State of Minnesota, Respondent, vs. Chanda Thi Huynh, Appellant. AND Chanda Thi Huynh, Petitioner, Appellant, vs. State of Minnesota, Respondent.

State of Minnesota, Respondent, vs. Chanda Thi Huynh, Appellant. AND Chanda Thi Huynh, Petitioner, Appellant, vs. State of Minnesota, Respondent. A03-1035, A04-2517, Court of Appeals Unpublished, November 29, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1035, A04-2517

 

State of Minnesota,
Respondent,
 
vs.
 
Chanda Thi Huynh,
Appellant.
 
AND
 
Chanda Thi Huynh, petitioner,
Appellant,
 
vs.
 
State of Minnesota,
Respondent.

 

Filed November 29, 2005

Affirmed

Minge, Judge

 

Hennepin County District Court

File No. 02074350

 

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

 

Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

Steven J. Meshbesher, Meshbesher & Associates, P.A., 225 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)

            Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Shumaker, Judge.

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

            Appellant Chanda Thi Huynh challenges her conviction of second-degree murder on the ground that she was denied effective assistance of counsel.  We affirm. 

FACTS

            On September 12, 2002, appellant lived with her children, a 3-year-old son and a 2-year-old daughter, K.H.; a man named Demetrius Willis; and another woman, Viravone Chindakone.  Around 3:00 p.m., appellant and Chindakone went grocery shopping while Willis watched the children.  The women returned at approximately 4:00 pm.  The three adults agree that as of 4:00 p.m., K.H. appeared to be fine.  By 4:30, K.H. was unconscious and she was rushed to the hospital.

            What happened between 4:00 and 4:30 is disputed.  Chindakone testified that appellant took K.H. into the bedroom and shut the door.  She further testified that appellant came out of the bedroom crying, then went back, picked K.H. up off the floor and brought her out of the bedroom.  Appellant stated both that as she was putting away groceries, she found K.H. lying on the living room floor and that she took K.H. into her bedroom and shook or spanked her. 

            When appellant and K.H. arrived at the emergency room.  K.H. was unconscious and hospital staff noted bruising on K.H.'s face, head, legs and arms.  K.H. died at the hospital early on the morning of September 13.  Police were called to the hospital the evening of September 12 and took appellant into custody for questioning.  Initially, appellant told police that she did not know what had happened, or why K.H. was unconscious or injured.  After several hours, appellant admitted to shaking K.H. and stated, "Maybe I shook her harder than I thought."  Appellant was charged with murder in the second degree. 

            Trial counsel obtained discovery from the state, including medical records.  Trial counsel did not request additional records directly from any medical facilities.

            At trial, several witnesses provided medical testimony.  Medical examiner Dr. Raymond Rivera testified that "impact to the head by a blunt object" caused K.H.'s death and that "the findings were consistent with multiple impacts to the head."  Medical examiner Dr. Mitchel Morey testified that the "constellation of features is indicative of . . . shaken baby syndrome or shaken impact syndrome," the cause of death was "head trauma," and the injuries were acute, meaning "there's no evidence of changes or healing that have occurred since these injuries occurred."  Dr. Ellen DeVries examined K.H. at the hospital, and testified that K.H.'s injuries were the result of a "massive degree of force" and were consistent with shaking and blunt-force trauma to the head.  Dr. DeVries explained how shaking a child can cause head trauma and indicated that, based on K.H.'s injuries, "[w]e're talking about forces of shaking that's equivalent to the force of somebody that's in a head-on car accident."  She also testified that, based on the "acuity" of K.H.'s bruising, the injuries were inflicted within a short time before she examined K.H. and that K.H. would not have been able to "walk around for an hour or so" after these injuries.  

            Appellant was convicted and sentenced to 150 months in prison.  Appellant filed a notice of appeal, then moved to stay the appeal in order to file a petition for postconviction relief.  The postconviction petition asserted that appellant did not have effective assistance of counsel at trial.  At the postconviction hearing, Dr. Janice Ophoven testified for appellant.  She identified the cause of K.H.'s death as blunt-force trauma to the head.  Dr. Ophoven stated that K.H. did not die from "shaking baby syndrome or shaken impact syndrome," but did concede that K.H. could have been shaken in addition to the blunt-force trauma.  Dr. Ophoven also testified that the blunt-force trauma could have occurred up to 72 hours before K.H.'s death because the body is able to compensate for the brain swelling for a period of time after the impact itself.  Dr. Ophoven added that the injury could not have been inflicted "just minutes" before K.H. arrived at the hospital, due to the amount of urine in K.H.'s bladder and her sodium level.  But on cross-examination, Dr. Ophoven conceded that K.H. could have been immediately unresponsive after the injuries.  Also, Dr. Ophoven previously stated that there is no medical or forensic method to identify specifically when the injuries occurred.

