This opinion will be unpublished and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


David Joseph Sinigaglio, petitioner,


State of Minnesota,

Filed August 24, 1999
Peterson, Judge

Anoka County District Court
File No. TO982068

Paul D. Baertschi, 4640 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402-2224 (for appellant)

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

Carl J. Newquist, Newquist & Ekstrum, Fridley Prosecuting Attorney, 6401 University Avenue Northeast, Suite 301, Fridley, MN 55432 (for respondent).

Considered and decided by Peterson, Presiding Judge, Short, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


This appeal is from an order denying appellant David Joseph Sinigaglio's petition for postconviction relief. We affirm.


At approximately 5:45 p.m., Fridley Police Officer Gregory Salo responded to a call at Jeffrey Hemp's residence. Hemp reported that at approximately 5:30 p.m., Sinigaglio had punched him twice in the head while Hemp was at a Burger King restaurant. Salo observed that Hemp was visibly shaken and had a cut and swollen lip.

Sinigaglio was charged with fifth-degree misdemeanor assault. At trial, Hemp testified that he suffered injuries as a result of Sinigaglio punching him once in the mouth and once in the side of his head. Hemp's mother testified that when Hemp came home after being assaulted, he was upset and his mouth was swollen and bleeding.

Sinigaglio's father testified that on the day of the alleged assault, he was with his son until approximately 5:50 p.m., when he left for approximately 15 minutes. Brenda Novak, Sinigaglio's girlfriend, testified that when she came home at approximately 5:30 p.m., Sinigaglio and his father were unloading a truck in the driveway of the home she and Sinigaglio shared. Novak testified that she went inside briefly and came back outside until about 5:45 p.m. Novak stated that Sinigaglio's father left at a little bit before 6:00 p.m.

The jury convicted Sinigaglio of fifth-degree misdemeanor assault. Sinigaglio moved for a mistrial and a new trial. The trial court denied the motions and imposed sentence. Sinigaglio appealed his conviction alleging ineffective assistance of counsel. This court granted Sinigaglio's motion to dismiss his appeal to allow him to petition for postconviction relief. Sinigaglio filed a petition for postconviction relief, and after a hearing, the court denied the petition.


In a postconviction proceeding, the petitioner bears the burden of proving, by a fair preponderance of the evidence, facts that warrant relief. Minn. Stat. § 590.04, subd. 3 (1998). 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). Absent an abuse of discretion, a postconviction decision will not be disturbed on appeal. Id.

1. Ineffective Assistance of Counsel

The right to counsel is the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984). A convicted defendant who claims that he is entitled to a new trial based on ineffective assistance of counsel has the burden of proving

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."

Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland, 466 U.S. at 688, 694, 104 S. Ct. at 2064, 2068). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

Whether counsel's performance was deficient is measured by an objective standard of reasonableness, and there is a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance. Hodgson v. State, 540 N.W.2d 515, 518 (Minn. 1995).

a. Sinigaglio argues that his attorney's opening and closing statements failed to set forth any cohesive theory of the case and misstated the state's burden of proof by suggesting to jurors that in order to find Sinigaglio not guilty, they would need to find that it was physically impossible for him to commit the offense. In his opening statement, the attorney stated:

Ladies and gentlemen, I think you will find that it's impossible that Mr. Sinigaglio could have done what is being alleged by the State in this case once you hear the testimony. And that's all we are asking, is that you keep a fair and open mind and listen to the testimony that comes up; and with your own reason and intellect try to determine if what actually happened is the way the State produces the evidence, or if it was impossible for that to have occurred.

In his closing statement, the attorney stated:

And that testimony is that my client was at home at least until a quarter to six. The police officer stated that this incident occurred at about 5:30. That's the time written on his ticket. He wasn't dispatched until quarter to. At that point in time, David Sinigaglio was at David Sinigaglio's house. And he was there with his father when his girlfriend arrived home at 5:30. There's two of them seeing him at home at about the time that this would have had to have happened. Physically impossible for him to be two places at one time. And I think it's important.

Sinigaglio's attorney presented an alibi defense by eliciting testimony from Sinigaglio's girlfriend and father that Sinigaglio was at home when the assault occurred. The opening and closing statements set forth this alibi theory and did not misstate the state's burden; they simply explained the defense theory that Sinigaglio could not possibly have committed the assault at Burger King because he was at home when the assault occurred.

There is sufficient evidence to sustain the postconviction court's finding that in the opening statement, the defense indicated what the defense would be. The evidence also sustains the postconviction court's finding that the statements that allegedly shifted the burden of proof were made

for the purpose of essentially elaborating the alibi defense without specifically calling it such; in other words, it's impossible to be two places at the same time.

b. Sinigaglio argues that his attorney prejudiced his case by telling the jury in his opening statement that Sinigaglio would probably testify. He contends that when he chose not to testify, the jury was left with the impression that he was hiding something. Sinigaglio does not cite any evidence or authority to support this argument.

The jurors were instructed that they should not draw any inferences from Sinigaglio's failure to testify. Even if Sinigaglio's attorney was deficient in stating that Sinigaglio would probably testify, there is no basis to conclude that the jury ignored this instruction and the result of the trial would have been different if this statement had not been made.

c. Sinigaglio argues that his attorney erred by not introducing a police report from the night of the assault in which Sinigaglio reported that Hemp deliberately swerved at him with his car. Sinigaglio contends that his attorney could have used this report to demonstrate that Hemp had a motive to falsely identify Sinigaglio as his assailant.

