This opinion will be unpublished and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

A05-2017

 

Jonathan Anthony Hall, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed September 19, 2006

Affirmed

Kalitowski, Judge

 

Ramsey County District Court

File No. KX-01-1487

 

Charles A. Ramsay, Rachel B. Rosen, Ramsay & Devore, P.A., 450 Rosedale Towers, 1700 West Highway 36, Roseville, MN 55113 (for appellant)

 

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

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge; Randall, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

In this appeal from the district court’s order denying a postconviction petition challenging appellant Jonathan Hall’s 2002 conviction for first-degree criminal sexual conduct, appellant argues that the district court erred in finding that he was not denied his right to the effective assistance of counsel.  Appellant further maintains that the district court plainly erred in (1) failing to strike an allegedly biased juror and by hearing peremptory challenges within the jury panel’s hearing; (2) failing to rule on the admissibility of child protection records, which he asserts may have contained false claims of abuse by the complainant; and (3) admitting a redacted version of the complainant’s diary.  Finally, appellant argues that the cumulative effect of the alleged errors requires a new trial.  We affirm.

D E C I S I O N

            A person convicted of a crime may seek postconviction relief in order “to vacate and set aside the judgment . . . or grant a new trial . . . or make other disposition as may be appropriate.”  Minn. Stat. § 590.01, subd. 1 (Supp. 2005).  Generally, “[t]he decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted).  But we use the standard of review for direct appeals when, as here, appellant first files a direct appeal, which this court stays to allow appellant to file a subsequent petition for postconviction relief.  See Santiago v. State, 644 N.W.2d 425, 439 (Minn. 2002). 

I.

            Appellant argues that he was denied his constitutional right to effective assistance of counsel because his attorney (1) improperly failed to strike a prospective juror for cause or exercise a peremptory challenge; (2) improperly failed to convey to appellant the terms of a proposed plea agreement; (3) failed to request a corrective instruction following the prosecutor’s improper rebuttal during closing argument; and (4) failed to present evidence that no significant relationship existed between appellant and the complainant.  The postconviction court held an evidentiary hearing on the plea-agreement claim but denied a hearing on appellant’s other allegations of ineffective assistance of counsel.

            A decision regarding a claim of ineffective assistance of counsel involves mixed questions of law and fact and is reviewed de novo.  Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004).  The right to effective assistance of counsel forms a part of the Sixth Amendment right to a fair trial under the United States Constitution.  U.S. Const. amend. VI.  State v. Powell, 578 N.W.2d 727, 731 (Minn. 1998) (citing Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063-64 (1984)).  A party alleging ineffective assistance of counsel must show that counsel’s performance fell below an objective standard of reasonableness and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”   Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.  In evaluating counsel’s competency, a reviewing court applies a strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance.  Id. 

            Appellant alleges that his counsel’s performance fell below an objective standard of reasonableness when he failed to remove, either for cause or by the exercise of a peremptory challenge, prospective juror number two, who stated that her niece had been a victim of sexual assault by the juror’s ex-husband.  But the record shows that defense counsel did move to strike the juror for cause, that the prosecution then rehabilitated the juror, and defense counsel did not elect to use a peremptory challenge to remove her from the jury.  In general, this court does not pass judgment on defense counsel’s trial tactics.  State v. Ronquist, 578 N.W.2d 4, 7 (Minn. App. 1998), aff’d, 600 N.W.2d 444 (Minn. 1999).  Defense counsel’s decision not to exercise a peremptory challenge amounted to a tactical decision.  And counsel’s decision not to renew his objection to the juror for cause, once she had been rehabilitated and gave some answers that could be interpreted as favorable to appellant, falls within the wide range of reasonable professional assistance permitted under Strickland.  See Tsipouras v. State, 567 N.W.2d  271, 275-76 (Minn. App. 1997) (concluding, in challenge to defense counsel’s failure to remove jurors on peremptory challenges or for cause in criminal-sexual-conduct trial, that defense counsel’s decision to accept juror who had recent experience with violent crime or expressed viewpoint on date rape was within “wide range of reasonable professional assistance” permitted by Strickland), review denied (Minn. Sept. 18, 1997).  Therefore, the postconviction court did not err in denying postconviction relief on this ground.

            Appellant also argues that his attorney improperly failed to communicate to him or to place on the record a plea offer made by the state, under which appellant would plead guilty to second-degree criminal sexual conduct with a 21-month stayed sentence and a cap of 120 days in the workhouse.  He also contends that his attorney failed to inform him that he would be required to register for life as a sex offender.  Defense counsel’s failure to communicate a plea offer to his or her client may constitute ineffective assistance of counsel.  See Robinson v. State, 567 N.W.2d 491, 495 (Minn. 1997) (holding that petitioner’s claim that trial counsel was ineffective for failing to communicate two plea offers required additional fact-finding and was properly raised in petition for postconviction relief).

