Appellant failed to prove an actual, ineffective assistance of counsel claim based on his allegation that his trial counsel materially changed trial strategy without his consent.
Contested statements made by appellant's trial counsel during closing arguments do not amount to improper concessions of criminal guilt so as to give rise to an ineffective assistance of counsel claim.
Appellant's accomplice's affidavit, created 4 years after appellant's trial and stating merely that his earlier testimony, which had been used to help convict appellant, had been "a lie," was not a sufficient ground for a new trial under the Larrison test.
Heard, considered, and decided by the court en banc.
The opinion of the court was delivered by: Gilbert, Justice
Concurring in part, dissenting in part, Hanson, J.
This is our third review of this case and involves our review after remand of a post-conviction court's denial of a petition for relief. Our first review, Dukes I, was Dukes' direct appeal of his conviction for the attempted aggravated robbery and attempted first-degree felony murder of Bennie Chaney, and first-degree felony murder of Joe McKinney for which he was sentenced to consecutive sentences of life imprisonment for first-degree murder and 180 months for attempted first-degree murder. State v. Dukes, 544 N.W.2d 13 (Minn. 1996) (hereinafter Dukes I). We affirmed the conviction. Id. at 15
Our second review, Dukes II, was Dukes' appeal of the denial of his petition for post-conviction relief. Dukes v. State, 621 N.W.2d 246 (Minn. 2001) (hereinafter DukesáII). In Dukes II, Dukes argued, among other claims, (1) the post-conviction court erred in dismissing as procedurally barred his claim that he had received ineffective assistance of counsel because his attorney had conceded his guilt as to the attempted aggravated robbery charge without Dukes' consent, and (2) the post-conviction court erred in denying him a new trial on the basis of an accomplice's recantation of plea testimony that had been used to convict Dukes. Id. at 252, 257. We remanded to the post-conviction court on these two issues. Id. at 255, 258. After holding an evidentiary hearing on October 10, 2001, the post-conviction court made findings of fact and conclusions of law and entered an order denying relief, dated February 7, 2002. Now we are presented with Dukes III, the appeal of that denial. We affirm.
The facts of the underlying crimes in this case are set out in detail in Dukes I. 544áN.W.2d at 15-18. The essential facts are as follows. On April 1, 1994, Dukes and two accomplices, Kevin Lewis, n/k/a Hannabal Shaddai, and Steve Morrison, drove in Dukes' car from Dukes' home in Minneapolis to St.áPaul. Morrison and Dukes were both armed with handguns. Bennie Chaney testified that the trio pulled up to the curb in front of him, that a man in the front passenger seat held up a gun, cocked it, and said something Chaney interpreted to mean hand over your money. Chaney ran behind the car and in the street. When he was about 30 yards away, he turned to see that the car was still parked at the curb. Hoping to scare them away, Chaney mimed going into his jacket for a gun at which point Morrison opened the back door, shouted something to Chaney, and fired two shots in his direction. Chaney escaped unharmed and at Dukes' trial Chaney identified Dukes as one of the men in the car.
Other witnesses then noticed the car as Dukes, Lewis, and Morrison continued driving through the neighborhood, eventually stopping across the street from a car owned by Joe McKinney. McKinney was seated in the driver's seat talking to some neighborhood children. Morrison and Lewis got out of Dukes' car and approached McKinney's car. Morrison walked up to the driver's window, brandished a gun, and demanded money. Meanwhile, Lewis had positioned himself on the other side of McKinney's car armed with Dukes' gun. When McKinney made a motion with his hand, both Morrison and Lewis fired and Lewis' shot hit McKinney in the back of the head. McKinney died early the next morning from the wound. Dukes was arrested and charged with the attempted aggravated robbery and first-degree attempted murder of Chaney and the first-degree murder of McKinney.
Before Dukes' trial, Lewis pleaded guilty to second-degree murder and attempted first-degree murder and in his plea hearing he testified to roughly the events outlined above. As part of the plea, Lewis was to receive a reduced sentence and he agreed to testify at the trials of Dukes and Morrison. At the beginning of Dukes' trial, however, on September 13, 1994, Lewis withdrew his plea and refused to testify. The district court allowed the prosecution to read the redacted transcript of Lewis' plea hearing into the record.
During Dukes' trial, the prosecutor presented a strong case, establishing that ballistics matched the bullet that killed McKinney to Dukes' gun, that Dukes' car was used during the crimes, and that Dukes had been identified by eyewitnesses. Additionally, the prosecution relied on Lewis' plea transcript.
Defense counsel conceded some obvious facts that were bound to appear as evidence in his short, opening statement.*fn1 He told the jury that there were "two bungled holdups that resulted in the accidental, unintentional unexpected death of Joe McKinney." He described these acts as "disorganized crime" but told the jury that the essential proof of attempt, intent, and aiding and abetting would not be proved beyond a reasonable doubt.. Counsel did concede in opening statement that there was an attempt to "rob intentionally * * * by two of the co-defendants. The evidence will not show that Derrick Dukes was aiding and abetting these people." The defense counsel further argued that though there were two crimes committed that day, they were not committed by Dukes and there was no first-degree murder. Defense counsel then stated that if Lewis and Morrison were on trial, he would urge the jury to find them guilty of attempted robbery and unintentional murder. Finally, he stated that Dukes was not an aider and abettor of these two men: "Derrick Dukes was duped."
