This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
C2-00-635
State of Minnesota,
Respondent,
vs.
Demingo William Ridley,
Appellant.
Filed May 7, 2001
Reversed and remanded
Willis, Judge
Ramsey County District Court
File No. K2991918
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, Marie Wolf, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Amundson, Presiding Judge, Klaphake, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
WILLIS, Judge
Appellant challenges his conviction of second-degree criminal sexual conduct, arguing that he received ineffective assistance of counsel. We conclude that appellant's trial counsel rendered ineffective assistance by failing to (1) argue that relationship evidence should be subject to Spreigl analysis and a Spreigl limiting instruction, (2) object when the prosecutor improperly referred to appellant's exercise of his Sixth Amendment right to be present during trial, and (3) attempt to rehabilitate appellant following the prosecutor's improper comments. We therefore reverse and remand for a new trial.
Following a jury trial, appellant Demingo William Ridley was found guilty of second-degree criminal sexual conduct for an incident involving his 13-year-old stepdaughter, C.M.D.
C.M.D. testified that on the night of April 4, 1999, she was awakened by Ridley touching her “between my legs outside my underwear.” C.M.D. told her mother that Ridley had touched her, and Ms. Ridley confronted him. Ridley denied going into C.M.D.'s bedroom and touching her but C.M.D. insisted that he had, so Ms. Ridley asked him to leave the house. A few days later, Ms. Ridley took C.M.D. to the Midwest Children's Resource Center, where a nurse practitioner interviewed and examined C.M.D.
Ridley testified that he did not go into C.M.D.'s bedroom on the night of the incident. He also testified that Ms. Ridley asked him to leave the house because she had discovered that he was having an affair with another woman. During his closing argument, Ridley's attorney suggested that Ms. Ridley, out of her anger over Ridley's infidelity, had instructed C.M.D. to accuse Ridley of touching her.
C.M.D. also testified that this was not the first time that Ridley had touched her sexually. She stated that he had done so on a regular basis over several months in late 1997 until, after an incident in December of that year when he touched her between her legs while she was in bed, she informed her mother. As she later did after the 1999 incident, Ms. Ridley took C.M.D. to the Midwest Children's Resource Center, where C.M.D. was interviewed and examined. Ms. Ridley also reported the incident to the police. Ridley eventually pleaded guilty to fifth-degree criminal sexual conduct and agreed to participate in family counseling. But at his trial for the April 1999 incident, Ridley denied touching C.M.D. sexually in December 1997, claiming that he had merely adjusted her underwear. He stated that he had pleaded guilty to the charge of fifth-degree criminal sexual conduct because C.M.D. “felt something was wrong” and because he believed that he should support her.
Before trial, the state moved to introduce “evidence of the history of the relationship” between Ridley and C.M.D.; namely, information about “specific incidents of past violence and domestic abuse between [Ridley and C.M.D.] contained in the written report from the Midwest Children's Resource Center.” The state argued that this was relationship evidence, and thus not subject to the “notice and motion requirements” of State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965). Ridley's attorney filed no response to the state's motion. During the pretrial hearing, he made no reference to Spreigl and argued only that the evidence was prejudicial. The district court determined that “under the case law as I understand it” and “specifically cases cited by [the state],” the evidence was admissible and was “not subject to Spreigl notice or Spreigl consideration.”
During the trial, the state elicited testimony from Ridley about his conviction for a theft that he committed several years earlier. Ridley's attorney conceded to the admission of this evidence for impeachment purposes.
During her cross-examination of Ridley, the prosecutor drew attention to the fact that Ridley had been able to “sit through this entire trial,” that he “got to listen to everybody's testimony,” and that he knew “in the last few weeks or months that this case was coming up.” Ridley's attorney objected to none of these questions and conducted no redirect examination of his client. In her closing argument, the prosecutor stated:
The only person in this trial who has a motive to lie is the defendant. And you can consider that when determining his credibility. He is the only person with anything positive to gain from this. He got to sit through the entire trial. He got to hear everybody's testimony, and he had months to think about what happened.
Ridley's attorney did not object to this statement or address it in his closing argument.
