Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Roger Van Heel, Stearns County Attorney, Mary Yunker, Assistant County Attorney, 448 Administration Center, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent)

Jeffrey Alan Freidrichs, Box 55, Stillwater, MN 55082 (pro se)

Considered and decided by Parker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.

Jeffrey Freidrichs appeals pro se a district court order denying his petition for postconviction relief without a hearing. We conclude that the district court's denial of the petition was not an abuse of discretion, and we affirm.

D E C I S I O N

We will not disturb the decision of the district court in a postconviction proceeding absent an abuse of discretion. State v. Kelly, 535 N.W.2d 345, 347 (Minn. 1995). The district court may dismiss a petition for postconviction relief without a hearing if the record "conclusively show[s] that the petitioner is entitled to no relief." Minn. Stat. § 590.04, subd. 1 (1994); see also Kelly, 535 N.W.2d at 347 ("An evidentiary hearing is not required unless the petitioner alleges facts which, if proven, would entitle the petitioner to the requested relief").

Freidrichs asserted three general categories of arguments in support of his petition for postconviction relief: (1) prosecutorial misconduct and erroneous rulings by the district court during the course of trial; (2) ineffective assistance of trial counsel; and (3) ineffective assistance of appellate counsel. He argues that the district court abused discretion by rejecting all of these bases for the petition.

1. The first set of arguments relates to alleged prosecutorial misconduct and erroneous rulings by the district court at the time of trial. Freidrichs was convicted by a jury of two counts of first-degree criminal sexual conduct and three counts of second-degree criminal sexual conduct committed against his girlfriend's three minor daughters. He filed a direct appeal, raising one issue: the propriety of the admission of allegedly cumulative evidence during trial. We affirmed, reasoning that (1) Freidrichs had waived that argument by not objecting to the evidence as cumulative at trial, and (2) the alleged error was not "plain error." State v. Freidrichs (Freidrichs I), No. C2-93-1862 (Minn. App. July 14, 1994) (order op.), review denied (Minn. Sept. 16, 1994).

The district court "may summarily deny a petition when the issues raised in it have previously been decided by the court of appeals or the supreme court in the same case." Minn. Stat. § 590.04, subd. 3 (1994); see also State v. Roby (Roby I), 531 N.W.2d 482, 484 (Minn. 1995) ("a claim raised on direct appeal will not be considered upon a subsequent petition for postconviction relief"). Because on direct appeal Freidrichs presented the same argument regarding cumulative evidence, the district court properly determined that Freidrichs was precluded from raising the argument again in his postconviction petition.

In addition, "a claim that was known but not raised at the time of direct appeal will not be considered upon a subsequent petition for postconviction relief unless the 'claim is so novel that it can be said that its legal basis was not reasonably available to counsel at the time the direct appeal was taken and decided.'" Roby I, 531 N.W.2d at 484 (quoting Case v. State, 364 N.W.2d 797, 800 (Minn. 1985)). A limited exception to this rule applies in rare cases in which "fairness requires that the claim be considered" and the petitioner has not "'deliberately and inexcusably' fail[ed] to raise the issue on direct appeal." Fox v. State, 474 N.W.2d 821, 825 (Minn. 1991) (citations omitted) (considering claim not raised on direct appeal by petitioner who had been administered powerful antipsychotic medication). We conclude that the claims now asserted by Freidrichs--relating to the introduction of certain evidence, the replaying of audio evidence to the jury, and alleged juror misconduct--are not so novel that he should be allowed to present them in this postconviction proceeding. Nor do we find that Freidrichs has alleged facts demonstrating that fairness requires consideration of these arguments. We therefore conclude that the district court properly held that Freidrichs was not entitled to postconviction relief on his first set of claims.

2. Freidrichs next contends that the district court erroneously concluded that he had failed to allege sufficient facts in support of his claim of ineffective assistance of trial counsel. A claim of ineffective assistance of trial counsel requires that the performance of petitioner's counsel at trial (1) fell below an objective standard of reasonableness, and (2) prejudiced the defense. State v. Rainier, 502 N.W.2d 784, 788 (Minn. 1993).

Freidrichs contends that his petition satisfied these criteria by alleging that his trial counsel failed (1) to object to allegedly cumulative evidence at trial; (2) to object to testimony of C.J., a minor and friend of the victims, regarding out-of-court statements made to him by the victims about the alleged abuse; (3) to object to playing to the jury the audio portion of a videotaped recording of the three victims' physical examinations by a nurse practitioner; (4) to object to replaying to the jury, after it had retired for deliberations, an audiotape of an interview of one of the victims by police; and (5) to move for a mistrial or a new trial after the attorneys for each side observed a juror and an alternate with their eyes closed for a brief period of the trial.

The first four assertions of error reflect decisions made by counsel as part of his overall trial strategy, and "we generally will not review an attorney's trial tactics." Id. Moreover, the alleged errors do not establish that Freidrichs' counsel's conduct fell below an objective standard of reasonableness.

