This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).


John Patrick McDonald, petitioner,


State of Minnesota,

Filed March 3, 1998
Reversed and Remanded
Davies, Judge
Dissenting, Kalitowski, Judge

Crow Wing County District Court
File No. K6931945

Hubert H. Humphrey III, Attorney General, Natalie E. Hudson, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for respondent)

Donald F. Ryan, Crow Wing County Attorney, Courthouse, 326 Laurel St., Brainerd, MN 56401 (for respondent)

John M. Stuart, State Public Defender, Cathryn Young Middlebrook, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Davies, Judge, and Mansur, Judge.*

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



Appellant was convicted of assault in the first, third, and fifth degrees. He appeals from the district court's denial of his postconviction relief petition, which was based on ineffective assistance of counsel. We reverse appellant's first-degree assault conviction, which requires proof of great bodily harm. We remand for further proceedings consistent with this opinion.


On September 30, 1993, three police officers responded to a call at the residence of appellant John Patrick McDonald. When the officers arrived, they saw appellant and Douglas Henderson fighting outside the house. Two of the officers saw appellant hit Henderson in the head. Henderson fell to the ground, and the officers witnessed appellant kick Henderson in his ribs and face. One kick caused Henderson's head to hit the wall of the house. The officers arrested appellant.

Henderson was taken to the Brainerd hospital, where he was admitted for evaluation of a head injury and for alcohol detoxification. He was also treated for a broken nose and lacerations on the face and head. He was discharged two days later. Eleven days later, on October 13, 1993, Henderson was again admitted to the Brainerd hospital, this time with contusions to his left knee and swelling and tenderness in the jaw area. He was transferred to St. Cloud Hospital, where he was diagnosed with a subdural hematoma (a blood clot between the brain and skull). The evidence showed that the subdural hematoma caused Henderson permanent brain damage. On October 26, Henderson was transferred to the St. Cloud Veterans Administration Hospital for treatment of alcoholism and a pre-existing post-traumatic stress disorder.

Appellant was initially charged with third-degree assault. When the brain damage became known, appellant was re-charged with first-degree assault.

The parties stipulated that Henderson would not testify at trial, but his statement to the police the morning after the assault would be read into the record. Dr. Mark Gray, Henderson's treating physician at the Brainerd hospital, and Dr. Alexander Watts, a neurosurgeon from St. Cloud Hospital, testified. A stipulated statement by Dr. Sharon Woods, Henderson's physician at the VA hospital, was read to the jury. Appellant did not testify.

The jury found appellant guilty of assault in the first, third, and fifth degrees. Appellant was sentenced for only the first-degree assault conviction, an executed term of 12 years, 2 months.

Appellant petitioned for postconviction relief, challenging the sufficiency of the evidence and alleging ineffective assistance of counsel.[1] The district court denied relief on both grounds. On appeal, appellant challenges his conviction on the sole ground that he was denied effective assistance of trial counsel.


This court's review of a postconviction proceeding is limited to determining whether the evidence is sufficient to sustain the findings of the postconviction court. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). A "postconviction proceeding is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside." State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968).

When a postconviction petitioner claims ineffective assistance of counsel, the petitioner must allege facts affirmatively proving that

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


Appellant alleges that his trial counsel was ineffective in that he (1) failed to properly prepare appellant's case for trial, (2) failed to investigate Henderson's condition before stipulating to the admission of his statement, (3) improperly advised appellant that his prior convictions for assault would be admissible should he choose to testify, (4) failed to object to evidence of a police officer's prior dealings with appellant, and (5) stipulated to the admission of Dr. Woods' statement that the assault had caused Henderson's brain injury.

For the most part, appellant's claims of ineffective assistance of counsel are based on criticism of his counsel's trial tactics. Trial counsel made a tactical decision not to call as a witness Henderson's former employer (who stated by affidavit that Henderson had twice threatened him). See State v. Bliss, 457 N.W.2d 385, 392 (Minn. 1990) (which witnesses to call is matter of trial strategy and within discretion of trial counsel). Trial counsel had concerns about the employer's credibility and whether his testimony would be admissible.

Trial counsel also made a tactical decision not to pursue an intoxication defense, which would have been inconsistent with appellant's self-defense claim. See State v. Danielski, 374 N.W.2d 322, 324 (Minn. App. 1985) (decision not to pursue other defenses reflects decision about trial tactics), review denied (Minn. Dec. 13, 1985). Trial counsel's recommendation that appellant stipulate to admission of Henderson's statement was also tactical. In the statement, Henderson accused appellant of assaulting him without provocation. Trial counsel testified at the postconviction hearing that the prosecutor's office had advised him before trial that Henderson's condition had "drastically and radically deteriorated." Counsel was concerned that it would prejudice the jury to see Henderson wheeled into the courtroom accompanied by medical "paraphernalia" and an attendant.

Likewise, it was trial counsel's tactical decision not to object to the police officer's statement that appellant was known from prior contact. See Weaver v. State, 408 N.W.2d 200, 202 (Minn. App. 1987) (decision to object is "largely a matter of strategy"), review denied (Minn. Aug. 12, 1987). Counsel testified that he did not object because he felt that doing so would call attention to the statement. Counsel did not seek a pretrial ruling to preclude the officer from testifying about his knowledge of appellant because there was no indication that the state was seeking to introduce evidence of other crimes.

