This opinion will be unpublished and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

A04-179

 

 

State of Minnesota,

Respondent,

 

vs.

 

Jeffrey Myers,

Appellant.

 

 

Filed February 14, 2006

Affirmed

Halbrooks, Judge

 

 

Hennepin County District Court

File No. 03026165

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487  (for respondent)

 

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Halbrooks, Presiding Judge; Klaphake, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges his conviction of second-degree aggravated robbery, arguing that he was denied his right to effective assistance of counsel when his attorney failed to object to the prosecutor’s conduct in calling a defense investigator as a witness, highlighting the investigator’s errors, and arguing that appellant’s alibi defense was fabricated.  We affirm. 

FACTS

            At about 4:10 p.m. on April 3, 2003, a masked man robbed Johnson Meat Company in northeast Minneapolis.  At the time of the robbery, Colin Benjamin was standing at the register, while his co-worker, Cornelia Britton, hid behind a counter about 15 feet away.  Britton recognized the robber’s voice and tried calling 911 while she was crouched behind the counter.  Britton then followed the robber out the door.  When the robber reached the end of the building, Britton saw him remove his mask and turn toward her.  Britton recognized the robber as appellant Jeffrey Myers, whom she knew as a former Johnson Meat Company employee and as her sister-in-law’s ex-boyfriend.

            Soon thereafter, the police and the company vice-president arrived; the vice-president located a copy of appellant’s driver’s license photo in his employee file and showed it simultaneously to Britton and Benjamin.  Britton identified appellant as the robber.  Benjamin also identified appellant as the robber, although he stated that he was not positive about the identification.    

            The police awakened appellant sometime after 11:10 p.m. on April 15, asked him about his whereabouts on the day of the robbery, and subsequently arrested him.  An officer later testified that appellant told him that he had been working at Volt Service Group that day, but the officer determined that appellant’s last day at Volt was actually April 2, 2003, the day before the robbery. 

            Appellant was charged with second-degree aggravated robbery.  Appellant presented an alibi defense at trial, claiming that he had interviewed for a job at Phoenix Direct (f/k/a/ Phoenix Document Services) in Burnsville on April 3, and that he had taken the 4:59 p.m. bus home from Phoenix that day.  Appellant stated that he arrived at Phoenix at 10:00 a.m. and met with Angela McLain and then later met with Phoenix’s Director of Operations, Ron Flaa, around 2:30 p.m.  Flaa testified that he estimated that the interview ended around 3:45 and that appellant left Phoenix around 4:00 p.m.  Flaa also testified that appellant told him that he was taking the bus home.  McLain testified that she had told an investigator that appellant left Phoenix around 4:00 p.m. that day and that appellant had taken the bus, a fact that she assumed because she saw appellant take a shortcut outside the building often taken by others who ride the bus.

            Lisa Stark, a Legal Rights Center community worker who does client intake and assists attorneys with case preparation, assisted defense counsel with this case.  Stark prepared the notice of defense, supplemental notice of defense witnesses, and reports detailing her conversations with Flaa and McLain.  In her reports, Stark included an incorrect name and telephone number for Phoenix, although she testified that she had done so unintentionally and that she had called both the prosecutor’s office and Sgt. Michael Ganley to correct the mistake. 

            During trial, the state questioned Stark about the inaccuracies in her reports and about her reports’ statement that Flaa told her that appellant left Phoenix at 4:15 p.m. on April 3.  The state also called Sgt. Ganley and elicited testimony that Phoenix’s name and phone number as provided by Stark were incorrect and that he had never received any follow-up, correcting information from Stark.  Ganley further testified that Flaa told him that he had never spoken with Stark, although Stark testified that she had spoken with Flaa. 

            During closing argument, the state highlighted the inaccuracies in Stark’s reports and the inconsistencies between Stark’s reports and other witnesses’ testimony.  The state argued that Stark had misrepresented certain things and that she had “tailor[ed] her summary to fit a time frame that would support the defendant’s latest alibi.” 

            The jury found appellant guilty of second-degree aggravated assault, and the district court sentenced appellant to 39 months in jail.  Appellant filed a motion with this court to stay his appeal; we granted the motion, allowing appellant to seek postconviction relief.  Appellant petitioned for postconviction relief, alleging ineffective assistance of counsel.  The district court denied appellant’s petition for postconviction relief.  We granted appellant’s motion to reinstate his appeal, and this appeal follows.

