STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1728

Richard Fink,

Appellant,

State of Minnesota,

Respondent.

Filed July 11, 2006

Affirmed

Ross, Judge

Hennepin County District Court

File No. 99053658

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

Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant Hennepin County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487-0201 (for respondent)

Deborah Ellis, 700 Saint Paul Building, 6 West Fifth Street, St. Paul, MN 55102-1440 (for appellant)

Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Ross, Judge.

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

ROSS, Judge

Convicted murderer Richard Fink challenges the district court’s denial of his petition for postconviction relief, in which he argued that he is entitled to a new trial because he received ineffective assistance of trial counsel. Because Fink fails to establish either element necessary to sustain his claim of ineffective assistance of counsel, we affirm.

FACTS

Richard Fink was sitting in the driver’s seat of his car at approximately 3:00 a.m. on June 1, 1999, when he shot and killed Craig Kallevig, who was standing just outside Fink’s car. Kallevig was allegedly demanding that Fink, from whom Kallevig had previously purchased drugs, provide him drugs on credit. Fink fled the scene of the shooting and police arrested him the following day. He pleaded not guilty and the matter proceeded to trial.

Every member of the jury venire was white. Kallevig was also white. Fink is African-American. The written jury questionnaire included two questions exploring the prospective jurors’ views on race: Question 68 asked, “What are your experiences with African-Americans?” and was followed by blank spaces labeled “Neighborhood,” “Work,” “Social,” and “Family”; Question 69 asked, “How, if at all, does an individual’s race or ethnic background shape your view of that individual?” During the individualized juror voir dire, Mark Bearss, Fink’s counsel, did not ask any of the prospective jurors to elaborate on their stated views on race as they had expressed them in responses in the questionnaire. Bearss did, however, have the court dismiss eight prospective jurors for cause.

At trial, Fink testified that he had brandished the gun only as a self-defensive gesture because he felt physically intimidated by Kallevig, who was six feet, four inches tall, weighed more than 300 pounds, and was aggressive and drunk at the time of the shooting. The autopsy confirmed intoxication, revealing that Kallevig’s blood-alcohol concentration was .16 percent at the time of his death. Fink testified that after he produced and cocked the weapon only to frighten Kallevig, Fink was attempting to disengage the gun’s firing mechanism when it accidentally discharged, killing Kallevig. Fink was the only defense witness. The district court allowed the state to impeach Fink’s credibility with evidence of a prior assault conviction.

The jury found Fink guilty of second-degree intentional murder and second-degree unintentional felony murder. See Minn. Stat. § 609.19, subds. 1(1) (intentional murder), 2(1) (unintentional felony murder) (1998). The district court imposed a 326-month sentence of incarceration for intentional murder. On direct appeal, we affirmed the conviction and sentence. State v. Fink, No. C0-00-634, 2001 WL 218893 (Minn. App. Mar. 6, 2001), review denied (Minn. May 15, 2001).

In August 2002, Fink filed a petition for postconviction relief arguing, among other things, that he had received ineffective assistance of trial counsel. Fink argued that Mark Bearss had unreasonably failed to explore racial bias with prospective jurors during voir dire or to elicit any personal background information from Fink during direct examination. Fink claimed that background information would have given the jury reason to find Fink generally credible so as to then credit his testimony that he had acted in self-defense and that the gun accidentally discharged. The petition included the affidavit of Joseph Margulies, a criminal-defense attorney, stating that Bearss’s trial performance fell below the objective standard of reasonable competence in that Bearss (1) failed to explore racial bias among prospective jurors at voir dire and (2) failed on direct examination to elicit potentially favorable—and therefore credibility-enhancing—testimony concerning Fink’s personal background.

