Tommy Salyers, petitioner, Appellant, vs. State of Minnesota, Respondent.

This opinion will be unpublished and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

A04-14

 

Tommy Salyers, petitioner,
Appellant,
 
vs.
 
State of Minnesota,
Respondent.

 

Filed August 31, 2004

Affirmed

Wright, Judge

 

Koochiching County District Court

File No. K7-00-127

 

 

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

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

 

Jennifer J. Hasbargen, Koochiching County Attorney, Koochiching County Courthouse, 715 Fourth Street, International Falls, MN  56649 (for respondent)

 

 

            Considered and decided by Wright, Presiding Judge; Randall, Judge; and Kalitowski, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

Appellant challenges the district court's denial of postconviction relief from his conviction of third-degree controlled substance crime.  Appellant argues that he was denied effective assistance of counsel because his trial attorney failed to challenge the search warrant's no-knock provision.  Appellant also contends that the district court abused its discretion in declining to clarify the jury instructions.  We affirm.

FACTS

            On February 16, 2000, Officer John Decker applied for and received a no-knock search warrant for appellant Tommy Salyers's residence, vehicle, and person.  The supporting affidavit stated that the objects of the search were controlled substances, drug paraphernalia, and weapons.  The search warrant was executed the same day by approximately six officers. 

Inside the residence, the officers found Salyers, Troy Sorenson, Lisa Ollikkala, and four juveniles, who were pat searched and secured by police.  Neither weapons nor drugs were found on three of the juveniles, and they were allowed to leave.  The fourth juvenile, 17-year-old J.I., had purchased two bags of marijuana immediately before the search.  The officers recovered marijuana from Sorenson and drug paraphernalia, methamphetamine, and marijuana from Ollikkala.  The officers also recovered four bags of marijuana hidden under the couch near Salyers and three bags of marijuana hidden in his underpants.  The officers also recovered from the residence bundles of currency, two postal scales, and two loaded firearms.

Salyers was charged with possession of a firearm by an ineligible person and third-degree controlled substance crime.  Minn. Stat. §§ 609.165, subd. 1b; 152.023, subd. 1(3) (1998).  The case proceeded to trial, after which a jury found Salyers not guilty of the firearm offense and guilty of the controlled substance offense.  Salyers was sentenced to 59 months' imprisonment and a $75,000 fine.  The district court later amended the sentence to 53 months' imprisonment.  In June 2003, Salyers filed a petition for postconviction relief.  The district court denied the challenges to the conviction but reduced the fine to $50.  This appeal followed.

D E C I S I O N

On appeal, we review the decision of the postconviction court for an abuse of discretion.  State v. Doppler, 590 N.W.2d 627, 632-33 (Minn. 1999).  We examine factual issues to determine whether the evidence is sufficient to sustain the postconviction court's findings.  Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003).  On legal issues, we exercise de novo review.  Id.

I.

 

To prevail on a postconviction claim of ineffective assistance of counsel, Salyers must establish that (1) the representation "fell below an ‘objective standard of reasonableness,'" and (2) "there is ‘a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'"  Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  We need not address both elements "if the defendant makes an insufficient showing on one."  Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. 

Salyers argues that his trial counsel was ineffective for failing to challenge the no-knock entry provision on the search warrant because, he contends, the warrant application and affidavit were devoid of any specific facts to support a no-knock entry.  When assessing the representation of counsel, there is a "strong presumption" that the attorney's conduct "falls within the wide range of reasonable professional assistance."  Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).  In Minnesota, when an attorney exercises the customary skills and diligence that a reasonably competent attorney would perform under the circumstances, the attorney acts within the objective standard of reasonableness.  Doppler, 590 N.W.2d at 633.

Our review of the record leads us to conclude that Salyers's counsel performed as a reasonably competent attorney.  At the omnibus hearing, Salyers's counsel challenged the issuance of the search warrant, arguing that it was not based on probable cause, that the confidential informant's reliability was not shown, and that the warrant was pretextual.  In her affidavit, Salyers's trial counsel states that she did not omit a challenge to the no-knock entry for strategic reasons.  Rather, after the omnibus hearing, she concluded that, although authorized to enter unannounced, the police executing the search warrant knocked and announced their presence before entering.  See State v. Grover, 402 N.W.2d 163, 166 (Minn. App. 1987) (finding attorney's decision not to contest validity of search warrant did not result in ineffective assistance of counsel when attorney's decision may have been for strategic reasons or because attorney concluded that contesting warrant would have been futile). 

There is conflicting testimony as to how the officers entered the residence.  At the omnibus hearing and later at trial, Officer Decker testified that the officers "did not use the ‘no-knock' option."  Before entering, the officers knocked on the door and announced their presence.  But Officer Jespersen testified at trial that he was the first to enter the residence, and he did so without knocking.  He simply turned the handle and yelled, "[P]olice, search warrant."  Officer Skifstad, who entered directly behind Officer Jespersen, contradicted Officer Jespersen's testimony, stating that Officer Jespersen knocked and they announced themselves as they entered the house.

