State of Minnesota, Respondent, vs. Daniel James Windish, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-03-4

 

State of Minnesota,

Respondent,

 

vs.

 

Daniel James Windish,

Appellant.

 

Filed May 4, 2004

Affirmed

Randall, Judge

 

 

Carver County District Court

File No. K702788

 

 

Mike Hatch, State Attorney General, 445 Minnesota Street, Suite 1400, St. Paul, MN  55101 and

 

Michael A. Fahey, Carver County Attorney, Martha Mattheis, Assistant Carver County Attorney, Carver County Justice Center, 604 East Fourth Street, Chaska, MN  55318 (for respondent)

 

John Stuart, State Public Defender, Benjamin J. Butler, Assistant State Public Defender, 2221 University Ave. S.E., Suite 425 Minneapolis, MN  55414 (for appellant)

            Considered and decided by Harten, Presiding Judge, Randall, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On appeal from a conviction for terroristic threats, harassment, domestic assault, and violation of an OFP, appellant argues that the testimony of the complainant, who: (1) minimized her history of crimes of dishonesty at trial; (2) gave inconsistent testimony at trial that did not match the physical evidence; or (3) gave testimony inconsistent with the testimony of the other eyewitness, was insufficient to support the conviction

Appellant further argues that the district court erred in communicating with the deliberating jury twice outside of the defendant's presence and without his personal waiver.  Appellant also argues that he was denied effective assistance of counsel when his attorney admitted his guilt of the OFP violation in opening statement and closing argument without appellant's consent.  We affirm.

FACTS

            J.G. was convicted and sentenced to 30 months in prison for aggravated forgery, forging a court order, wrongfully obtaining public funds, and two counts of theft by swindle.  In July 2000, while she was in prison, J.G. began corresponding with appellant Daniel Windish.[1]  The two corresponded almost daily until August 2001, at which time J.G.
was released from prison.  Shortly thereafter, J.G. and appellant became romantically involved, and in September 2001, appellant moved into an apartment with J.G. and her nine-year-old daughter M.G.

            In early 2002, the couple's relationship began to deteriorate, and on the night of March 25, 2002, J.G. informed appellant that the relationship was over.  A "confrontation" between the couple occurred the next morning.  Following the "confrontation," J.G. obtained an Order For Protection (OFP) against appellant. 

            Although the relationship between the couple was over, J.G. maintained contact with appellant.  However, on April 26, 2002, J.G. reported an OFP violation to law enforcement.  A complaint was filed on May 1, 2002, charging appellant with felony terroristic threats, two counts of gross misdemeanor harassment/stalking, and misdemeanor violation of an OFP.  The complaint was amended on July 10, 2002, to add charges of misdemeanor domestic assault, second-degree burglary, third-degree burglary, and obscene and harassing phone calls.  A few weeks later, a jury trial was held with respect to the charges against appellant.

            At trial, J.G. testified that on the night of March 25, 2002, she became upset after appellant failed to return home on time to watch M.G.   J.G. stated that she called appellant and ended the relationship.  Appellant showed up at the apartment a little while later, but J.G. reaffirmed to appellant that the relationship was over.  Appellant then left the
apartment but returned later that night while J.G. and her daughter were sleeping and spent the night in another bedroom. 

            The next morning, while J.G. was getting ready for work, she and appellant began to argue about the relationship.  J.G. told appellant that the relationship was over and that he should take his belongings and leave.  According to J.G., appellant replied that the relationship was not over until he said it was over and that the only way J.G. was going to leave was in a body bag.  J.G. testified that appellant added "the only thing that's happening today is a homicide."  J.G. stated that she tried to calm appellant down, but appellant was screaming and crying.  J.G. testified that appellant pushed her into the cupboard.  Appellant then grabbed a knife out of the butcher block in the kitchen and chased J.G. around the kitchen and into the bedroom.  Once they were in the bedroom, appellant slammed the door behind them and jammed the knife between the door and the doorframe so that the door could not be opened.   

