This opinion will be unpublished and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


State of Minnesota,


Gary Robert Wirta,

Filed November 2, 1999
Forsberg, Judge[*]

Anoka County District Court
File No. K8-94-11382

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Robert M. A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303-2265 (for respondent)

Charles L. Hawkins, 333 South Seventh Street, Suite 2890, Minneapolis, MN 55402 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Kalitowski, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges the district court's order denying his petition for postconviction relief in which he asserted that his trial counsel was ineffective. We affirm.


In October 1994, appellant Gary Robert Wirta refused to comply when a police officer attempted to stop his vehicle for speeding and weaving. Officer Chad Duckson and another officer pursued Wirta to his home, where Wirta drove into his garage. The officers followed him on foot into the garage. When Wirta refused to leave his vehicle, the officers physically removed him. He was placed in a squad car, transported to the police station, and eventually placed in a holding cell. When Officer Duckson entered the cell, Wirta produced a knife from behind his back and struck Officer Duckson several times in the chest and side. Officer Duckson's shirt was cut, but he was wearing a protective vest and was not injured.

Following a jury trial in 1995, Wirta was convicted of attempted first-degree murder, second-degree assault, obstructing a peace officer, driving under the influence, and fleeing a peace officer in a motor vehicle. The district court ordered concurrent sentences of 16 years for attempted first-degree murder, one year for driving under the influence, and one year for fleeing a peace office in a motor vehicle. Wirta challenged his convictions in a direct appeal, and this court affirmed. State v. Wirta, No. C2-95-1235 (Minn. App. Jan. 30, 1996), review denied (Minn. Mar. 19, 1996). In affirming, this court declined to address Wirta's ineffective-assistance-of-counsel argument and stated that he should raise this argument in a postconviction petition. Id.

Wirta petitioned for postconviction relief in 1998, asserting his trial counsel was ineffective. The district court denied his petition. Wirta now appeals from the district court's denial of his petition for postconviction relief.


An appellate court reviews postconviction proceedings to determine only whether the evidence is sufficient to sustain the postconviction court's findings. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). The postconviction court's decision will be disturbed only if it abused its discretion. Id.

Minnesota has adopted the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), for determining whether grounds exist to grant a new trial based on ineffective assistance of counsel. Scruggs, 484 N.W.2d at 25. The defendant must first "prove that counsel's representation fell below 'an objective standard of reasonableness.'" Id. (quoting Strickland, 466 U.S. at 688, 104 S. Ct. at 2064). The defendant must also "prove that there is 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).

Wirta asserts that his counsel was ineffective because his counsel conceded that Wirta assaulted Officer Duckson and argued only that Wirta did not intend to cause the police officer's death. Wirta points out that during closing argument, his counsel stated:

Mr. Wirta is guilty of many things in this case. He is guilty of almost all things in this case, but he's not guilty of having the intent to cause the death of Officer Duckson, of doing an act, fighting him, punching him, wrestling with him, with that specific intent to cause Officer Duckson's death. That he did not do.

* * * *

In this case, as I stated, Mr. Wirta did some things that were definitely not nice, and convict him of those. They are serious charges. Assaulting a police officer is not some charge that you just pay your -- it's a serious charge. Convict him of what you wish, but don't convict him of something he didn't do.

Wirta contends that this admission by his counsel necessitates a new trial.

Defense counsel may not admit a client's guilt absent the client's consent to the strategy. State v. Wiplinger, 343 N.W.2d 858, 860 (Minn. 1984). A new trial shall be granted if defense counsel admits a defendant's guilt without the defendant's permission or acquiescence. State v. Pilcher, 472 N.W.2d 327, 337 (Minn. 1991). If, however, the defendant was present when the defense counsel made the admissions, the defendant understood but did not dispute the defense tactic, and the strength of the state's case demonstrates that conceding guilt was a reasonable trial tactic, the court may conclude that the defendant acquiesced to the admission. See id. (determining defendant acquiesced to counsel's implied admission of defendant's guilt where defendant was present when concessions were made, admitted he understood tactic and did not dispute it, and admission was understandable trial strategy because state had strong case).

Here, Wirta acquiesced to his counsel's strategy of admitting that Wirta assaulted the officer in an attempt to receive an acquittal on the attempted first-degree murder charge. The apparent strategy was to convince the jury that when Wirta assaulted Officer Duckson, he intended to cause his own death through "police-assisted suicide." Wirta was present during the statements to which he now objects and did not indicate in any way that he did not agree with the strategy. See State v. Moore, 458 N.W.2d 90, 96 (Minn. 1990) (concluding defendant entitled to new trial where he immediately objected to counsel's admission that defendant was guilty of lesser-included offense). Further, Wirta's own testimony indicates his acquiescence to the strategy. When asked by his counsel how he explained his actions on the night in question, Wirta testified:

Well, I was hoping that maybe they might want to try to hurt me or try to kill me, but I wouldn't want to hurt anybody else like that Officer Duckson. I just figured it would be one way that I could commit suicide.

Additionally, the state's case on the assault charge was very strong. Eyewitnesses testified to Wirta's actions and statements, and the officer's cut shirt was admitted as evidence. Thus, the trial tactic of admitting that Wirta assaulted Officer Duckson in an attempt to achieve an acquittal on the attempted first-degree murder charge may have been the only reasonable defense available.

Wirta also argues that his right to effective counsel was denied because his trial counsel failed to fully investigate his assertion that he acted in self-defense. He asserts that his counsel failed to investigate his contention that officers assaulted him when they arrested him in his garage and threatened him while he was in the squad car being transported to jail. Wirta alleges that his trial counsel ignored his statement that he believed that Officer Duckson intended to assault him when Officer Duckson entered his cell. Wirta points out that his counsel did not interview two witnesses Wirta asserts witnessed the events in his garage. Wirta further notes that his counsel met with him only six times prior to the trial.

Trial counsel has discretion in deciding which witnesses to call and what evidence to present to the jury. Gustafson v. State, 477 N.W.2d 709, 713 (Minn. 1991). Further, counsel has "discretion to forgo investigation of leads not reasonably likely to produce favorable evidence." Id. (citation omitted).

Here, it was well within the discretion of Wirta's trial counsel to not pursue a self-defense theory. Wirta's own testimony does not support a claim of self-defense. He testified that he did not even remember attacking Officer Duckson. Therefore, it would have been difficult to argue that the actions Wirta does not remember were done in self-defense. Additionally, his arguments on appeal relate to evidence he wanted introduced about events that occurred before he was placed in the holding cell. The witnesses that he asserts should have been interviewed were present only at his home, and any threats made in the squad car occurred prior to the incident in the jail. Thus, even if Wirta's counsel had attempted to introduce the evidence Wirta proposes, this evidence would not have demonstrated that Wirta believed he was in "imminent danger of death or great bodily harm" when he attacked Officer Duckson. See State v. Basting, 572 N.W.2d 281, 285-86 (Minn. 1997) (listing self-defense elements including "defendant's actual and honest belief that he or she was in imminent danger of death or great bodily harm") (citations omitted).

Wirta's trial counsel acted reasonably, and there is no reasonable probability that the outcome in this case would have been different absent Wirta's counsel's actions. Because there is no merit to Wirta's ineffective-assistance-of-counsel argument, the district court did not abuse its discretion by denying Wirta's petition for postconviction relief.


[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.