After his conviction but before sentencing, Ridley discharged his trial counsel and retained another attorney. Ridley now appeals, claiming that his trial counsel rendered ineffective assistance.
1. Claim on direct appeal of ineffective assistance of counsel.
We must first determine whether Ridley can on direct appeal properly raise his claim of ineffective assistance of counsel. “Generally, an ineffective assistance of counsel claim should be raised in a postconviction petition for relief, rather than on direct appeal.” State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000) (citations omitted) (noting that postconviction hearings provide reviewing courts with “additional facts to explain the attorney's decisions,” enabling the courts to properly consider whether attorney's performance was deficient). But where further development of the record is not required to assess an appellant's ineffective-assistance claim, an appellate court will review such a claim on direct appeal. State v. Thomas, 590 N.W.2d 755, 759 (Minn. 1999). Here, the parties agree that an evidentiary hearing was not necessary, and we find that the record is developed adequately for us to assess Ridley's claim.
2. Unprofessional errors.
In order to succeed on a claim of ineffective assistance of counsel, a defendant must affirmatively prove (1) “that his counsel's representation `fell below an objective standard of reasonableness'” and (2) “`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 v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). Whether representation falls below an objective standard of reasonableness requires a determination of whether counsel exercised “the customary skills and diligence that a reasonably competent attorney would” under similar circumstances. State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999) (quotation omitted). There is “a strong presumption that a counsel's performance falls within the wide range of reasonable professional assistance.” Hale v. State, 566 N.W.2d 923, 927 (Minn. 1997). And trial tactics “lie within the proper discretion of trial counsel and will not be reviewed later for competence.” Voorhees, 596 N.W.2d at 255 (citation omitted).
Ridley asserts that it was ineffective assistance for his attorney to fail to argue that evidence regarding the “history of the relationship” between Ridley and C.M.D. should be subject to Spreigl analysis or to request a limiting instruction when that evidence was admitted. Generally, evidence of other crimes or misconduct, known in Minnesota as Spreigl evidence, is not admissible to prove a defendant's character in order to show that the defendant acted in conformity with that character. State v. Lynch, 590 N.W.2d 75, 80 (Minn. 1999) (citing Minn. R. Evid. 404(b)). But such evidence “may be admitted, if for a legitimate purpose, rather than for the forbidden purpose of inferring propensity from character.” State v. Bolte, 530 N.W.2d 191, 196 (Minn. 1995) (quotation omitted). A number of procedural safeguards govern the admission, presentation, and consideration of Spreigl evidence, including the requirements that the state (1) furnish defense counsel with written notice of the other offenses it intends to show that the defendant committed and (2) establish by clear and convincing evidence that the defendant participated in the conduct alleged. Id. at 196-97. In addition, the district court should balance the probative value of the Spreigl evidence against any potential prejudicial effect and give an appropriate limiting instruction both upon receipt of the Spreigl evidence and as part of its final instructions. Id. at 197.
Consistent with Rule 404(b), the district court may admit evidence of a defendant's prior acts “for the purpose of illuminating the relationship of defendant and complainant and placing the incident with which defendant was charged in proper context.” State v. Bauer, 598 N.W.2d 352, 364 (Minn. 1999) (quotation omitted). Spreigl notice is not required for relationship evidence. [1] State v. Boyce, 284 Minn. 242, 260, 170 N.W.2d 104, 115 (1969). But courts must apply Spreigl analysis to relationship evidence and give a Spreigl limiting instruction for such evidence. State v. Oates, 611 N.W.2d 580, 585 (Minn. App. 2000), review denied (Minn. Aug. 22, 2000). Here, Ridley's attorney failed to draw the court's attention to any of the recent supreme court cases requiring that Spreigl analysis be applied to relationship evidence. See, e.g., Bauer, 598 N.W.2d at 364; State v. Williams, 593 N.W.2d 227, 237 (Minn. 1999); State v. Buggs, 581 N.W.2d 329, 336 (Minn. 1998). He also failed to request a Spreigl limiting instruction. See Williams, 593 N.W.2d at 236 (noting that Spreigl instruction should be given both before introduction of relationship evidence and at close of trial). Despite the strong presumption that counsel's performance falls within the wide range of reasonable professional assistance, Ridley's attorney failed to exercise the customary skills and diligence that a reasonably competent attorney would under similar circumstances by failing to apprise the court of the need to apply Spreigl analysis and failing to request a Spreigl limiting instruction.