            J.G. testified that while they were in the bedroom, appellant was crying and M.G. was outside the bedroom door pounding on the door.  J.G. tried to convince appellant to let her out of the bedroom, and appellant eventually removed the knife from the doorframe and sat down on the bed.  J.G. testified that appellant continued to be very emotional and she told appellant to "save all that drama for your mama."  In response to the comment, appellant flew off the bed and grabbed J.G. by the neck and threw her up against the wall with both of his hands.  J.G. stated that appellant held her off the ground with her feet at the level of his knees until she kicked appellant in the groin causing him to drop her.  J.G. testified that she tried to run into the closet, but appellant grabbed her by the hair and threw her on the bed.  She then lay on the bed until appellant calmed down, at which point she left the room to check on her daughter, who was outside the bedroom door crying. 

            After the couple left the bedroom, the two began arguing again in the kitchen.  J.G. testified that she tried to convince appellant to let her and M.G. leave the apartment, but appellant would not let her leave.  According to J.G., she and M.G. were finally able to sneak out of the apartment when appellant was not looking.  J.G. and her daughter then walked to the Norwood Young America Clerk of Court's Office to call a safe house.  While they were at Norwood Young America, the Carver County Sheriff's Department was called, and Deputy Elton Anderson responded.  Deputy Anderson testified that when he arrived at Norwood Young America, he observed that J.G. appeared nervous, very tense, and somewhat distraught.  Although J.G. did not want to file a report, Deputy Anderson recommended that she get an OFP. 

            J.G. testified that at the OFP hearing, appellant sat behind her and crunched hard candy and told her "this could be your bones."  J.G. also testified that appellant left numerous letters on her car, and frequently threatened her on the telephone.  J.G. further described a situation where appellant followed her on Highway 212, and tried to get her to pull over.  J.G. eventually reported an OFP violation to law enforcement. 

            Following the jury trial, appellant was convicted of terroristic threats, harassment/stalking, violation of an OFP, and domestic assault.  The jury acquitted appellant of the second and third-degree burglary charges and of the harassing phone calls charges.  Appellant subsequently moved for a new trial or to set aside the verdicts.  The district court denied the motion and sentenced appellant to 33 months in prison, to be served consecutive to the prison term he was already serving.  This appeal followed.

D E C I S I O N

I.

            Appellant argues that the evidence was insufficient as a matter of law to support his conviction for terroristic threats, harassment, violation of an order for protection, and domestic assault.  In considering a claim of insufficient evidence, this court's review is limited to a "painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, [is] sufficient to allow the jurors to reach the verdict which they did."  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that the jury believed the state's witnesses and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  This court "will not disturb the verdict if the jury, acting with due regard for the presumption of innocence" and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            A person is guilty of making terroristic threats against another if that person "threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another . . . or in a reckless disregard of the risk of causing such terror . . . ."  Minn. Stat. § 609.713, subd. 1 (2002).  Under Minn. Stat. § 609.749, subds. 2(2) and (4) (2002), a person is guilty of harassment if he or she "stalks, follows or pursues another," or if he or she "repeatedly makes telephone calls, or induces a victim to make telephone calls to the actor, whether or not conversation ensues."  A person is guilty of domestic assault under Minn. Stat. § 609.2242, subds. 1(1) and (2) (2002), if he or she commits an act with intent to cause fear in another of immediate bodily harm or death, or intentionally inflicts or attempts to inflict bodily harm upon another family or household member. 

            Here, appellant argues that the evidence is insufficient to support his convictions because the credibility of J.G., the state's primary witness, was suspect.  Appellant asserts that J.G.'s testimony was riddled with inconsistencies, such as her testimony concerning (1) her prior convictions, (2) the physical altercation with appellant, (3) the knife used in the alleged assault, (4) the number of phone calls she made to appellant after the OFP was issued, and (5) the time J.G. spent with appellant at the St. Paul police auction.  Appellant contends that because J.G. lacked credibility, his convictions should be reversed. 

