This opinion will be unpublished and

may not be cited except as provided by

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




David F. Marben, petitioner,



State of Minnesota,


Filed December 15, 1998

Affirmed in part, reversed in part, and remanded

Randall, Judge

Hennepin County District Court

File No. 97-032490

Matthew D. Forsgren, Mauzy Law Firm, 610 Butler North Building, 510 First Avenue North, Minneapolis, MN 55403 (for appellant)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Michael O. Freeman, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Foley, Judge.*



Appellant argues that he received ineffective assistance of counsel during his trial for first- and second-degree assault and that the postconviction court abused its discretion when it denied his petition for relief and his request for an evidentiary hearing. In addition, appellant insists that the evidence is insufficient to support his conviction. We affirm in part, reverse in part, and remand.


Appellant David F. Marben was involved in a fight with Clayton Sorenson at an Applebee's restaurant in Eden Prairie. Following a jury trial in Hennepin County District Court, Marben was found guilty of one count of first-degree assault and two counts of second-degree assault. The district court sentenced Marben to 81 months' imprisonment. Marben filed a timely notice of appeal with this court. Later, he moved this court to stay or dismiss his appeal so he could file a petition for postconviction relief. This court granted Marben's motion and dismissed his appeal, pending resolution of his petition for postconviction relief. Marben filed a petition for postconviction relief, alleging that his trial counsel rendered ineffective assistance by failing to investigate his case adequately and to call certain witnesses. The postconviction court denied Marben's request for an evidentiary hearing and his petition for postconviction relief.


When reviewing a postconviction proceeding, this court is limited to determining whether the evidence is sufficient to support the postconviction court's findings, and this court will not disturb a postconviction court's decision absent an abuse of discretion. Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995). If a petitioner alleges facts that, if proven, would entitle him to the relief requested, a postconviction court must grant petitioner an evidentiary hearing. Cooper v. State, 565 N.W.2d 27, 33 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).

Marben insists that he was denied effective assistance of counsel during his trial because his defense counsel failed to investigate the case adequately. Marben claims that this failure resulted in a number of witnesses not being called to testify regarding his fight with Sorenson and his treatment by Sorenson's friends as they restrained him on the floor after the fight. The postconviction court denied Marben's petition, concluding that Marben's petition simply was "second guessing of trial strategy" and that the proposed strategy now offered by Marben would likely have "backfired and made his situation even worse." The court stated further that, "[n]o tactic now offered by [Marben] undermines confidence in the result" and "[t]rial counsel's decisions were all within the parameters of good trial practice." The court also denied Marben's request for an evidentiary hearing.

When reviewing an ineffective assistance of counsel claim, Minnesota applies the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). This standard requires the petitioner to demonstrate that (1) his counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, absent his counsel's errors, the outcome of the proceedings would have been different. King v. State 562 N.W.2d 791, 795 (Minn. 1997). A reasonable probability means "a probability 'sufficient to undermine confidence in the outcome.'" Scruggs, 484 N.W.2d at 25 (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 206). Reviewing courts, for practical reasons, are deferential when scrutinizing defense counsel's performance." 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).

"Which witnesses to call at trial and what information to present to the jury are questions that lie within the proper discretion of the trial counsel. Such trial tactics should not be reviewed by an appellate court, which, unlike the counsel, has the benefit of hindsight. Counsel must, after all, have the flexibility to represent a client to the fullest extent possible."

State v. Rainer, 502 N.W.2d 784, 788 (Minn. 1993) (quoting State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (citation omitted)).

Marben claims that his defense counsel should have called Frank Lynch to testify. Lynch was a patron of Applebee's and witnessed the altercation between Marben and Sorenson. According to his affidavit, Lynch would have testified that it appeared as if Sorenson was "being a bully" to Marben and that he did not see Marben break the beer glass before striking Sorenson with it.

Marben claims that Lynch's testimony would have (1) provided support for a self-defense argument that he was "instinctively defending himself"; (2) he used a reasonable amount of force in defending himself; (3) he was not wielding a dangerous weapon; and (4) he did not intend to cause Sorenson bodily harm. Marben insists that Lynch's testimony could have allowed the jury to conclude that he did not break the beer glass before striking Sorenson and that therefore he did not use a dangerous weapon. Similarly, the jury could have found that his action was merely an instinctive defensive reaction and reasonable under the circumstances. We agree. A reasonable jury could have concluded that the evidence should be seen in the light that Marben now argues. The test is not that they had to see it in that light, but when reviewing a denial of an evidentiary hearing, the test rather is could they have seen it in that light.

Our decision today is not a reflection on the merits of the state's case or the defendant's case. But under the scope of review, we conclude that Marben has alleged facts that, if proven true, could form the basis for postconviction relief. At the least, Marben should have been granted an evidentiary hearing to prove his claim. We therefore reverse and remand for an evidentiary hearing on the issue of whether defense counsel should have called Lynch to testify.

