This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-492

 

 

State of Minnesota,

Respondent,

 

vs.

 

Deon Xavier Leon Miller,

Appellant.

 

Filed February 6, 2007

Affirmed

Huspeni, Judge*

 

 

Hennepin County District Court

File No. 03000866

 

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

 

Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge, Halbrooks, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

            In challenging his conviction of and sentence for second-degree intentional murder and a subsequent order denying his postconviction petition, appellant argues that in admitting an out-of-court statement identifying him as the shooter, the trial court abused its discretion and violated appellant’s right to confrontation under Crawford.  Appellant also argues that the postconviction court erred in denying his request for a new trial due to ineffective assistance of counsel.  Finally, appellant argues that inclusion of juvenile adjudications in his criminal-history score violated his jury-trial right under Blakely.  Because the district court properly applied the law and exercised its discretion, we affirm.

FACTS

On January 1, 2003, Louis Booker died of gunshot wounds at the intersection of Park Avenue and Franklin Avenue in Minneapolis, an intersection known for drug dealing.  Booker was shot four times and was found lying face down near his fallen bicycle.

Bradley Foster and Jason Peterson witnessed the shooting (Foster from a second-floor apartment across the street from the incident, and Peterson from a third-floor apartment in the same building).  Foster testified at trial that he noticed significant foot traffic at the scene, heard two gun shots, looked out the window, and saw a black man, approximately 5’10”, pointing a gun at the victim.  Before the shooter left, Foster witnessed him put on a red down jacket without a hood.  Peterson testified to seeing a group circling around two men, assumed the two were exchanging drugs, and observed a black male with a medium build, approximately 5’10”, shoot the victim four times.

            Lawrence Brown (Brown) also claimed to be an eyewitness to the shooting.  While in custody on an unrelated matter on the day following the shooting, he provided a statement to the police regarding the shooting.  Sergeant David Mattson took Brown’s taped statement.  From a photo lineup, Brown identified the shooter as appellant Deon Miller, known to him as Doo Doo.

Lorenzo Brown, a career criminal who spent time in jail with appellant, testified at trial and through him the state corroborated the statement made by Lawrence Brown.  Lorenzo Brown testified that appellant admitted shooting the victim on January 1, 2003, and described to him in detail the murder and the events leading up to the murder.

            Based on information provided by Brown, a search warrant was issued.  A search of appellant’s residence produced a Tech 9 (gun), a digital scale, and a razor blade with a white substance on it.  The trial court suppressed the Tech 9, which was not the murder weapon, as “too prejudicial,” but permitted introduction of the scale and razor blade.  While these two items were not actually introduced into evidence at trial, testimony was received that they were present at appellant’s residence.

Brown was subpoenaed to testify at trial but failed to appear.  Pursuant to a bench warrant, police located and detained him.  When interviewed by Sgt. Mattson regarding his failure to appear at trial, Brown responded that he had been threatened.  Brown failed to appear a second and a third time for trial.  Again he was arrested, and again described to Sgt. Mattson threats he had received.

            When Brown finally did appear in court to testify, he stated upon taking the stand that he had not been present at the scene of the murder.  Instead, he recited two conflicting stories as to his location at that time.  When questioned regarding the threats he had received, Brown denied receiving such threats and denied any reluctance or fear in testifying.  He denied identifying appellant in a photo lineup and claimed no recollection of an interview with Sgt. Mattson.  When presented with the taped statement he originally provided to police regarding the shooting, Brown stated, “I’m not going to talk about none of this, Your Honor.”

The trial court, in ruling that Brown’s statements to Sgt. Mattson were admissible, stated:

Lawrence Brown is unavailable.  He’s unavailable under 804(a)3, he testified to a lack of memory on the subject matter of the statement.  He testified to a lack of memory also on making the statement and he’s also unavailable in the opinion of the Court because he is afraid to testify.

 

. . . [H]is statement made to the police is necessary and that under the totality of the circumstances, it does have sufficient indicia of reliability to be admitted.  It is evidence of a material fact that is in dispute . . . . 

 

. . . Mr. Brown’s statement has more probative value than any other evidence the State can procure through reasonable efforts and that the general purpose of the rules and the interests of justice will be served by this. 

 

                        . . . .

 

The Court also finds that his, Mr. Brown’s statements, are admissible under 803.24, but that is the secondary basis . . . .  The analysis is the same under 804(b)5 and 803.24.

