State of Minnesota, Respondent, vs. Michael James Crow, 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This opinion will be unpublished and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

A03-1340

 

State of Minnesota,

Respondent,

 

vs.

 

Michael James Crow,

Appellant.

 

Filed ­­­December 14, 2004

Affirmed

Harten, Judge

 

Redwood County District Court

File No. K3-02-564

 

Michelle A. Dietrich, Redwood County Attorney, P.O. Box 130, Redwood Falls, MN 56283; and

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Jennifer L. Dekarske, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

 

Barry V. Voss, Barry V. Voss, P.A., 527 Marquette Avenue South, Suite 1050, Minneapolis, MN 55402 (for appellant)

 

            Considered and decided by Harten, Presiding Judge; Klaphake, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

A jury convicted appellant on charges of aiding and abetting kidnapping, false imprisonment, and coercion.  The postconviction court denied appellant's petition for postconviction relief asserting an ineffective assistance of counsel claim, and appellant challenges the denial on appeal.  Because the postconviction court did not abuse its discretion, we affirm.

FACTS

 

            Appellant Michael James Crow stood trial for aiding and abetting kidnapping, false imprisonment, and coercion of Jeffrey Risen and Zachary Taylor, and for possession of a firearm.  In her opening statement, the prosecutor revealed that the dispute involved a drug deal and defense counsel conceded this fact in his opening statement.  During cross-examination of a prosecution witness, defense counsel asked whether Risen was honest.  In his final argument, defense counsel remarked that Taylor's wife was believable and that he was relieved that appellant was trying to buy drugs, not sell them.

            The jury convicted appellant on charges of aiding and abetting kidnapping, false imprisonment, and coercion of Taylor, but acquitted him of the charges related to Risen and possession of a firearm.  The district court sentenced appellant to 57 months' incarceration.  Appellant filed a petition for postconviction relief on an ineffective assistance of counsel claim, which the district court denied.  Appellant challenges the denial.

D E C I S I O N

 

This court will not disturb the decisions of a postconviction court absent an abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  Our scope of review is limited to whether there is sufficient evidence in the record to support the findings of the postconviction court.  Doughman v. State, 351 N.W.2d 671, 674 (Minn. App. 1984), review denied (Minn. 16 Oct. 1984).  The petitioner has the burden to establish, by a fair preponderance of the evidence, facts that warrant relief.  Ferguson v. State, 645 N.W.2d 437, 442 (Minn. 2002).

To prevail on an ineffective assistance of counsel claim,

[t]he defendant must affirmatively prove that his counsel's representation "fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.

 

Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  "A strong presumption exists that counsel's performance fell within a wide range of reasonable assistance."  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).  An attorney's decisions regarding trial tactics are discretionary, and this court will not review those decisions on an ineffective assistance of counsel analysis.  Voorhees v. State, 627 N.W.2d 642, 651 (Minn. 2001).  Criticisms of the strategy that drives counsel's trial tactics are insufficient to establish ineffective assistance of counsel.  See State v. Berry, 309 N.W.2d 777, 785 (Minn. 1981) (defendant's criticisms of his counsel's trial strategy did not persuade the court of the ineffectiveness of his counsel).

            Appellant first argues that his trial counsel should not have admitted appellant's involvement in a drug deal.  In its order denying appellant's motion for postconviction relief, however, the postconviction court found that admitting the drug deal was part of defense counsel's strategy to show that the alleged kidnap victims' drug use might have impaired their memories.  Defense counsel also attempted to minimize the impact of the prosecutor's emphasis on the drug deal by admitting it to the jury.  These trial tactics were well within trial counsel's discretion.

            Next, appellant argues that his counsel should not have asked a prosecution witness on cross-examination whether victim Risen was honest.  The postconviction court found that defense counsel's strategy was to exhibit that, while victim Risen may have been honest, drug use for five days straight could impair his memory.  This inquiry is thus consistent with the strategy defense counsel initiated in his opening statement.  As the postconviction court recognized, defense counsel's strategy convinced the jury to acquit appellant of the charges related to Risen.  Thus, this part of the strategy was effective.

            Appellant also argues that defense counsel's statement that Taylor's wife was believable was ineffective and prejudicial.  But, as the postconviction court explained, defense counsel linked this statement to the strategy of discrediting Taylor's and Risen's recollections because of their drug use.  Defense counsel attempted to show that, because Taylor's wife could be believed and her story conflicted with her husband's, her husband could not be believed.

             Finally, appellant argues that defense counsel's statement that appellant attempted to buy and not sell drugs was ineffective and prejudicial.  Again, this statement fit into defense counsel's strategy to present appellant to the jury as a drug user rather than a drug dealer.  Because the jury knew about the drug deal, defense counsel implied that, if appellant was the drug user, Taylor was the drug dealer.  This statement was within defense counsel's discretion.  Even if appellant retrospectively disagreed with the trial strategy, defense counsel's conduct was consistent with this strategy, and criticisms of a trial strategy do not establish ineffective assistance of counsel.  Berry, 309 N.W.2d at 785.

We conclude that defense counsel's trial strategy did not fall outside the bounds of objective reasonableness.  Accordingly, the postconviction court did not abuse its discretion in denying appellant's petition for postconviction relief based on the actions of defense counsel.[1]

            Affirmed.

[1] Appellant failed to raise his remaining arguments regarding alleged violations of his fair trial, Sixth, and Fourteenth Amendment rights in his petition for postconviction relief.  This court will generally not consider arguments made for the first time on appeal.  Ferguson, 645 N.W.2d at 448 (refusing to address an issue not raised below in a petition for postconviction relief because review is limited to whether there is support for the postconviction court's findings); Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (this court will generally not consider matters not argued and considered in the court below).  "This procedural bar applies even in postconviction proceedings raising constitutional issues of criminal procedure."  Ferguson, 645 N.W.2d at 448.  Accordingly, we do not address appellant's remaining arguments.