State of Minnesota, Respondent, vs. Randal Charles Meyer, 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This opinion will be unpublished and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

A03-1860

 

State of Minnesota,

Respondent,

 

vs.

 

Randal Charles Meyer,

Appellant.

 

Filed September 14, 2004

Reversed and remanded

Randall, Judge

 

Benton County District Court

File No. K9-03-152

 

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Robert Raupp, Benton County Attorney, County Facility, P.O. Box 189, Foley, MN  56329 (for respondent)

 

John Stuart, State Public Defender, Jodie Lee Carlson, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

 

            Considered and decided by Randall, Presiding Judge, Willis, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On appeal from his conviction of first-degree tampering with a witness, Randall Meyer argues that the conviction must be reversed because he did not personally waive his right to a jury trial and the evidence is insufficient to support the conviction.  In a pro se brief, Meyer also argues that he was denied the right to the effective assistance of counsel.  We conclude that the evidence was sufficient to support the conviction and that Meyer received adequate representation.  But, because Meyer did not personally waive his right to a jury trial and the state concedes that this happened, we reverse and remand for a new trial.

FACTS

 

            Appellant Randall Meyer was involved in a romantic relationship with Joann Kim Michael.  The relationship ended in July 2002, when Michael obtained a harassment restraining order against Meyer, forcing him to leave her apartment.  Meyer refused to accept that the relationship had ended, however, and continued to seek contact with Michael. 

In September 2002, Meyer gained access to Michael's apartment by removing a window screen.  As a result of this incident, he was charged with several criminal offenses, including first-degree burglary.  Meyer was convicted, and his conviction was affirmed.  See State v. Meyer, A03-460 (Minn. App. April 20, 2004).

 

On December 17, 2002, two days before Meyer's trial on the burglary-related charges was to begin, jail administrator Lieutenant Susan Johnson intercepted a Christmas card addressed to Meyer's parents.  Johnson testified that the jail was monitoring Meyer's mail because of the harassment restraining order and that she intercepted the card from the outgoing mail.  She also stated that the card was in a pre-stamped envelope and that the envelope was sealed. 

Inside the card, Johnson found an unsigned, handwritten letter addressed to Meyer's parents, in which Meyer referred to Michael.  Meyer complained that Michael had slept with another man and that she was not committed to their "sacred love."  He stated that he still loved her and would like to work things out with her.  He then added the following:

Speaking of the trial, that is why I can't have any more contact with any of you, if Kim [the name Michael went by] shows up.  She's been told to drop the O.F.P., not testify, get rid of her boyfriend, and put everything, the apt, phone, bank, everything, back how it was.  Let's just say if she doesn't do it, I won't be the only one who lost everything they cared about.  Things have already been arranged, if she doesn't come see me Thursday night and have all those things done, it will be out of my hands.  I have to do nothing, and it doesn't matter if I'm locked up or not.  The only way to stop the people out there is for me to call them, and I won't, unless I hear from Kim.

 

Yeah, you can think I'm insane, I don't really care.  This is my only chance to live again. . . .  See, I have given her many chances, but this is it.  I hope you'll help convince her.

 

            Meyer testified that the letter was not intercepted from the outgoing mail but was taken from his cell.  He stated that he had the letter "sitting there" and did not remember putting it inside the card but "[he] may have."  He added that he was not sure if the envelope was pre-stamped, but he "knew the jail would be stamping it."  Meyer also stated that the letter was unsigned and that he did not intend to send it.  Instead, he claims he wrote the letter in response to his therapist's recommendation that he write down his feelings as part of his therapy for depression.

            The district court found Meyer guilty as charged.  The court specifically found that the letter had not been written for therapeutic purposes, reasoning that it included a "normal salutation" and information about visiting lists (presumably a follow-up to discussions between Meyer and his parents).  The court also found that the statement "I hope you'll help convince her" reflected Meyer's "intentional attempt to prevent [Michael] from testifying."

            This appeal from the judgment of conviction follows.

D E C I S I O N

I.

Meyer first argues that the district court committed reversible error by failing to obtain a waiver of his right to a jury trial personally in writing or orally on the record.  The state concedes that the court's failure to obtain a personal waiver of a jury trial warrants a new trial.  We agree.

A defendant charged with an offense punishable with incarceration has a right to a jury trial.  Minn. R. Crim. P. 26.01, subd. 1 (1)(a).  With the court's approval, a defendant may waive his or her right to a jury trial, provided the defendant does so personally in writing or orally on the record in open court, after being advised by the court of the right to a jury trial and having an opportunity to consult with counsel.  Id., subd. 1(2)(b).  Minnesota courts require strict compliance with the waiver rules.  See, e.g., State v. Bunce, 669 N.W.2d 394, 398 (Minn. App. 2003) (remanding for new trial where state conceded that right to jury trial improperly waived), review denied (Minn. Dec. 16, 2003); State v. Tlapa, 642 N.W.2d 72, 75 (Minn. App. 2002) (right to jury trial improperly waived where defense counsel stated that defendant had waived right but defendant did not waive right personally in writing or orally on the record), review denied (Minn. June 18, 2002); State v. Ulland, 357 N.W.2d 346, 347 (Minn. App. 1984) (waiver of right to jury trial not made personally in writing or orally on the record held to be improper even though defendant personally informed clerk of court that he did not want jury trial).   

