STATE OF MINNESOTA

IN COURT OF APPEALS

A04-449

State of Minnesota,
Respondent,

vs.

Anwar Ahmed Mohamed,
Appellant.

Filed August 23, 2005

Affirmed

Minge, Judge

Hennepin County District Court

File No. 0306749

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Barry V. Voss, 527 Marquette Avenue South, Suite 1050, Minneapolis, MN 55402 (for appellant)

Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

U N P U B L I S H E D O P I N I O N

MINGE, Judge

Following a jury trial and the district court’s denial of his postconviction petition, appellant Anwar Ahmed Mohamed argues that his conviction of possession of a controlled substance in the first-degree should be reversed because of prosecutorial misconduct during closing arguments. If that relief is not granted, appellant requests that the matter be remanded to the postconviction court for a hearing to determine whether his counsel was ineffective. We affirm.

D E C I S I O N

The first issue is whether the prosecutor committed misconduct during closing arguments. Appellant alleges that the prosecutor improperly shifted the burden of disproving elements of the crime to appellant during closing arguments by stating that the case involves a credibility determination.

A defendant who fails to object to prosecutorial misconduct at trial generally forfeits the right to have it considered on appeal. State v. Blanche, 696 N.W.2d 351, 375 (Minn. 2005); State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999). Appellate courts may, however, review claims of prosecutorial misconduct under a plain-error analysis to determine whether “the alleged conduct was so clearly erroneous under applicable law and so prejudicial to the defendant’s right to a fair trial that the defendant’s right to a remedy should not be forfeited.” Blanche, 696 N.W.2d at 375 (quoting State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000)). The appellate court will reverse the conviction only if the misconduct impaired the defendant’s right to a fair trial. Id; State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).

In reviewing claims of prosecutorial misconduct regarding closing arguments, the court views the argument “as a whole rather than focus on particular ‘phrases or remarks.’” State v. Johnson, 616 N.W.2d 720, 728 (Minn. 2000) (quoting State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993)). During closing argument, the prosecutor is afforded considerable latitude, and the law does not require that a colorless argument be made. State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996). The prosecutor has “the right to present to the jury all legitimate arguments on the evidence, to analyze and explain the evidence, and to present all proper inferences to be drawn therefrom.” Id. A prosecutor may attack the merit of a particular defense or argument in light of the evidence, but may not belittle a defense in the abstract. State v. Williams, 525 N.W.2d 538, 549 (Minn. 1994).

Appellant argues that during the state’s closing argument, the prosecutor committed misconduct by stating that “this is really an issue of credibility, that this is really a determination by you as to who you believe.” Appellant claims that this phrase positioned the state’s witness against the defense’s witnesses, distracted the jury and subtly shifted the state’s burden of proof. However, these comments relate to the prosecutor’s attack on the credibility of appellant’s testimony, which directly contradicted the officer’s testimony. Generally attacks on witness credibility are permissible. See State v. Dupay, 405 N.W.2d 444, 450 (Minn. App. 1987) (concluding that attack on timeliness of alibi defense is permissible attack on witness’s credibility). The prosecutor also stated that the judge instructs on the law, acknowledged that the state has to prove the elements of the offense, and argued that the state proved those elements beyond a reasonable doubt. Therefore, the prosecutor’s comments during closing arguments were not error.

II.

The second issue is whether the district court abused its discretion by summarily denying appellant’s postconviction petition, alleging ineffective assistance of counsel without a hearing.

In Minnesota, a criminal defendant is permitted to seek postconviction relief under Minn. Stat. § 590.01, subd. 1 (2004). A petitioner seeking postconviction relief bears the burden of establishing the facts alleged in the petition by a fair preponderance of the evidence. Minn. Stat. § 590.04, subd. 3 (2004).

When a district court summarily denies a postconviction petition, the appellate court reviews the denial under an abuse of discretion standard. Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005). “On appeal from a summary denial of postconviction relief, we examine whether sufficient evidence exists to support the postconviction court's findings and will reverse those findings only upon proof that the postconviction court abused its discretion.” Id. (quoting Ives v. State, 655 N.W.2d 633, 635 (Minn. 2003)). The postconviction court is required to hold an evidentiary hearing “[u]nless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.” Minn. Stat. § 590.04, subd. 1 (2004); see also Powers, 695 N.W.2d at 374; Ives, 655 N.W.2d at 635; Roby v. State, 531 N.W.2d 482, 483 (Minn. 1995). An evidentiary hearing is necessary whenever “there are material facts in dispute that must be resolved to determine the postconviction claim on its merits.” Powers, 695 N.W.2d at 374.

The Sixth Amendment guarantees a defendant the right to reasonably effective assistance of trial counsel. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 2063 (1984). We review ineffective assistance of counsel claims de novo. See State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003). The appellate court’s obligation in considering postconviction proceedings is to review both questions of law and questions of fact. Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003). Legal issues are reviewed de novo. Id. But the review of factual issues is limited to “whether there is sufficient evidence in the record to sustain the postconviction court’s findings.” Id.

The test for determining whether a defendant was denied effective assistance of trial counsel is whether counsel’s performance was deficient and, if so, whether there is a reasonable probability that the verdict would have been different but for this deficiency. State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). The court uses an objective standard of reasonableness in examining the attorney’s performance. State v. Blom, 682 N.W.2d 578, 624 (Minn. 2004). As part of this evaluation, “counsel must have the discretion and flexibility to devise a trial strategy that best serves the client.” State v. Brocks, 587 N.W.2d 37, 43 (Minn. 1998).

Appellant argues that he was denied the effective assistance of counsel because his trial counsel failed to pursue a motion to suppress the narcotics found as a result of the traffic stop. “A claim of ineffective assistance of counsel may not rest on the failure of an attorney to make a motion that would have been denied if it had been made.” Johnson v. State, 673 N.W.2d 144, 148 (Minn. 2004). It is undisputed that appellant was properly stopped for committing several traffic violations. Appellant told the officer that he did not have his driver’s license with him, and when the officer questioned him about his age and date of birth, appellant gave conflicting information. The officer properly suspected that the information was false because appellant gave the officer a date of birth that would result in his age being 23, but then told the officer that he was 20. Therefore, appellant has failed to demonstrate that the seizure was improper and that his trial counsel was ineffective because he failed to bring a motion to suppress. Consequently, we conclude that the district court did not abuse its discretion by denying appellant a hearing.

Affirmed.