This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-470

 

State of Minnesota,
Respondent,

vs.

Deon Bennett,
Appellant.

 

Filed May 3, 2005

Affirmed

Peterson, Judge

 

Dodge County District Court

File No. K101372

 

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN  55101-2134; and

 

Paul J. Kiltinen, Dodge County Attorney, Dodge County Courthouse, 22 Sixth Street East, Department 91, Mantorville, MN  55955 (for respondent)

 

Kai J. Lahti, 15025 Glazier Avenue, Suite 230, Apple Valley, MN  55124 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Peterson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

Following an omnibus hearing, the district court denied appellant Deon Bennett’s motions to suppress evidence and to dismiss the complaint against him.  The district court accepted Bennett’s plea on a charge of felon in possession of a firearm pursuant to State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn. 1980), and sentenced him to three years in prison.  Bennett appealed from his conviction, arguing that the district court erred by denying his suppression motion, his motion to dismiss the complaint, and his motion to reconsider.  Bennett also sought postconviction relief, and this court stayed the appeal pending a decision on Bennett’s postconviction petition.  The postconviction court denied Bennett’s petition, and Bennett appealed the postconviction decision.  This court consolidated the appeals.  We affirm the conviction and the denial of postconviction relief.

FACTS

Law-enforcement officers obtained a search warrant on January 27, 2000, to search appellant Deon Bennett’s person and his residence.  The warrant application sought evidence in the investigation of the death of Peter Kapitula, whose body was found in Olmsted County on June 4, 1989.  Kapitula had been shot to death.  The search warrant authorized law enforcement to search for: (1) a sample of Bennett’s blood for comparison with DNA evidence recovered from the crime scene; (2) twelve-gauge shotgun and shells; and (3) documents to establish Bennett’s residency in the premises. 

            Officers executed the search on January 28, 2000.  Upon entering the residence, they discovered a disassembled shotgun on the kitchen table.  After discovering a marijuana-growing operation in the basement, they suspended the search and obtained a second search warrant that authorized them to search for controlled substances and growing and distribution equipment, including weapons.  The officers ultimately obtained a sample of Bennett’s blood and seized several firearms and a large quantity of marijuana and associated equipment.

            Bennett, who had pleaded guilty to a controlled-substance offense in 1992, was charged with possession of a firearm by a felon under Minn. Stat. §§ 624.713, subd. 1(b); .11, subd. 5(b) (1998).[1]  Before the omnibus hearing, Bennett’s attorney, Kai Lahti, withdrew from representation because he expected that he would testify at the omnibus hearing regarding alleged negotiated agreements with the state.  Prior to withdrawing, Lahti moved to suppress evidence from the search of Bennett’s residence because the warrant lacked probable cause to link Bennett to Kapitula’s death.  He also moved to dismiss the charge based on an agreement between Bennett and the state that required Bennett’s cooperation in the homicide investigation.  Gary Gittus represented Bennett at the omnibus hearing.

The district court concluded with respect to the first search warrant that there was not a sufficient basis to believe that weapons would be found at the residence, but that there was a sufficient basis to search for the DNA evidence.  The district court found that after the officers executing the first warrant saw a shotgun in plain view, they had probable cause to obtain the second warrant, and, on that basis, the district court denied Bennett’s motion to suppress evidence.  The court also determined that Bennett failed to meet the terms of a proposed agreement with the state, and, therefore, no agreement was reached.

After the omnibus hearing, Gittus withdrew as counsel, and Lahti again represented Bennett.  Lahti filed a motion to reconsider the findings and conclusions from the omnibus hearing, which the district court denied.  The district court accepted Bennett’s plea on the weapons charge pursuant to State v. Lothenbach, thereby preserving Bennett’s pretrial issues for appeal.  296 N.W.2d 854, 857-58 (Minn. 1980).  The district court granted the state’s motion for a downward departure from the sentencing guidelines based on Bennett’s assistance in the investigation of another serious criminal case and sentenced Bennett to 36 months for the weapons charge.  Bennett appealed the conviction and also sought postconviction relief.  This court stayed his appeal pending the outcome of the postconviction proceedings.  Bennett’s petition for postconviction relief alleged that Gittus provided ineffective assistance during the omnibus hearing.  The postconviction court found that Bennett did not show that Gittus’s representation fell below an objective standard of reasonableness and denied Bennett’s petition for postconviction relief.  Bennett now appeals from his conviction and from the order denying postconviction relief.

 

D E C I S I O N

I.