            Trial counsel also testified at the postconviction hearing.  He stated that the timing of K.H.'s death was not an issue and that the injury happened when all three adults were in the home because all three adults agreed that K.H. was fine at 4:00 p.m.  Trial counsel stated that although he consulted with Dr. Ophoven briefly, once she indicated that the timing of K.H.'s death was the primary issue in the case, trial counsel determined that he did not need to consult her further.  Trial counsel instead pursued the theory that there was insufficient evidence to prove beyond a reasonable doubt that appellant, and not one of her roommates, injured K.H.  Trial counsel testified that he presented the possibility of blaming the other roommates to appellant, and she became upset and insisted that the death was an accident, so trial counsel proceeded with the argument that "we don't know what happened." 

            Trial counsel noted at trial that appellant's confession to shaking K.H. was inconsistent with the medical evidence that K.H. died from blunt-force trauma.  He argued that therefore appellant must have confessed not because she hurt K.H. but because she felt coerced or wanted to be released from custody.  Trial counsel believed that the state's experts' testimony about blunt-force trauma was a sufficient basis for this theory and that appellant did not need her own expert, and for this reason he did not elicit medical testimony on the cause of K.H.'s death. 

            Attorney Allan Caplan testified for appellant at the postconviction hearing as an expert witness.  He stated that in his opinion appellant was denied the effective assistance of counsel because trial counsel failed to educate himself or to provide testimony for the jury on the timing and cause of K.H.'s death.

            The district court denied appellant's postconviction petition.  This appeal follows as both an appeal from the denial of the petition and a direct appeal from the conviction.

D E C I S I O N

            The issue before us is whether appellant was denied effective assistance of counsel because trial counsel did not consult a medical expert, did not obtain medical records, and made other errors. 

            A postconviction decision regarding a claim of ineffective assistance of counsel involves mixed questions of fact and law, which we review de novo.  Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004).  To prevail on such a claim, appellant must show that trial counsel's performance "fell below an objective standard of reasonableness" and "that a reasonable probability exists that the outcome would have been different but for counsel's errors."  State v. Blanche, 696 N.W.2d 351, 376 (Minn. 2005). 

            There is a strong presumption that counsel's performance was reasonable.  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).  Further, the rule for determining effective criminal defense representation has been expressed as follows:

[A]n attorney's decision regarding trial tactics lies within the proper discretion of the attorney and will not be later reviewed for competence.  To that end, we have concluded the determination as to what evidence to present at trial, such as what defenses to raise and what witnesses to call, represents an attorney's decision regarding trial tactics and will not be reviewed.

 

State v. Quick, 659 N.W.2d 701, 717 (Minn. 2003) (citation omitted). 

I.          Failure to use a medical expert

            Appellant argues that she was denied effective assistance of counsel because trial counsel did not adequately consult Dr. Ophoven or have her testify at trial.  Appellant focuses her argument on the cause and the timing of K.H.'s death. 

            To prevail on her claim, appellant first has to show that trial counsel's actions were objectively unreasonable.  An ineffective-assistance claim cannot be based on an "exercise of tactical judgment," including whether to obtain expert testimony or pursue a medical defense.  Cooper v. State, 565 N.W.2d 27, 33 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997); see Quick, 659 N.W.2d at 717. 

            Appellant contrasts such strategic decisions with failing to prepare a defense once a strategic decision is made, citing Couch v. Trickey, 892 F.2d 1338 (8th Cir. 1989).  In that case, the court held that the trial counsel's decision not to interview the state's eyewitnesses was a tactical decision.  Id. at 1344.  Appellant cites Couch for the proposition argued in the dissent: that the decision was not strategic but was evidence of trial counsel's inadequate preparation.  See id. at 1345-48 (Lay, J., dissenting).  The actual holding in Couch does not support appellant's argument; rather, it supports denying relief.

