Demario James Drummond, 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This opinion will be unpublished and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

A04-230

 

Demario James Drummond, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed October 5, 2004

Affirmed Gordon W. Shumaker, Judge

 

Ramsey County District Court

File No. K9-01-1724

 

 

 

Demario James Drummond, OID #192295, MCF - Stillwater, 970 Pickett Street North, Bayport, MN 55003-1490 (pro se appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 Kellogg Blvd. West, Suite 315, St. Paul, MN 55102 (for respondent)

 

 

 

            Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

On appeal from an order denying a postconviction petition challenging a 2001 conviction of attempted first-degree murder, drive-by shooting, and second-degree assault, appellant Demario James Drummond argues that the postconviction court erred by denying his petition without an evidentiary hearing.  Appellant also argues that  Spreigl evidence and the hearsay statements of a four-year-old witness were erroneously admitted at trial and that he was denied effective assistance of trial and appellate counsel.  Because the postconviction issues relating to the Spreigl evidence and the out-of-court statements were dealt with on direct appeal and because the ineffective-assistance-of-counsel claims are without merit, we affirm.

FACTS

            On May 15, 2001, Zachary Kloeppel was shot while he was in downtown St. Paul.  A police officer parked in a squad car a block from the scene of the shooting heard the shots and followed the suspected shooter's car as it drove away.  The officer stopped the car and identified the driver as appellant Demario Drummond.  Drummond's four-year-old daughter was the only passenger in the car.  The child told the police that her father "had a gun" and "threw the gun out the window."  The police found no gun in the car but recovered one near the scene of the shooting.

Drummond pleaded not guilty to charges of attempted murder, assault, and drive-by discharge of a firearm.  At the jury trial on these charges, the district court allowed the state to present Spreigl evidence of Drummond's prior convictions in 1997 of second-degree assault and ineligible possession of a firearm stemming from a 1996 incident in which Zachary Kloeppel was shot.  The court found that this evidence was relevant, helpful to the jury in deciding motive, and probative in light of Drummond's defense of mistaken identity.  The court also permitted the police to testify to Drummond's daughter's statements about the gun but would not allow the child to testify.  The court found that the statements were against Drummond's interest and qualified as excited utterances.

The jury found Drummond guilty of all three charges.  He appealed, challenging the admission of the Spreigl evidence.  This court found the evidence admissible and ruled that the district court did not err in allowing the child's statements into evidence.  State v. Drummond, 2002 WL 1902929 (Minn. App. Aug. 20, 2002), review denied (Minn. Oct. 29, 2002).

On September 22, 2003, Drummond filed a petition for postconviction relief, alleging that (1) the prosecution misrepresented the facts of the 1997 convictions, (2) the evidence was insufficient to sustain those convictions, and, thus, they should not have been allowed under Spreigl; (3) trial counsel was ineffective in his assistance because he failed to challenge the Spreigl evidence; (4) appellate counsel provided ineffective assistance because he failed to allege ineffective assistance of trial counsel; and (5) it was error to admit Drummond's daughter's hearsay statements.  The district court concluded that each of the postconviction issues had either been raised on direct appeal or stemmed from the Spreigl issue, which had been decided on direct appeal.  The court denied Drummond's petition without holding an evidentiary hearing.  Claiming the denial was error, Drummond appealed.

D E C I S I O N

Appellate courts "review a postconviction court's findings to determine whether there is sufficient evidentiary support in the record."  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted).  Appellate courts "afford great deference to a district court's findings of fact and will not reverse the findings unless they are clearly erroneous." Id. (citation omitted).  In general, "[t]he decisions of a postconviction court will not be disturbed unless the court abused its discretion."  Id.  But its legal determinations will be reviewed de novo.  Id.

            A petitioner seeking postconviction relief has the burden of establishing, by a preponderance of the evidence, facts that warrant relief.  Minn. Stat. § 590.04, subd. 3 (2002).  A petitioner's allegations must be more than argumentative assertions without factual support.  Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971).  A hearing will not be required unless facts are alleged that, if proven, would entitle the petitioner to the requested relief.  Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990).

