In Re the Marriage of: Robert George Hoye, petitioner, Respondent, vs. Debra Jean Hoye, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-99-1113

State of Minnesota,
Respondent,
 
vs.

David Rosales Bermudez,
Appellant.

Filed May 23, 2000

Affirmed; motion granted
Klaphake, Judge

Kandiyohi County District Court

File No. K4-98-1300

Mike Hatch, Attorney General, 525 Park St., Suite 500, St. Paul, MN  55103; and

Boyd Beccue, Kandiyohi County Attorney, 316 SW Fourth St., Willmar, MN  56201 (for respondent)

John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, 2829 University Ave. S.E., Ste. 600, Minneapolis, MN  55414-3230 (for appellant)

            Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Foley, Judge.*

KLAPHAKE, Judge

Following a jury trial, appellant David Bermudez was convicted of one count of kidnapping under Minn. Stat. § 609.25 (1998) and one count of assault in the third degree under Minn. Stat. § 609.223 (1998).  Bermudez appeals, contending the trial court violated his constitutional rights to present a defense and to confront witnesses when it excluded the victim's medical records from an automobile accident that had occurred nearly one month prior to the assault.  Bermudez asserts a number of additional issues in his pro se supplemental brief.  In response, the state moves to strike parts of the pro se brief.  Because the trial court did not abuse its discretion in excluding the medical records and because Bermudez's pro se arguments are without merit, we affirm.  We also grant the state's motion to strike.

            1.         Exclusion of Medical Records

            In reviewing the trial court's evidentiary rulings, this court must apply a deferential standard.  State v. Ferguson, 581 N.W.2d 824, 831 (Minn. 1998).  A ruling will not be disturbed unless the trial court abused its discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).

            The victim in the present case was involved in an automobile accident approximately one month prior to the kidnapping and assault.  At trial, Bermudez sought to introduce the victim's medical records as proof that her injuries were suffered in the accident, rather than in the incident with Bermudez.  Bermudez argues that the trial court's initial exclusion of the records effectively denied his right to present a defense.

            Embodied in the right to due process is the right of the accused to present a complete defense.  State v. Voorhees, 596 N.W.2d 241, 249 (Minn. 1999).  The right guarantees the ability "to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies."  State v. Goldenstein, 505 N.W.2d 332, 340 (Minn. App. 1993) (quoting Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 1923 (1967)), review denied (Minn. Oct. 19, 1993).  The trial court, therefore, must allow the defendant to present evidence that is "material and favorable to [his] theory of the case."  State v. Crims, 540 N.W.2d 860, 866 (Minn. App. 1995), review denied (Minn. Jan. 23, 1996).  The court is not required, however, to allow a defendant to present evidence that is irrelevant, whose prejudicial effect outweighs its probative value, or whose probative value is outweighed by a statutory privilege.  Id.; State v. Hanninen, 533 N.W.2d 660, 662 (Minn. App. 1995), review denied (Minn. Sept. 28, 1995). 

            In this case, the victim's records were protected by a medical privilege under Minn. Stat. § 595.02, subd. 1(d) (1998).  In addition, our independent review of the records leads us to conclude that they have little, if any, relevance to this case.[1]  The victim claimed that she suffered a broken right ankle when Bermudez threw a beer bottle at her leg; the medical records of the prior automobile accident bear no probative value on the cause of that injury.  Although Bermudez argues that the records are relevant to show the origin of bruises the victim exhibited after the assault, more than one month elapsed between the automobile accident and the assault.  Considering the content of the medical records, we conclude the records are not relevant to the issues in the present case.  Accordingly, the trial court did not abuse its discretion by initially excluding the records.

            Despite the irrelevance of the medical records and the automobile accident, the trial court permitted Bermudez to inquire about the accident.  On cross-examination, the victim testified that she injured her head in the accident, but suffered no other injuries.  Bermudez later sought to impeach the victim with her medical records, but the trial court refused to admit the records.  Bermudez argues that the ruling deprived him of his right of confrontation.

            A criminal defendant has the right "to be confronted with the witnesses against him."  U.S. Const. amend VI.  The primary right guaranteed by the Confrontation Clause is the opportunity to cross-examine and impeach witnesses.  State v. Pride, 528 N.W.2d 862, 865 (Minn. 1995).  But, the trial court has discretion whether to allow impeachment by introducing extraneous matters.  State v. Jones, 381 N.W.2d 44, 47 (Minn. App. 1986).  And, extrinsic evidence of collateral matters cannot be used to impeach a witness.  State v. Ferguson, 581 N.W.2d 824, 834 (Minn. 1998). 

            The victim's testimony at trial did not tend to make the automobile accident any more relevant than it was prior to her testimony.  The accident was collateral to the issues in this case and, therefore, allowing this extrinsic evidence to impeach the victim's testimony relating to the accident would have been inappropriate.  Hence, the trial court did not abuse its discretion by refusing to admit the victim's medical records for impeachment purposes.

            2.         Pro Se Issues

            Bermudez argues the state breached its duty to disclose exculpatory evidence by failing to disclose the medical records.  The record reflects, however, that the state disclosed the nature of the records to Bermudez and that it agreed to submit the records to the court for an in-camera review.  The state clearly fulfilled any requirement it may have had with the records.

            The second argument attacks the sufficiency of the evidence.  Bermudez describes at length testimony and circumstances that he believes show that the victim was not credible.  But the credibility arguments are not persuasive and, at any rate, it is the province of the jury to determine credibility.  See State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (reviewing court must assume that jury believed state's witnesses).

            Bermudez argues that his trial counsel did not provide effective assistance because he did not conduct a thorough investigation.  An appellant challenging the assistance of counsel on the basis of a failure to investigate has the burden of showing that the investigation would have uncovered a witness or evidence that would have made a difference at trial.  Gates v. State, 398 N.W.2d 558, 562-63 (Minn. 1987); State v. Brown, 597 N.W.2d 299, 306 (Minn. App. 1999), review denied (Minn. Sept. 14, 1999).  Bermudez has not established that any further investigation would have led to material evidence.

            Bermudez also argues that his attorney should have asked different questions of the witnesses or should have made different arguments.  Trial tactics, however, lie within the province of trial counsel and should not be reviewed by an appellate court.  State v. Ives, 568 N.W.2d 710, 715 (Minn. 1997).  Moreover, Bermudez does not present any new questions or arguments that would have changed the outcome of the trial.

3.         Motion to Strike

The state moves to strike statements made by Bermudez in his pro se brief that refer to facts not made part of the record.  Because the facts referred to in the statements cannot be found in the district court file, striking them is appropriate.  See Minn. R. Civ. App. P. 110.01 (limiting record on appeal to filed papers, exhibits, and transcript); State v. Dalbec, 594 N.W.2d 530, 533 (Minn. App. 1999) (striking parts of brief which were not part of record below).  Accordingly, we grant the state's motion to strike.

Affirmed; motion granted.

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art VI, § 10.

[1]   A trial court's in camera determination of relevance is ultimately subject to independent review on appeal.  See State v. Goldenstein, 505 N.W.2d 332, 345 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993).