            The state argues that trial counsel's decision not to call an additional expert on the cause of death was a trial tactic.  It appears that trial counsel decided that most of the state's expert witnesses clearly identified the cause of death as blunt-force trauma.  Trial counsel argued for acquittal on the basis that appellant's confession of shaking the child was inconsistent with this expert testimony and could not have been a cause of death.  Although trial counsel's closing argument evidenced some confusion about what the state's witnesses actually said, counsel did conclude that the autopsy showed the death was caused by blunt-force trauma.  Dr. Ophoven's testimony may have more definitively identified blunt-force trauma as the cause of death, but trial counsel's trial strategy in this regard was not objectively unreasonable.

            Even if trial counsel's conduct had been unreasonable, appellant still has to show a reasonable probability that consultation with and testimony from Dr. Ophoven on the cause of death would have changed the outcome of the trial.  Blanche, 696 N.W.2d at 376.  If the state's experts had agreed that K.H. died from shaking, Dr. Ophoven's testimony might have had an impact on the outcome.  Although the state's experts gave some mixed answers, they generally identified blunt-force trauma as the cause of death.  This parallels the testimony Dr. Ophoven might have given.  We note that Dr. Ophoven conceded that, while she believed shaking did not cause K.H.'s death, she could not determine whether K.H. was shaken in addition to the blunt-force trauma that she believed caused K.H.'s death.  Under the circumstances, appellant has not shown a reasonable probability that the trial would have ended differently if Dr. Ophoven had testified about the cause of death.        

            Trial counsel's decision not to further consult Dr. Ophoven on the timing of the injury is somewhat different because it does not reflect a trial tactic so much as an assumption based on the available evidence.  Trial counsel assumed that the fatal injury happened after appellant and Chindakone returned from grocery shopping, making testimony on timing unnecessary.  But according to Dr. Ophoven, K.H. could have appeared fine after the infliction of the injury, making it possible that the injury occurred before appellant returned from shopping, when she was not home.  Assuming that Dr. Ophoven's testimony is accurate, in order to argue this theory of the case, trial counsel would have had to understand and present complex medical concepts to the jury.  In addition, the state's witnesses indicated that based on the severity of the injury and the developing bruising, the injury would have been immediately debilitating and would had to have happened shortly before K.H. arrived at the hospital.  It is not clear that appellant's trial counsel could discredit these adverse witnesses.   

            Even if the court were to find trial counsel's decisions on the timing of injury objectively unreasonable, appellant would still have to show a reasonable probability that the outcome of the trial would have been different if trial counsel had consulted with and called Dr. Ophoven to testify regarding timing.  Dr. Ophoven's testimony was inconsistent.  Also, while her testimony may have presented the possibility that the injuries occurred while appellant was not home, it did not exclude the possibility that the injuries happened while appellant was home.  Finally, as the district court pointed out, Dr. Ophoven conceded on cross-examination that K.H. could have become unresponsive immediately after the injury.  Given these possible problems with Dr. Ophoven's testimony on timing, appellant has not met her burden of proving a reasonable probability that the outcome of the trial would have been different. 

II.         Failure to obtain all the medical records

            Appellant also argues she was denied effective assistance of counsel because trial counsel did not request any medical records directly from the medical facilities and instead relied on the medical records that he received from the state in discovery

            In Kimmelman v. Morrison, 477 U.S. 365, 385, 106 S. Ct. 2547, 2588 (1986), trial counsel did not request any discovery and trial counsel's conduct was found to be objectively unreasonable.  Here, trial counsel requested and received discovery from the state, including medical records, so Kimmelman is distinguishable.  Appellant also cites the list of documents that Dr. Ophoven stated were necessary to a forensic analysis to show which documents trial counsel should have requested.  But appellant does not explain how those records would be helpful.  In addition, trial counsel did obtain records from the state through discovery, and appellant does not identify why those records were insufficient.  Trial counsel's theory of the case was not focused on medical evidence because he assumed the injury occurred when all three adults were home.  Trial counsel's conduct, therefore, was not objectively unreasonable. 

            Appellant also does not explain how the medical records would have changed the outcome of the case, beyond stating that providing the medical records to Dr. Ophoven would have allowed her to completely review the case.  Appellant's arguments about obtaining Dr. Ophoven's testimony are discussed above.  This claim fails because appellant did not meet her burden of showing that trial counsel's conduct was unreasonable or prejudicial. 

III.       Other errors

 

            Appellant also claims she was denied effective assistance of counsel based on several other actions or omissions by trial counsel.  Because appellant generally cites no law to support those contentions and does not explain how they meet the standard for an ineffective-assistance claim, we do not further consider those contentions.  "An assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection."  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (quoting Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971)). 

            Affirmed.