First, as we noted at the time of Freidrichs' direct appeal, "cumulative evidence about a victim's out-of-court statements may be admissible for corroboration purposes." Freidrichs I, order op. at 2 (citing State v. Larson, 472 N.W.2d 120, 126 (Minn. 1991), cert. denied, 502 U.S. 1071 (1992); State v. Christopherson, 500 N.W.2d 794, 798 (Minn. App. 1993)). It was not unreasonable for Freidrichs' trial counsel not to object to the admission of such evidence. See Rainier, 502 N.W.2d at 789 ("An attorney's failure to make a meaningless objection does not give rise to a claim of ineffective assistance of counsel").

Second, at a pretrial hearing Freidrichs' attorney challenged the reliability of C.J.'s testimony about some out-of-court statements made to him by the victims, but the court subsequently determined that the statements were admissible under Minn. Stat. § 595.02, subd. 3 (1992) (providing that out-of-court statements made by child under ten years of age in regard to sexual abuse are admissible if court holds hearing to determine reliability of statements, child testifies at proceedings, and advance notice is given to adverse party). Trial counsel's conduct regarding C.J.'s testimony about these statements was not unreasonable.

Third, also prior to trial, Freidrichs' attorney sought to suppress the victims' out-of-court statements made to a nurse practitioner while she gave them each physical examinations, but the court held that they were admissible under Minn. Stat. § 595.02, subd. 3, for two of the victims, and under Minn. R. Evid. 803(4) (allowing admission of out-of-court statements made for purpose of diagnosis or treatment) for the third victim. Although Freidrichs' attorney did not object to the videotaped examinations on the basis of prejudice, we do not find that his conduct with regard to that evidence fell below an objective standard of reasonableness.

Fourth, we do not find unreasonable trial counsel's decision not to object to the district court's replaying of an audiotape upon receiving a request from the jury after it had retired for deliberations; the court played the requested tape in its entirety and thus avoided "highlighting" any particular portion of it. See State v. Ross, 451 N.W.2d 231, 237 (Minn. App. 1990) ("[A] defendant can hardly challenge the granting of such a request unless it unfairly highlights a portion of the evidence.") (emphasis in original), review denied (Minn. Apr. 13, 1990), cert. denied, 498 U.S. 837 (1990).

Freidrichs' fifth basis for his claim of ineffective assistance of trial counsel, regarding claims of an inattentive juror and alternate, also fails to demonstrate that he was unreasonably represented at trial. The record establishes that Freidrichs' trial counsel immediately raised his concerns to the district court after he and the prosecutor observed a juror and an alternate who appeared to have been asleep during the showing of a videotaped interview of one of the victims; the district court questioned the juror and alternate; the court found credible the juror's explanation that he closed his eyes to better concentrate on the testimony, and the alternate's claim that he dozed off for no more than a few seconds twice during the video; the juror and alternate later read a transcript of the entire videotape; and the alternate ultimately did not participate in the jury deliberations. Counsel's decision not to seek an additional remedy by requesting a mistrial was not unreasonable.

Although we find that trial counsel's conduct did not fall below an objective standard of reasonableness, we further hold that the alleged errors did not prejudice the defense. We agree with the district court that the "evidence produced at trial overwhelmingly pointed to [Freidrichs'] guilt."

3. We analyze claims of ineffective assistance of appellate counsel under the same two-pronged rule that we apply to claims of ineffective assistance of trial counsel. Roby v. State (Roby II), 547 N.W.2d 354, 357 (Minn. 1996).

Freidrichs contends that he was deprived of effective assistance of appellate counsel because his attorney on direct appeal did not raise most of the issues that Freidrichs now raises in these postconviction proceedings. Yet the "right to effective assistance of appellate counsel does not require an attorney to advance every conceivable argument on appeal that the trial record supports." Garasha v. State, 393 N.W.2d 20, 22 (Minn. App. 1986) (citation omitted); see also Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990) ("[A]ppellate counsel [has] no duty to raise all possible issues and thereby jeopardize more meritorious ones").

Freidrichs also maintains that his attorney erred by not requesting a hearing in the district court on the issue of ineffective assistance of trial counsel and by not seeking a stay or dismissal of his direct appeal pending the hearing. Freidrichs erroneously suggests that by not following this procedure, his appellate counsel precluded him from asserting ineffective assistance of trial counsel in a postconviction petition. See Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992) (noting that claims of ineffective assistance of counsel may be appropriately raised in postconviction proceedings even when not argued on direct appeal).

We conclude that the allegation that appellate counsel did not assert a claim of ineffective assistance of trial counsel before judgment was entered in Freidrichs' direct appeal is insufficient to establish that appellate counsel's conduct fell below an objective standard of reasonableness. Cf. Miles v. State, 512 N.W.2d 601, 603 (Minn. App. 1994) (finding no ineffective assistance of appellate counsel where petitioner's claim of ineffective assistance of trial counsel, which was not argued on direct appeal, was without merit), review denied (Minn. May 17, 1994).

Affirmed.