State v. Fedor

• Decision Date: 15 May 2001
• Docket Number: No. C2-00-1445.,C2-00-1445.
• Citation: 628 N.W.2d 164
• Parties: STATE of Minnesota, Respondent, v. David FEDOR, Appellant.
• Court: Minnesota Court of Appeals

628 N.W.2d 164

STATE of Minnesota, Respondent, v. David FEDOR, Appellant.

No. C2-00-1445.

Court of Appeals of Minnesota.

May 15, 2001.

Mike Hatch, Attorney General, St. Paul; and Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka, for respondent.

Simcha Plisner, St. Paul, for appellant.

Considered and decided by TOUSSAINT, C.J., ANDERSON, and PORITSKY,¹ JJ.

OPINION

TOUSSAINT, Chief Judge

Appellant appeals from an order denying a postconviction petition challenging his conviction for second-degree criminal sexual conduct. Appellant alleges that (1) newly-discovered evidence entitles him to a new trial; (2) his trial counsel was ineffective; (3) the trial court erred by not returning the jury to the courtroom before denying their request for the entire transcript; and (4) the trial court erred in limiting defense expert testimony on suggestibility. Because (1) there was no new evidence; (2) trial counsel was effective; (3) the jury's request was not specific; and (4) expert testimony may be limited, the trial court did not err. We affirm.

FACTS

Appellant David Fedor was convicted in 1998 on two counts of criminal sexual conduct in the first and second degrees for sexually abusing of C.M.K., the seven-year old daughter of his live-in girlfriend, in the fall of 1993. A first-degree charge was vacated prior to sentencing.

C.M.K. testified that the abuse occurred after she returned home from a second grade school trip to Como Park. C.M.K. did not report the abuse until she was interviewed by Patrick Price, a nurse practitioner, regarding an unrelated abuse situation involving a friend and cousin in 1998. C.M.K. testified that she did not report the abuse because (1) she did not know what her mother would say; (2) Fedor moved out shortly after the incident; and (3) she just wanted to try to forget about it.

As a result, Price reported the incident to the authorities in Anoka County. Investigator Michael Sommer then conducted a videotaped interview of C.M.K. regarding her story. Fedor was charged with three counts of criminal sexual conduct.

During trial, Fedor attempted to present the testimony of Dr. Charles Underwager to explain the theory of suggestibility and how it applies to a victim who is repeatedly interviewed. But, outside the presence of the jury, the trial court narrowed the admissibility of his testimony to general interviewing techniques. Dr. Underwager was going to base his testimony on the videotaped interview that the trial court ruled was inadmissible upon a motion in limine. The trial court noted that if Dr. Underwager testified regarding the videotaped interview, then the trial court would allow the jury to view the videotape to clarify the substance of Dr. Underwager's testimony. The trial court repeated this ruling to Fedor's counsel, so that she would understand exactly what it was going to allow in as evidence. Also, the trial court noted that Dr. Underwager would be sanctioned if he attempted to present testimony that was previously ruled inadmissible by the trial court. The trial court determined that it was for the jury, as opposed to an expert, to determine C.M.K.'s credibility.

During jury deliberations, the jury requested a copy of the entire 200-page transcript. Without recalling the jury to the courtroom and in the presence of both counsels in chambers, the trial court submitted a written response to the jury. The trial court denied the request and stated that the jury needed to rely on their own recollection of the testimony. After four hours of deliberations, the jury returned a guilty verdict.

Fedor retained new counsel and submitted motions for a new trial. Those motions were denied. Upon an appeal of his conviction, this court (1) remanded the case for a postconviction hearing on the issue of ineffective assistance of counsel; (2) did not preclude a later appeal from a postconviction order; and (3) did not limit the issues that could be raised in that appeal.

Subsequently, Fedor's petition for postconviction relief was denied. The postconviction court found that Fedor's prior counsel was reasonably effective, and even if ineffective, the result would probably have been the same.

Fedor appeals from both denials of his motions for a new trial and his petition for postconviction relief.

ISSUES

I. Did the postconviction court abuse its discretion when it denied a new trial based on newly discovered evidence?

II. Did the postconviction court abuse its discretion when it denied appellant's ineffective assistance of counsel claim?

III. Did the trial court err when it denied, in writing, the jury's request to review the complete trial transcript without returning the jury to the courtroom?

