Dakota County District Court File No. 19HACR112502
Lori Swanson, Attorney General, St. Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, Elizabeth M. Swank, Assistant County Attorney, Hastings, Minnesota (for respondent)
Cathryn Middlebrook, Interim Chief Appellate Public Defender, Jessica Merz Godes, Assistant Appellate Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Schellhas, Presiding Judge; Stauber, Judge; and Bjorkman, Judge.
In this combined direct and postconviction appeal seeking relief from his conviction of felony domestic assault, appellant argues that he received ineffective assistance of counsel because his attorney failed to impeach the state's key witnesses with their prior convictions of crimes of dishonesty and motives to fabricate the allegations against appellant. Because appellant cannot establish that but for trial counsel's alleged deficient performance the result of the proceeding would have been different, we affirm.
In August 2011, appellant Dwight McGriff was charged with domestic assault in violation of Minn. Stat. § 609.2242, subd. 4 (2010), after he allegedly struck his girlfriend, J.S. Prior to trial, the state provided defense counsel with a two page notice that detailed the prior convictions of the state's witnesses. The notice revealed that J.S. had prior convictions of: (1) theft of a motor vehicle and misdemeanor criminal damage to property from 2001; (2) fifth-degree controlled substance crime from 2007; and (3) theft by check from May 2010. The notice also revealed that D.R., a friend of J.S.'s who was with J.S. on the night of the alleged assault, had prior convictions of: (1) wrongfully obtaining assistance from February 2010 and (2) providing a false name from 1997.
At trial, J.S. testified that on July 29, 2011, she went to a bar in Burnsville with her friends S.D. and D.R. to celebrate her birthday. After consuming several cocktails, J.S. unexpectedly ran into appellant. Appellant and J.S. had been in a sexual relationship since May 2011. According to J.S., appellant told her for the first time that he had a "girlfriend" or "baby mama, " and that she was at the bar with appellant. Appellant asked J.S. not to speak with his girlfriend.
Shortly thereafter, J.S. was confronted by K.B., appellant's "girlfriend" or "baby mama." J.S.'s friend, D.R., then injected herself into the conversation and a physical altercation ensued between K.B. and D.R. J.S. testified that she helped separate the fighting women and that bar employees then asked all the involved parties to leave the bar.
J.S. testified that after she left the bar, she approached K.B. and told her that she did not "want any problems." J.S. further testified that she told K.B. that she had been intimate with appellant because K.B. seemed unaware of J.S.'s relationship with appellant. According to J.S., she then walked away and was struck in the back of her neck. J.S. claimed that she believed that she was struck by appellant because she had seen him walking toward her right before she was hit.
Prior to the cross-examination of J.S., a discussion was held outside the presence of the jury regarding J.S.'s prior convictions. In addition to seeking permission to use J.S.'s prior convictions for impeachment purposes, defense counsel stated that she "would assume" that J.S. was on probation for the 2010 conviction. Defense counsel argued that J.S.'s probationary status would be relevant for cross-examination because "if [J.S.] was engaging in any type of brawling or fighting or violating a no use condition, she could be in trouble with her probation and that would be motive for her to point the finger at [appellant] rather than herself."
The district court allowed defense counsel to impeach J.S. with her prior conviction of theft by check, but not her other convictions. The district court also determined that defense counsel had made an insufficient showing that J.S. was on probation at the time of the charged offense, but invited defense counsel to further investigate the matter and revisit the court's ruling if necessary. Defense counsel, however, chose not to ask J.S. about her theft by check ...