The district court dismissed the petition without a hearing in October 2002. On appeal, we affirmed in part, reversed in part, and remanded for an evidentiary hearing to address the merits of Fink’s claims that his trial attorney was ineffective because he failed to question jurors about racial bias during voir dire or to elicit background information from Fink during direct examination. Fink v. State, C5-02-2139, 2003 WL 21529838, at *3 (Minn. App. Jul. 8, 2003) (citations omitted). Fink’s trial counsel, Mark Bearss, testified at the hearing on remand that although race “can be” an issue in cases in which he “represent[s] a black man who shot a white person,” he believed that Fink’s case turned more on credibility than on race:

Often enough these cases focus on other facts that are more pertinent than race. This particular case, as I recall, focused on whether or not Mr. Fink was justified in doing what he did at the time this happened. And I don’t remember race as really being an issue in this particular case.

Discussing the importance of credibility, Bearss observed that “obviously, the jury would have had to have believed [Fink’s] side of the story. That is why he took the stand.”

Bearss testified that he did not ask prospective jurors at voir dire whether their views on race would affect their ability to assess witness credibility because he had “reviewed the answers that they gave in the written questions about race,” and he had “decided it was not necessarily appropriate for [him] to ask them questions about that in voir dire.” He added, “[I]f I thought based on the answers in the questionnaire that the witness [sic] I was questioning was a witness [sic] that I wanted to ask more questions about with respect to race personally while they were on the stand I would have asked those questions.”

Concerning his decision not to elicit personal background information from Fink on direct examination, Bearss testified that “the focus of this case revolved around the issues at the time of the incident, the shooting, not Mr. Fink’s background. . . . [M]y main focus was for Mr. Fink to tell the jury what he was doing at the time [of the shooting] and why.” Bearss testified that presenting evidence of Fink’s good character would “open the door to [his] character [leaving him] wide open for attacks from the state about the same issues,” and he added that “it is difficult to imagine in the last 15 trials I have had that opening the door to a defendant’s character is ever a good idea. It is almost always bad news.” Bearss stated that although the district court had admitted evidence of a prior assault conviction only to impeach Fink’s testimony, the conviction might have been admissible as substantive Spreigl evidence—allowing the jury to learn its underlying facts—had he elicited testimony of Fink’s background. Bearss acknowledged that Fink had given him a list of character witnesses whom Fink believed might help his case (Fink later testified that there were four names on the list), but Bearss stated that he could not remember whether they “would have been helpful for the defense” and that at least one of them “was not a credible witness [and] would not have helped Mr. Fink.”

Joseph Margulies testified and reiterated the objections to Bearss’s representation that were raised in Fink’s petition for postconviction relief. Margulies’s direct examination was devoted largely to a review of each selected juror’s answers to questions 68 and 69 on the jury questionnaire. Margulies commented that in every case, the answers were so uninformative that no objectively reasonable basis existed for Bearss not to follow up on the issue of racial bias through oral questioning at voir dire. Margulies opined that because questions 68 and 69 are simply variations on the questions “[C]an you be fair[?], [A]re you a racist[?],” they consistently, and predictably, elicit the socially expected response “which is I can be fair, I am not a racist.” He also stated that every juror “seems to have misunderstood the question in the same way. And what they do is appraise the quality of the experience and not say what the experiences are. And everyone gives what one expects the response to be, which is I am fine, I don’t have any problems.” Therefore, Margulies continued, “[t]his is a classic example of a case in which you would want to explore [the potential juror’s] racial bias” at voir dire.

Margulies testified that given the questionnaire’s improperly phrased questions and the uninformative answers, Bearss should have used voir dire to “explore and alert jurors to the possibility that they harbor preconceived notions about the defendant and, therefore, may prejudge [him] or not be able to judge [his] testimony fairly, at least not in comparison to the testimony of white witnesses or the conduct of the decedent from the suburbs.” He stated that by not using voir dire to follow up on the jurors’ declarations that they can be fair, Bearss missed the opportunity to “explore and ascertain the existence either of subconscious or conscious biases that will influence [the jurors’ credibility determinations] in a negative way.”

Margulies testified concerning Fink’s background that eliciting testimony from Fink about “his life, his connection to the community, his relationships with his family, his work history, his school history, the fact that he held positions of responsibility [would have had] the effect of humanizing him and establishing a more nuanced picture of who he is,” thereby enhancing his credibility. He asserted that given the importance of credibility in the case, he could think of no “sound, strategic reason not to ask Mr. Fink some questions about his background.”

