This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2010).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Danny Kwami Barnes,
Filed March 12, 2012
Johnson, Chief Judge
Big Stone County District Court
File No. 06-CR-09-184
Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul,
William J. Watson, Big Stone County Attorney, Ortonville, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Schellhas, Presiding Judge; Johnson, Chief Judge; and
Retired judge of the Minnesota Court of Appeals, serving by appointment
pursuant to Minn. Const. art. VI, § 10.
JOHNSON, Chief Judge
Danny Kwami Barnes and several other men broke into a home and beat and
kidnapped a person who was residing in the home. Barnes was convicted of kidnapping,
burglary, and assault and was sentenced to 138 months of imprisonment. On appeal,
Barnes argues that a jailhouse identification procedure was unnecessarily suggestive, that
he did not validly waive his right to a jury trial on facts relevant to his sentence, and that
his trial counsel provided him with ineffective assistance of counsel by failing to advise
him of the potential severity of his sentence. We affirm.
In June 2009, Barnes was the pastor of Thy Kingdom Come church in the city of
Wheaton. He was concerned at that time about a member of the church, M.B., who had
strayed from the church’s teachings by using drugs and alcohol and by leaving his wife
and child, who remained with the congregation, and moving into a home with people who
were not members of the congregation.
On the evening of June 22, 2009, Barnes led a group of six or more parishioners
on an expedition to capture M.B. from the home where he recently had been staying and
to take him to the home of the man’s father, C.B., who was an assistant pastor of the
church. The group entered the home at approximately 11:00 p.m. by smashing a glass
door. They found M.B. hiding under a bed, beat him, dragged him down a flight of
stairs, beat him again, placed him in a vehicle, and drove him to C.B.’s home. Barnes’s
party also threatened the other four residents of the home and physically assaulted one of
them. The details of the home invasion were described extensively at trial but need not
be repeated here. Several persons reported the incident to law-enforcement officials by
telephone. Big Stone County and Traverse County sheriffs’ deputies arrested Barnes that
night at C.B.’s home and detained him at the Traverse County jail.
Two days after the incident, the state filed a complaint that charged Barnes with
four offenses. The state later amended the complaint to allege 14 offenses, including
kidnapping, burglary, assault with a dangerous weapon, criminal damage to property,
false imprisonment, terroristic threats, and simple assault. On July 13, 2009, the state
served Barnes with notice of its intention to seek an aggravated sentence due to (1) the
commission of the crime by a party of three or more, (2) the multiple victims, and (3) the
use of a firearm during commission of the crime.
Barnes initially represented himself. On July 22, 2009, a public defender was
appointed to represent him. On October 27, 2009, Barnes discharged the public defender
and hired two private attorneys, Jerome Lewis and Mitchell Robinson.
The case went to trial on January 11, 2010. On the morning of trial, Barnes
waived his right to a jury trial, both for the guilt phase and for the determination of
aggravating sentencing factors. The trial lasted two days. The state called 20 witnesses.
Barnes did not present any evidence.
On January 19, 2010, the district court issued a 21-page order in which it found
Barnes guilty of five offenses: (1) kidnapping, a violation of Minn. Stat. §§ 609.25, subd.
1(3), .11, subd. 5(a) (2008); (2) first-degree burglary with a dangerous weapon, a
violation of Minn. Stat. § 609.582, subd. 1(b) (2008); (3) second-degree assault with a
dangerous weapon, a violation of Minn. Stat. § 609.222, subd. 1 (2008); (4) fifth-degree
assault, a violation of Minn. Stat. § 609.224, subd. 1(1) (2008); and (5) aiding and
abetting fifth-degree assault, a violation of Minn. Stat. §§ 609.224, subd. 1(2), .05, subd.
In February 2010, the district court conducted a sentencing hearing and issued its
The district court found one aggravating factor for first-degree
burglary with a dangerous weapon, namely, that Barnes had actively engaged in the
crime with three or more people. Accordingly, the district court departed upward from
the guidelines range of 50 to 69 months and sentenced Barnes to 138 months of
imprisonment on the conviction of first-degree burglary with a dangerous weapon. The
district court also imposed two concurrent sentences of 36 months and two concurrent
sentences of 90 days on the other four convictions. Barnes timely filed a notice of appeal
from the convictions and sentences.
