Jerry v. State
| Decision Date | 29 April 2019 |
| Docket Number | A18-1422 |
| Parties | Theodore Pierre Jerry, petitioner, Appellant, v. State of Minnesota, Respondent. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).
Affirmed
Hennepin County District Court
Theodore Pierre Jerry, Faribault, Minnesota (pro se appellant)
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Considered and decided by Schellhas, Presiding Judge; Worke, Judge; and Slieter, Judge.
UNPUBLISHED OPINION
Appellant Theodore Pierre Jerry challenges the district court's decision denying his petition for postconviction relief. The postconviction court, without an evidentiary hearing, concluded that appellant's ineffective-assistance-of-trial-counsel claim was barred under State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976), and that appellant's ineffective-assistance-of-appellate-counsel claim was vague and conclusory. The issues raised in appellant's petition for postconviction relief are insufficient to warrant relief. We affirm.
On February 1, 2013, the state charged appellant with criminal sexual conduct in the third degree in violation of Minn. Stat. § 609.344, subd. 1(c) (2012), and burglary in the first degree in violation of Minn. Stat. § 609.582, subd. 1(c) (2012). Appellant waived his right to a jury trial and proceeded to a three-day bench trial. The district court found appellant guilty of both counts.
This court has previously recited the facts of this case in two prior appeals. State v. Jerry, 864 N.W.2d 365 (Minn. App. 2015) (Jerry I), review denied (Minn. Sept. 15, 2015); State v. Jerry, No. A16-0006, 2016 WL 4497315 (Minn. App. Aug. 29, 2016) (Jerry II), review denied (Minn. Nov. 23, 2016). We identify only those facts in this opinion which are relevant to the issues raised by appellant.
I. The postconviction court properly denied appellant's petition for postconviction relief without an evidentiary hearing.
"[W]e review a denial of a petition for postconviction relief, including a denial of relief without an evidentiary hearing, for an abuse of discretion." State v. Nicks, 831 N.W.2d 493, 503 (Minn. 2013). Legal issues raised in a postconviction petition are reviewed de novo, but factual issues are limited to whether the record sufficiently sustains the postconviction court's findings. Matakis v. State, 862 N.W.2d 33, 36 (Minn. 2015).
This court does not reverse an order denying postconviction relief "'unless the postconviction court exercised its discretion in an arbitrary or capricious manner, based its ruling on an erroneous view of the law, or made clearly erroneous factual findings.'" Id. (quoting Reed v. State, 793 N.W.2d 725, 729 (Minn. 2010)). When a direct appeal has been taken, "all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief." Knaffla, 243 N.W.2d at 741 (emphasis added). Ineffective-assistance-of-appellate-counsel claims, however, are not barred by Knaffla because they could not be raised on direct appeal. Leake v. State, 737 N.W.2d 531, 536 (Minn. 2007).
"To establish ineffective assistance of appellate counsel a petitioner must demonstrate that appellate counsel's performance was objectively unreasonable and that the unreasonable performance prejudiced him." McDonough v. State, 675 N.W.2d 53, 56 (Minn. 2004); see Strickland v. Washington, 466 U.S. 668, 691-92, 104 S. Ct. 2052, 2066-68 (1984). If the ineffective-assistance-of-appellate-counsel claim is contingent on trial counsel's ineffectiveness, then the appellant must first prove that trial counsel was ineffective. McDonough, 675 N.W.2d at 56.
"Appellate counsel does not have a duty to raise all possible issues, and may choose to present only the most meritorious claims on appeal." Morrow v. State, 886 N.W.2d 204, 206 (Minn. 2016). The focus is on whether the representation provided by counsel was reasonable in light of the circumstances rather than on raising claims appellant wanted counsel to raise. Carridine v. State, 867 N.W.2d 488, 495 (Minn. 2015).
An evidentiary hearing on a petition for postconviction relief is required when factual disputes must be resolved to address the issues raised on the merits. Ferguson v. State, 645 N.W.2d 437, 446 (Minn. 2002). If doubts arise as to whether a postconviction evidentiary hearing should be held, it should be resolved in favor of the party requesting a hearing. Id.
