State of Minnesota, Respondent, vs. Mau Chau, Appellant.

State of Minnesota, Respondent, vs. Mau Chau, Appellant. A06-794, Court of Appeals Unpublished, May 8, 2007.

This opinion will be unpublished and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

A06-794

 

State of Minnesota,

Respondent,

 

vs.

 

Mau Chau,

Appellant.

 

Filed May 8, 2007

Affirmed

Kalitowski, Judge

 

Dakota County District Court

File No. K7-05-2490

 

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

 

James C. Backstrom, Dakota County Attorney, Thomas Lockhart, Special Staff Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)

 

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

 

            Considered and decided by Ross, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Mau Chau challenges his conviction of aiding and abetting aggravated robbery, Minn. Stat. § 609.245, subd. 1 (2004), and Minn. Stat. § 609.05, subd. 1 (2004), claiming that he received ineffective assistance of trial counsel because his attorney allowed him to testify narratively.  We affirm.

D E C I S I O N

            Generally, to succeed on an ineffective assistance of counsel claim, an appellant must show: (1) that "counsel's representation fell below an objective standard of reasonableness"; and (2) that there is a reasonable probability that the result of the proceeding would have been different if not for counsel's unprofessional errors.  State v. Cram, 718 N.W.2d 898, 906 (Minn. 2006) (citing and quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)).  We need not address both prongs if one is determinative.  Strickland, 466 U.S. at 697, 104 S. Ct. at 2069; Hale v. State, 566 N.W.2d 923, 927 (Minn. 1997). 

            Here, we conclude that the failure to satisfy the second Strickland prong is determinative.  The record indicates that appellant, contrary to the advice of his attorney, chose to exercise his right to testify, and that his attorney then requested that the district court permit appellant to testify narratively.  The district court agreed.  Appellant does not allege that any of his counsel's other actions constituted ineffective assistance of counsel.  And the record indicates that appellant's trial counsel argued for suppression of evidence, made trial objections, called witnesses, and made posttrial motions on appellant's behalf.

            Appellant only challenges his counsel's decision to allow him to testify narratively and offers two theories to support his contention that the trial outcome was prejudiced by this alleged error.  He argues that the jury's nearly one-day deliberation process shows that the jury did not easily find him guilty and that, had his attorney questioned him properly, the jury would not have unanimously concluded his guilt.  He further argues that the sentence he received was harsher because his counsel's decision that appellant testify narratively impliedly indicated that his counsel believed appellant intended to perjure himself.  Significantly, appellant does not identify any statement he made during his narrative that prejudiced the trial outcome.

            To establish ineffective assistance of counsel, "[t]here must be a showing of actual prejudice, which requires this court to consider the totality of the evidence."  State v. Hood, 405 N.W.2d 459, 462 (Minn. App. 1987) (citing Gates v. State, 398 N.W.2d 558, 562 (Minn. 1987)), review denied (Minn. June 9, 1987).  Here, reviewing the totality of the evidence reveals the strength of respondent's case against appellant.

            On August 13, 2005, appellant drove his brother and two friends to a gas station and parked on the other side of a berm, behind a strip mall.  The two friends had been staying with appellant's family for several days, sharing a room with appellant.  Covering their faces with bandanas and wearing dark clothing, appellant's two friends entered the gas station store, brandished handguns, and ordered the cashier to give them the money in the registers.  They then fled the store on foot, climbed into the backseat of appellant's car, and appellant drove away.

            The men's activities inside the store were recorded by the store's security camera, and their actions outside the store were observed by witnesses.  One witness observed appellant and his brother waiting in the car and the two other men running to the car, climbing in, and yelling at appellant to drive away. 

            Several police officers were dispatched and stopped appellant's car within a mile of the store.  After ordering the occupants out of the car, police found two handguns, two cash drawers, and dark clothing inside the car.  The men were taken into custody.

            At trial, two store clerks and one customer testified to the men's actions inside the store and other witnesses testified regarding the men's actions outside the store.  Several police officers testified regarding the traffic stop, evidence collection, and appellant's in-custody interrogation.  During the interrogation, appellant answered "Yeah" when asked if "everyone [in the car] knew what was going on."

            After a three-day trial, the district court instructed the jury on the requirement to find appellant guilty by proof beyond a reasonable doubt.  The jury found appellant guilty of aiding and abetting aggravated robbery, Minn. Stat. § 609.245, subd. 1 (2004), and Minn. Stat. § 609.05, subd. 1 (2004), and of aiding an offender, Minn. Stat. § 609.495, subd. 1(a) (2004).  The district court vacated the aiding-an-offender conviction at sentencing. 

            The elements of the remaining conviction, aiding and abetting aggravated robbery, require proof that appellant "intentionally aid[ed], advise[d], hire[d], counsel[ed], or conspire[d] with or otherwise procure[d] the other to commit" aggravated robbery.  Minn. Stat. § 609.05, subd. 1.  Simple robbery occurs when an offender,

having knowledge of not being entitled thereto, takes personal property from the person or in the presence of another and uses or threatens the imminent use of force against any person to overcome the person's resistance or powers of resistance to, or to compel acquiescence in, the taking or carrying away of the property. 

 

Minn. Stat. § 609.24 (2004).  A simple robbery is elevated to an aggravated robbery if the offender commits the robbery while he "is armed with a dangerous weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or inflicts bodily harm upon another."  Minn. Stat. § 609.245, subd. 1. 

            The state presented extensive evidence, including a confession by one of the robbers, that appellant's two friends robbed the gas station at gunpoint.  Other than answering "yeah" to the police officer's question, there was no direct evidence indicating that appellant knew about the robbery plan before the robbery actually took place.  But there was considerable circumstantial evidence from which the jury could have found appellant guilty, including (1) the attire of the robbers; (2) the presence of the guns; (3) the location where appellant parked the car; and (4) appellant's actions in driving away from the scene.  Thus, respondent presented evidence that, if believed by the jury, would support appellant's conviction.  In addition, we note that although appellant's original sentence was 45 months incarceration, his sentence was later reduced to 41 months, the minimum presumptive sentence.  

            We have reviewed appellant's testimony and conclude that he did not make any statements that prejudiced his case.  Thus, because appellant was not prejudiced by his attorney's decision that he testify narratively, he has failed to show that he received ineffective assistance of counsel under the second Strickland prong.  Accordingly, we need not analyze the first prong.  Strickland, 466 U.S. at 697, 104 S. Ct. at 2069; Hale, 566 N.W.2d at 927. 

            Affirmed.