Ridley also argues that it was ineffective assistance for his attorney to fail to object when the prosecutor, both in her cross-examination of Ridley and during her closing argument, drew attention to the fact that Ridley had been able to sit through the entire trial and hear the testimony of all the witnesses. The supreme court has cautioned prosecutors “that extensive dwelling on a defendant's presence during the trial may result in reversible error * * * .” Buggs, 581 N.W.2d at 341. In Buggs, the prosecutor emphasized the defendant's ability to sit through the entire trial and then suggested that the defendant had concocted a story to exonerate himself. Id. The supreme court noted that asking a jury to draw adverse inferences from a defendant's exercise of his Sixth Amendment right to be present during trial and confront the witnesses against him “may result in reversible error, * * * especially where there are no facts in evidence to support an inference of fabrication, or there is no opportunity to rehabilitate the defendant.” Id. Here, during her cross-examination of Ridley, the prosecutor asked questions that drew attention to the fact that Ridley had been able to sit through the entire trial and hear all the testimony and that he had a “few weeks or months” to prepare for trial. Ridley's attorney objected to none of these questions and made no attempt to rehabilitate Ridley during redirect. In her closing argument, the prosecutor again drew attention to Ridley's presence during trial, stating:
The only person in this trial who has a motive to lie is the defendant. And you can consider that when determining his credibility. He is the only person with anything positive to gain from this. He got to sit through the entire trial. He got to hear everybody's testimony, and he had months to think about what happened.
Ridley's attorney did not object to this statement, despite its implication that Ridley fabricated his testimony. Nor did he mention in his closing argument the prosecutor's reference to Ridley's exercise of his constitutional right. If Ridley's attorney had performed with the customary skills and diligence that a reasonably competent attorney would under similar circumstances, he would have objected to the prosecutor's improper references to Ridley's exercise of his constitutional right and would have attempted to rehabilitate Ridley during redirect examination or at least addressed the prosecutor's statements in his closing argument.
Ridley also argues that it was ineffective assistance for his attorney to concede to the admission of evidence of Ridley's prior theft conviction for impeachment purposes. He relies on State v. Sims, 526 N.W.2d 201 (Minn. 1994), for the proposition that a theft conviction is not necessarily a crime of dishonesty and that his attorney should, therefore, have opposed its admission. But Sims involved a gross-misdemeanor theft, which, under Minnesota Rule of Evidence 609(a)(2), is admissible only if the theft involved dishonesty. 526 N.W.2d at 202. Ridley's prior conviction was for felony theft, and thus was admissible for impeachment at the court's discretion under Minnesota Rule of Evidence 609(a)(1). It was not, therefore, ineffective assistance for Ridley's attorney to concede to the admission of this evidence for impeachment purposes.
3. Prejudicial error.
To succeed on his claim of ineffective assistance of counsel, Ridley must show not only that there were errors in his attorney's professional performance but also that he was prejudiced as a result. State v. Lahue, 585 N.W.2d 785, 790 (Minn. 1998). Prejudice is determined by examining whether, under the totality of the circumstances, there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Gates, 398 N.W.2d at 562.
We turn first to the relationship evidence. Ridley's attorney should have argued that before admitting evidence of past domestic abuse between Ridley and C.M.D., the district court should determine that (1) the state had established by clear and convincing evidence that Ridley participated in the conduct alleged and (2) that the probative value of that evidence outweighed its potential for unfair prejudice. [2] Bauer, 598 N.W.2d at 364.
Clear and convincing evidence may be established by the testimony of a single witness. State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998) (explaining that if sexual-assault victim's testimony alone is sufficient to establish proof beyond reasonable doubt, it should be enough to satisfy clear and convincing requirement). Thus, even if the court had applied Spreigl analysis, it could have found C.M.D.'s testimony to establish by clear and convincing evidence that Ridley participated in the 1997 incidents.