In this case, Meyer's counsel advised the court at the settlement conference that Meyer was requesting a court trial.  But Meyer did not sign a written waiver, and he was not asked on the record, either at the settlement conference or at trial, whether he waived his right to a jury trial.  Because Meyer's waiver did not comply with Minn. R. Crim. P. 26.01, the waiver is invalid, and Meyer is entitled to a new trial.

II

Meyer next argues that the evidence is insufficient to support his conviction.  Even though we are reversing for a new trial, this issue is not moot and we must, therefore, address it.  If we were to find that the evidence was insufficient to support the conviction, then a reversal on those grounds would prevent a new trial under the constitutional principle of double jeopardy. State v. Harris, 533 N.W.2d 35, 36 (Minn. 1995)

When reviewing a sufficiency-of-the-evidence claim, this court's task is limited to "a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict they did."  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The evidence is sufficient if "the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty."  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).  When a conviction is based on circumstantial evidence, however, the verdict will be sustained only when "the reasonable inferences from such evidence are consistent only with [the] defendant's guilt and inconsistent with any rational hypothesis except that of guilt."  Id  The reviewing court must assume that the fact-finder believed the state's witnesses and disbelieved the defendant's witnesses.  State v. Tovar, 605 N.W.2d 717, 726 (Minn. 2000).  The possibility that a defendant is innocent does not require reversal of a jury verdict, as long as the evidence taken as a whole makes the possibility of innocence seem unreasonable.  State v. Gates, 615 N.W.2d 331, 338 (Minn. 2000).  The standard of review applicable to jury trials applies to bench trials as well.  Id.

Meyer was convicted of first-degree witness tampering.  A person commits first-degree witness tampering if the person "intentionally prevents or dissuades or intentionally attempts to prevent or dissuade by means of force or threats of injury to any person . . . a person who is or may become a witness from attending or testifying at any trial, proceeding, or inquiry authorized by law."  Minn. Stat. § 609.498, subd. 1(a) (2002).  The use of the word "intentionally" makes witness tampering a specific-intent crime.  See Minn. Stat. § 609.02, subd. 9(3) (2002).  A conviction of a specific-intent crime may stand only if specific intent is the only reasonable inference from the evidence, viewed in the light most favorable to the state.  See, e.g., State v. Andrews, 388 N.W.2d 723, 727, 729 (Minn. 1986) (addressing sufficiency of evidence of specific intent and premeditation in murder case).

Although the evidence against Meyer is not overwhelming, it is sufficient to support the court's determination that Meyer intentionally attempted to dissuade Michael, by means of threats of injury, from testifying against him.  The letter Meyer wrote clearly implied that harm would come to Michael if she testified.  Meyer stated that "people out there" would make sure that Michael "lost everything [she] care[d] about" if Michael did not drop the order for protection and do everything else Meyer had demanded.  Meyer indicated that "[t]hings have already been arranged . . . [and] it will be out of my hands," specifying that he had "to do nothing and it d[idn't] matter if [he was] locked up or not."  Meyer also indicated that the only way to stop "the people out there" from harming Michael was for him to call them and that he would not call them unless he heard from Michael.  He concluded by telling his parents, "I hope you'll help convince her."  Reasonable inferences from the letter are consistent with Meyer's guilt.  On this record, a fact-finder could reasonably conclude that the facts are inconsistent with any rational hypothesis except guilt.

Meyer makes several arguments that the evidence is insufficient to support his conviction.  Meyer argues that the evidence does not establish that his parents ever made Michael aware of the threats.  But the statute does not require that the threats be communicated to the potential victim.  It requires only that a defendant intentionally attempt, by means of force or threats,to prevent or dissuade a witness from testifying.  See Minn. Stat. § 609.498, subd. 1(a).

Second, relying on State v. Collins, 580 N.W.2d 36 (Minn. App. 1998), Meyer argues that the evidence is insufficient to support a finding of specific intent to tamper with a witness, because it does not establish that the letter was addressed to Michael.  But Collins does not stand for the proposition that a letter must be addressed to the victim in order for a conviction of witness tampering to stand.  In Collins, this court held that evidence that defendant, on the day before his first appearance on a harassment charge, sent the victim of his crime a threatening letter that alluded to the pending charge was sufficient to support his conviction for witness tampering.  The court reasoned that a hypothesis other than specific intent to tamper with the witness was not rational, because the natural and probable consequence of defendant sending the victim a threatening letter was that the victim would reconsider her decision to testify.  Although in Collins the threatening letter was addressed directly to the victim, Collins does not suggest that a finding of specific intent to tamper with a witness is possible only in cases where the letter that forms the basis of the charge is directly addressed to the victim. 