            A review of the record reveals there were some inconsistencies with J.G.'s testimony.  The first "inconsistency" concerned J.G.'s prior convictions.  At trial, J.G. admitted on direct examination that she had prior convictions for forgery, welfare fraud, and theft.  J.G. also admitted that she could not remember all of the specific charges.  On cross-examination, counsel for appellant read the complete list of charges that had been brought against J.G. and asked if she was convicted of those charges.  J.G. testified again that she was not sure of all of the exact charges, but she stated that she assumed that since counsel for appellant was reading them, that the charges listed were correct.  Although J.G. failed to mention every specific charge on direct examination, the fact that she was unsure of everything she was charged with, does not demonstrate that J.G. was not forthright with her prior convictions as claimed by appellant. 

            Appellant also claims that there were several inconsistencies in J.G.'s testimony about the events surrounding the alleged assault, and that J.G. was not a credible witness because she was not completely forthright with regard to her contact with appellant after the OFP was issued.  We disagree.  The fact that she attended an auction with appellant does not change the occurrence of terroristic threats, domestic assault, harassment, and OFP violation.  J.G. testified that appellant pushed her against the cupboard in the kitchen and chased her around with a knife.  J.G. also testified that appellant picked her up by her throat and held her against the wall.  J.G. testified further that appellant threw her onto the bed by her hair and also verbally threatened her throughout the morning of the assault.  We assume the jury heard all of the testimony at trial and was aware of any inconsistencies.  The jury found J.G. and M.G.'s testimony to be credible, and there is nothing to show that the jury's determination should be reversed.  See State v. Profit, 591 N.W.2d 451, 467 (Minn. 1999) (stating that the jury is in the best position to judge the credibility of witnesses, and appellate courts must assume that jury believed the state's witnesses).  We conclude the evidence is sufficient to support appellant's convictions.          

II.

            Appellant argues that by twice meeting with the jury outside of his presence, the district court committed reversible error, and therefore a new trial should be granted on all charges in the interests of justice. 

            "Through the Confrontation Clause, the Sixth Amendment to the United States Constitution grants a defendant the right to be present at all stages of trial."  State v. Sessions, 621 N.W.2d 751, 755 (Minn. 2001).  Responding to a deliberating jury's question is a stage of trial.  Id.  The general rule in Minnesota is that the trial court should not communicate with the jury after deliberations have begun unless it is done in open court and in the defendant's presence.  Id. at 755-56. 

            In the present case, the jury retired to deliberate at 5:40 p.m.  Later in the evening, the jury had a question concerning the charge of domestic assault and CRIMJIGS 13.45 and 13.46.  With the prosecutor present in chambers, and counsel for appellant present via speakerphone, the district court went on the record in chambers.  The court stated that the jury had asked the following question:  "We have, parenthesis, number 1, parenthesis, and then one spelled out domestic assault verdict form.  Do we need 13.45 and 13.46 to find guilty?"  After discussing the matter, the court, defense counsel, and the prosecutor agreed to refer the jury to CRIMJIG 13.44.  The district court then drafted a response and met with the jury off the record and outside of appellant's presence.

            Two hours later, at approximately 8:00 p.m., the district court met with the jury to dismiss them for the evening.  Neither the prosecutor nor counsel for appellant was present at the time.  A member of the jury asked the following question:  "I guess I was curious, were they preselected, was it part of the voir dire process or random, the names?"  The court responded that the same procedure was used in this case that is used in every case and that he would be happy to further discuss the matter when the jury was done with deliberations. 

            The state argues that although the district court did meet with the jury outside of appellant's presence, there was no error because appellant waived his right to be present for jury questions.  The constitutional right to be present for jury questions may be waived if done so "competently and intelligently."  State v. Worthy, 583 N.W.2d 270, 277 (Minn. 1998) (citing Johnson v. Zerbst, 304 U.S. 458, 465, 58 S. Ct. 1019, 1023 (1938)).  The "decision to waive is a decision not for counsel to make but a personal decision for defendant to make after consultation with counsel."  State v. Ware, 498 N.W.2d 454, 457 (Minn. 1993).