The district court determined that the initial warrant application established probable cause with respect to the blood sample but not with respect to the weapons.  The district court found that

[w]hen the officers arrived to serve the warrant and entered the Bennett kitchen, which was the room nearest to the door they entered, a shotgun, broken down into its various parts was observed on the kitchen table.  The officers were aware Deon Bennett had been convicted of a crime of violence.

 

The district court concluded that “[t]he plain view weapons created probable cause to obtain the second warrant.”

Bennett argues that the district court erred in not suppressing the evidence found during the search because the initial search-warrant application lacked probable cause to authorize law enforcement to obtain a sample of his blood for the DNA comparison, and even if probable cause existed to obtain the blood sample, the officers did not have probable cause to enter his residence.   

In considering an appeal of a pretrial order on a motion to suppress evidence, we “may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.”  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  Evidence obtained by a search and seizure that violates a defendant’s constitutional rights is inadmissible.  State v. Mathison, 263 N.W.2d 61, 63 (Minn. 1978).  Probable cause must exist before a search warrant can be issued.  Id.  In determining whether a warrant is supported by probable cause, this court accords great deference to the issuing judge’s decision.  State v. Harris, 589 N.W. 782, 787 (Minn. 1999).  We review the determination of probable cause to ensure that the issuing judge had a substantial basis to conclude that probable cause existed.  Id. at 787-88. 

In determining whether probable cause exists, a court “may consider only the information presented in the affidavit offered in support of the search-warrant application.”  State v. Hochstein, 623 N.W.2d 617, 622 (Minn. App. 2001) (citing State v. Kahn, 555 N.W.2d 15, 18 (Minn. App. 1996)).  A court must review the affidavit as a whole, not each component in isolation.  State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985). 

The task of the issuing [judge] is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

 

Id.(quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)); see also State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991) (applying totality-of-circumstances test). 

The affidavit in support of the search-warrant application contains several facts relevant to Bennett’s possible involvement in the June 1989 Kapitula homicide:  (1) in August 1989, a confidential informant later identified as Robert Harwood identified the shooter and stated that Bennett “was also there;” (2) in November 1999, detectives interviewed a friend of Kapitula’s who stated that on June 3, 1989, Kapitula told him that he was to meet with Bennett later that day to buy an ounce of cocaine.  The friend was not sure whether Kapitula would be meeting directly with Bennett, but he knew that the cocaine was coming from Bennett; (3) in November 1999, detectives also interviewed a woman who was Bennett’s girlfriend at the time Kapitula was murdered, and she stated that Bennett asked her to ask her mother to provide an alibi for her and Bennett on the night that Kapitula was murdered.  The woman’s mother confirmed that she had been asked by her daughter to provide the alibis; (4) a cigarette butt that contained traces of saliva was found at the crime scene, and advances in DNA technology allowed testing in November 1999 that produced a DNA profile that could be compared with DNA evidence collected in the investigation and revealed that the smoker was male; and (5) in January 2000, Bennett was observed on a surveillance camera smoking what appeared to be a controlled substance, and when questioned by police, Bennett said that he was smoking a cigarette.  

Bennett argues that the search warrant for a blood sample was not supported by probable cause because the affidavit in support of the search warrant did not link him to the Kapitula murder, did not link the cigarette butt or the smoker to the Kapitula murder, and did not include any credible evidence that he smoked cigarettes.  But the affidavit stated that a friend of Kapitula’s told investigators that shortly before Kapitula was shot, Kapitula said that he planned to meet with Bennett later that day to buy cocaine, and a confidential informant said that Bennett was present when Kapitula was shot.  The affidavit also stated that the woman who was Bennett’s girlfriend when Kapitula was murdered told investigators that Bennett asked her to ask her mother to provide an alibi for her and Bennett on the night that Kapitula was murdered, and the woman’s mother confirmed that the woman had made the request.  These facts link Bennett to the murder.  The affidavit also stated that the cigarette butt from which the DNA sample was taken was found at the crime scene, and when questioned about a surveillance tape that showed him smoking, Bennett told police that he was smoking a cigarette.  These facts link the cigarette butt to the murder scene and indicate that Bennett smoked cigarettes.  Taken together, these facts establish a fair probability that evidence of Bennett’s participation in Kapitula’s murder would be found in a sample of Bennett’s blood because a DNA test of the blood sample could show that Bennett was the smoker whose cigarette butt was found at the crime scene. 

