse with the victim but Davis was unable to obtain an erection. Because this theory was not inconsistent with the DNA test results, Davis has not shown that trial counsel's decision to waive the right to a Frye hearing fell below an objective standard of reasonableness.

Even if his trial counsel made errors, Davis must also demonstrate that, but for those errors, the outcome at trial would have been different. Id. at 796 (citing State v. Jones, 392 N.W.2d 224, 236-37 (Minn. 1986)). But like the appellant in King, Davis submitted no evidence challenging the testing methods of the laboratory that did the DNA analysis. Id. (stating "there is no reason to believe the district court would have suppressed the DNA evidence if a Frye hearing had been held"). Further, the results of the DNA testing were not inconsistent with Davis's theory of the case, and there was other evidence to support the guilty verdict, including (1) the testimony of the victim; (2) the testimony of the officers; and (3) the testimony of the victim's stepfather concerning what he saw and heard.

C. Right to Be Present at All Stages of Trial

Davis claims that, because he was not present at the return of the verdict and the polling of the jury, he "cannot be certain what coercive methods were used or promises made" in his absence. Although it is not clear from the record that Davis was absent as he claims, the rules of criminal procedure provide that a "defendant shall be present * * * at every stage of the trial including * * * the return of the verdict." Minn. R. Crim. P. 26.03, subd. 1(1). This right is broader under Minnesota law than that under the United States Constitution and extends to the polling of the jury. State v. Ware, 498 N.W.2d 454, 457 (Minn. 1993).

The Ware court concluded:

[A] trial court ought not proceed with the return of the verdict * * * in the absence of the defendant unless the defendant has waived the right to be present.

Id. But the Ware court also noted that "the fact that a personal waiver does not appear of record on appeal does not mean that there was no waiver." Id. at 457 & n.2 (presuming, "without anything in the record suggesting otherwise," that defendant voluntarily and intelligently waived right) (citing State v. Smith, 299 N.W.2d 504, 506 (Minn. 1980)).

To overcome the presumption described in Ware, a defendant must "petition for postconviction relief and establish [the] lack of a waiver." Id. at 457 n.2. But even if Davis was wrongly denied his right to be present at the return of the verdict and the polling of the jury, he is entitled to no relief if the denial was harmless beyond a reasonable doubt. Id. at 457-58. Davis cites no facts in support of his speculations regarding coercion of jurors or promises made to jurors during his claimed absence. He therefore cannot prove that any denial of his right to be present at all stages of trial was, in fact, prejudicial.

The postconviction court did not abuse its discretion in denying, without a hearing, Davis's petition for postconviction relief.


[1] Davis's first petition for postconviction relief made a similar claim based on the fact that appellate counsel did not raise on appeal trial counsel's failure to cross-examine the victim.