            A review of the transcript reveals that because counsel for appellant was going to leave town that night, there was discussion on the record concerning the procedure that would be followed if the jury had a question.  But there was no discussion on the record regarding appellant's right to be present in the courtroom if the jury did ask a question.  Although appellant did waive his right to testify on the record, there is nothing in the transcript that supports respondent's assertion that appellant waived his right to be present for jury questions.  Because appellant did not waive his right to be present for jury questions, it was error for the district court to meet with the jury outside of appellant's presence. 

            However, if a defendant is wrongfully denied the right to be present when a deliberating jury asks a question, the defendant is not entitled to relief if it can be said that the error was harmless error beyond a reasonable doubt.  Ware, 498 N.W.2d at 457-58.  "The test in finding reversible error is whether the error affected the outcome of the case."  State v. Rean, 420 N.W.2d 680, 684 (Minn. App. 1988).  This court may conclude the error was harmless beyond a reasonable doubt only in those cases where the verdict was surely unattributable to the error.  State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996). 

            Appellant argues that because the first meeting was held off the record, this court should remand the matter to the district court to determine the substance of the judge's communications with the jury.  We disagree. The record shows that the response to the first jury question was not a hotly debated subject.  The jury had a question concerning CRIMJIGS 13.45 and 13.46.  The district court suggested that the jury be referred to CRIMJIG 13.44.  Both the prosecutor and counsel for appellant agreed.  There was no further discussion with regard to the issue.  If the parties had intensely debated the issue, perhaps an evidentiary hearing would be necessary to determine if any remarks had prejudiced appellant.  But the issue was resolved quickly and without dispute in chambers.  On this record, appellant cannot show that an evidentiary hearing is necessary. 

            With respect to the second "meeting" with the jury, the question came from a juror out of the clear blue sky, so to speak.  The question merely pertained to the jury selection process.  The court's answer was appropriate and innocuous.  The district court handled the situation properly.  Appellant is unable to argue, much less show, any prejudice by this conversation.  We conclude the district court did not commit reversible error by responding to these two jury questions out of appellant's presence.    

III.

            Appellant argues that his Sixth Amendment right to effective assistance of counsel was denied when his attorney conceded to the jury that appellant was guilty of violating the OFP.  Appellant contends that he never consented to this concession, and therefore he is entitled to a new trial on the OFP violation.

            Generally, an ineffective assistance of counsel claim should be raised in a postconviction petition for relief, rather than on direct appeal.  State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000).  A postconviction hearing provides the court with "additional facts to explain the attorney's decisions," so as to properly consider whether a defense counsel's performance was deficient.  Black v. State, 560 N.W.2d 83, 85 n. 1 (Minn. 1997).  But when additional development of the record is not required to assess an ineffective-assistance claim, an appellate court will review it on direct appeal.  Robinson v. State, 567 N.W.2d 491, 494 (Minn. 1997). 

            After the jury returned its verdict, appellant moved for a new trial and judgment notwithstanding the verdict.  Appellant has not yet filed a petition for postconviction relief concerning his claim of ineffective assistance of counsel.  The record lacks the information and the facts needed to examine appellant's attorney's decision concerning the issue of admitting guilt of an OFP violation.  For instance, was it tactical?  Was it conceded?  How did the concession fit into the overall presentation of evidence?  With our limited facts, any conclusion we might reach as to "effective assistance of counsel" would be speculation.  We decline to address the merits of this issue; the issue is preserved should appellant choose to pursue it in a postconviction proceeding. 

            Affirmed.

[1] Appellant was in prison when the two began corresponding, and appellant was on supervised release throughout the case.  This information was ruled inadmissible by the district court.