Marben also claims that his defense counsel should have called several witnesses who would have testified that Sorenson's friend, Steven Turnbull, kicked him in the head a number of times while he was being restrained on the floor and that this beating to the head could have resulted in the appearance that he was "drunk." According to Marben, his defense counsel should have called Anthony Gionfriddo, Stephen Troiano, and David Fisher, Ph.D., L.P. Gionfriddo and Troiano came into the Applebee's after the fight, and, according to their affidavits, they saw Turnbull kick Marben in the head several times. Fisher, a licensed psychologist who considers himself an expert on mild head trauma, reviewed the Gionfriddo and Troiano affidavits and Marben's testimony and would have testified that someone "who has been struck in the head with great force multiple times could suffer a concussion." Marben also insists that defense counsel should have asked his wife Vivian about large bruises she allegedly observed on Marben after they returned home. Marben contends that these witnesses would have provided him a "compelling response" to the state's claim that he was intoxicated on the night of the fight. In addition, Marben claims his defense counsel should have called Turnbull to testify because had the jury seen his size they would have understood how unlikely is would have been for him to provoke a fight with one of Turnbull's friends and how much damage Turnbull could cause to a person.

We do not accept Marben's allegations that this long list of other persons "must" appear at the evidentiary hearing. Our reversal and remand for a hearing is restricted to the issue of whether defense counsel should have called Lynch to testify. The district court can, if it wishes, open it up for testimony and argument on other witnesses.

There is some speculation as to the value of these witnesses. We are not sure that Fisher could have testified even if called. He did not examine Marben. He simply offers the general statement that someone who has been beaten on the head may have the outward appearance of intoxication and may also be combative. Fisher does not opine that Marben actually suffered any head trauma or that this was the cause of his combative behavior after the fight. Even if Marben's post-assaultive hostility was due to head trauma, it is a collateral issue. It does not undermine the evidence that Marben assaulted Sorenson, but it could be relevant as a mitigating factor if there were to be a resentencing. We conclude that it is unlikely that the proffered testimony of Gionfriddo and Troiano would have affected the outcome of trial. The recollection of Gionfriddo and Troiano is contradicted by the testimony of Officer Lynn Gary and police chaplain Michael Gerdts. Gerdts testified that he was assigned to stay with Marben and restrain him from getting up and that he remained with Marben from the time he and Gary arrived to the time Marben was taken from the building by police. During this entire time Gerdts did not see or hear anyone hit or kick Marben. In addition, Gerdts testified that at no time did Marben indicate that he was kicked or beaten by any of Sorenson's friends. Gary also testified that she attempted to find any witnesses who could corroborate Gionfriddo and Troiano's statement that they observed Turnbull beating and kicking Marben in the head. She was unable to do so.

In addition to Marben's testimony that Turnbull beat and kicked him as he lay on the ground, defense counsel was able to elicit testimony from another of Sorenson's friends, Todd Wandersee, that he had to restrain Turnbull from assaulting Marben as Marben lay on the ground. Thus, at best, the statements by Gionfriddo and Troiano are cumulative. The same holds true for the purported testimony of Marben's wife that she observed large bruises on Marben's body when they returned home that night. The issue of the post-fight assaultive behavior of Turnbull was raised and presented by Marben's trial counsel. Moreover, it is not clear that Gionfriddo, who lives in Connecticut and Troiano, who lives in Wyoming, could have been secured for trial given their distant residences. We conclude that the decision not to call Gionfriddo and Troiano was merely a choice in trial tactics.

Marben raises another claim as a reason for an evidentiary hearing that we do agree with. In his petition, Marben requested an evidentiary hearing so he could call unnamed experts in criminal law to testify to the alleged inadequacy of trial counsel's representation. The postconviction court denied Marben's request, stating:

Because this Court would be the factfinder and has a certain passing familiarity with the trial of criminal cases, it is difficult to fathom how an expert could assist the Court in its travails.

By this statement, the district court came close to identifying itself as an expert for the defense. While an individual judge may have experience and expertise in handling criminal matters, it is not the place of the court in a bench trial to be an expert witness for the prosecution or the defense or to put into the record an opinion as to whether or not the defense should have called an expert. The choice of witnesses is up to each party. Because we are remanding for an evidentiary hearing, Marben is free, if he chooses, to call experts in criminal law to testify on the issue of whether he received ineffective assistance of counsel.

Finally, Marben argues that the evidence is insufficient to support his convictions for assault in the first- and second-degree, and he requests an outright reversal. We do not decide that issue. Marben did not present a sufficiency of the evidence issue to the postconviction court. Generally, issues not presented to the district court are not considered on appeal. State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989).

Finally, Marben has asked that if this case is remanded to the district court for an evidentiary hearing, we order a different judge to be assigned to hear the matter. We decline to make that order a part of this remand. We defer to the assignment policy for judges utilized by the Hennepin County District Court.

Affirmed in part, reversed in part, and remanded.

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