But the value of Margulies’s testimony faced sharp challenges. Margulies acknowledged on cross-examination that he has been trial counsel on “more than ten” jury trials, which is “substantially fewer than Mr. Bearss.” He disclosed that only “three or four” of these were homicide trials and that he has tried only one homicide case—a nonjury trial—in Hennepin County. Margulies also conceded that he has picked “relatively few juries in Minnesota,” and he has never received jury feedback about being questioned during voir dire concerning views on racial bias. He admitted that “it is certainly possible” to “alienate jurors by appearing to focus on their [questionnaire] answers to racial questions.” He testified that in preparing for the postconviction hearing he had read only a summary of the trial transcript prepared by Fink’s postconviction counsel. He was not aware whether any of the eight challenges for cause exercised by Bearss at voir dire rested on Bearss’s belief that a given veniremember’s views on race might affect that person’s opinion of witness credibility. He also did not know how many peremptory challenges Bearss had exercised or whether any of those challenges were based on Bearss’s concerns about a prospective juror’s views on race. The state moved to strike Margulies’s expert testimony on the grounds that (1) he lacked relevant legal experience and (2) his opinions concerning Bearss’s performance lacked foundation in that they were based on a selective reading of the record.

Fink also testified at the hearing. He discussed his upbringing, his employment history, and the events on the night of the charged offense. He testified about Bearss’s insistence that his trial testimony focus on the few minutes surrounding the actual shooting and his unsuccessful attempts before the trial to convince Bearss to draw testimony about Fink from various character witnesses. On cross-examination, Fink acknowledged that had Bearss presented character witnesses, the state could have presented evidence that he had previously been convicted of second-degree assault of a police officer and that for more than a year before the charged offense, he had been working as a full-time drug dealer. Fink also conceded that there were discrepancies between his employment history as described to a pre-sentence investigator and as described in his testimony at the postconviction hearing.

The district court denied Fink’s petition for postconviction relief. Although the court did not specifically grant or deny the state’s motion to strike Margulies’s testimony, it wrote that it would not consider the testimony, which was “not dispositive in this proceeding,” because Margulies has tried jury cases in Minnesota only three or four times and has never heard from jurors how they feel about being questioned about race. The court further noted that Bearss had challenged eight prospective jurors for cause and did not believe that race was the central issue in the case. The district court also stated, “Additionally, the court concludes that Mr. Margulies’s testimony would not assist the court in its determination of effectiveness of counsel in light of this court’s experience with multiple felony cases tried before the court.” As to the substantive issue of Bearss’s competence, the court concluded that both Bearss’s decision not to question jurors about race during voir dire and his decision to limit his direct examination of Fink to the period immediately before the shooting were sound strategic decisions that did not fall below an objective standard of reasonableness. The court also concluded that even if Bearss’s performance did fall below that standard, Fink was not prejudiced by it. Fink’s appeal follows.

D E C I S I O N

Fink challenges the district court’s denial of his petition for postconviction relief based on Bearss’s alleged ineffective assistance at trial. A postconviction decision regarding a claim of ineffective assistance of counsel involves mixed questions of fact and law and is reviewed de novo. Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004). We review the postconviction court’s findings of fact for clear error. Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).

Fink argues initially that the district court analyzed his petition under the wrong standard of proof. To prevail on his petition for postconviction relief, Fink bore “the burden of establishing, by a fair preponderance of the evidence, facts that warrant relief.” Id. Fink contends that because the district court referred to his failure to show ineffective assistance “by clear and convincing evidence,” the court applied the wrong standard. He further maintains that to remedy this alleged error, “this court [should] review the lower court’s ruling, including factual findings, de novo.” We disagree. Although the district court did mention the clear-and-convincing standard in its conclusion, elsewhere the court’s order repeatedly referred to the fair-preponderance standard. We do not perceive on the record before us that the district court relied exclusively—or at all—on the wrong standard. Next, it is well-settled that “a postconviction court’s findings of fact are afforded great deference on appeal,” id. at 164, and Fink offers no legal support for the proposition that that deference should be relaxed or eliminated to remedy the district court’s alleged application of the wrong standard of proof. Nor does he indicate how applying the wrong standard of proof compromises the propriety of the underlying factual findings. Therefore, as directed by controlling authority, we will review the postconviction court’s legal conclusions de novo, Pederson v. State, 692 N.W.2d 452, 459 (Minn. 2005), and its factual findings for clear error. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).