In October 2010, Barnes moved to stay his direct appeal to pursue postconviction
relief, and this court granted the motion. In November 2010, with the assistance of his
present counsel, Barnes filed a petition for postconviction relief, alleging that his trial
attorneys did not adequately advise him of his potential sentence. The district court
conducted an evidentiary hearing in March 2011, and issued a 21-page order in April
2011, in which it denied the petition. This court granted Barnes’s motion to reinstate his
appeal in May 2011. Barnes now appeals from his convictions and from the denial of his
petition for postconviction relief.
I. Evidence of Identification
Barnes argues that the district court erred by denying his motion to suppress
evidence that an eyewitness identified him after a one-person show-up procedure at the
Traverse County jail. Barnes challenges the identification by only one witness, T.P.
T.P. testified at the suppression hearing that he was in the home he shared with
M.B. when Barnes and his cohorts conducted the raid. T.P. had been sleeping upstairs.
When he heard commotion, he grabbed a knife, stepped into the hallway, and turned on
the hallway light. Barnes approached T.P. with a pistol and shouted, “stand down or I’ll
shoot,” which prompted T.P. to drop the knife. T.P. was trapped in the hallway as the
group searched M.B.’s bedroom.
After Barnes was arrested and detained, a Big Stone County sheriff’s deputy
escorted T.P. to the Traverse County jail. At 2:23 a.m. that night, a deputy brought T.P.
to the window of a holding cell where Barnes sat alone. T.P. identified Barnes as the
man who was in the hallway with a gun. T.P. told the deputy that he felt “one-hundred
percent that’s the guy with a pistol right up in my face.” T.P. identified Barnes as the
armed intruder again at the omnibus hearing. T.P. did not previously know Barnes, but
he described him as an older black male with a gray beard.
We apply a two-step test to determine whether pre-trial eyewitness identification
evidence is admissible. State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995). At the first
step, the “inquiry focuses on whether the procedure was unnecessarily suggestive.” Id.
“Whether a pretrial identification procedure is unnecessarily suggestive turns on whether
the defendant was unfairly singled out for identification.” Id. “[T]he concern is whether
the procedure used by the police influenced the witness identification of the defendant.”
State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999). If the show-up is unnecessarily
suggestive, the second step of the inquiry becomes relevant. Id. At the second step, “the
identification evidence, even if suggestive, may be admissible if the totality of the
circumstances establishes that the evidence was reliable.” Ostrem, 535 N.W.2d at 921.
The question at the second step is whether the identification created “a very substantial
likelihood of irreparable misidentification.”
Taylor, 594 N.W.2d at 161 (quotation
omitted). “If the totality of the circumstances shows the witness’ identification has
adequate independent origin, it is considered to be reliable despite the suggestive
procedure.” Ostrem, 535 N.W.2d at 921.
In this case, we need not decide whether the identification procedure used at the
Traverse County jail was unnecessarily suggestive because, even if it was, evidence of
T.P.’s identification of Barnes nonetheless is admissible because “the totality of the
circumstances establishes that the evidence was reliable.” Id. We evaluate the totality of
the circumstances with a five-factor test:
The opportunity of the witness to view
the criminal at the time of the crime;
The witness’ degree of attention;
The accuracy of the witness’ prior
description of the criminal;
The level of certainty demonstrated by
the witness at the photo display; [and]
The time between the crime and the
Our application of these five factors leads to the conclusion that T.P.’s
identification of Barnes is reliable. First, T.P. had a good opportunity to view Barnes
during the home invasion because the two men stood only two feet apart, face-to-face, in
a well-lit hallway. Second, T.P. likely was focused on Barnes, rather than the other
intruders, who were in M.B.’s bedroom. Despite T.P.’s statement at the Traverse County
jail, T.P.’s testimony at the suppression hearing does not support the conclusion that T.P.
was so focused on the gun that it would have distracted him from perceiving the features
of the person holding the gun. Cf. State v. Gluff, 285 Minn. 148, 151, 172 N.W.2d 63, 65
(1969). Third, T.P. accurately described Barnes as a black male with a gray beard.