Drummond claims that the district court erred by dismissing his petition without holding a hearing.  He claims that he made  specific factual allegations to justify a new trial.  But once a defendant has had a direct appeal, "all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief."  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).

Drummond's arguments relate to the introduction of the 1997 Spreigl evidence and his daughter's out-of-court statements. And although Drummond asserts that (1) the prosecutor misled the jury about the 1997 convictions, (2) the facts underlying the 1997 conviction do not establish that it ever occurred, and (3) the district court erred in admitting his daughter's out-of-court statements, both the Spreigl evidence and the out-of-court statements were addressed by this court in Drummond's direct appeal.  State v. Drummond, 2002 WL 1902929 (Minn. App. Aug. 20, 2002), review denied (Minn. Oct. 29, 2002).  Further, the district court's denial of Drummond's postconviction petition challenging the 1997 conviction was also affirmed by this court.  Drummond v State, 2004 WL 771757 (Minn. App. Apr. 13, 2004), review denied (Minn. June 29, 2004).  Nevertheless, Drummond claims that the issues "were not fully litigated" in this court or the supreme court.  But he provides no evidence of any new factual allegations regarding the Spreigl evidence or the out-of-court statements, and he fails to show what facts were not addressed in his direct appeal.  Because Drummond makes no specific factual allegations that would entitle him to relief, we hold the district court did not err by denying his petition without holding an evidentiary hearing on these issues.

Drummond next claims that the district erred by denying his postconviction petition without considering his ineffective-assistance-of-counsel claims.  To claim ineffective assistance of counsel, a petitioner must allege facts that affirmatively show that counsel's representation (1) fell below an objective standard of reasonableness and (2) but for counsel's errors, there is a reasonable probability that the result of the proceedings would have been different.  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, 2068, 2068 (1984)).  Here, Drummond makes two claims, one regarding trial counsel and one regarding appellate counsel. 

a.         Trial Counsel

Drummond did not raise an ineffective-trial-counsel claim in his first appeal to this court.  He now alleges that trial counsel (1) allowed the state to mislead the jury about the facts of the 1997 conviction, (2) failed to argue that the Spreigl evidence was not clear and convincing, and (3) failed to move for a mistrial when Kloeppel testified that the police identified the defendant for him.

The Minnesota Supreme Court has concluded that all issues that were known or raised at the time of direct appeal will be precluded from postconviction consideration.  State v. Jihad, 594 N.W.2d 522, 524 (Minn. 1999).  This rule applies to ineffective-assistance-of-counsel claims.  Zenanko v. State, 587 N.W.2d 642, 644 (Minn. 1998).  An exception to this rule will be made only when the claim is "so novel that its legal basis was not reasonably available at the time of the direct appeal" or in limited situations where fairness requires a hearing.  Jihad, 594 N.W.2d at 524 (citation omitted).

Drummond did not raise this claim on direct appeal, and he fails to show why this court should now consider the claim, in spite of the fact that knew about it at the time of his direct appeal.  Further, all of Drummond's ineffective-assistance claims stem from the admission of the 1997 convictions as Spreigl evidence.  That issue has not only been addressed, but also this court found that the Spreigl evidence was not admitted in error.  Because it was proper evidence, its admission could not support a claim of ineffective assistance of counsel. 

b.         Appellate Counsel

Drummond also claims ineffective assistance of appellate counsel because appellate counsel failed to argue that trial counsel was ineffective.  Appellate counsel is not required to raise all possible issues.  Dent v. State, 441 N.W.2d 497, 500 (Minn. 1989).  And generalized allegations of incompetence are not reason for an evidentiary hearing.  Fratzke, 450 N.W.2d at 102.  

Here, Drummond's only claim regarding appellate counsel is the failure to raise a claim of ineffective trial counsel.  Specifically, he claims that appellate counsel should have challenged trial counsel's handling of the admission of the 1997 convictions as Spreigl evidence.  But again, this issue was already addressed in Drummond's direct appeal, and no error was found.  The district court did not, therefore, err by denying Drummond's ineffective-assistance-of-counsel claims without holding an evidentiary hearing.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.