A. Margulies’s testimony

Fink argues first that the district court abused its discretion by declining to consider Margulies’s testimony on the grounds that it “would not assist the court in its determination of effectiveness of counsel.” The district court has broad discretion whether to admit expert testimony. State v. Lopez-Rios, 669 N.W.2d 603, 612 (Minn. 2003). Expert testimony is admissible if it will assist the finder of fact in understanding the evidence or in determining a fact in issue. Minn. R. Evid. 702. Fink objects principally to the district court’s statement that “Mr. Margulies’s testimony would not assist the court in its determination of effectiveness of counsel in light of this court’s experience with multiple felony cases tried before the court.” Fink argues that by referring to her own experience as one reason for not considering Margulies’s testimony, “the judge in this case made herself a witness in this proceeding by substituting her own, undisclosed, expert testimony for that of the qualified and unrebutted expert [and] introduced an unquestionable prejudice into her deliberations [the result being that h]er conclusions were no longer based on the evidence presented.” Fink urges that the court’s statement that her experience would guide her decision as to the disposition of this matter “is akin to having an anonymous witness with untested credentials submit an opinion to the judge in camera,” and that by basing her decision on her experience rather than on Margulies’s testimony, the district court “took action akin to judicial notice.”

We believe Fink’s arguments are flawed. First, “[t]he credibility of the witnesses and the weight to be given their testimony are determinations to be made by the factfinder.” DeMars v. State, 352 N.W.2d 13, 16 (Minn. 1984). The district court was not required to credit or even to consider Margulies’s testimony. Additionally, although Fink repeatedly asserts that Margulies was a “qualified” expert whose testimony the district court was somehow bound to accept, the district court in fact observed that Margulies had relatively little relevant experience (concededly far less than Bearss) in selecting juries, conducting voir dire, or representing defendants before juries. The record also reflects that Margulies had read only selected parts of the record of Fink’s trial.

Finally, Fink exaggerates the district court’s emphasis on its experience by disregarding the context of the reference. Before stating that her experience trying cases would assist her in determining the effectiveness of counsel in this case, the district court judge first observed that Margulies had little experience selecting juries, that he had never had feedback from jurors about their reaction to being asked in voir dire for their views on race, that he acknowledged that asking questions about race in voir dire may alienate jurors, and that Bearss essentially was suggesting a defense theory different from the one Margulies espoused. The judge’s noted experience was the last of a list of reasonable factors that led the district court to discount Margulies’s testimony. And although Fink asserts accurately that “[j]udicial impartiality is the very foundation of the American legal system,” he does not provide any meaningful support for his argument that a fact-finding judge who brings her judicial experience to bear in crediting testimony and weighing evidence necessarily exhibits bias or prejudice. See Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S. Ct. 1504, 1512 (1985) (observing that “[t]he rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise”). The district court did not abuse its broad discretion by disregarding Margulies’s testimony.

B. Ineffective assistance of counsel

To prove that he received constitutionally deficient assistance of counsel, Fink must show that his “counsel’s representation ‘fell below an objective standard of reasonableness’ [the performance prong] and ‘that there is a reasonable probability that, but for [Bearss’s] unprofessional errors, the result of the proceeding would have been different’ [the prejudice prong].” See 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)). Concerning the objective standard of reasonableness, “a defendant arguing ineffective assistance of counsel must overcome the strong presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” State v. Rhodes, 657 N.W.2d 823, 844 (Minn. 2003); see State v. Berry, 309 N.W.2d 777, 785 (Minn. 1981) (holding that criticism of the strategy that drives counsel’s trial tactics is insufficient to establish ineffective assistance of counsel). A “reasonable probability” that the defendant was prejudiced means “a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; see also Gates, 398 N.W.2d at 562 (holding that a “defendant must show that counsel’s errors actually had an adverse effect in that but for the errors the result of the proceeding probably would have been different” (quotations omitted)).