Sinigaglio's attorney apparently decided not to offer the police report because it contained a statement that the officer who prepared the report did not believe Sinigaglio's accusations. Sinigaglio contends that his attorney's representation was deficient because the attorney made his decision about the report without taking time to discuss the issue with him. The postconviction court found:

With respect to the consultation between [defense counsel] and [Sinigaglio] in this particular case, the record does indicate that there was contact between them on the date of the various appearances. And there had to have been some discussion prior to the matter being set on for trial, as the pretrial order does note the defenses and possible witnesses. The matter was called on a date certain for trial. Based on the number of other cases that were set for trial that date, there was opportunity for further contact. And based on the overall performance of the defense counsel in representing [Sinigaglio], it appears as though the contact that was made between defense counsel, his client and potential witnesses was of a substantial nature. Accordingly, the Court believes that the defense counsel did not fall below the standards in that regard as well.

The evidence sustains this finding. The postconviction court did not abuse its discretion.

2. Prosecutorial Misconduct

Whether a new trial should be granted because of prosecutorial misconduct is not governed by any fixed rules but rests within the discretion of the district court, which is in the best position to appraise the effect of any misconduct. State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980). The district court's determination should be reversed only where the misconduct, viewed in light of the whole record, appears to be inexcusable and so prejudicial that the defendant was denied the right to a fair trial. Id. (citing State v. Collins, 276 Minn. 459, 477, 150 N.W.2d 850, 862 (1967)).

This court applies a harmless error analysis to determine whether prosecutorial misconduct warrants a new trial. State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974).

[I]n cases involving unusually serious prosecutorial misconduct this court has required certainty beyond a reasonable doubt that the misconduct was harmless before affirming. * * * On the other hand, in cases involving less serious prosecutorial misconduct this court has applied the test of whether the misconduct likely played a substantial part in influencing the jury to convict.


During trial, Sinigaglio came into court using crutches, which had been prescribed by his doctor following knee surgery. Sinigaglio contends that it was misconduct for the prosecutor to ask Hemp, "So the first and only time that you have seen Mr. Sinigaglio use crutches is here in court today. Is that correct?"

Sinigaglio's attorney objected to the prosecutor's question about the crutches, and the trial court overruled the objection. Sinigaglio contends that by asking this question, the prosecutor was able to impeach him even though he did not testify. He argues that the question was intended to coerce him to take the stand to explain his use of crutches.

The postconviction court found that the question was asked for the proper purpose of establishing capacity and identity. The postconviction court stated:

Under the circumstances of the case, the prosecution has to be able to anticipate what might be coming out of the defense. And if an individual does appear to lack some capacity, it does appear appropriate, on a very limited basis, that the [prosecution] be free to make inquiries about similar incapacities on the date of the offense. And a review of the matter indicates that the State was limited in its efforts to delve into that issue.

The prosecutor's limited questioning of Hemp regarding Sinigaglio's use of crutches was not misconduct. It was reasonable to anticipate that the jury would have questions about capacity when Sinigaglio came into court on crutches. Even if the question was improper, it was not serious misconduct, and it is not likely that the question played a substantial part in influencing the jury to convict Sinigaglio.

3. Permission to instruct the jury using CRIMJIG 3.17

The trial court used a variation of CRIMJIG 3.17 to instruct the jurors that they should not draw any inferences from Sinigaglio's failure to testify. See 10 Minnesota Practice CRIMJIG 3.17 (1990 & Supp. 1998) (jury instructions regarding defendant's right not to testify). Citing State v. Thompson, 430 N.W.2d 151 (Minn. 1988), Sinigaglio argues that the trial court committed reversible error by failing to obtain his consent before giving the CRIMJIG 3.17 instruction.

After questioning Sinigaglio to determine whether he understood that he had the right to remain silent, the trial court asked Sinigaglio whether his lawyer was correct when he indicated that Sinigaglio did not wish to testify. Sinigaglio answered that his lawyer was correct. Then the following exchange occurred:

THE COURT: With regard to the instruction relating to his right to remain silent, does the defense wish that given?

[DEFENSE COUNSEL]: I don't think we want to have that instruction given, Judge. Excuse me. No, I would ask that it be included.

THE COURT: You want to have it given?


The trial court instructed the jury:

Defendant has the right not to testify in the Defendant's own defense. This right is guaranteed by the federal and state constitutions. You should not draw any inference from the fact that the Defendant has not testified in this case.

"[T]he trial court generally should leave it up to the defendant and his attorney to decide whether they want [a CRIMJIG 3.17] instruction." State v. Larson, 358 N.W.2d 668, 671 (Minn. 1984). Larson was clarified in Thompson, where the supreme court held "that a trial judge ordinarily should obtain a criminal defendant's permission before giving CRIMJIG 3.17." Thompson, 430 N.W.2d at 153. However, the Thompson court also stated:

It does not follow, of course, that the defendant is entitled to a new trial simply because the record on appeal is silent as to whether the defendant and his attorney wanted the instruction * * * .


The trial court erred by not obtaining Sinigaglio's permission before giving the CRIMJIG 3.17 instruction. Nevertheless, as in Thompson, Sinigaglio is not entitled to a new trial simply because the record on appeal does not indicate whether he wanted the instruction. Sinigaglio's attorney requested the instruction and there is no indication that Sinigaglio opposed the request. On appeal, Sinigaglio does not explain how the instruction was prejudicial to him. He simply states that he was never given an opportunity to decide for himself