Fourth, when T.P. identified Barnes during the show-up, he explained that he was certain
that Barnes was the person who had accosted him with a pistol. And fifth, the show-up
occurred within four hours of the crime. The totality of the circumstances demonstrates
that T.P.’s identification of Barnes did not create “a very substantial likelihood of
irreparable misidentification.” Taylor, 594 N.W.2d at 161 (quotation omitted).
Thus, the district court did not err by denying Barnes’s motion to suppress the
evidence of T.P.’s identification of Barnes.
II. Waiver of Right to Sentencing Jury
Barnes also argues that the postconviction court erred by denying his petition
because his waiver of his right to a jury trial on sentencing issues was invalid.
A defendant’s waiver of the right to a jury to determine sentence-enhancement
factors must be knowing, voluntary, and intelligent. State v. Thompson, 720 N.W.2d 820,
827 (Minn. 2006). “A waiver made in compliance with Rule 26.01, subdivision 1(2)(a),
meets the knowing, voluntary, and intelligent requirement.” Id. That rule provided that a
criminal defendant, “with the approval of the court may waive jury trial provided the
defendant does so personally in writing or orally upon the record in open court, after
being advised by the court of the right to trial by jury and after having had an opportunity
to consult with counsel.” Minn. R. Crim. P. 26.01, subd. 1(2)(a) (2006).1 We apply a
clearly erroneous standard of review to a district court’s determination that a waiver was
knowing, voluntary, and intelligent. State v. Camacho, 561 N.W.2d 160, 168-69 (Minn.
The district court conducted a lengthy colloquy with Barnes on the morning of
trial before accepting his waiver of his right to a jury trial on sentencing issues. The
district court’s colloquy included questions specifically relating to his right to a jury trial
on sentencing issues:
THE COURT: [T]he State has made a motion for the
fact finder to determine an aggravating factor under the
sentencing guidelines. You understand that.
THE DEFENDANT: Your Honor, I do, Your Honor.
THE COURT: And in – in this particular case, I
believe the aggravating factor that’s been alleged is that three
This rule has since been amended to specifically provide for waiver of the right to
a jury trial to determine the facts necessary to support an aggravated sentence, but the
substance of the new rule is identical to the old. See Minn. R. Crim. P. 26.01, subd.
or more persons participated in this alleged event. You
understand you have the right to have a jury determine that
beyond a reasonable doubt.
THE DEFENDANT: Your Honor, I do, Your Honor.
THE COURT: And after talking with your lawyer, do
you now wish to give up your right to a jury trial and have the
matter tried to the Court?
THE DEFENDANT: Your Honor, I do, Your Honor.
THE COURT: Okay. And that would also include
waiving your right to a jury with respect to this aggravating
factor and submit that to the Court as well.
THE DEFENDANT: I’ve just been informed of that,
THE COURT: And is that something you’re willing to
THE DEFENDANT: Surely, Your Honor.
THE COURT: I’m sorry, I didn’t hear you.
THE DEFENDANT: Yes, Your Honor, I am.
THE COURT: Okay. You understand that the Court
still has to utilize the same factors that a jury would utilize,
that is proof beyond a reasonable doubt in order to find you
guilty. Do you understand that?
THE DEFENDANT: Yes, Your Honor, I do, Your
THE COURT: All right. Then the Court finds the
defendant has knowingly and voluntarily and on advice of
counsel waived his right to a jury trial including his right to a
jury trial on Blakely issues.
In rejecting Barnes’s postconviction claim that his waiver is invalid, the
postconviction court noted that Robinson met with Barnes before trial and advised Barnes
on this issue. Specifically, the postconviction court found that Robinson informed Barnes
that a jury typically decides whether the state has proved the existence of aggravating
sentencing factors but that the district court would do so if Barnes were to waive his right
to a jury trial. The postconviction court concluded that Barnes’s “waiver of his right to a
jury trial on the Blakely issue was knowing and voluntary and given after he had the
opportunity to consult with counsel.”