Defense counsel also conducted cross-examination to impeach the memory and credibility of the prosecution's witnesses; criticized the use of leading questions by the prosecution in eliciting Lewis' plea; criticized the presentation of an accomplice's testimony; pointed out that the jury never heard or saw the accomplice; and questioned the reliability of the ballistics. Additionally, defense counsel called Dukes' mother, stepfather and girlfriend, who all testified that Dukes had money, and a friend of Dukes who testified that Dukes stated that he went to St. Paul believing he was helping Morrison run an errand and had no idea what his accomplices had planned.
In his closing argument, Dukes' attorney discussed the prosecution's failure to prove Dukes' intent to rob or murder either victim, and the lack of proved intent to kill by either of his accomplices. He also made four statements that Dukes now alleges amount to implied concessions of guilt. The jury convicted Dukes of all counts, and in Dukes I we affirmed, noting the strength of the prosecution's case against Dukes. 544 N.W.2d atá20 ("We believe the evidence of intent was strong enough that the jury could not rationally have acquitted appellant on the first-degree charge, where appellant and his accomplices planned the robbery, armed themselves with loaded handguns, proceeded to St. Paul for the express purpose of executing their plan, located two victims, and finally, in the course of their robbery spree, shot McKinney in the back of the head at close range."). No ineffective assistance of counsel claims were raised during that appeal.
Three years later, in September 1999, Dukes raised the issue of ineffective assistance of counsel for the first time in his petition for post-conviction relief. He offered expert witness testimony of attorney Phillip Resnick, a well-respected member of the National Association of Criminal Defense Lawyers. Resnick testified to a number of examples of error, including his belief that counsel had conceded Dukes' guilt. Resnick stated that it was clear to him that trial counsel had switched strategies and should have stuck to the "duped driver" defense. Dukes then testified that he and his trial attorney had agreed to present the duped driver defense and go for an acquittal on all charges. Dukes also offered a handwritten affidavit dated June 24, 1998 and signed by Lewis, n/k/a Hannabal Shaddai, in which Shaddai claims that the statement he made during his plea hearing was "a lie." The district court denied Dukes' petition for post-conviction relief.
In Dukes II, Dukes appealed the denial of post-conviction relief and we affirmed the denial of most claims but remanded two issues to be heard on their merits. 621áN.W.2d at 250. The first of these remanded issues related to the assertion that Dukes' attorney had conceded his guilt as to the aggravated robbery count without his permission. Id. at 252. We stated that Dukes' attorney's closing statements "could be interpreted as conceding" guilt. Id. at 253 (emphasis added). We remanded this issue to the post-conviction court because additional fact-finding and testimony from Dukes, his trial attorney, and other witnesses was needed. Id. at 255. Also remanded was Dukes' claim that the post-conviction court erred in denying a new trial because of Lewis' recantation of his plea testimony. Id. at 257-258. We stated that the post-conviction court appeared to have applied the test for newly discovered evidence instead of the test for newly discovered falsified testimony, and we remanded for the court to apply the appropriate test to this claim. Id.
During the remand proceedings in the district court, Dukes' trial attorney, Richard Coleman, testified as to the first issue. Coleman stated that he and Dukes had agreed that the defense was to be that Dukes drove the car but was unaware that crimes would be committed. He testified that Dukes at no time agreed to change the defense strategy from going for not guilty verdicts on all charges, and further stated that he did not intend to concede guilt and, in fact, did not concede guilt during closing arguments. The expert defense witness again testified that, in his opinion, the closing argument was not a reasonable attempt at getting not guilty verdicts on all counts because counsel had conceded guilt. No additional testimony was given regarding the second remanded issue. The post-conviction court again denied Dukes' petition for relief.
The court found as follows in its Findings of Fact, Conclusions of Law, and Order Denying Relief:
6. Because trial counsel did not intend to concede guilt, there is no evidence in the record that counsel discussed such a strategy or that Petitioner explicitly agreed to such a strategy.
7. Petitioner's trial counsel testified that he did not intend to make and did not make any statements that could be considered as concessions of Petitioner's guilt.
8. Counsel's strategy was consistent throughout the trial.
9. The statements in the final argument, considered in the totality of the circumstances and were not necessarily concessions of Petitioner's guilt as to any element. [sic]
10. The legal and factual bases for the claim that Petitioner was denied the effective assistance of counsel at trial because his counsel may have made concessions of guilt during final argument were known and available to Petitioner at the time of his direct appeal.
11. Petitioner has not shown why the claim should in fairness be considered in a subsequent post conviction proceeding.
The post-conviction court then concluded as follows:
1. Petitioner is procedurally barred from raising the claim that his conviction was obtained by the use of false testimony at trial. The legal and factual bases necessary to raise the claim were available at the time of the direct ...