Third, Meyer argues that, just as an individual cannot be guilty of making terroristic threats unless the threats are communicated to the intended victim, a defendant cannot be guilty of witness tampering unless the threats of harm are communicated to the intended victim.  We disagree.  The Minnesota Supreme Court has clearly stated that the terroristic-threats statute does not require that the threats be communicated to the victim, where the defendant knows or has reason to know that they will be communicated.  See State v. Schweppe, 306 Minn. 395, 237 N.W.2d 609 (1975) (upholding terroristic-threats conviction where threats not communicated to intended victim but defendant knew or had reason to know that threats would be communicated).

 Meyer claims that, unlike the defendant in Schweppe, who uttered his threats in the presence of friends and acquaintances of the victim and thus had reason to believe that the threats would be communicated to the victim, he had no reason to expect that his threats would be communicated to Michael.  But Meyer's letter reflects his hope that his parents would help him by communicating his message to Michael.  We agree with the state that, had Meyer not believed that his parents would talk to Michael, he would not have bothered to spell out in detail both what Michael needed to do to avoid harm ("drop the OFP, not testify, get rid of her boyfriend, and put everything the apartment, phone, bank everything back how it was") and the consequences of her failure to do so.

Fourth, Meyer argues that his actions do not constitute witness tampering because he mailed the letter only two days before his trial was scheduled to begin and the letter could not, therefore, have reached Meyer's parents in time for them to warn Michael.  Improbability is not a defense, however.  See State v. Bird, 285 N.W.2d 481, 482 (Minn. 1979) (upholding conviction of attempted theft and attempted receiving stolen property even though property not in fact stolen).  Even if the letter could not in fact have reached Meyer's parents before trial, the evidence is sufficient to establish that he attempted albeit unsuccessfully to dissuade Michael by means of threats from testifying against him.

Finally, relying on the statutory definition of attempt, Meyer argues that the letter did not amount to an "attempt" to dissuade Michael from testifying, because it does not constitute a substantial step, and more than mere preparation for, the commission of the crime of witness tampering.  First, the record easily supports a finding that Meyer had taken a substantial step, something more than mere preparation.  But that finding is not needed because Meyer was not charged with attempt under Minn. Stat. § 609.17 (2002).  He was charged with witness tampering.  The witness-tampering statute uses the word "attempt," but that does not mean the state must prove the distinct crime of attempt.[1]  When the word "attempt" is used in a substantive criminal statute and is not defined, a court will give the word its ordinary meaning.  See State v. Koening, 666 N.W.2d 366, 373 (Minn. 2003) (defining the word attempt as "[a]n effort or try").  The record
supports the conclusion that Meyer tried to put some pressure on Michael not to testify against him.

III

Meyer argues, pro se, that he was denied his right to the effective assistance of counsel because his trial attorney (1) lost evidence of a "kite" he sent jail staff, complaining about "their taking everything from [his cell] including hygiene products"; (2) failed to call his therapist as a witness, presumably to testify that he advised Meyer to write his feelings down as part of his therapy for depression; (3) failed to introduce evidence of a "tablet full of 'letters' that [he] wrote months before [his] arrest as part of [his] therapy."  Meyer's claim lacks merit.

The test for determining whether a defendant was denied effective assistance of counsel is whether counsel's performance was deficient and, if so, whether the verdict would have been different but for this deficiency.  State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984)).  The court need not evaluate both factors if either one is determinative.  State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).  The court uses an objective standard of reasonableness in evaluating an attorney's performance, State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986), and recognizes that "counsel must have discretion and flexibility to devise a trial strategy that best serves the client," State v. Brocks, 587 N.W.2d 37, 43 (Minn. 1998).  

The record contains no evidence, other than Meyer's assertion that counsel lost evidence of the "kite" Meyer sent jail staff, complaining about their taking things from his cell.  In addition, Meyer has not established that the verdict would have been different had counsel introduced evidence of the "kite."  The court expressly stated on the record that it believed Lieutenant Johnson's testimony that the letter was intercepted from the outgoing mail and disbelieved Meyer's "speculation about how it might otherwise have been found."    Accordingly, evidence of the "kite" counsel allegedly lost would not have changed the court's verdict.

Meyer's claim that counsel failed to call Meyer's therapist as a witness and to introduce a tablet containing "letters" he had written for therapeutic purposes does not provide a basis for his ineffective-assistance-of-counsel claim.  These are matters of trial strategy about which this court will not second-guess counsel.

Reversed and remanded.

[1]  Minn. Stat. § 609.17 (2002) (defining attempt as an "act which is a substantial step toward, and more than preparation for, the commission of [a] crime").