 

Upon motion of defense counsel for reconsideration on the following day, the trial court explained its ruling further by recognizing that

[Lawrence Brown’s] statements are more probative than any other evidence that the State can procure through reasonable efforts.  The Court is persuaded that the State has worked diligently to prepare this case for trial.  It continues to make efforts to locate key witnesses.  At this time, we have heard from counsel for the State that Rashad Russell,[1] his whereabouts are unknown. . . .

 

. . . The statements, therefore, have to have a sufficient indicia of reliability according to a three prong test. 

 

The first one is whether the context of the statement and the persons to whom they were made suggest reliability. . . . 

 

The second prong in the reliability test is whether . . . Lawrence Brown had a motive to lie . . . .  [H]e was not at any time, that the Court has been informed, a suspect.  He’s not the one who sought out the police to somehow snitch on Mr. Miller.  He wasn’t picked up.  He was in custody on an unrelated offense, but the statements he made were corroborated by testimony from Lorenzo Brown, who said that the Defendant admitted, while in jail with Lorenzo, that he was in custody for the first murder of the new year. . . .

 

The last prong . . . is whether the declarant had personal knowledge of the identity and the role of the Defendant in the crime. . . .

 

The trial court found that each reliability factor supported admission of the contested out-of-court statement of Brown.

The jury found appellant guilty of second-degree intentional murder; he received the presumptive sentence of 326 months based on a criminal-history score of one.  The criminal-history score resulted from prior juvenile adjudications—two fifth-degree drug offenses.[2]     

Appellant filed a petition for postconviction relief alleging ineffective assistance of counsel due to trial counsel’s failure to move to suppress drug-related evidence obtained under a search warrant whose affidavit lacked information regarding the informant’s veracity and basis of knowledge and failure to offer evidence of appellant’s height.[3]

Appellant’s trial counsel testified at the postconviction hearing that he had been practicing criminal defense law since 1982 and had tried hundreds of cases involving search warrants.  He testified that he does not file motions to suppress in every case involving a search warrant, but instead analyzes each case to determine the likelihood of success on the merits of such motion.  He reviewed the search warrant and its supporting documents in this case and concluded that the warrant would pass scrutiny.  Regarding why he did not offer evidence at trial on appellant’s height, the attorney testified that he believed the height discrepancy between appellant and the shooter described by witnesses was obvious to the jury.  He did, however, mention the height difference during closing arguments.

In denying the petition for postconviction relief, the district court concluded that “trial representation did not fall below an objective standard of reasonableness such that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

This appeal follows. 

D E C I S I O N

I.

 

Appellant argues that the district court erred by admitting Brown’s out-of-court statement, because pursuant to Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), and the Sixth Amendment’s Confrontation Clause, testimonial statements are inadmissible against a criminal defendant if the declarant is unavailable to testify and the defendant did not have a prior opportunity for cross-examination.  The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .”  U.S. Const. amend. VI.[4]  The Crawford court commented on the role of the Confrontation Clause, stating that the Confrontation Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner:  by testing in the crucible of cross-examination.”  Crawford, 541 U.S. at 61, 124 S. Ct. at 1370. 

In Crawford, the Supreme Court concluded that admission of testimonial evidence demands that the declarant be unavailable at trial and that the criminal defendant have had a prior opportunity for cross-examination.  Id. at 68, 124 S. Ct. at 1374.  Non-testimonial hearsay remains subject to each state’s rules of evidence and was unaffected by Crawford.  Id.  The Crawford court did not define the term “testimonial statements,” but did list three categories of testimonial statements.  Id.  The Court stated:

We leave for another day any effort to spell out a comprehensive definition of “testimonial.”  Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a formal trial; and to police interrogations.  These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.

 

Id. (footnote omitted).

            The district court did not have the benefit of Crawford when deciding whether to admit Brown’s statement.[5]  Consequently, the district court did not determine whether Brown’s statement was testimonial.  The state, however, does not dispute that Brown’s statement was “testimonial” in nature.  State v. Bobadilla, 709 N.W.2d 243, 252 (Minn. 2006) (“[T]he key to determining whether a statement is testimonial is whether either a declarant or government questioner is acting, to a substantial degree, in order to produce a statement for trial.”).

Appellant argues that although Brown appeared at trial, he did not remember making the prior statement, he did not admit to making the prior statement, he disputed the contents of the prior statement, and his testimony was inconsistent with his prior statement, and that, therefore, he was unavailable.  But in Crawford, the Supreme Court explained that

[w]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.  It is therefore irrelevant that the reliability of some out-of-court statements “cannot be replicated, even if the declarant testifies to the same matters in court.”  The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.