The determination of whether the probative value of Spreigl evidence outweighs its prejudicial effect is a matter left to the discretion of the district court and will not be overturned absent a clear abuse of discretion. State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985) (citations omitted). In State v. Waino, this court noted the “inherent probative value” of evidence of prior bad acts committed by the same defendant against the same victim. State v. Waino, 611 N.W.2d 575, 579 (Minn. App. 2000) (quotation omitted). And because we determined that the prejudicial effect of the evidence was “mitigated by the trial court's cautionary instruction to the jury,” we affirmed its admission. Id. Here, Ridley's attorney argued that the relationship evidence was prejudicial. But the district court, based on its understanding that it was not required to engage in Spreigl analysis, did not address whether the probative value of the relationship evidence outweighed its potential for prejudice. And, unlike in Waino, Ridley's attorney did not request, and the court did not give, a Spreigl limiting instruction.
The state argues that the district court's failure to give a Spreigl instruction was harmless because, after the prosecutor elicited testimony from Ridley about the December 1997 incident and about his prior theft conviction, the court instructed the jury that
there was evidence elicited with regard to a prior conviction. The evidence concerning prior convictions of the defendant is admitted only for your consideration in deciding whether the defendant is telling the truth in this case. You must consider this evidence – you must not consider this evidence as evidence of his character or conduct except as you may think it reflects on his believability.
Further, in its final instructions the court instructed the jury to
consider any previous conviction only as it may affect the defendant's credibility. You must not consider any previous conviction as evidence of guilt of the offense for which defendant is on trial here for today.
The court gave no instruction at the time of C.M.D.'s testimony about the 1997 incidents. Nor during its final instructions did it caution the jury regarding the limited purposes for which her testimony could be used.
Evidence of the prior incidents, while relevant to the history of the relationship between Ridley and C.M.D., also shows Ridley's propensity to commit the crime, precisely the danger that Spreigl procedural safeguards are meant to protect against. See State v. Spreigl, 272 Minn. 488, 496, 139 N.W.2d 167, 172 (1965) (noting that danger of admitting evidence of relevant prior bad acts is that “a jury may convict because, though guilt of the crime charged is not proved, it is satisfied to convict because of other crimes,” and that “particular caution” must be exercised in admitting evidence of prior sexual offenses) (quotations omitted). A proper Spreigl instruction confines the jury's attention to the charges before it and reduces the possibility that it might convict the defendant because of the past acts rather than because of current conduct. [3] State v. Billstrom, 276 Minn. 174, 178, 149 N.W.2d 281, 284 (1967). Thus, the court should advise the jury “in unequivocal language” that (1) the evidence is to be used only for the limited purpose of determining whether the defendant committed the currently alleged offense, (2) the defendant is not on trial for any offense other than the charged offense, and (3) the jury must not convict the defendant on the basis of the Spreigl evidence. Id. at 178-79, 149 N.W.2d at 285. Here, the district court's instructions regarding Ridley's past conviction did not sufficiently direct the jury on the limited purpose of this evidence, and the court did not give the jury any limiting instructions regarding C.M.D.'s testimony. The supreme court has noted that even when the defense fails to request a Spreigl instruction, the district court “should generally still provide such instructions sua sponte to insure that the 404(b) evidence is not used for an improper purpose * * * .” Williams, 593 N.W.2d at 237. Where a Spreigl instruction is not requested, failure to give one “is not necessarily reversible error” by the district court. State v. Meat, 397 N.W.2d 604, 606 (Minn. App. 1986). But here, we conclude that if Ridley's attorney had drawn the court's attention to the need to engage in Spreigl analysis and requested a limiting instruction, there is a reasonable probability that the result of the proceeding would have been different.
