This opinion will be unpublished and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

A03-592

 

 

State of Minnesota,

Respondent,

 

vs.

 

Dennis Harlan Bluhm,

Appellant.

 

 

Filed June 14, 2005

Affirmed
Crippen, Judge*

 

Freeborn County District Court

File No. K4-02-136

 

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

 

Craig S. Nelson, Freeborn County Attorney, Freeborn County Courthouse, 411 South Broadway, Albert Lea, MN  56007 (for respondent)

 

Deborah Ellis, 700 Saint Paul Building, Six West Fifth Street, St. Paul, MN  55102 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Shumaker, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Appellant disputes the district court’s postconviction determination that he waived his right to testify at his 2002 trial.  Because the decision is supported by the record, we affirm.  We also find no merit in appellant’s additional arguments that his conviction should be reversed because his trial counsel failed to conduct reasonable investigation and because of allusions in the testimony of prosecution witnesses to prior bad acts of appellant. 

FACTS

            On October 30, 2002, appellant Dennis Bluhm was convicted of first-degree sale of a controlled substance, in violation of Minn. Stat. § 152.021, subds. 1(1), 3(a) (2000).  The district court imposed a 98-month sentence with nearly 33 months of supervised release and a fine of $100.  Our review is prompted by a 2003 appeal from the conviction and an appeal from the same district court’s later denial of postconviction relief, determined while the direct appeal was stayed.

D E C I S I O N

            Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  We are to “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.”  Id.  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id.  As to the evidentiary issues challenged in appellant’s direct appeal from his conviction, such “rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).

1.

The defendant in a criminal case has a constitutional right to testify in his or her own defense.  Rock v. Arkansas, 483 U.S. 44, 49, 107 S. Ct. 2704, 2708 (1987).  Both the Due Process Clause of the United States Constitution and Minnesota state law protect that right.  See Minn. Stat. § 611.11 (2004); Faretta v. California, 422 U.S. 806, 819 n.15, 95 S. Ct. 2525, 2533 n.15 (1975); State v. Rosillo, 281 N.W.2d 877, 878 (Minn. 1979).  The right to testify in one’s own defense is a personal right that may not be waived by counsel.  State v. Walen, 563 N.W.2d 742, 751 (Minn. 1997). 

Because the right to testify is rooted in the Constitution, waiver of the right must be made voluntarily and knowingly.  Id.  But waiver of the right to testify need not be on the record, and the district court need not “perform an on-the-record colloquy” to establish the defendant’s intent to waive the right.  Id.  If the defendant proves that his attorney denied him his right to testify, this court must order a new trial.  Rosillo, 281 N.W.2d at 879.  Appellant argues that the postconviction court abused its discretion by finding that he knowingly and voluntarily waived his right to testify.

            The postconviction court found that appellant “failed to meet his burden of proof regarding a denial of his right to testify.”  The court determined that appellant’s testimony at the postconviction hearing was inconsistent and that he “failed to remember several meetings and appearances . . . before the court.”  The court also noted that appellant’s trial counsel “clearly recalled and had documentation” of his meetings with appellant and that on September 10, 2002, trial counsel discussed with appellant his right to testify.  These findings are sustained by the record.   Appellant offers no citation of authority for his added assertion that there must be proof of an ultimate waiver decision after the state rests in the course of the trial.

Appellant also challenges the postconviction court’s additional observations that the waiver of his right to testify is supported by his familiarity with the court system and by his other cases where he was represented by the same trial counsel.  Because we are satisfied with the postconviction court’s findings with respect to the occurrence of waiver, the weight of the court’s decision is not diminished by these additional findings.

Appellant argued that there must be an express waiver of the right to testify on the record, equating the right to testify with the right to counsel and the right to a jury trial.  But caselaw does not sustain that assertion.  SeeState v. Ross, 472 N.W.2d 651, 653–54 (Minn. 1991); State v. Fussy, 467 N.W.2d 601, 603 (Minn. 1991).  Although there is no express waiver on the record, the weight of the evidence suggests that appellant waived his right to testify.  And the only evidence against waiver, appellant’s own testimony at the postconviction hearing, is discredited by the findings of the postconviction court.  There is no precedent supporting appellant’s argument that waiver must occur after the state has rested.

2.

            Appellant additionally argues that he was provided ineffective assistance of counsel because his counsel failed to make any reasonable effort to locate a potential alibi witness.  But the record indicates that appellant told his trial counsel about the potential alibi witness only six days before trial, and appellant admitted that he did not know where the witness was.  Appellant’s trial counsel hired an investigator to locate the witness, but the investigator was unable to find her before trial.

To claim ineffective assistance of counsel, appellant must first show by a preponderance of the evidence that his attorney’s performance fell below an “objective standard of reasonableness.”  Carney v. State, 692 N.W.2d 888, 890-91 (Minn. 2005) (person petitioning for postconviction relief must establish the facts alleged on the petition by a fair preponderance of the evidence).  The record supports the postconviction court’s findings that appellant’s trial counsel made reasonable efforts to locate the potential alibi witness.   In addition, the failure to locate or call a potentially favorable witness is a matter of trial strategy.  See State v. Lahue, 585 N.W.2d 785, 790 (Minn. 1998).  This court will not review questions of trial strategy for competence.  State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999).  There is ample evidence in the record suggesting that appellant’s trial counsel concluded that the potential alibi witness would not be helpful.

Appellant also challenges the admission of certain trial testimony by two police officers.  First, an officer testified that a confidential informant was familiar with appellant because he had “done business” with him.  Another officer later testified that he knew what appellant looked like because he had seen appellant’s mug shots. 

Given the evidence that the state did not intend to introduce suggestion of bad acts and the small likelihood of prejudice, the district court’s decision must be affirmed.  Although we recognize that it is the prosecution’s duty to control its witnesses, the prosecutor’s failure to do so here is offset by the district court’s determination, justified by the record, that both counsel did as much as they could to avoid potential prejudice.  Any possible error here is harmless in light of the curative instructions given by the district court and the weight of the evidence.  See State v. Berry, 484 N.W.2d 14, 18 (Minn. 1992).  The prior “business” experience was presented only as proof of the confidential informant’s familiarity with appellant, and the allusion to appellant’s mug shot contained no information to suggest it related to unlawful drug conduct. 

Affirmed.