IV. Did the trial court err when it restricted the expert's testimony and by its treatment of appellant's expert and counsel?

ANALYSIS

This court reviews a postconviction proceeding only to determine whether the evidence is sufficient to sustain the postconviction court's findings and will affirm the postconviction court's decision absent an abuse of discretion. Scruggs v. State, 484 N.W.2d 21, 25 (Minn.1992). The petitioner's allegations must be more than argumentative assertions without factual support. Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995).

A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts which would warrant a reopening of the case.

State v. Warren, 592 N.W.2d 440, 449 (Minn.1999) (quotation omitted).

I.

Newly discovered evidence entitles a petitioner to postconviction relief and a new trial only if four elements are met: (1) the evidence was not known to the petitioner or counsel at the time of trial; (2) the evidence could not have been discovered through due diligence before trial; (3) the evidence is not cumulative, impeaching, or doubtful; and (4) the evidence probably would produce an acquittal or a more favorable result. Rainer v. State, 566 N.W.2d 692, 695 (Minn.1997).

Fedor argues that a new trial is warranted because there is now new evidence that there was no field trip to Como Park prior to the incident. We disagree. First, the evidence concerning the field trip was disclosed to Fedor during the investigation and in the complaint. Secondly, upon due diligence, both Fedor and his counsel could have discovered the information about the field trip. In fact, counsel testified during the ineffective assistance of counsel phase of the postconviction hearing that the information was not sought because of lack of funds for investigation. Thirdly, the newly discovered evidence was used for impeachment purposes only and not as an alibi. Finally, it is speculative at best that the information regarding the field trip would have any impact on the jury when it only related to an event preceding the actual criminal conduct by Fedor. Even if the evidence had been presented, the jury could have found that C.M.K. was very consistent with her story regarding when, where and how the abuse occurred. Therefore, the trial court did not err in denying a new trial based on this newly discovered evidence.

Fedor also argues that the newly discovered information regarding the field trip shows that C.M.K. presented false and perjured testimony. But, Fedor did not argue this in the prior proceedings. This court will generally not consider matters not argued and considered in the court below. Roby v. State, 547 N.W.2d 354, 357 (Minn.1996).

Fedor also argues that there is newly discovered evidence about the state's witness, Patrick Price, and that his testimony was fraudulent and misleading. Specifically, Fedor argues that Price's professional qualifications could be called into question. This argument fails. As the record indicates, Price's testimony was presented for the sole purpose of corroborating of C.M.K.'s story. Price testified as a mandated reporter of the crime, not as an expert. Furthermore, Price's qualifications could have only been used for impeachment purposes.

For these reasons, the trial court did not err in denying Fedor's motion for a new trial based on newly discovered evidence.

II.

Fedor argues that he was entitled to a new trial because his counsel was ineffective.

To prevail on a claim of ineffective assistance of counsel, [defendant] must affirmatively show that his attorney's representation fell below an objective standard of reasonableness and so prejudiced him that there is a reasonable probability that, but for counsel's errors, the trial outcome would have been different.

State v. Anderson, 603 N.W.2d 354, 357 (Minn.App.1999) (citation omitted). Fedor argues that his counsel failed to (1) investigate impeachment evidence against C.M.K.; (2) investigate credentials of the witnesses; and (3) familiarize herself with the law regarding expert testimony before advising Fedor to waive his expert's testimony. When determining whether counsel's representation fell below an objective standard of reasonableness,

[a] strong presumption exists that counsel's performance fell within a wide range of reasonable assistance. Particular deference is given to the decisions of counsel regarding trial strategy.

State v. Lahue, 585 N.W.2d 785, 789 (Minn.1998) (citation omitted). "What evidence to present to the jury, including which witnesses to call, represents an attorney's decision regarding trial tactics and lies within the proper discretion of trial counsel." State v. Doppler, 590 N.W.2d 627, 633 (Minn.1999).

The record indicates that all of the decisions by counsel were based on trial strategy. Fedor has failed to provide any evidence that his counsel's representation fell below an objective standard of reasonableness. First, the value of any impeachment evidence against C.M.K. is speculative at best. Fedor has failed to show that this would affect the theory of the case. Secondly, Brooks' failure to investigate the credentials of ...