We reach the same conclusion regarding defense counsel's failure to object to the prosecutor's improper reference to Ridley's exercise of his Sixth Amendment right. In Buggs, the supreme court noted that such comments “are of less concern when made upon cross-examination” due to defense counsel's opportunity to rehabilitate the defendant's credibility during redirect examination. 581 N.W.2d at 341 (quotation omitted). But here, Ridley's attorney conducted no redirect examination of his client. In Buggs, the supreme court also stated that asking a jury during closing arguments to draw adverse inferences from a defendant's exercise of his Sixth Amendment right “may result in reversible error.” Id. The court held that the error in that case was not prejudicial because defense counsel emphasized during his closing arguments that the defendant had a right to be at trial and that no adverse conclusions should be drawn from this fact, thus “lessening the possibility that the remarks contributed to the verdict.” Id. Here, Ridley's attorney made no reference during his closing argument to the prosecutor's improper comments or his client's right to be present at trial. We conclude that if Ridley's attorney had objected to or addressed the prosecutor's improper reference to Ridley's exercise of his constitutional right, there is a reasonable probability that the result of the proceeding would have been different.
Ridley's trial counsel rendered ineffective assistance by failing to (1) argue that relationship evidence should be subject to a Spreigl limiting instruction, (2) object when the prosecutor improperly referred to Ridley's exercise of his Sixth Amendment right, and (3) attempt to rehabilitate Ridley following the prosecutor's improper comments. Ridley has shown that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. We therefore reverse and remand for a new trial.
Reversed and remanded.
[1] Because Spreigl notice is not required for relationship evidence, we need not address Ridley's argument that his attorney rendered ineffective assistance by failing to object when C.M.D.'s testimony about prior incidents of sexual touching went “beyond the scope” of the incidents identified in the state's description of the proposed relationship evidence.
[2] The state relies on Minn. Stat. § 634.20 (2000) for the proposition that relationship evidence in domestic-abuse cases is admissible subject only to usual relevancy analysis and, therefore, a showing by clear and convincing evidence that Ridley participated in the other conduct was not required. Under Section 634.20, evidence of “similar prior conduct by the accused against the victim of domestic abuse” as defined under section 518B.01, subdivision 2, may be admitted “unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury * * *.” See State v. Cross, 577 N.W.2d 721, 726 n.2 (Minn. 1998) (noting that by enacting section 634.20, the legislature “has expressed an intent to remove evidence of `similar prior conduct' in domestic abuse prosecutions from the `clear and convincing' standard of rule 404(b)”). Section 518B.01, subdivision 2 (2000), defines “domestic abuse” to include first-, second-, third-, and fourth-degree criminal sexual conduct against a family or household member by a family or household member. The conduct at issue here, Ridley's 1997 conviction of fifth-degree criminal sexual conduct, does not fall within the statutory definition of domestic abuse. Thus, the state was still required to establish by clear and convincing evidence that Ridley participated in the conduct alleged before evidence of that conduct could be admitted.
[3] CRIMJIG 2.01 and 3.16 are the appropriate cautionary instructions on the use of Spreigl evidence. See State v. Lynch, 590 N.W.2d 75, 81 (Minn. 1999) (holding these instructions allow jury to give proper weight to Spreigl evidence); see also State v. Frisinger, 484 N.W.2d 27, 30 (Minn. 1992) (holding they are “recommended instruction[s]” to be given concerning evidence of other bad acts). They are:
The state is about to introduce evidence of an occurrence on _____ at _____. This evidence is being offered for the limited purpose of assisting you in determining whether the defendant committed those acts with which the defendant is charged in the complaint. The defendant is not being tried for and may not be convicted of any offense other than the charged offense(s). You are not to convict the defendant on the basis of any occurrence on _____ at _____. To do so might result in unjust, double punishment.
4 Minnesota Practice, CRIMJIG 2.01 (1999).
The state has introduced evidence of an occurrence on _____ at _____. As I told you at the time this evidence was offered, it was admitted for the limited purpose of assisting you in determining whether the defendant committed those acts with which the defendant is charged in the (indictment) (complaint). The defendant is not being tried for and may not be convicted of any offense other than the charged offense(s). You are not to convict the defendant on the basis of any occurrence on _____ at _____. To do so might result in unjust, double punishment.
Id., CRIMJIG 3.16.