State of Minnesota, Respondent, vs. Jose Luis Mancilla, Appellant.

State of Minnesota, Respondent, vs. Jose Luis Mancilla, Appellant. A06-581, Court of Appeals Unpublished, July 17, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-581

 

State of Minnesota,
Respondent,
 
vs.
 
Jose Luis Mancilla,
Appellant.

 

Filed July 17, 2007

Affirmed in part, reversed in part, and remanded

Peterson, Judge

 

Winona County District Court

File No. KX-05-407

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Charles E. MacLean, Winona County Attorney, Nancy L. Buytendorp Bostrack, Assistant County Attorney, Winona County Courthouse, 171 West Third Street, Winona, MN  55987 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Shumaker, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from a conviction of and sentence for first-degree burglary, appellant argues that (1) he did not validly waive his right to conflict-free representation when, although he was informed of defense counsel's representation of a prosecution witness five years earlier, he was not advised of the potential dangers of defense counsel's representation given the conflict; (2) the prosecutor committed prejudicial misconduct, and plain error, by introducing evidence that an eyewitness was "sometimes" afraid of appellant, and by eliciting police testimony that they had "dealt with" appellant in the past; (3) he was denied effective assistance of counsel when his attorney elicited evidence that appellant had been in prison; and (4) the district court erred in imposing a consecutive sentence without reducing appellant's criminal-history score to one when determining the presumptive duration.  We affirm appellant's conviction but reverse his sentence and remand for resentencing.

FACTS

            In the evening on March 11, 2005, S.S. and M.R. went to J.O.'s house, where they watched movies and drank beer.  While at J.O.'s house, M.R. went into a room, closed the door, and called appellant Jose Luis Mancilla.  During the conversation, S.S. began pounding on the door and yelling and screaming at appellant.  There had been tension between appellant and S.S. due to appellant's relationship with S.S.'s former girlfriend. 

            Just after midnight on March 12, 2005, appellant and two other men entered J.O.'s house through an unlocked, but closed, door.  J.O. testified that no one knocked and that he was startled when the door suddenly flew open.  When J.O. told the men to leave, they said that they were there for S.S. and continued walking through the house. 

            J.O. followed them into the kitchen.  Appellant continued on to the bathroom, where S.S. was, and the two other men who had arrived with appellant remained in the kitchen with J.O.  J.O heard scuffling sounds coming from the bathroom and saw appellant hitting S.S.  S.S. testified that appellant hit him in the back of the head two or three times, causing him to fall to the floor. 

            J.O. became involved in a physical confrontation with the two other men.  Someone used a kitchen chair to strike J.O. over the head, causing him to fall to the floor and sustain a deep cut on his head.  As J.O. stood up, he saw appellant and his friends running from the house and S.S. coming out of the bathroom. 

            Appellant was charged with two counts of first-degree burglary and one count each of second- and fifth-degree assault.

            Appellant testified at trial that he and his friends knocked on the door to J.O.'s house and that S.S. had invited them to come there.  Appellant admitted arguing with S.S. at J.O.'s house but denied that he hit S.S. or that S.S. hit him.  Appellant testified that J.O. did not ask them to leave until after appellant began arguing with S.S.  Appellant's trial testimony indicated that he did not know what had occurred between his friends and J.O. in the kitchen. 

            A jury found appellant guilty of both burglary counts and fifth-degree assault and not guilty of second-degree assault.  The district court sentenced appellant on the first-degree burglary conviction to an executed term of 96 months in prison, to be served consecutively to supervised-release-revocation time.  This appeal challenging the conviction and sentence followed.

D E C I S I O N

I.

            Appellant argues that his conviction should be reversed based on the district court's failure to obtain from him a knowing, intelligent, and voluntary waiver of the conflict of interest resulting from defense counsel's previous representation of a witness for the state.

