This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Sherman Eliaz Townsend, petitioner,


State of Minnesota,

Filed June 29, 1999
Schumacher, Judge

Hennepin County District Court
File No. 97069878

John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Amundson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


Sherman Eliaz Townsend was convicted by jury of burglary in the first degree. He appeals from a denial of postconviction relief, claiming he was denied effective assistance of counsel and the court should have appointed him counsel. We affirm.


Jill Brandel called 911 to report a burglary early in the morning of August 10, 1997. She testified at trial that a heavyset black man entered her home through a window while she and her boyfriend, Peder Hallberg, were sleeping. Hallberg chased the man out the back door. Officer Christie Weimar testified that when she arrived on the scene, Hallberg described the burglar as a black male approximately 20-30 years old, wearing a black short-sleeve shirt and a medium Afro hairstyle.

Officer Weimar dispatched a description of the burglar and thought the description fit the description of Townsend. Officer LaDuke arrested Townsend a block and a half from the scene. Hallberg was unable to make an identification and Brandel could only identify the size of Townsend as matching the burglar. Officer Weimar spoke to another area resident, David Jones, who claimed that someone running from Brandel's backyard ran into him. Officer Weimar asked Jones to make an identification, and Townsend was brought out of the squad car. Jones stated that he was "a thousand percent sure" that Townsend was the man who ran into him.

Jones gave a statement to the police after the show-up identification, describing Townsend as the man who ran into him. Jones later signed a statement for the defense investigator, saying Townsend was not the man who ran into him. Jones changed his story again at trial and identified Townsend as the man who ran into him. He claimed he signed the statement for the defense because he was upset with the prosecuting attorney. He admitted at trial that he could not identify the clothing that was taken from Townsend after the arrest and stated he only saw the burglar's profile for a few seconds. He also admitted that he had been drinking that night and had gotten lost walking home from the tavern.

Following conviction, Townsend moved for a new trial based on ineffective assistance of counsel. Townsend's new attorney argued at the postconviction hearing that his former attorney failed to make a motion to suppress Jones's identification testimony of Townsend on the grounds that the show-up had been impermissibly suggestive. Townsend's former attorney testified at the hearing that to his knowledge he made all possible motions. The postconviction court denied Townsend's petition, and Townsend appeals.


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). The postconviction court's decision to grant or deny a new trial will not be disturbed absent an abuse of discretion. Wieland v. State, 457 N.W.2d 712, 714 (Minn. 1990).

In order to obtain postconviction relief for ineffective assistance of counsel, the

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) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).

Prior to trial, the state gave notice that it intended to use Jones's identification testimony to prove its case. Townsend claims that, although his defense counsel moved to dismiss the charges against him on the basis that Jones's testimony was insufficient to sustain a finding of probable cause, he did not move to suppress Jones's identification testimony on the basis that the show-up had been impermissibly suggestive and therefore Jones was allowed not only to testify that he had identified Townsend at the show-up but also to make an in-court identification.

The postconviction court concluded that defense counsel's failure to make a motion to suppress Jones's identification of Townsend did not constitute ineffective assistance of counsel but was a trial tactic and that, in any event, it did not affect the outcome of the trial. See State v. Rainer, 502 N.W.2d 784, 789 (Minn. 1993) (noting that decision not to file motion or make objections is trial tactic); State v. Eling, 355 N.W.2d 286, 294 (Minn. 1984) (same). We agree. The district court noted that defense counsel did make two relevant motions, namely, a motion to dismiss for lack of probable cause based in part on the insufficiency of the identification evidence and also a motion in limine to suppress the identification testimony of Jones based on the unreliability of Jones's testimony. We note defense counsel also moved to exclude the Spreigl evidence proposed by the state and successfully had the first jury panel discharged for lack of minorities.

The only difference between a motion to suppress testimony on identification, which defense counsel did make, and a motion to suppress identification on constitutional grounds is its origin. The motion defense counsel did make was pursuant to rules of evidence and would have suppressed Jones's testimony, including his testimony regarding Townsend's identification had it been successful. The motion Townsend claims defense counsel should have made stems from due process and would also not allow the identification testimony. Both reach a functionally similar result. Defense counsel's motions did attack the reliability of Jones's testimony, which mainly consisted of identifying Townsend.

There is a strong presumption that an attorney's performance falls within the range of reasonableness. Tsipouras v. State, 567 N.W.2d 271, 275 (Minn. App. 1997), review denied (Minn. Sept. 18, 1997), cert. denied, 118 S. Ct. 1049 (1998). The court must look at all the circumstances of trial when deciding if representation was reasonable. Dent v. State, 441 N.W.2d 497, 500 (Minn. 1989). We agree with the postconviction court that an attorney is not required to make every motion available and "the fact that he didn't make this exact motion is irrelevant." Because we conclude that defense counsel's representation was reasonable in light of all the circumstances, we need not reach the second part of the Strickland test to decide if Townsend suffered prejudice. Gates, 398 N.W.2d at 561. We conclude, therefore, that although the better practice under the facts of this case may have been to make the suppression motion, we cannot say that defense counsel's representation fell below an objective standard of reasonableness.

Townsend claims in his pro se supplemental brief that the district court erred by not appointing him counsel. We note from the record that the district court found that Townsend did not qualify for public defender representation. In any event, Townsend did not raise this issue at the postconviction hearing, and therefore we will not address it. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that this court will generally not consider matters not argued and considered in the court below).

Townsend also raises a due process issue, claiming the police contrived evidence in violation of Minn. Stat. § 609.43 (1998). The postconviction court found that defense counsel's failure to object to the officer's testimony did not affect the outcome of the trial. Townsend does not rebut the court's decision or its legal reasoning. Townsend's argument lacks merit, he asserts facts outside the record, and the one legal citation he includes does not address the district court's decision. Therefore, we do not address this argument. See State, Dep't of Labor and Industry v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (court declines to reach issue in absence of adequate briefing). We conclude that the postconviction court did not abuse its discretion by refusing Townsend a new trial.