This opinion will be unpublished and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

A06-1271

 

State of Minnesota,
Respondent,

vs.

Dennis Patrick Haro,
Appellant.

 

Filed October 2, 2007

Affirmed

Wright, Judge

 

Beltrami County District Court

File No. K2-06-635

 

 

John M. Stuart, State Public Defender, Paul J. Maravigli, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Timothy R. Faver, Beltrami County Attorney, Beltrami County Courthouse Annex, 619 Beltrami Avenue Northwest, Bemidji, MN  56601 (for respondent)

 

 

            Considered and decided by Shumaker, Presiding Judge; Wright, Judge; and Parker, Judge.*

U N P U B L I S H E D  O P I N I O N

WRIGHT, Judge

Appellant challenges his convictions of criminal sexual conduct and domestic assault, arguing that he was denied the Sixth Amendment right to the effective assistance of counsel when his trial counsel (1) failed to demand a speedy trial; (2) failed to give pretrial notice of a consent defense; (3) ineptly cross-examined the complainant; and (4) effectively conceded appellant’s guilt during closing argument.  We affirm.

FACTS

Respondent State of Minnesota charged appellant Dennis Haro with third-degree criminal sexual conduct, a violation of Minn. Stat. § 609.344, subds. 1(c), 2 (2004), and gross-misdemeanor domestic assault, a violation of Minn. Stat. § 609.2242, subd. 2 (2004).  During the trial, Haro testified that he struck and digitally penetrated J.W., but he maintained that J.W. consented to the penetration.  The jury found Haro guilty of both charges.  This appeal followed.

D E C I S I O N

Haro challenges his convictions, arguing that he received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution.  There is a strong presumption that counsel’s performance fell within a range of reasonable assistance.  Bruestle v. State, 719 N.W.2d 698, 705 (Minn. 2006).  An appellant who claims ineffective assistance of counsel bears the burden of proof.  Id. at 704.  To satisfy this burden, the appellant must establish that (1) counsel’s performance was deficient, that is, counsel “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment;” and (2) appellant was prejudiced because “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068 (1984), cited with approval in Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).  An insufficient showing on one of these requirements defeats an ineffective-assistance claim.  Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Gates, 398 N.W.2d at 561.

I.

Haro’s first claim is premised on his counsel’s failure to demand a speedy trial.  Haro has presented no argument or authority showing that this failure renders his counsel’s performance deficient or that it was prejudicial.  Therefore, Haro has waived this argument.  See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (holding that assignments of error based on mere assertion and not supported by argument or authority are waived). 

Even if it were not waived, this argument would fail.  Both the United States and Minnesota constitutions guarantee a criminal defendant the right to a speedy trial.  U.S. Const. amend. VI; Minn. Const. art. I, § 6; see also Minn. R. Crim. P. 11.10 (stating that defendant must be tried “as soon as possible after entry of a plea other than guilty” to gross-misdemeanor or felony charge).  Minnesota’s rules of criminal procedure require that, “[o]n demand made in writing or orally on the record by the prosecuting attorney or the defendant, the trial shall be commenced within sixty (60) days from the date of the demand unless good cause is shown . . . why the defendant should not be brought to trial within that period.”  Minn. R. Crim. P. 11.10.  This demand need not be formal or technical.  State v. Windish, 590 N.W.2d 311, 317 (Minn. 1999).  Rather, any action that may be construed as an assertion of the right to a speedy trial is sufficient.  Id. 

Even if we assume for purposes of our analysis that counsel’s failure to demand a speedy trial renders counsel’s performance deficient, Haro has not shown any resulting prejudice.  See Strickland, 466 U.S. at 692, 104 S. Ct. at 2067; cf. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972) (identifying “prejudice to the defendant” as factor to consider in determining whether defendant was deprived of constitutional right to speedy trial).  Haro does not allege, for example, that he was unable to locate witnesses or that witnesses were unable or unwilling to testify accurately.  See State v. Jones, 392 N.W.2d 224, 235-36 (Minn. 1986) (holding that no prejudice resulted from delay when defendant did not call witnesses or contend that witnesses that would have been called were unavailable or unable to recall essential facts because of delay).  Thus, in the absence of demonstrating prejudice, Haro’s argument that he was denied effective assistance of counsel based on a failure to demand a speedy trial is unavailing.

II.

Next, Haro argues that his counsel’s failure to assert prior to trial Haro’s intent to rely on a consent defense constituted ineffective assistance of counsel.  Decisions regarding which legal defenses to raise are tactical decisions that lie within the sound discretion of trial counsel and will not be reviewed later for competence.  State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999).  Moreover, because Haro’s counsel raised a consent defense during trial, Haro has not demonstrated any prejudice.

III.

Haro also argues that his counsel ineffectively cross-examined J.W. in a “confirmatory rather than adversarial” manner.  In his supplemental pro se brief, Haro further argues that his counsel failed to elicit testimony from J.W. that would reveal a motive to lie.  But the manner in which a witness is questioned is a trial tactic; and, as such, it is not a basis for a claim of ineffective assistance of counsel.  State v. Miller, 666 N.W.2d 703, 716-17 (Minn. 2003) (observing that decision not to cross-examine state’s witness on particular issue may be considered a tactical decision); see also State v. Best, 370 N.W.2d 691, 695-96 (Minn. App. 1985) (holding that failure to cross-examine victim about particular passage of her pretrial testimony could have been reasonable trial tactic and does not constitute ineffective assistance).

IV.

Finally, Haro argues that he was denied the constitutional right to effective assistance of counsel when his trial counsel effectively conceded Haro’s guilt during the closing argument.  When trial counsel admits a defendant’s guilt without the defendant’s consent, counsel’s performance is deficient and prejudice is presumed because the decision to concede guilt is the defendant’s decision alone.  Dukes v. State, 621 N.W.2d 246, 254 (Minn. 2001).  If the record shows that a defendant’s counsel conceded guilt, we must determine whether the defendant acquiesced in the concession.  Torres v. State, 688 N.W.2d 569, 573 (Minn. 2004).  If the defendant acquiesced, the ineffective-assistance-of-counsel claim fails.  Id.

Haro argues that “counsel’s closing argument that the sexual penetration upset and surprised [J.W.] clearly depicted the act as nonconsensual,” which “was an unreasonable strategy [that] conceded guilt without . . . Haro’s consent.”  This argument is founded on a mischaracterization of counsel’s closing argument.  Although Haro’s counsel stated that J.W. became upset after Haro penetrated her, this statement did not suggest that the penetration was nonconsensual.  Rather, Haro’s counsel maintained that J.W. was upset because Haro’s acceptance of her offer that he “check” whether she had engaged in sexual intercourse with another person by digitally penetrating her demonstrated his distrust of J.W.  Haro’s counsel advised the jury, “[W]hen laying out all of the evidence you have seen and heard today and applying the law that the Judge has instructed you and will continue to instruct you, you will find that . . . Haro did not violate [J.W.] without her consent.  [J.W.] just didn’t expect [Haro] to take her up on the offer.”  Because the record establishes that Haro’s counsel did not concede Haro’s guilt, Haro’s ineffective-assistance-of-counsel claim on this ground also fails.

            Affirmed.