We consider the totality of the evidence presented to the district court in determining whether Bearss’s performance was ineffective, Gates, 398 N.W.2d at 562, but we need not address both the performance and prejudice prongs if one is determinative. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. The supreme court has “repeatedly stated” that appellate courts generally will not review claims of ineffective assistance of counsel based on trial strategy. Opsahl, 677 N.W.2d at 421. Appellate courts’ “reluctance to scrutinize trial tactics is grounded in the public policy of allowing counsel to have the flexibility to represent a client to the fullest extent possible.” Id. (quotation omitted).

Fink first challenges Bearss’s decision not to explore potential juror bias at voir dire by asking follow-up questions of jurors whose written responses to questions 68 and 69 of the questionnaire appeared incomplete or otherwise nonresponsive. We share Fink’s concern that his trial counsel did not take the opportunity to learn more about potential racial bias from each prospective juror, not merely because of the racial composition of the principals in the shooting but also because of Bearss’s own acknowledgement that race can affect a jury’s credibility determinations. Upon close consideration, however, we conclude that Bearss’s representation of Fink at voir dire reflected a reasonable strategy and did not constitute ineffective assistance of counsel. Just as a jury’s potential racial bias can be a genuine concern, so can potential racial alienation. While completely failing to explore jurors’ racial views might expose a defendant to latent racial bias, probing jurors too invasively about bias might inadvertently expose a defendant to now-offended jurors. This is no novel concern: “Because, upon challenges for cause shewn, if the reason assigned prove insufficient to set aside the [potential] juror, perhaps the bare questioning his indifference may sometimes provoke a resentment.” William Blackstone 4, Commentaries *347 (1769). Margulies himself conceded at the postconviction hearing—and we have no reason to disagree—that confronting jurors about their racial bias during voir dire might alienate them.

It is undisputed that Bearss’s conduct at voir dire was motivated by the trial strategy he articulated at the postconviction hearing, and as such it is entitled to a presumption of competence. That the questionnaires address juror’s attitudes about race demonstrates that Bearss did not disregard the possibility that racial biases might influence the jury’s perception of Fink. Instead, he decided as a tactical matter to pose follow-up questions to individual jurors only if alerted to do so by their written responses. Fink does not assert that the decision was not strategic; he argues that it was an unreasonable strategy. Reasonable trial tacticians might agree or disagree with Fink’s assertions that the veniremembers’ responses to questions 68 and 69 of the questionnaire were “non-responsive and anything but informative,” “cryptic,” or otherwise insufficient to allow Bearss to determine clearly whether prospective jurors’ biases would prevent their objective reception of Fink’s testimony. But it is the case that Bearss, who testified repeatedly that he did not believe race to be the primary or central issue in the case, believed as a matter of strategy that the answers at voir dire were satisfactory. Perfectly executed or not, we do not believe that Bearss’s use of and reliance on the written questions concerning potential racial bias amount to a constitutional failure.