            The postconviction court held an evidentiary hearing on appellant’s claim and found that no question of material fact existed on this issue.  Appellant’s trial counsel testified that he conveyed to appellant the existence of the plea offer, which he believed to be a strong offer, but that appellant chose not to accept the offer.  The trial prosecutor also testified that although he recalled general discussion about a plea offer, the offer was not placed on the record because it was clear that appellant was not interested in a plea.  The defense attorney further testified that he would not have told appellant of a legal requirement for lifetime sex-offender registration because such a requirement did not exist.  The postconviction court was entitled to find the testimony of the two attorneys credible and that of appellant not credible.  See Opsahl v. State, 710 N.W.2d 776, 782 (Minn. 2006) (stating that the appellate standard of review gives “considerable deference” to the postconviction court’s credibility determinations, noting that the district court “is in a unique position to assess witness credibility”).  Further, failure to request that a plea offer be entered into the record does not necessarily make counsel’s performance deficient because such negotiations normally take place in private.  See Powell, 578 N.W.2d at 732 (rejecting defendant’s contention that plea offer had not been properly communicated, noting corroboration of defense counsel’s statement of communication with prosecutors’ affidavits, and stating that “negotiations on such matters usually take place in private and attorney-client privilege would normally constrain the court’s access to such conversations”).  We conclude that the postconviction court did not err in determining that no material factual issue existed on appellant’s claim for ineffective assistance based on failure to communicate a plea offer.  

            Appellant also argues that defense counsel’s failure to request a curative instruction after objecting to the state’s rebuttal at closing argument constituted ineffective assistance.  During rebuttal the prosecutor referred to defense counsel’s comments that witnesses had testified to more information than they had presented in earlier versions of events.  The district court twice sustained defense counsel’s objection to this rebuttal, but defense counsel did not request a curative instruction.  It is improper for a prosecutor to suggest that the defense is offering a standard defense argument used in criminal trials, such as shifting focus away from the defendant.  State v. Salitros, 499 N.W. 2d 815, 818-20 (Minn. 1993).  But these brief statements, which occupy less than a page in the transcript of a two-day trial, were not so egregious as to constitute prosecutorial misconduct.  See State v. Griese, 565 N.W.2d 419, 428 (Minn. 1997) (holding a few statements in closing argument insufficient to warrant a new trial and noting that Salitros was considerably more egregious).  Furthermore, the district court had previously instructed the jury that attorneys’ arguments did not constitute evidence, thus minimizing any prejudice to appellant from these remarks.  Therefore, defense counsel’s failure to request a curative instruction after his objections did not amount to ineffective assistance. 

            Appellant additionally argues that defense counsel improperly failed to present evidence that a significant relationship did not exist between appellant and the complainant, a required element of appellant’s charged crime of first-degree criminal sexual conduct when the complainant is under 16 years of age and the actor had a significant relationship to the complainant.  See Minn. Stat. § 609.342, subd. 1(g) (2000); Minn. Stat. § 609.341, subd. 15 (2000) (defining significant relationship).  What evidence to present to the jury is a matter of trial strategy, which is not reviewed for competency in an ineffective-assistance claim.  State v. Vick, 632 N.W. 2d 676, 689 (Minn. 2001).  But even if we were to consider this issue, one of the alternatives for demonstrating a significant relationship is that appellant is an adult residing intermittently in the same dwelling as the complainant.  Minn. Stat. § 609.341, subd. 15(3).  And here, the jury was presented with evidence that the significant relationship requirement was met, including appellant’s own testimony that he had recently resumed dating the complainant’s mother, that he stayed overnight at her residence on the night of the crime, and that he had stayed there overnight both before and after the crime.  We conclude that the postconviction court properly determined that the existence of a significant relationship was a fact question resolved by the jury against appellant and that defense counsel’s performance did not constitute ineffective assistance. 

II.

            Appellant raises several additional arguments, which the postconviction court either denied without a hearing or declined to consider.  Appellant maintains that the district court’s failure, sua sponte, to remove juror number two from the jury panel denied him the right to a fair trial.  Because appellant did not raise this claim before the district court, we consider it only if the district court’s action amounted to a plain error affecting appellant’s substantial rights.  Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  A plain error is reversible only if it seriously affected the fairness, integrity, or public perception of the proceedings.  Id.  

            A jury challenge for cause must be initiated by motion.  Minn. R. Crim. P. 26.02, subd. 5(1); State v. Gillespie, 710 N.W.2d 289, 296 (Minn. App. 2006), review denied (Minn. May 16, 2006).  “Neither the caselaw nor the rules of criminal procedure impose on the district court a duty to strike prospective jurors for cause sua sponte.”  Gillespie, 710 N.W.2d at 296.  And even if the district court had a duty to dismiss prospective jurors for cause, the decision to dismiss prospective jurors for cause is subject to an abuse-of-discretion standard.  Id. at 297 (citing State v. Yant, 376 N.W. 2d 487, 491 (Minn. App. 1985), review denied (Minn. Jan. 17, 1986)).  Here, the district court’s failure to strike juror number two for cause did not constitute plain error affecting appellant’s substantial rights when the juror was rehabilitated and stated that she could set aside her former husband’s abuse of her niece and focus on the facts in appellant’s case and the law as stated by the judge.  See, e.g., State v. Graham, 371 N.W.2d 204, 206-07 (Minn. 1985) (upholding district court’s decision not to remove juror for cause when prospective juror stated that, in the past she had believed defendant to be guilty but currently believed she could presume defendant innocent and fairly try case).  

