This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Chester Lee Grauberger, petitioner,
State of Minnesota,
Lyon County District Court
File No. K797288
Marc G. Kurzman, Kurzman, Grant & Ojala, 219 SE Main Street, Suite 403, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Richard R. Maes, Lyon County Attorney, Courthouse, 607 West Main Street, Marshall, MN 56258 (for respondent)
Considered and decided by Amundson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.
In this appeal for postconviction relief, appellant argues that he was denied effective assistance of counsel when his trial counsel failed to (1) object to the state’s introduction of evidence of prior convictions; (2) request cautionary instructions; (3) impeach the victim and eye witnesses, and (4) request independent DNA examination. Appellant also contends that he is entitled to independent postconviction DNA testing. Because the postconviction court’s findings are well-supported by the evidence and the court properly exercised its discretion, we affirm.
In the early morning hours of April 18, 1997, J.W. waited to use an outdoor pay phone in Marshall while a man finished his phone call. She noted that he seemed very agitated and watched him get into his car. The man opened his car door and asked J.W. if she needed a ride. J.W. stated that she was only there to use the phone. He drove off, and J.W. proceeded to make her call.
As J.W. was finishing her conversation, someone struck her from behind, briefly knocking her out. J.W. felt herself being picked up, carried on her assailant’s shoulder, and then thrown onto the ground in an alley. J.W. struggled and tried to call for help, but the assailant told her, “Be quiet and I won’t hurt you.” The assailant struck her, pulled off her pants, held her down, and sexually assaulted her.
Kalvin Guza lived in a second-floor apartment in a building that had a back door to the alley in the area of the assault. As Guza and his friend, Wendy Cooper, were leaving the building, they saw a man pushing a woman down. But it was too dark for them to clearly see what was occurring. Because the two were unsure what was happening, Cooper told Guza to go back to his apartment and call the police. Guza contacted the police and told them that he believed a rape was occurring. Cooper went back into the building and continued to observe the situation from a second story window in the stairwell.
Officer Joseph Krogman, who was in the area, responded quickly to the dispatch. As the police car pulled into the alley, the man stood up. J.W. could then make out her assailant’s profile and recognized him as the man who had been using the phone. From her vantage point, Cooper saw the man stand up when the police car approached. Krogman saw a man with his pants partially open standing about four feet from J.W., whose face was bloody and pants were down. She was screaming and pointing at appellant.
The man began running, and Krogman radioed for back-up and began chasing him. Officers Krogman and Ellis eventually caught and handcuffed the man. At the time of arrest, the man’s pants and belt were unfastened. There was blood on the man’s clothes, hands, and watch. The man identified himself as Chester Lee Grauberger.
Appellant was taken into custody. During one of Ellis’s periodic inspections of the jail, he caught appellant attempting to wash the blood off his hands and shirt. Ellis immediately confiscated the shirt. Testing later performed by the Minnesota Bureau of Criminal Apprehension confirmed that the blood was J.W.’s.
Appellant was charged with two counts of first-degree criminal sexual conduct, two counts of second-degree criminal sexual conduct, one count of third-degree criminal sexual conduct, one count of fourth-degree criminal sexual conduct, and one count of third-degree assault. A jury trial was held. In addition to presenting testimony from J.W., the two eyewitnesses, investigating officers, and forensic experts, the state also challenged appellant’s character witnesses by asking if they knew of his prior convictions for property damage and assault in the fifth degree. Appellant’s trial counsel called a forensic expert, several character witnesses, and appellant to testify.
Appellant testified that he had been urinating when he heard screaming and subsequently discovered J.W., who had been assaulted by someone else. With respect to prior convictions, appellant testified that both prior convictions resulted from “horsing around.” On cross-examination, the following exchange between the prosecutor and appellant occurred:
Q. I believe I asked you if you are aware that [the victim of the fifth degree assault] had a black eye, and bruises on her back?
A. No, I was not.
Q. Isn’t it true that you either slapped or back-handed her, giving her a black eye?
A. No, that is not true.
Q. Isn’t it true that you caused the bruise on her back by kicking her in the back after you threw her in the snow?
A. No, that’s not true.
The jury returned guilty verdicts on all seven counts. Appellant was sentenced to 258 months and ordered to pay $21,009.69 in restitution to J.W.
With new counsel, appellant brought a direct appeal from his conviction on three issues: (1) he was denied his constitutional right to confront witnesses because the rape shield law barred cross-examining J.W. on her sexual history; (2) his due process rights were violated by an improper in-court identification; and (3) the triple-upward departure of his sentence was improper. Appellant did not raise a claim of ineffective assistance of trial counsel in his direct appeal. This court affirmed the trial court’s conviction and sentencing. State v. Grauberger, No. C5‑98‑1034, 1999 WL 153747, at *1 (Minn. App. Mar. 23, 1999), review denied (Minn. May 18, 1999).
Appellant subsequently retained his present counsel, and petitioned for postconviction relief. He asked that the conviction be set aside because he received ineffective assistance of counsel on appeal (for not raising the claim of ineffective assistance of trial counsel), and requested independent DNA testing of the vaginal swab taken from J.W. to compare with an analysis of DNA materials obtained from appellant’s underwear.