Bennett argues that the evidence in the affidavit that indicated that he smoked cigarettes was not credible.  But there is a presumption of validity with respect to the affidavit, and to overcome this presumption, “[t]here must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof.”  Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2684 (1978).  Bennett does not claim that he alleged deliberate falsehood or reckless disregard for the truth, and he does not cite any offer of proof.  He simply argues that the evidence that he smoked cigarettes was not credible because the affidavit did not contain any statement that officers who arrested and interrogated him saw him smoke or saw some indication that he smoked, such as the odor of cigarette smoke or cigarettes in his possession.  This argument, without any evidence of deliberate falsehood or of reckless disregard for the truth, does not overcome the presumption that the affidavit is valid.

Bennett also argues that when facts that were omitted from the affidavit are added to the information that was included in the affidavit, the affidavit does not establish probable cause.  See State v. Doyle, 336 N.W.2d 247, 252 (Minn. 1983) (requiring district court to supply omissions and set aside misrepresentations and reconsider search-warrant application in that light).  Bennett contends that the officers omitted the fact that they had not seen him smoke cigarettes and that they had not observed indications that he smoked, such as the odor of smoke on his clothing.  But the facts that Bennett contends were omitted are simply a list of observations that Bennett speculates the officers made and answers that he speculates would have been given if the officers had asked questions about his smoking habits.  Bennett does not cite any evidence that the officers made these observations and omitted what they saw from the affidavit or that they asked questions about his smoking habits and omitted the answers from the affidavit.

Bennett also contends that officers omitted evidence that three different people have admitted to killing Kapitula and did not explain why they did not believe these confessions.  But the fact that three people have each admitted to committing a single murder undercuts the credibility of all three admissions, and even if Bennett is not the person who shot Kapitula, his presence at the crime scene could be evidence of participation in the murder.

Bennett argues that even if probable cause existed to obtain the blood sample, the officers did not have probable cause to enter his residence because when they arrived at his door, he “offered to go out to talk with the officers.”  Therefore, he contends, the officers’ entry into the house was predicated on the search for weapons, and because the district court found that no probable cause existed for the weapons search, all evidence other than his blood sample is the fruit of an unreasonable search and must be suppressed under the exclusionary rule.  Mathison, 263 N.W.2d at 63 (stating that “all evidence obtained by searches and seizures in violation of the Constitution is . . . inadmissible in a state court”) (quoting Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691 (1961)).  We disagree.

The search warrant authorized a search for a “sample of human blood from D[e]on Bennett to be obtained by transporting Bennett to the Dodge County Sheriff’s Office where a sample can be obtained by trained medical person[nel].”  Bennett argues in his appellate brief that he “offered to go out to talk with the officers.”  But the omnibus-hearing transcript indicates that when the officers arrived, Bennett appeared at the door with a hostile dog and resisted allowing the officers to enter the house.  The officers entered the house to restrain Bennett’s dog and saw the disassembled shotgun once they were inside.  The district court concluded that the shotgun was in plain sight and that fact justified issuance of the second warrant. 

The record does not fully describe the details of the entry, and “it is the burden of the party seeking suppression to show his fourth amendment rights were violated, that he had a personal and legitimate expectation of privacy and that the search was illegal.”  State v. Robinson, 458 N.W.2d 421, 423 (Minn. App. 1990) (citing Rakas v. Illinois, 439 U.S. 128, 130 n. 1, 99 S. Ct. 421, 424 n.1 (1978)), review denied (Minn. Sept. 14, 1990).  In light of the record, we conclude that Bennett did not meet his burden of showing that the officers’ initial entry into the home was illegal.

II.

Bennett argues that he entered into an agreement with the state that required the dismissal of all criminal charges.  The district court denied Bennett’s motion to dismiss, finding that he failed to pass a polygraph “as was required as part of the plea agreement.”  Our review of a pretrial order considers whether: “(1) the trial court clearly and unequivocally erred in its judgment, and (2) if the error will have a critical impact on the outcome of the trial unless reversed.”  State v. Aubid, 591 N.W.2d 472, 477 (Minn. 1999) (quotation omitted).