 

Id. at 59 n.9, 124 S. Ct. at 1369 n.9 (citations omitted).  Dissatisfaction with a witness’s answers and lapses in memory do not equate to denial of a defendant’s constitutional right of confrontation.  State v. Plantin, 682 N.W.2d 653, 660 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004).  “[T]he Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.”  Id. at 659-60 (quoting Kentucky v. Stineer, 482 U.S. 730, 739, 107 S. Ct. 2658, 2664 (1987)) (other quotation omitted).

            While the trial court did not have the benefit of the Crawford analysis, our review of the record convinces us that because Brown did testify at trial, the Confrontation Clause placed no constraint on the use of his prior statement.  Appellant received an opportunity for cross-examination, and there was no Crawford violation.  Ultimately, the jury was provided with an opportunity to judge Brown’s credibility.  See id. at 659 (“The primary objective of the Confrontation Clause is to force declarants to testify and undergo cross-examination so that the jury may judge the witness’ credibility.”).

            Appellant further challenges the trial court’s admission of Brown’s statement under Minn. R. Evid. 804(b)(5), the catchall hearsay exception.  “Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).  If the district court has abused its discretion in admitting evidence, the reviewing court determines “whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.”  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  “[I]f there is a reasonable possibility that the verdict might have been more favorable to the defendant” without the evidence, then the error is prejudicial.  Id. 

Minn. R. Evid. 804(b)(5) allows the admission of some hearsay if the declarant is unavailable as a witness:

Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

 

The district court applied rule 804(b)(5), finding that Brown’s statement met the threshold requirements.  In admitting Brown’s statement, the court found that he was unavailable due to his lack of memory and fear of testifying.[6]  Brown’s statement was offered as evidence of a material fact in dispute, specifically, whether appellant was at the crime scene and whether he was the shooter.  The court concluded that the statement was more probative than any other evidence the state could produce given the state’s continued and diligent efforts to locate additional witnesses.  Finally, the court stated that the interests of justice and rules of evidence permitted the jury to hear the relevant facts necessary to make an informed decision.  After a careful review of the record, and of the specific and detailed findings made by the trial court in the considered exercise of its discretion, we conclude that there was no abuse of that discretion in admitting Brown’s statement as substantive evidence under rule 804(b)(5).

II.

Appellant next challenges the denial of his postconviction petition, arguing that the postconviction court erred by concluding that trial counsel’s representation did not fall below an objective standard of reasonableness.  A postconviction court’s findings are reviewed to determine whether there is sufficient evidentiary support in the record.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  The court’s findings of fact are given great deference and will not be reversed unless clearly erroneous, and its decision will not be disturbed unless the court abused its discretion.  Id.  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).  To obtain a new trial on a claim of ineffective assistance of counsel, appellant must “affirmatively prove that his counsel’s representation ‘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. 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 v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2068 (1984)).

Appellant contends that trial counsel’s failure to challenge execution of the search warrant and failure to move for suppression of evidence seized under the warrant constituted ineffective assistance of counsel.  At the postconviction hearing, trial counsel testified that in reviewing the search warrant and supporting documents, he concluded that the warrant was constitutionally valid.  We affirm because based on trial counsel’s experience in criminal cases and a review of the warrant and support documents, he chose not to challenge the warrant.  See State v. Ives, 568 N.W.2d 710, 714 (Minn. 1997) (indicating a “strong presumption” that an attorney’s representation falls within the “wide range of ‘reasonable professional assistance’”).

Trial counsel testified that he refrained from objecting to trial testimony regarding the digital scale and razor blade because he did not want to draw additional attention to these items in front of the jury.  A court generally will not review attacks on a trial counsel’s strategy.  Opsahl, 677 N.W.2d at 421.  Whether to make an objection or not is a tactical decision within the discretion of a trial attorney, and a reviewing court does not review matters of trial strategy for competency.  State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999).  We affirm because of trial council’s experience and his strategical decision on how to proceed.

Appellant further contends that trial counsel’s failure to introduce evidence of appellant’s height prejudiced his defense.  Trial counsel testified that he did not offer evidence of appellant’s height because he believed it was obvious to the jury that appellant was shorter than the shooter described by witnesses.  Although not evidence per se, trial counsel argued the height discrepancy during closing arguments.  The presentation of evidence is a matter of trial strategy that is left to the defense attorney’s professional judgment.  State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999) (“What evidence to present to the jury, including which defenses to raise at trial and what witnesses to call, represent an attorney’s decision regarding trial tactics which lie within the proper discretion of trial counsel and will not be reviewed later for competence.”).  Our review of the record demonstrates that the postconviction court’s conclusion that trial counsel’s performance did not fall below the acceptable standard of reasonableness was a proper one.  That decision is affirmed.