Appellant argues his appellate counsel was ineffective for failing to raise six claims on his direct appeal. We will address each claim raised by appellant in turn.
Appellant argues his appellate counsel failed to raise on direct appeal the argument that the district court abused its discretion by allowing forensic-expert testimony and scientific testing he asserts was novel and without acceptance in the scientific community. Also, appellant contends the state's DNA expert testified improperly by identifying appellant as the source of the DNA at the exclusion of others. Appellant's issues functionally involve a state expert performing an initial testing on a sexual-assault exam (SAE) kit, a P30 test and visual examination that found semen, and a subsequent state expert matching appellant's known DNA to the single-source DNA profile from the SAE sample.
Pursuant to Minn. R. Evid. 702, an expert may testify to "scientific, technical, or other specialized knowledge" when the opinion has "foundational reliability." "In addition, if the opinion or evidence involves novel scientific theory, the proponent must establish that the underlying scientific evidence is generally accepted in the relevant scientific community." Minn. R. Evid. 702; State v. Obeta, 796 N.W.2d 282, 289 (Minn.2011). Minnesota applies the two-prong Frye-Mack standard in addressing scientific evidence to show the methodology used is generally reliable and produces reliable results in specific cases. State v. Bailey, 677 N.W.2d 380, 397-98 (Minn. 2004).
First, appellant contends the testimony regarding the P30 test performed on the SAE kit should not have been admitted because it is a novel scientific method. Appellant did not request a Frye-Mack hearing at the district court on the P30 test performed. On appeal, appellant would only be able to obtain relief on a showing of plain error that affected his substantial rights. State v. Ali, 775 N.W.2d 914, 920 (Minn. App. 2009), review denied (Minn. Feb. 16, 2010). Appellant cites to no authority which supports the denial of P30 testing as a novel scientific method. The P30 test performed in this matter was merely a preliminary step to assess whether the samples contained a protein known to be in seminal fluid. After the positive P30 test, the Minnesota Bureau of Criminal Apprehension (BCA) forensic scientist visually observed the presence of semen on the samples. Appellant does not identify any issues with the expert's ability to visually identify the presence of sperm based on his training and experience. Due to the limited value of the P30 test testimony and the lack of a demonstrated basis to have requested a Frye-Mack hearing, appellate counsel's decision to not raise this issue on direct appeal was objectively reasonable.
Second, appellant challenges the testimony from a BCA forensic scientist that he was the source of the DNA found following the creation of a single-source DNA profile. The Minnesota Supreme Court in State v. Roman Nose noted the use of single-source DNA, a sample containing the DNA profile of one person, allows an expert to testify to statistical evidence based on that sample. 667 N.W.2d 386, 398 (Minn. 2003). The record providedby the state included the generation of a single-source DNA sample from the SAE kit that the state expert used to compare the known sample of appellant's DNA to find a match. Appellant's DNA sample matched all 16 of the short-tandem-repeat (STR) areas analyzed by the BCA, which the forensic scientist opined would not occur more than once among unrelated individuals in the world population. This testimony was not improper. Therefore, appellate counsel's decision to not raise this issue on direct appeal was objectively reasonable.
Appellant argues his appellate counsel failed to challenge the admission of still photographs admitted as part of a detective's testimony over his trial counsel's objection. Appellant focuses his challenge on authentication and foundation.
Evidentiary rulings are reviewed "for an abuse of discretion, and any error is subject to harmless error analysis." State v. Greer, 635 N.W.2d 82, 91 (Minn. 2001) (citation omitted). A reversal on an evidentiary error made by the district court is appropriate when it "substantially influence[d] the [fact-finder] to convict." State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981). Pursuant to Minn. R. Evid. 901(a): "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." District courts possess "considerable discretion under Minn. R. Evid. 901(a) in deciding whether evidence has been adequately authenticated or identified." State v. Dulak, 348 N.W.2d 342, 344 (Minn. 1984).
Appellant relies on an incorrect reading of In re Welfare of S.A.M., to find the district court abused its discretion. 570 N.W.2d 162 (Minn. App. 1997). In S.A.M., this court rejected the concept that a videotape can only be authenticated "by a continuous observer who testifies from personal knowledge that the events are accurately portrayed." Id. at 166. This court held:
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