Although we may not be immediately impressed that the limited inquiry into potential juror bias by the written questionnaire was the model approach, we also cannot conclude on the entire record before us that counsel’s failure to orally explore the issue further with individual jurors creates a presumption that Fink was prejudiced such that the outcome of the trial would have been different but for this strategy. In some cases, such a presumption may be warranted, and the failure to sufficiently examine the venire pool might compel a finding of prejudice. In United States v. Bear Runner, cited by Fink at oral argument, the Eighth Circuit considered such a case. 502 F.2d 908 (8th Cir. 1974). There, Bear Runner, an American Indian, was tried for killing a calf on the same reservation where the well-publicized and racially charged Indian occupation of Wounded Knee had occurred just months earlier. Id. at 909. At voir dire, the district court asked the venire pool a “single question concerning racial bias [that] was not only general in scope but was made to the prospective veniremen as a group.” Id. at 912. The court refused to ask the venire pool a series of more specific questions about racial bias submitted by Bear Runner, who was subsequently convicted. Id. at 909-11. The Eighth Circuit reversed and ordered a new trial on the grounds that the voir dire questioning was insufficient to expose racial biases. Id. at 911, 913. In doing so, the court noted that “[i]ndividual questioning is particularly necessary when the overall circumstances and surroundings suggest the possibility of racial bias.” Id. at 912. But as Judge Lay pointed out, even a single, brief, generalized question such as “[w]ould you fairly try this case on the basis of the evidence and disregard[] the defendant’s race?” may generally be sufficient. Id. (citing Ham v. South Carolina, 409 U.S. 524, 527, 93 S. Ct. 848, 850 (1973)).

The overall circumstances here do not permit a presumption of prejudice similar to that triggered in Bear Runner. As Bearss stated at the postconviction hearing, the possibility of racial bias may always be a general concern where the defendant is African-American and the victim is white. But this is not a case in which aggravating circumstances highlight a special concern about racial bias. It is not remotely similar to Bear Runner, where “both the trial court and counsel were well aware of the recent [racially inflammatory] events involving members of the [defendant’s] race.” Id. Here, Fink must therefore establish prejudice, and he has not connected the racial composition of the jury to its rejection of what might arguably be described as a facially implausible theory of the case: that he cocked the gun in self-defense and fired the gun seconds later by accident. Even if Fink is correct that the better practice in cases like this is to question each prospective juror individually about racial bias, Fink has shown no resulting prejudice from the failure of his trial counsel to do so.

Fink also argues that Bearss’s performance fell below an objective standard of reasonableness because he did not elicit testimony from Fink on direct examination about Fink’s background in order to humanize him and make him more credible. We disagree. The district court specifically credited Bearss’s testimony that “opening the door” to Fink’s background by asking him questions about his supposedly humanizing background would have allowed the state to introduce even more damaging character evidence. The court also decided that Bearss had made a tactical decision to concentrate Fink’s testimony on the few minutes surrounding the shooting.

It may be that with the ease of hindsight, and particularly with the knowledge of the trial’s outcome, Bearss’s decision concerning Fink’s testimony appears unwise to Fink and Margulies (or even to Bearss himself). But although “[i]t is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable,” reviewing courts must “judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” See Strickland, 466 U.S. at 689, 690, 104 S. Ct. at 2065-66. On that review, the record compels our conclusion that Bearss’s decision to limit the scope of Fink’s testimony was a strategic determination that enjoys a presumption of competence and that did not fall below an objective standard of reasonableness.

Fink has also failed to show that he was prejudiced by Bearss’s decision to limit the scope of direct examination. Fink argues that his “postconviction hearing testimony readily proved that he was prejudiced by the ineffective presentation of his trial testimony.” The argument follows that presentation of biographical information to a properly screened jury “would have resulted in the jury crediting his self-defense and accident claims resulting in acquittals on both count[s].” Fink’s prejudice argument depends entirely on the assumptions that (1) race is the primary factor affecting a jury’s credibility determinations and (2) the jury would have accepted all of his favorable character evidence, rejected the state’s unfavorable character evidence, and believed his version of events on the basis of his good character. These assumptions are far too speculative to create a reasonable probability that had Bearss conducted the trial in the manner Fink now claims he should have, the result would have been different. We agree with the district court’s observation that “jurors rely on myriad factors to judge a witness’s credibility, not the least of which includes observing a witness’s demeanor on the stand.” And although it is impossible to know how the jury might actually have weighed the background testimony Fink offered at the postconviction hearing, there does not appear to be a reasonable probability that, but for Bearss’s failure to elicit that testimony at trial, the verdict would have been different. This is particularly so in light of the damaging rebuttal evidence the state indicated it was prepared to present and the fact that two people who witnessed the shooting testified at trial.

Affirmed.