III. 

Appellant’s final allegation is that his Sixth Amendment rights were violated by the trial court’s consideration of juvenile adjudications in calculating his criminal-history score.  This issue presents a constitutional question, which is reviewed de novo.  State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004).   

In Blakely v. Washington, the United States Supreme Court examined the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).  542 U.S. 296, 301-314, 124 S. Ct. 2531, 2536-2543 (2004).  In Apprendi, the Court held that the Sixth Amendment to the United States Constitution requires that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63.  In Blakely, the Court concluded that the statutory maximum means “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”  542 U.S. at 303, 124 S. Ct. at 2537.

This court has held that the Minnesota Sentencing Guidelines are subject to Blakely.  State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), review denied (Minn. Oct. 26, 2005).  In Conger, this court stated:

[U]nder the Minnesota sentencing procedures, the applicable presumptive, fixed sentence established by the Sentencing Guidelines Commission is the maximum sentence that a judge may impose without finding facts that support a departure, and a judge who imposes an upward durational departure must do so in a manner that complies with the Sixth Amendment to the United States Constitution as explained in Blakely.

 

Id.  Under the sentencing guidelines, the presumptive sentence is determined by computing an offender’s criminal-history score.  Minn. Sent. Guidelines II.B.  An offender’s criminal-history score is composed of points for prior adult felony convictions (II.B.1), a determination of whether the offender was on “probation” when the instant offense was committed (II.B.2), up to one point if the offender has a prior adult misdemeanor and/or gross misdemeanor (II.B.3), and up to one point if the offender has prior juvenile-delinquency adjudications (II.B.4).

Appellant contends that juvenile adjudications do not qualify as “prior convictions” and, therefore, cannot be used to enhance a defendant’s sentence since the prior juvenile adjudications do not satisfy the prior-convictions exception under Apprendi and Blakely.  Minn. Stat. § 260B.245, subd. 1 (2004) (“No adjudication upon the status of any child in the jurisdiction of the juvenile court shall operate to impose any of the civil disabilities imposed by conviction, nor shall any child be deemed a criminal by reason of this adjudication, nor shall this adjudication be deemed a conviction of crime . . . .”).

The Minnesota Supreme Court recently addressed whether juvenile adjudications can be used in calculating a defendant’s criminal-history score when the fact of those adjudications has been determined by a judge and not a jury.  State v. McFee, 721 N.W.2d 607, 608 (Minn. 2006).  The court in McFee addressed both arguments presented by appellant:  that juvenile adjudications do not fall within the prior-convictions exception because (1) they are not criminal convictions, and (2) they do not come with a right to trial by jury.  Id. at 611.  Following an extensive review of case precedent and the juvenile court system, highlighting the latter’s original rehabilitative purpose and the change to promoting public safety and reducing juvenile delinquency, the court in McFee concluded that

[a]bsent clear direction from the United States Supreme Court, we will not upset our precedent upholding the use of juvenile criminal behavior in sentencing and the carefully-balanced approach the legislature ratified in the Guidelines for use of juvenile adjudications in calculating criminal history score.  In sum, we hold that it is not inconsistent with the legislature's purpose in maintaining the juvenile justice system for sentencing courts to use prior juvenile adjudications in calculating criminal history under the Minnesota Sentencing Guidelines.

 

Id. at 615. 

In response to the argument that juvenile adjudications lack the right to a jury trial, the McFee court focused on reliability and the due process requirements attached to juvenile proceedings.  Id. at 616.  Recognizing that a jury trial is not constitutionally required in juvenile proceedings, the court stated that

[j]uvenile adjudications, where juvenile defendants have the right to notice, the right to counsel, the right to confront and cross-examine witnesses, the privilege against self-incrimination, and the right to a finding of guilty beyond a reasonable doubt, provide more than sufficient safeguards to ensure the reliability that Apprendi requires . . . . 

 

Id. (quoting United States v. Burge, 407 F.3d 1183, 1190 (11th Cir. 2005)).  Further, the court concluded that “in calculating a defendant’s criminal history score, a defendant does not have a Sixth Amendment right to a jury determination of the fact of a prior juvenile adjudication.”  Id. at 619.  In light of McFee, the trial court properly included appellant’s juvenile adjudications in calculating appellant’s criminal-history score.

Affirmed.