D E C I S I O N

            Appellant alleges that he was denied effective assistance of counsel when his attorney failed to object to the prosecutor’s trial conduct in calling Lisa Stark, highlighting her alleged errors, and arguing that appellant’s alibi defense was fabricated.  Because “ineffective assistance of counsel claims involve mixed questions of law and fact, our standard of review is de novo.”  State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).

            The Sixth Amendment guarantees appellant the right to effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984).  To prevail on a claim for ineffective assistance of counsel, appellant must show both that trial counsel’s performance “fell below an objective standard of reasonableness” and “that a reasonable probability exists that the outcome would have been different but for counsel’s errors.”  State v. Blanche, 696 N.W.2d 351, 376 (Minn. 2005).  These two prongs must be shown by a preponderance of the evidence.  Dukes v. State, 621 N.W.2d 246, 252 (Minn. 2001). 

            “Judicial scrutiny of counsel’s performance must be highly deferential.”  Strickland,466 U.S. at 689, 104 S. Ct. at 2065.  There is a strong presumption that counsel’s representation fell within a “wide range of reasonable professional assistance” and “that, under the circumstances, the challenged action might be considered sound trial strategy.”  Id. at689, 104 S. Ct. at 2065 (quotation omitted).  And the “ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.”  Id.at 696, 104 S. Ct. at 2069. 

            Appellant contends that his counsel was ineffective for failing to object to the admission of the alibi notice that Stark prepared and by failing to object to the state’s remarks in closing argument concerning Stark’s mistakes.  A decision not to object to argument or evidence is generally a matter of trial strategy.  See Rhodes, 657 N.W.2d at 844 (refusing to find ineffective assistance of counsel where counsel decided not to object to certain questioning and evidence in order to get a witness off the stand quickly).  Here, defense counsel, instead of objecting to the evidence, chose to respond to the evidence in his opening statement, in his examination of Stark, and in his argument to the jury.  At a minimum, such a tactic was consistent with the defense theme that the state’s alibi rebuttal evidence was weak. 

            Appellant also argues that the state impermissibly focused, without defense counsel’s objection, on Stark’s mistakes—instead of appellant’s guilt or innocence—and that Stark’s mistakes are unconnected to appellant’s alibi defense.  In addition, appellant argues that the alibi notice was improperly admitted in evidence.  But the state contends that the alibi defense notice containing the admitted mistakes is a party admission, usable to impeach appellant’s alibi defense.  Courts in other states have reached that conclusion.  People v. McCray, 630 N.W.2d 633, 636-37 (Mich. App. 2001) (alibi notice proper evidence for impeachment because it is admission of party-opponent); People v. Byfield, 790 N.Y.S.2d 434, 435 (N.Y. App. Div. 2005) (state properly allowed to cross-examine alibi witness regarding contents of alibi notice); Commonwealth v. Bey, 439 A.2d 1175, 1181 (Pa. Super. Ct. 1982) (contents of alibi notice properly admitted to show alibi defense asserted at trial was “incomplete, inconsistent and incorrect”).  Here, we have no record on this matter to review as the alibi notice was admitted without objection.  And we note that a plain-error analysis would be duplicative “[b]ecause both the plain error and ineffective assistance of counsel tests require a showing of prejudice.”  Rhodes, 657 N.W.2d at 839 n.7. 

            Looking at the trial in its entirety, we conclude that appellant has not met his burden to establish by a preponderance of the evidence that his counsel’s performance fell below an objective standard of reasonableness.  But even if appellant satisfied that burden, in order to prevail appellant must also demonstrate “that a reasonable probability exists that the outcome would have been different but for counsel’s errors.”  Blanche, 696 N.W.2d at 376.  “A reasonable probability is a probability sufficient to undermine confidence in the outcome.’”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).  Appellant has not met that burden. 

            Defense counsel responded ably to the allegedly questionable evidence and argument in his opening statement, in his examination of Stark, and in his statements to the jury.  And the state presented the eyewitness testimony of two Johnson Meat Company employees, both of whom identified appellant as the individual who committed the robbery.  Appellant raises several questions about alleged weaknesses in the witnesses’ testimony, but the jury was in the proper position to evaluate that testimony and determine witness credibility.  Appellant merely reargues the case, without demonstrating that the outcome would have been different but for the allegedly questionable evidence and argument.  Appellant has not demonstrated by a preponderance of the evidence “that a reasonable probability exists that the outcome would have been different but for counsel’s errors.”  See Blanche, 696 N.W.2d at 376.       

            Affirmed.