            Appellant additionally argues that he was deprived of his right to a fair trial because the Minnesota Rules of Criminal Procedure require that peremptory challenges be exercised out of hearing of the jury panel.  See Minn. R. Crim. P. 26.02, subd. 6 (stating that “[a]ll peremptory challenges shall be exercised out of the hearing of the jury panel”).  The jury panel is defined as “[a] panel of persons who have been selected for jury duty and from among whom the jurors are to be chosen.”  Black’s Law Dictionary 1553 (7th ed. 1999).  Here, the record indicates that, following the prospective jurors’ filling out a jury questionnaire and the attorneys’ review of the answers, individual jurors were called from the jury panel into the courtroom, one at a time, to be questioned for voir dire.  This comports with the requirements of Minn. R. Crim. P. 26.02, subd. 6 and Minn. R. Crim. P.  26.02, subd. 4 (3)(c) (stating that court may order one prospective juror at a time to be drawn from jury panel for examination, and after questioning, a prospective juror may be challenged for cause or peremptorily as permitted by rules).  Thus, the postconviction court did not err in denying this claim without a hearing.

            Appellant also maintains that he was deprived of his right to present a complete defense by the district court’s failure to rule on the admissibility of child protection records from Ramsey and Washington Counties, which could have contained false claims of sexual abuse made by the complainant.  It is well established that a criminal defendant has a constitutional right to present a complete defense.  State v. Reese, 692 N.W.2d 736, 740 (Minn. 2005) (citing Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038 (1973)).  But a defendant must comply with established evidentiary rules that assure fairness and reliability in assessing guilt or innocence.  State v. Wolf, 605 N.W.2d 381, 384 (Minn. 2000).  This court will not reverse the district court’s determination on the admissibility of evidence absent an abuse of discretion.  State v. Williams, 593 N.W.2d 227, 233 (Minn. 1999).  And even if exclusion of the evidence violates a defendant’s right to present a complete defense, the decision will not be reversed if it is found to be harmless beyond a reasonable doubt.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  An error in the exclusion of evidence is harmless “‘[i]f the verdict actually rendered was surely unattributable to the error.’”  State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997) (quoting State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996)). 

            On the first day of trial, the district court indicated that it had not yet completed its in camera review of the confidential child protection records because of the difficulty of deciphering handwritten notes from Ramsey County.  Appellant correctly asserts that the district court did not make a final recorded ruling on the admissibility of the records, which were not considered as evidence at trial.  But even assuming that the district court erred by failing to rule on their admissibility, our review of the confidential child protection records supports the postconviction court’s determination that they do not contain facts indicating that the complainant had made false allegations of abuse.   Therefore, the jury’s verdict was surely unattributable to the error, and any error by the district court was harmless beyond a reasonable doubt. 

            Appellant also asserts that the postconviction court erred in finding that the district court did not abuse its discretion by admitting into evidence parts of complainant’s computer diary with the redaction of other parts of the diary.  We disagree.

            The record shows that defense counsel stipulated to the admission of the redacted diary, as long as adequate foundation was laid to establish references to appellant.  Because appellant failed to object to the admission of the diary at trial, he waived the objection unless he can show that the admission of the evidence constitutes plain error affectinghis substantial rights.  Griller, 583 N.W.2d at 740.  Our examination of the diary reveals that the parts of the diary admitted into evidence relate directly to the complainant’s activities with appellant and her feelings about him, and the redacted parts deal with other matters not relevant to a determination of the charges against appellant.  See State v. Enger, 539 N.W.2d 259, 262 (Minn. App. 1995) (upholding district court’s denial of complete access to criminal-sexual-conduct complainant’s complete diary on ground of relevance), review denied (Minn. Dec. 20, 1995).  Therefore, the admission of parts of the diary, after redaction, was not plain error affecting appellant’s substantial rights.

            Appellant finally argues that the cumulative weight of errors requires reversal or remand for a new trial.  See, e.g., State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979); State v. Post, 512 N.W.2d 99, 102 (Minn. 1994).  But cumulative error in a criminal-sexual-conduct case requires a series of  evidentiary and procedural errors that seriously prejudice the defendant.  See, e.g., State v. Peterson, 530 N.W.2d 843, 848 (Minn. App. 1995) (holding that cumulative effect of district court’s instruction, violation of confrontation rights, and prosecutorial misconduct in closing argument required reversal); State v. Jahnke, 353 N.W.2d 606, 609-11 (Minn. App. 1984) (concluding that extensive questioning on prior convictions, character evidence, and improper reference to polygraph test constituted denial of appellant’s right to fair trial).  We conclude that this record lacks such cumulative, prejudicial error. 

            Affirmed.