            "The Sixth Amendment right to counsel encompasses a ‘correlative right to representation that is free of conflicts of interest.'"  Cooper v. State, 565 N.W.2d 27, 32 (Minn. App. 1997) (quoting Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 1103 (1981)), review denied (Minn. Aug. 5, 1997).  "This right ‘is not limited to cases involving joint representation of co-defendants . . . but extends to any situation in which a defendant's counsel owes conflicting duties to that defendant and some other third person.'"  Id. (omission in original) (quoting United States v. Cook, 45 F.3d 388, 393 (10th Cir. 1995)).

            ‘[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to gain relief.  But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.'

 

Gustafson v. State, 477 N.W.2d 709, 713 (Minn. 1991) (quoting Cuyler v. Sullivan, 446 U.S. 335, 349-50, 100 S. Ct. 1708, 1719 (1980)).

            Four days before trial, defense counsel informed the district court of a possible conflict of interest, stating that when she looked up S.S.'s name on MNCIS, she realized that she had been the original attorney representing S.S. in a case in which he was ultimately convicted of a felony.  Defense counsel stated that she had discussed the possible conflict with appellant and he wanted her to continue representing him. 

            Appellant has not satisfied his burden of showing "that his counsel actively represented conflicting interests."  The only conflict alleged by appellant is that defense counsel failed to use S.S.'s two prior felony convictions for impeachment purposes.  See Minn. R. Evid. 609 (permitting impeachment of witness with felony conviction).

            Minn. R. Prof. Conduct 1.9(c) states:

            A lawyer who has formerly represented a client in a matter . . . shall not thereafter:

                        (1) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client, or when the information has become generally known;  or

                        (2) reveal information relating to the representation except as these rules would permit or require with respect to a client.

 

            At the time of appellant's trial, S.S.'s prior convictions were matters of public record and, therefore, fall within the generally-known-information exception to rule 1.9(c).  Appellant's contention that defense counsel misunderstood the scope of rule 1.9 and, therefore, declined to impeach S.S. with his prior convictions is speculative and is not supported by the record.  Rather, it appears that defense counsel might have chosen not to use the convictions for impeachment purposes because the defense strategy involved using appellant's prior conviction and probation status as the basis for arguing that appellant's account of events must be true because appellant did not want to risk going back to prison.  Using S.S.'s prior convictions for impeachment purposes could have undercut the credibility of appellant's defense.

            Because appellant has not satisfied his burden of showing "that his counsel actively represented conflicting interests," we do not reach the issue of waiver.

II.

            Appellant argues that the prosecutor committed misconduct, amounting to plain error, by introducing and eliciting inadmissible evidence.

 [I]n presenting evidence, it is unprofessional conduct for a prosecutor to "knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury to offer inadmissible evidence, ask legally objectionable questions, or make other impermissible comments or arguments in the presence of the judge or jury."

 

State v. Richardson, 514 N.W.2d 573, 577 (Minn. App. 1994) (quoting Am. Bar Ass'n Standards for Criminal Justice, Standard 3-5.6(b) (2d ed. 1980)).

            The plain-error doctrine applies when examining unobjected-to prosecutorial misconduct.  State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006).  Under that doctrine, "there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights."  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  Although the Ramey court applied the plain-error doctrine to unobjected-to prosecutorial misconduct, it modified the Griller formulation, which places the burden of proof of all elements on the defendant, holding that "when prosecutorial misconduct reaches the level of plain or obvious error conduct the prosecutor should know is improper the prosecution should bear the burden of demonstrating that its misconduct did not prejudice the defendant's substantial rights."  Ramey, 721 N.W.2d at 299.  A plain error affects the defendant's substantial rights if it is reasonably likely that the absence of the misconduct would have had a significant effect on the jury's verdict.  Id.

            M.R.'s testimony

            "For the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible."  Minn. R. Evid. 616.

Bias may be induced by a witness' like, dislike, or fear of a party, or by the witness' self-interest.  Evidence of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony.

 

State v. Clifton, 701 N.W.2d 793, 797 (Minn. 2005) (quotations omitted).

            M.R. testified:

            Q         Now you've had you've had a friendship relationship with [appellant], is that right?

            A         Well, it was kind of like mutual friends, you know, like friends who know friends, you're all friends.

            Q         And you were subpoenaed here today because you thought it you're not here voluntarily.  You don't really want to testify against [appellant], is that right?

