State v. Haines
| Decision Date | 03 August 2015 |
| Docket Number | A14-1932 |
| Court | Court of Appeals of Minnesota |
| Parties | State of Minnesota, Respondent, v. Jack Arnold Haines, Appellant. |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
Affirmed
*
Steele County District Court
Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, Minnesota; and
Daniel A. Mcintosh, Steele County Attorney, Owatonna, Minnesota (for respondent)
Zachary C. Bauer, Andrew L. Davick, Meshbesher & Spence, Ltd., Rochester, Minnesota (for appellant)
Considered and decided by Ross, Presiding Judge; Rodenberg, Judge; and Harten, Judge.
UNPUBLISHED OPINION
Appellant challenges his conviction on the ground that he was deprived of the effective assistance of counsel because his counsel did not retain an expert to analyze a recording made during the incident giving rise to the conviction; he also challenges his sentence, arguing that the district court abused its discretion in denying his motion for a downward dispositional departure. Because appellant's counsel provided effective assistance and because we see no abuse of discretion, we affirm.
Appellant Jack Haines received a notice that the routine check of the smoke detectors in his rented townhouse would occur between 8:30 and 10:00 a.m. on 10 April 2013. Before 8:30, appellant removed the smoke detectors from the ceilings, put them on a kitchen chair, moved his rifle from the second-floor bedroom down to the first-floor living room, made a blank bullet, and loaded it into the rifle. He then set up and turned on a digital audio recorder, unlocked the front door, sat in his recliner within reach of the rifle, and waited.
The property supervisor (P.S.) for the company that owned the townhouse complex and the property manager (P.M.) for the complex arrived at 8:38 and knocked on appellant's door several times. When P.S. called out, "Management," appellant did not respond. P.S. and P.M. entered the townhouse and told appellant they were there to test the smoke detectors, as required by both the property owner and the local fire department.
They noticed the smoke detectors lying on a chair. When P.S. picked one up, he saw that its back cover was missing. P.S. told appellant that, because the smoke detector could not be replaced without the back cover, they would need to get him a new smoke detector; he also said that the smoke detectors had to be tested in their locations on the ceilings. P.S. then looked at appellant, who was about five feet away from him, and saw that appellant was holding the rifle pointed toward the ceiling and that appellant's hand was near the trigger. P.S. was scared but told appellant he was not afraid and had been in military service.
Appellant told P.S. and P.M. to check the smoke detectors or leave. According to them, appellant then lowered the rifle and pointed it at P.S. Because both P.S. and P.M. were afraid appellant would shoot them, P.S. quickly pressed the button on each smoke detector, and the two of them left. P.S. then called 911 and reported the incident.
After they left, appellant replaced the smoke detectors, took the rifle back to his bedroom, and replaced the blank bullet with a live round. When the police arrived, appellant told them what he had done but said he had pointed the rifle only at the ceiling, not at P.S. or P.M. Appellant gave the audio recording to the police, who also took his rifle.
Appellant was arrested and taken to jail. After he was read the Miranda warning, he was interviewed by an officer. He told the officer that (1) earlier on the morning of 10 April, he had brought his rifle down from his bedroom and replaced the live bullet with a blank; (2) he brought the rifle downstairs to intimidate the people who were coming to test the smoke detectors; (3) except for telling P.S. and P.M. three times toinspect the smoke detectors or leave, he had said nothing to them; (4) he raised the rifle when P.S. turned toward the stairs; and (5) he intended to fire into the couch if P.S. proceeded towards the stairs and did not comply with what appellant wanted him to do. Appellant was charged with second-degree assault and terroristic threats.
At trial, the jury heard testimony from P.S., P.M., three police officers, and appellant, as well as the audio recording. Appellant was found guilty on both counts. The district court denied appellant's motion for a downward dispositional departure and sentenced appellant to the presumptive 36 months in prison.
On appeal, appellant argues that his trial counsel's failure to retain an expert to provide an analysis of the recording deprived him of the effective assistance of counsel and that the denial of his motion for a downward dispositional departure was an abuse of the district court's discretion.
Because ineffective-assistance-of-counsel claims involve mixed questions of law and fact, we review them de novo. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003). A claimant must prove both that counsel's performance was deficient and that the claimant was prejudiced as a result, i.e., that "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686-87, 104 S. Ct. 2052, 2064 (1984). "[Because] it is all too easy for a court . . . to conclude that a particular act or omission of counsel was unreasonable, Strickland admonishes reviewing courts tojudge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Rhodes, 657 N.W.2d at 844 (quotation omitted).
As a threshold matter, review of counsel's challenged conduct at or near the time it occurred is best accomplished by a postconviction court, not an appellate court. See Strickland, 466 U.S. at 691, 104 S. Ct. at 2066 (); State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000) (). Here, because no postconviction proceeding was held, there is no decision on the ineffective-assistance claim for this court to review, nor is there any record of what appellant's trial counsel did at trial or said to appellant. Counsel's performance is presumed to be reasonable, Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013), and the burden of providing the appellate court with a record to establish any alleged errors in counsel's performance is the claimant's. State v. Carlson, 281 Minn. 564, 566, 161 N.W.2d 38, 40 (1968); see also Gail v. State, 732 N.W.2d 243, 248-49 ().
Appellant argues that his counsel provided ineffective assistance by failing to retain an expert to enhance the quality of the recording, which was impeded by dogsbarking and smoke detectors beeping. But appellant provides no evidence as to what an expert could have achieved by way of improving the recording, and, more significantly, no evidence of what an enhanced recording would have contributed to appellant's defense.
Appellant argues that "[t]he theory of the defense was that [he] did not threaten [P.S.] or [P.M.] and that they were not in fear." But there was no evidence, other than appellant's own testimony, to support this defense. Both P.S. and P.M. testified that their fear intensified when appellant lowered the gun he had pointed at the ceiling. P.S. said:
[Appellant] started laughing. And then that's when he lowered the gun and said, And at that time, when I looked at him when he said that, I could tell in his eyes he wasn't kidding. So I turned around and walked away. . . . [P.M.] was basically behind me but off to the left a little bit, and she was white as a sheet. . . . I didn't want to get shot in the back.
P.S. was then asked about the gun.
On redirect examination, P.S. was questioned again.
P.M. also was asked how she felt when she saw the gun lowered; she answered, "I believe stunned . . . ." Asked if she had "concerns about whether or not [appellant] would actually use that gun," she answered, "Yes." She answered "Yes" again on redirect examination, when she was asked, "Did you have concerns of [appellant] potentially using that gun?" The audio recording would not show whether appellant did lower his gun and point it at P.S. and P.M., which is the only significant conflict between their account of the incident and appellant's account. Moreover, both P.S. and P.M. testified that appellant did not talk about the gun or say anything to them other than repeatedly telling them to check the smoke detectors or leave, and appellant agrees with this. An audio recording could only confirm what is already undisputed.
On cross-examination, appellant was questioned about his rifle.
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