            Bennett cites a December 21, 2001, letter from an assistant attorney general to Bennett’s attorney as proof that he had an agreement with the state.  The letter states that the assistant attorney general had authority to “make an offer” with regard to the criminal charge that is the subject of this appeal.  The substance of the agreement is as follows:

I am willing to dismiss the two Dodge County charges against Mr. Bennett if your investigator produces the ear and eyewitnesses to the Kapitula homicide, obtains or helps to obtain statements from the ear and eyewitnesses, and Mr. Bennett was not involved in any way with the homicide.  The determination as to whether Mr. Bennett was involved will be made by me.  You and your client should be aware that the information gathered to date by the investigators as relayed to me, does indicate that Mr. Bennett was at least involved in setting up the situation which resulted in Mr. Kapitula being shot.  Additionally, Mr. Bennett’s account was apparently not truthful as he failed the polygraph.

If the information and witnesses developed by your investigator assist in solving the Kapitula murder, but the evidence indicates in my view that Mr. Bennett was involved, then I will not dismiss the Dodge County charges against Mr. Bennett. 

 

            Lahti, Bennett’s attorney, testified at the omnibus hearing that he provided documentation from a private investigator regarding ear- and eyewitnesses to the homicide and what the witnesses told the investigator.  The assistant attorney general who wrote the letter asked Lahti,

[W]ould it be fair to say . . . that my position throughout has been that based on the information available to me and the investigators that we believe Mr. Deon Bennett had some involvement in the homicide as evidenced by his failure of the polygraph on the one and only story he’s ever given?

 

Lahti agreed that this had been the assistant attorney general’s position.

            Bennett argues that the state was bound to dismiss the weapons charge because he “performed his obligations” under his agreement with the state.  But providing witness information was not Bennett’s only obligation under the agreement. The agreement also required a determination by the assistant attorney general that Bennett was not involved in any way with the homicide.  The district court concluded that because Bennett failed to pass a polygraph test with regard to the Kapitula murder, Bennett did not meet this requirement and, therefore, no agreement to dismiss the charges was reached.  The district court did not err in denying Bennett’s motion to dismiss.

III.

We apply an abuse-of-discretion standard to a district court’s decision on a postconviction ineffective-assistance-of-counsel claim.  State v. Rainer, 502 N.W.2d 784, 787-88 (Minn. 1993).  To prevail on his ineffective-assistance-of-counsel claim, Bennett must allege facts that demonstrate that (1) counsel’s performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's errors, the outcome of the trial would have been different.  Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001).  Generally, a court must indulge a strong presumption that counsel’s performance falls within “the wide range of professionally competent assistance.”  Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2066 (1984); see also State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).

            Bennett acknowledges that counsel litigated the issue of lack of probable cause to search for firearms, but asserts that counsel should have argued at the omnibus hearing that there was no probable cause to obtain a sample of his blood for a DNA match.  Bennett contends that omnibus counsel did not pursue a reasonable strategy because “[w]inning on the firearm issue but not the DNA issue would result, as it did here, in the admission of the evidence of both firearms and drugs.” 

Counsel’s decision not to pursue a particular theory of defense does not generally rise to the level of ineffective assistance of counsel.  See State v. Grover, 402 N.W.2d 163, 166 (Minn. App. 1987) (finding that attorney’s decision not to contest validity of search warrant did not result in ineffective assistance of counsel, where attorney could have made decision for strategic reasons or because he thought contesting warrant would have been futile). 

But Bennett’s ineffective-assistance claim fails because his omnibus counsel made the argument that Bennett claims was not made.  The memorandum of law in support of the motion to suppress includes two pages of argument under the heading “There Was No Probable Cause To Obtain A DNA Sample From Mr. Bennett.”  In these pages, counsel made many of the arguments that there was no probable cause to obtain a DNA sample that Bennett makes on appeal.  The omnibus court ultimately rejected these arguments, but Bennett’s omnibus counsel did not fail to make the arguments.  Therefore, the district court did not abuse its discretion in denying Bennett’s petition for postconviction relief.

IV.

            Bennett moves to strike portions of the state’s brief.  Bennett contends that because the state did not preserve as an issue for appeal the district court’s determination that there was not probable cause to issue a search warrant for weapons, the state improperly addressed this issue in its brief.  Because we have not addressed this issue and it did not affect our analysis of the remaining issues, we decline to address Bennett’s motion to strike this portion of the state’s argument.  See Berge v. Comm. of Pub. Safety, 588 N.W.2d 177, 180 (Minn. App. 1999) (finding it unnecessary to address the merits of a motion to strike portions of brief that were not relied on in reaching decision).  Bennett also moves to strike several facts recited in the state’s brief that he alleges are not supported by the record and are not fairly stated.  Because none of these facts are relevant to our decision, we decline to address this portion of Bennett’s motion.  Id.

            Affirmed.