In Thompson, the supreme court approved the defendant’s jury waiver for
sentencing factors because the defendant orally waived her rights after an extensive onthe-record colloquy. 720 N.W.2d at 827-28. Our case presents very similar facts: Barnes
first told the court that he understood he had a right to a jury determination of the
aggravating factors beyond a reasonable doubt, and then he waived that right. See id.
Based on the above record, we conclude that Barnes’s waiver of the right to a jury trial on
sentencing enhancement factors complied with rule 26.01, subdivision 1(2)(b), and was
therefore knowing, voluntary, and intelligent. See id. Furthermore, Barnes’s claim is
undermined by the transcript of a January 3, 2010 telephone conversation between
Barnes and Lewis in which they discussed waiving the jury for the guilt phase as a matter
of strategy, and Barnes has failed to explain why he would have waived his right to a jury
trial on the issue of guilt but retained his right to a jury trial for sentencing issues.
Thus, the postconviction court did not err by finding that Barnes failed to prove
that his waiver of his right to a jury trial on sentencing issues was invalid and by denying
relief on that claim.
III. Effectiveness of Counsel
Barnes also argues that the postconviction court erred by denying his claim of
ineffective assistance of counsel. Specifically, Barnes argues that his trial counsel were
ineffective because they did not properly advise him of the potential severity of his
sentence and, thus, did not sufficiently advise him of the benefits of accepting the state’s
plea offer of 36 months.
“In all criminal prosecutions, the accused shall enjoy the right . . . to have the
assistance of counsel for his defence.”
U.S. Const. amend. VI.
The right to the
assistance of counsel includes the right to the effective assistance of counsel. Strickland
v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984). To prevail on a claim
of ineffective assistance of counsel, a postconviction petitioner “must demonstrate that
(1) counsel’s performance fell below an objective standard of reasonableness, and (2) a
reasonable probability exists that, but for his counsel’s unprofessional error, the outcome
would have been different.” Leake v. State, 767 N.W.2d 5, 10 (Minn. 2009) (citing
Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064-65).
The right to the effective
assistance of counsel applies at the time of a decision to reject a plea bargain. Leake v.
State, 737 N.W.2d 531, 540-41 (Minn. 2007); see also Hill v. Lockhart, 474 U.S. 52, 5759, 106 S. Ct. 366, 369-70 (1985). In that context, “an attorney’s advice falls below
objectively reasonable standards . . . when the attorney’s inaccurate or misleading factual
statements tend to affect a defendant’s decision to reject a plea bargain and proceed to
trial.” Leake, 737 N.W.2d at 540.
Barnes’s claim of ineffective assistance of counsel is based on his allegation that
Lewis and Robinson did not inform him that he might receive a sentence as high as 138
months. Barnes alleges that Lewis and Robinson informed him that the applicable
sentencing guidelines range was 36 to 46 months and that they never informed him of the
possibility of an upward departure.
In support of his postconviction claim, Barnes
introduced transcripts of telephone conversations between his trial counsel and himself
while he was detained in the Big Stone County jail pending trial. These transcripts
provide substantial support for his claims.
The district court, however, found that
Barnes’s trial counsel were not ineffective.
An appellate court need not analyze both prongs of the Strickland test if an
analysis of either prong is determinative. See, e.g., Leake, 767 N.W.2d at 10; State v.
Rhodes, 657 N.W.2d 823, 842 (Minn. 2003). In this case, Barnes cannot succeed on his
ineffectiveness claim because, at the least, he cannot establish the second prong of the
Strickland test. In the context of alleged misadvice in connection with a plea offer, “a
defendant is prejudiced by . . . ineffective assistance if there is a reasonable likelihood the
plea bargain would have been accepted had the defendant been properly advised.” Leake,
737 N.W.2d at 540. The district court concluded that Barnes failed to prove that he
would have accepted the plea offer even if Lewis and Robinson had fully informed him
of the possibility of an upward departure and a resulting sentence of 138 months. We
review that finding to determine whether there is sufficient evidence to support it and
whether the postconviction court abused its discretion. Leake, 767 N.W.2d at 9-10.