The postconviction court denied appellant’s motion for relief. The court rejected appellant’s ineffective-assistance-of-counsel argument, finding that what appellant saw as deficiencies could legitimately be characterized as trial strategy. Moreover, the postconviction court found that appellant had not met his burden of showing that, but for these deficiencies, the trial result would have been different. The court noted that there was “very strong if not overwhelming” evidence against appellant: he was identified by the victim, the eyewitnesses, and the officer; he was apprehended by the police while running with his pants open; and the blood on his shirt matched J.W.’s blood.
The postconviction court also denied appellant’s request for additional DNA testing. The court noted that even if the test “show[ed] the presence of DNA belonging to someone other than the victim, specifically his girlfriend,” it would not necessarily exonerate him. It would merely corroborate testimony that appellant had a sexual relationship with his girlfriend.
D E C I S I O N
We review a postconviction proceeding to determine whether the evidence is sufficient to sustain the findings of the postconviction court. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). Absent an abuse of discretion, a postconviction court’s decision will not be disturbed on appeal. McMaster v. State, 551 N.W.2d 218, 218 (Minn. 1996). Appellant points to numerous examples, both in his pro se brief and through counsel, that he believes constitute ineffectiveness of counsel. But appellant cannot point to anything more than a disagreement between himself and his appellate counsel concerning what issues should be raised on the direct appeal. See Black v. State, 560 N.W.2d 83, 86 (Minn. 1997) (finding counsel has no duty to include claims that could detract from other more meritorious issues).
One of the bases that appellant claims represents his trial counsel’s ineffectiveness is the failure to object to or to request curative instructions for the state’s inappropriate and misleading use of appellant’s prior convictions during cross-examination. The state’s line of questioning here seemed designed to inflame the jury and to suggest that these specific instances of misconduct are indicative of appellant’s character. We take this opportunity to remind the state that a “prosecutor’s duty is not to seek a conviction at any price but, rather, is to act as a minister of justice.” State v. Duncan, 608 N.W.2d 551, 555 (Minn. App. 2000) (quotation omitted), review denied (Minn. May 16, 2000). Prosecutorial misconduct will not be taken lightly. See, e.g., State v. Erickson, 589 N.W.2d 481, 485 (Minn. 1999) (finding prosecutorial abuse of a rule of criminal procedure “prejudicial to the administration of justice and contrary to the spirit of the rule”); State v. Salitros, 499 N.W.2d 815, 816 (Minn. 1993) (reiterating “that if prosecutors persist in making improper statements such as those made in this case, we will not hesitate, in an appropriate case, to make the prosecutor try the case over again” (citation omitted)). Further, the tactic was unnecessary, given the strength of the state’s case against appellant.
Despite the prosecutor’s improper comments, appellant cannot satisfy the standard set in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Under the two-part Strickland test, appellant must demonstrate (1) that his trial court counsel representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for his errors, the outcome of the proceedings would have been different. King v. State, 562 N.W.2d 791, 795 (Minn. 1997). We “may dispose of an ineffective assistance of counsel claim when the appellant fails to prove there was a reasonable probability the outcome would have been different.” Hale v. State, 566 N.W.2d 923, 927 (Minn. 1997) (citations omitted); see also State v. Lahue, 585 N.W.2d 785, 790 (Minn. 1998) (finding of prejudice made by determining whether under the totality of the circumstances, a different result would have been reached but for counsel’s error). Here, the evidence against appellant was so overwhelming that we cannot say the result would have been different but for trial counsel’s errors. See In re Welfare of L.B., 404 N.W.2d 341, 345 (Minn. App. 1987) (finding that where “the record contains overwhelming evidence against” appellant, “[t]here is no reasonable probability that the result of the proceeding would have been different had [appellant] been represented by a different attorney”). The postconviction court properly exercised its discretion.
Second, appellant argues that the postconviction court abused its discretion because it denied his request to obtain a vaginal swab from the victim for further testing. Appellant submits a memorandum from the Minnesota Bureau of Criminal Apprehension that he reads to suggest the swab had enough DNA material to conduct further tests. But this reading is inaccurate because the memorandum states that further tests could be conducted using material taken from J.W.’s underwear, not the swab.
Appellant also argues that he is not trying to show—as he contends the postconviction court believed—that another person’s DNA was in his underwear. Rather, appellant claims he wants to rebut the state’s allegation that he had vaginal intercourse with J.W. and, therefore, he needs the swab to dispute that allegation. But the statute does not specify a means of penetration; rather, “any intrusion however slight” satisfies the crime. Minn. Stat. § 609.341, subd. 12(2) (1998). Although the state asserted in its opening statement that appellant penetrated J.W. using his penis, J.W. testified that she was unsure how appellant penetrated her. The jury could have reasonably concluded that J.W. was penetrated by some part of appellant’s body. Even if appellant could somehow use additional DNA testing to demonstrate that penile penetration did not occur, he is not exonerated. Thus, we find that the postconviction court did not abuse its discretion because the swab would not have provided any exculpatory evidence.
Finally, prior to oral argument in this matter, the state filed a motion for leave to respond to appellant’s reply brief and for the court to take judicial notice of a certificate of conviction. We deny the state’s motion because the reply brief does not raise a new issue and the certificate of conviction is cumulative to evidence already in the record.