Gustafson v. State, C2-90-2608
| Decision Date | 22 November 1991 |
| Docket Number | No. C2-90-2608,C2-90-2608 |
| Citation | 477 N.W.2d 709 |
| Parties | Harold GUSTAFSON, Petitioner, Appellant, v. STATE of Minnesota, Respondent. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
(1) A defendant is not denied effective assistance of counsel when he voluntarily decides not to testify despite his attorney's opening statement that the defendant will testify and explain some damaging evidence.
(2) A defendant is not denied effective assistance of counsel when his attorneys, for sound professional reasons, do not pursue every lead or call every witness the defendant suggests.
(3) A defendant's attorney does not have an impermissible conflict of interest when investigative duties are shared with counsel for a co-defendant but there is no showing that the arrangement actually affected the representation of the defendant.
M.G. Singer, Peterson & Singer, Minneapolis, for appellant.
Harold A. Gustafson, pro se.
Hubert H. Humphrey, III, Atty. Gen. and Tom Foley, Ramsey Co. Atty., Steven C. DeCoster, Asst. Ramsey Co. Atty., St. Paul, for respondent.
Heard, considered and decided by the court en banc.
This is an appeal by petitioner Harold Gustafson from an order of the Ramsey County District Court denying his petition for postconviction relief from a 1984 conviction for first-degree murder. Petitioner makes two basic arguments in support of his contention that his Sixth Amendment rights were violated: first, that his attorneys did not represent him effectively at trial; and second, that he was denied conflict-free counsel when his attorneys agreed to share investigative duties with counsel for petitioner's co-defendant. We affirm.
On Sunday, October 24, 1982, three armed men wearing ski masks attempted to rob the pharmacy at Mounds Park Hospital in St. Paul. A security guard, off-duty police officer Richard Walton, was fatally wounded when he exchanged gunfire with one of the would-be robbers. Tips from informants led police to William Dwyer and Timothy Eling. Dwyer was arrested and told police that he had accompanied Eling, Guy Hathaway and petitioner to the hospital on Friday, October 22, 1982, with the intent of robbing the pharmacy, but the attempt was called off at the last minute. Eling was arrested on Wednesday, October 27, 1982, and taken to a hospital for treatment of gunshot wounds in the lower right leg, wounds that resulted from shots fired by Walton.
Meanwhile, Hathaway and petitioner fled the state. They were arrested by FBI agents in California in 1984. After being jointly tried, both were convicted of first-degree murder and sentenced to life imprisonment. Petitioner's conviction was affirmed on direct appeal in State v. Gustafson, 379 N.W.2d 81 (Minn.1985). The evidence of petitioner's guilt included (a) testimony of petitioner's association with Eling; (b) the testimony of William Dwyer, the accomplice to the aborted robbery attempt on October 22, and George Leslie, who helped plan the October 24 robbery with Hathaway, Eling and petitioner but decided against participating because he considered it too risky; and (c) evidence that petitioner and Hathaway had assumed false identities while they were fugitives.
Entering the trial, petitioner and his counsel had agreed that petitioner would testify in his own defense. In his opening statement, petitioner's counsel told the jury petitioner would take the stand to explain some damaging evidence expected to be presented by the prosecution: petitioner's past felony convictions; his violation of parole by leaving Minnesota before and after the day of the hospital killing; his presence in Mounds Park Hospital two days before the crime; and his ownership of an automatic weapon.
During the trial, however, plans changed and petitioner did not testify. The change came after Eling testified that his accomplices in the Mounds Park crime were Dwyer and Leslie, not petitioner and Hathaway. Eling's testimony was something of a surprise. He had told defendant's counsel that he would testify and told her what questions to ask, but he declined to say what his answers would be, except that petitioner would like them.
After Eling's testimony, petitioner told his counsel, "I've got it made, and I don't have to testify now." The statement apparently reflected petitioner's belief that he wouldn't have to admit under oath that he illegally possessed an automatic weapon while passing through several states. His counsel had advised petitioner that one disadvantage of testifying would be that he could increase the likelihood of prosecution on weapon charges.
The day after Eling's testimony, petitioner conferred with his attorneys at the counsel table for 5 to 15 minutes; the principals' accounts differ. After that conference, petitioner stated on the record that he would not testify. He told the court: The jury was not persuaded, however, and found Hathaway and petitioner guilty of first degree murder.
Petitioner and Hathaway were tried together despite efforts by his attorneys to have separate trials. His severance motions were denied by the trial court, and those rulings were affirmed in State v. Gustafson, 379 N.W.2d at 84. With separate trials ruled out, counsel for petitioner and Hathaway agreed to cooperate in pretrial investigation and trial planning. The record from the postconviction hearing shows that petitioner's counsel relied on co-counsel's investigator for information about one and possibly two prospective witnesses who, petitioner believed, could testify that the alibis offered by Leslie and Dwyer for the time of the crime were false. At the postconviction hearing, his counsel did not recall ever talking to those prospective witnesses.
Petitioner's counsel did conduct the rest of petitioner's investigation. They read police reports, prosecution disclosures, the transcript of the Eling trial and other written information, then interviewed those persons petitioner had listed as potential favorable witnesses. After their investigation, petitioner's counsel chose not to call Craig Seifert and Donald Bell as witnesses. Seifert would have testified that he had been told by fellow jail inmate Douglas McArthur that the Mounds Park crime was planned by McArthur and Dwyer. Bell would have testified that Dwyer lied when he testified about not using weapons in past robberies. Petitioner's counsel did not call Seifert because he would have contradicted Eling's claim that Leslie and Dwyer were his co-conspirators. Seifert's credibility also was questionable because he was petitioner's friend and had a record of felony convictions. Bell was not called because of concerns about credibility and possible perjury.
At a time when he still planned to testify, petitioner stated on the record that he was "very" satisfied with his counsel. He maintains now that he was dissatisfied with counsel's investigation of his case from the beginning. On appeal he raises the following issues:
(1) Was petitioner denied effective assistance of counsel when his attorney told the jury he would testify about certain damaging evidence, but petitioner did not testify after the attorney advised him his testimony could subject him to additional charges?
(2) Was petitioner denied effective assistance of counsel where his attorneys did not pursue every lead or call every witness petitioner suggested?
(3) Did petitioner's counsel have an impermissible conflict of interest because they shared investigative duties with attorneys for a co-defendant?
1. The two leading cases on effectiveness of counsel are Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), and the language and reasoning of those cases have been adopted by this court. Gates v. State, 398 N.W.2d 558 (Minn.1987). To gain postconviction relief for ineffective assistance of counsel, a defendant must show two things: (1) that counsel's representation "fell below an objective standard of reasonableness," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 561 (quoting Strickland,...
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