Appellant also claims that he did not testify at trial (and thus failed to support his self-defense claim) because trial counsel improperly advised him that, if he did testify, the state would be able to introduce evidence of his prior convictions. At the postconviction hearing, trial counsel testified that appellant had decided not to testify to avoid the introduction of the prior convictions and to avoid cross-examination. The postconviction court found trial counsel's testimony to be more credible than appellant's recollections of his reasons for not testifying. A reviewing court must defer to the fact-finder's assessment of credibility. General v. General, 409 N.W.2d 511, 513 (Minn. App. 1987).


Although appellant's claims do not meet the Strickland standard for ineffective assistance of counsel on most issues, we are persuaded that counsel's representation on the issue of whether appellant's assault caused great bodily harm was deficient.

In this case, the amount of harm determines whether the assault was in the first degree. Conviction of assault in the first degree requires proof of "great bodily harm." Minn. Stat. § 609.221, subd. 1 (Supp. 1997).

Trial counsel stipulated to having Dr. Woods' statement read to the jury. Her statement was

that to a reasonable degree of medical certainty Douglas Lavell Henderson's traumatic brain injury and physical defects for which she has treated him are permanent and were caused by the injuries sustain[ed] on September 30, 1993.

At the postconviction hearing, trial counsel admitted that he had not talked to Dr. Woods; thus, he had not questioned her about other factors that may have impacted on Henderson's brain injury. Most significantly, trial counsel had not questioned Dr. Woods as to how she concluded that the subdural hematoma and resultant brain injury were not caused by the separate injury Henderson sustained two weeks after the assault.

Defense expert Fred Friedman, Chief Public Defender for the Sixth Judicial District, testified at the postconviction hearing that trial counsel's stipulation to the admission of Dr. Woods' statement did not meet the minimum standards of criminal defense representation. We agree. Although counsel testified that he made a tactical decision to accept the stipulation, a decision cannot be tactical when it is made without an investigation sufficient to gather the minimum amount of information needed to make that tactical decision. See Strickland, 466 U.S. at 690-91, 104 S. Ct. at 2066 (counsel has duty to make reasonable investigations; strategic choices made after incomplete investigation are reasonable only to extent that reasonable professional judgment supports limitations on investigation).

We do not agree with respondent that it is speculative to conclude that Dr. Woods' testimony might have been impeached had she testified. Henderson was admitted to the hospital for head injuries after the assault and again 13 days later. Neither Dr. Gray, who treated Henderson following the first admission, nor Dr. Watts, who diagnosed the subdural hematoma on the second admission, testified that it was the assault by appellant that caused the hematoma and brain injury. If the two treating physicians did not attribute the hematoma to the assault, the causation opinion of Dr. Woods, who is a psychiatrist and did not see Henderson until a month after the assault, was vulnerable to challenge.

By stipulating to admission of the statement, trial counsel conceded the only element in dispute for first-degree assault: that appellant had caused Henderson's permanent brain injury. Essentially, trial counsel conceded that appellant had inflicted "great bodily harm" on Henderson and was thus guilty of assault in the first degree. See State v. Wiplinger, 343 N.W.2d 858, 861 (Minn. 1984) (trial counsel's implied admission of defendant's guilt without permission requires new trial).

Appellant has shown that his trial counsel's representation fell below the minimum standards for criminal defense representation and that, as to first-degree assault, there is a "reasonable probability" that the result of the proceedings would have been different but for trial counsel's stipulation to admit Dr. Woods' testimony.

Appellant has not shown that counsel's error in any way prejudiced him as to the lesser-included offenses of third-degree and fifth-degree assault, on which the jury also found him guilty. This opinion, therefore, does not preclude entry of judgment of conviction and sentencing on one of those two counts. We therefore reverse appellant's conviction for first-degree assault and remand for a new trial on all charges, or for entry of judgment and sentencing on a lesser-included offense.

Reversed and remanded.

[ 1] Appellant had previously appealed the judgment. The appeal was dismissed so that he could seek postconviction relief.

KALITOWSKI, Judge (dissenting)

I respectfully dissent. The postconviction court properly determined that under Strickland the actions of appellant's trial counsel did not constitute ineffective assistance of counsel.

The record supports trial counsel's contention that stipulating to the admission of Dr. Woods' testimony was a tactical decision intended to prevent the state from further questioning Dr. Woods and thereby doing appellant "more harm than what I felt we were doing by way of a stipulation." As the postconviction judge, who also presided over the trial, appropriately concluded:

It is very possible that Dr. Woods' live testimony would have reinforced her opinion and thus been more damaging to the defense theory that there was an intervening cause of Henderson's brain damage. As it was, defense counsel vigorously argued from the inference raised by the gap in time between Henderson's hospitalizations that the serious brain damage was not proven to be caused by the alleged assault.

Further, even if it was error for the trial counsel to stipulate to the testimony, appellant has not established a "reasonable probability" that the results of the proceeding would have been different but for the error. Appellant presented no evidence at the postconviction hearing indicating that he could have impeached Dr. Woods or brought out any additional information that would have helped his case. Significantly, no evidence was presented to the postconviction court or to this court on appeal that Dr. Gray, Dr. Watts, or any qualified expert disagreed with Dr. Woods' medical conclusion regarding the cause of Henderson's subdural hematoma.