            A         No, I don't.

            Q         Okay, did you have any conversations with [appellant] after this March 12 incident?

            A         Yeah.

            Q         And were they by telephone?

            A         Yes.

            Q         And during those telephone conversations, did [appellant] ever tell you what to say in court?

            A         Um, he didn't tell me what to say but it was kind of like, I don't know what the word is.

            Q         Encouraging you?

            A         Yeah, maybe encouraging.

            Q         And, um, are you afraid of [appellant] sometimes?

            A         Um, I don't know if afraid is the right word, probably more intimidated.

            Q         And why is that?

            A         Because he's bigger than me. 

 

            Citing cases involving threat evidence, appellant argues that M.R.'s testimony should have been excluded because its probative value was substantially outweighed by the danger of unfair prejudice.  See State v. Harris, 521 N.W.2d 348, 353 (Minn. 1994) (stating evidence of threats to witnesses may be relevant in showing consciousness of guilt, but evidence of a prior threat is inadmissible if it is characterized as tending to show defendant's propensity or disposition to commit the crime charged).  Here, there was no evidence of a threat by appellant, and M.R.'s testimony was evidence of bias that was relevant to her credibility and admissible under Minn. R. Evid. 616 and Clifton.  Because the evidence was admissible, eliciting it was not misconduct.

            Officers' testimony

            Officer Joshua John Squires testified:

            Q         And then what did you do after you found the cell phone, followed the tracks and lost the tracks?

            A         I was informed that, um, [appellant] was a possible suspect and I had dealt with him before, so I was going to leave and go to an area where I knew that he was to be living. 

            . . . .

            Q         And while you were in route toward the Northwood Apartments, any further action with that phone?

            A         The phone was sitting, started ringing.  I looked at the phone, the screen, and a name popped up and spelled Luis.  From dealing with [appellant] before, I had known that sometimes he uses that name.  That's his middle name. 

 

In response to a question as to why the officers went to a particular address, Sergeant Eric David Engrav testified that they went there because it "was the last known address we had, were aware of for [appellant]." 

            Because appellant's identity was not at issue, the prosecutor should have known that eliciting the officers' testimony about prior dealings or contact with appellant was improper.  See State v. Strommen, 648 N.W.2d 681, 687-88 (Minn. 2002) (concluding that district court erred in admitting officer testimony that he knew defendant from "prior contacts and incidents" in part because identity was not at issue).  But because defense counsel elicited testimony from appellant about his prior conviction, any misconduct by the prosecutor did not affect appellant's substantial rights because the prior conviction independently indicated to the jury that appellant had prior contacts with police.  Under these circumstances, there is no reasonable likelihood that the absence of the officer's testimony would have had a significant effect on the jury's verdict.

III.

            To show ineffective assistance of counsel, appellant "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, 2068 (1984)).

            Appellant argues that he received ineffective assistance because defense counsel allowed him to testify that he had been in prison and was on parole when the current offense occurred.  Using appellant's parole status was part of the defense strategy of attempting to show that appellant was motivated to remain law abiding.  Appellate courts give particular deference to counsel's decisions regarding trial strategy.  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998); State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (appellate court, having benefit of hindsight, should not review trial tactics; trial counsel must be given flexibility to represent client to the fullest extent possible).  We decline to second guess defense counsel's strategy.

IV.

            The parties agree that the district court erred in assigning appellant a criminal history score of five when sentencing him to a presumptive consecutive sentence.  Appellant committed the current offense while on supervised release from an executed prison sentence.  Consecutive sentences are presumptive when the conviction is for a crime committed by an offender serving an executed prison sentence, or on supervised release, conditional release, or on escape status from an executed prison sentence.  Minn. Sent. Guidelines II.F.  When consecutive sentencing is presumptive, "a criminal history score of one, or the mandatory minimum for the offense, whichever is greater, shall be used in determining the presumptive duration."  Minn. Sent. Guidelines II.F.  Accordingly, we reverse appellant's sentence and remand for resentencing.

            Affirmed in part, reversed in part, and remanded.