In its order denying Barnes’s ineffectiveness claim, the postconviction court made
numerous findings of particular historical facts and an ultimate finding that Barnes had
failed to prove the second prong of the Strickland test. In its ultimate finding, the
postconviction court stated:
[Barnes] has failed in his burden of proof to establish the “but
for” causal link that if it were not for Mr. Robinson’s
inaccurate advice, he would have accepted the plea offer.
The testimony of both Mr. Hamrum and Mr. Robinson, plus
the content of some of the recorded telephone conversations,
makes it clear that the reason Mr. Barnes did not accept the
36-month plea offer was because he could not get favorable
treatment for co-defendant [C.B.] The Court finds Mr.
Barnes’s testimony to the contrary to lack credibility based
upon his demeanor during testimony, the scattered, disjointed
and inconsistent manner in which he testified and the
reasonableness of the testimony of the other witnesses when
compared with the unreasonableness of his testimony in light
of contents of the recorded telephone conversations.
The district court’s ultimate finding is based on a few significant predicate
findings. First, the postconviction court found that Barnes was aware of the potential
length of his sentence based on his own assessment of the charges. For this finding, the
postconviction court relied on a video-recording of a sermon Barnes delivered four days
after being charged (and released on bail), in which Barnes stated: “I’m looking at 24
years in prison for that act. If I get a sentence of 24 years, it’ll be worth it, to me.” The
record supports the postconviction court’s finding that Barnes was aware of the
possibility of a sentence longer than he actually received.
Second, the postconviction court found that Barnes was made more aware of the
potential sentence because his public defender had advised him of the possibility of a
long prison sentence and had done so in connection with the state’s plea offer of 36
The record supports these findings of the postconviction court.
postconviction court relied on the testimony of the public defender, whose recollection
was clearer than that of Barnes, according to the postconviction court. We will not
second-guess the postconviction court’s credibility determinations. See Opsahl v. State,
710 N.W.2d 776, 782 (Minn. 2006).
Third, and most importantly, the postconviction court found that Barnes was
interested in pleading guilty only in exchange for the state’s lenient treatment of codefendant C.B. The postconviction court found that Barnes expressed his interest in
securing leniency for co-defendants between July and October 2009. The postconviction
court also found that when Barnes met with Lewis and Robinson in late October or early
November of 2009, “Barnes made it clear from the outset that he wanted to go to trial and
was not interested in a plea agreement, particularly if co-defendant [C.B.] was not going
to receive favorable treatment in his case.” The postconviction court further found that,
on January 3, 2010, Robinson made a counter-offer to the prosecutor for Barnes to plead
guilty, with an agreed-upon 36-month sentence, so long as the charges against C.B. were
dismissed with prejudice. The postconviction court further found that Robinson informed
Barnes on January 4, 2010, that the prosecutor had rejected that counter-offer but had
indicated a willingness to allow C.B. to plead guilty to a felony with a stay of imposition,
which would allow C.B. to avoid incarceration. The transcripts of Barnes’s telephone
communications reveal that Barnes left a voice-mail message for Robinson later that
same day in which he stated that C.B. “said that he cannot have any felonies on his record
at all so we’re going forward with trial unless you come up with something else but we’ll
go to trial and win.” Based on this voice-mail message, the postconviction court found
that Barnes would not have accepted the state’s 36-month plea offer unless C.B. received
appropriately favorable treatment and, thus, that Barnes’s decision to not plead guilty was
not determined by the potential sentence. The record supports each of these findings.
Thus, the postconviction court found that, throughout the period between the filing
of the complaint and the trial, Barnes was aware of the possibility of a long prison
sentence but was not dissuaded from going to trial unless his guilty plea would allow his
co-defendant to avoid prosecution.
Given the evidence in the record and the
postconviction court’s predicate findings, we conclude that the postconviction court did
not abuse its discretion by finding that Barnes did not prove the second prong of the
Strickland test. See Leake, 767 N.W.2d at 9-10. Accordingly, the postconviction court
did not err by denying postconviction relief on Barnes’s claim of ineffective assistance of