In light of the "strong presumption that a counsel's performance falls within the wide range of reasonable professional assistance," State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (quotation omitted), the record does not support a conclusion that the performance of Salyers's trial counsel constitutes ineffective assistance of counsel.  She challenged the search warrant on those issues she deemed meritorious.  Even if the decision were mistaken, an error in judgment does not constitute ineffective assistance of counsel absent a showing that, but for the error, the outcome would have been different.  Grover, 402 N.W.2d at 166.  Thus, we next examine the merits of Salyers's argument.

A judge's decision to issue a warrant is entitled to great deference.  State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985).  In order to justify an unannounced entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would endanger the officers executing the warrant or result in the destruction of evidence.  Richards v. Wisconsin, 520 U.S. 385, 395, 117 S. Ct. 1416, 1421-22 (1997).  This showing is not substantial, but the police are required to make it whenever the reasonableness of an unannounced entry is challenged.  Id. at 395, 117 S. Ct. at 1422.  Reasonable suspicion is "something more than an unarticulated hunch."  State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000).  "[T]he officer must be able to point to something that objectively supports the suspicion at issue."  Id. 

Salyers argues that authorization of the unannounced entry was not justified because the search-warrant application used boilerplate language without alleging any facts to warrant such an entry.  Generally, without more, the boilerplate language in a search warrant affidavit is not sufficient to support authorization for an unannounced entry.  Id. at 322.  But when there is specific, objective information in the affidavit that supports a reasonable suspicion that the officer's safety would be jeopardized, the unannounced or "no-knock" entry is authorized.  Id. at 321-22 (finding that unannounced entry provision was authorized where affidavit specifically listed that numerous weapons were found in defendant's house three months earlier). 

Here, the proffered justification for an unannounced entry stated:

The items to be searched for may be easily disposed and an announced entry would alert the residents and a loss of evidence may result.  Information also indicates the presence & availability of an unknown firearm within the building and an announced entry could pose a safety risk to officers.

 

Salyers contends that the alleged risk to officer safety posed by the presence of a firearm was insufficient because the officer did not explain the origin of the information and the allegation was merely a suspicion.  But a threat to officer safety justifying an unannounced entry may be based on reasonable suspicion.  Wasson, 615 N.W.2d at 321.  In reviewing a judge's decision to issue a search warrant, we do not review each component of the affidavit in isolation.  Indeed, "the components viewed together may reveal . . . an internal coherence that [gives] weight to the whole."  State v. Harris, 589 N.W.2d 782, 788 (Minn. 1999) (quotation omitted) (alterations in text).  It can be reasonably inferred from reading the affidavit and application together that a confidential reliable informant was the officer's source for the information regarding the firearm. 

Under the facts of this case, the no-knock entry was properly authorized.  The decision of Salyers's counsel to forego a challenge to that aspect of the search warrant was reasonable.  Accordingly, the district court did not abuse its discretion in denying the postconviction relief on these grounds.

II.

 

Salyers argues alternatively that the admission of evidence seized during the search of his home constituted plain error.  "Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion."  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).   Salyers failed to object to the admission of the evidence.  Failure to object to an error at trial ordinarily constitutes waiver of the defendant's right to appeal.  State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983).  But we may consider the claim on appeal if the error was plain and it affected his substantial rights.  Id.; see also State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (setting out three-prong test).  If this standard is met, "we may correct the error only if it ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.'"  State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001) (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 1549 (1997) (alteration in text).

            The sole question is whether the district court erred in admitting the evidence found during the search of Salyers's residence.  The evidence at issue here was listed on the search warrant, found in the residence, and identified in the warrant's return.  Because the search warrant was properly issued and executed, and the evidence was probative of Salyers's guilt, there is no basis for concluding that admitting the items seized during the search was erroneous.

III.

 

Salyers next argues that the district court abused its discretion in declining to clarify the jury instructions in response to the jury's inquiry about whether it could return a guilty verdict on a theory of accomplice liability under which Salyers had not been charged.  It is well established that the district court may, in its discretion, give additional instructions in response to a jury's question on any point of law.  Minn. R. Crim. P. 26.03, subd. 19(3).  The district court also has the discretion to amplify previous instructions, reread previous instructions, or give no response at all.  Id.; State v. Murphy, 380 N.W.2d 766, 772 (Minn. 1986). 

Here, the jury asked the district court, "[I]f we decide he is allowing sales to minors in the home, does that make him guilty of the sale?"  Salyers's trial counsel told the district court that it should answer "no."  The district court, however, responded to the jury's question by stating, "I can only respond that you should consider the law and the instructions before you and apply it to the facts of the case as presented and arrive at a true verdict."

In light of the broad discretion afforded the district court in responding to jury questions and the nature of the response given, the district court's response was not an abuse of its discretion.

Affirmed.