State v. Rainer

• Decision Date: 16 July 1993
• Docket Number: No. C8-92-1595,C8-92-1595
• Citation: 502 N.W.2d 784
• Parties: STATE of Minnesota, Respondent, v. Joseph L. RAINER, Appellant.
• Court: Minnesota Supreme Court

Page 784

502 N.W.2d 784

STATE of Minnesota, Respondent, v. Joseph L. RAINER, Appellant.

No. C8-92-1595.

Supreme Court of Minnesota.

July 16, 1993.

Syllabus by the Court

1. The postconviction court properly exercised its discretion by ruling that an attorney's trial tactics did not give rise to a claim of ineffective assistance of counsel.

2. The postconviction court properly exercised its discretion by ruling that an attorney's failure to tell an expert witness for the defense not to talk to a state investigator did not give rise to a claim of ineffective assistance of counsel.

3. The postconviction court properly exercised its discretion by ruling that newly discovered evidence does not warrant a new trial when the new evidence would not materially affect the outcome of the trial.

Leslie J. Rosenberg, Sp. Asst. State Public Defender, Minneapolis, for appellant.

Robert A. Stanich, Sp. Asst. Atty. Gen., St. Paul, Thomas D. Hayes, Sherburne County Atty., Elk River, for respondent.

PAGE, Justice.

Appellant brought a petition in Sherburne County District Court for postconviction relief from his conviction for first-degree murder in the shooting death of Marla Forrest. Minn.Stat. Secs. 590.01-.06 (1992). He argues that he is entitled to postconviction relief because he received ineffective assistance of counsel at his trial, and because he has new evidence which casts doubt on the account of one of the prosecution's main witnesses. The postconviction court denied relief to appellant. We affirm.

Joseph Rainer was convicted of premeditated first-degree murder and sentenced to life imprisonment for the shooting death of Marla Forrest on October 27, 1984. On direct appeal we affirmed the conviction. State v. Rainer, 411 N.W.2d 490 (Minn.1987). Appellant then sought and was denied a writ of habeas corpus from the federal district court. The denial was affirmed by the Eighth Circuit Court of Appeals. Rainer v. Department of Corrections, 914 F.2d 1067 (8th Cir.1990); cert. denied, 498 U.S. 1099, 111 S.Ct. 993, 112 L.Ed.2d 1077 (1991).

The factual basis for the murder conviction was stated in our previous opinion:

Defendant and Marla Forrest had known each other since the summer of 1983 when Forrest began taking her car to defendant's gas station. The two spent time together and defendant wanted to get married, but Forrest was not prepared to make a commitment. Within the last two weeks before the shooting Forrest told friends that she planned to terminate the relationship.

On October 27, 1984, Forrest went to defendant's house so that he could replace the engine in her car. Her 9-year-old son Tobi went along. During the afternoon Forrest and defendant talked and drank beer, while Tobi amused himself. Forrest sounded normal and cheerful when her father telephoned and she told him that she would use defendant's car to get home. At one point during the afternoon Tobi heard an argument between Forrest and defendant.

At the end of the afternoon as Forrest was leaving, defendant walked her out to the car. According to the account of the incident defendant gave the police, he picked up a single shot 12-gauge shotgun that he had left lying in the breezeway, tucked it under his arm, and it accidentally fired, hitting Forrest in the back. He said that he had been shooting squirrels that morning and had left the gun in the breezeway and that he picked it up to get it out of the mist. Defendant's former wife, Maxine, testified that defendant made a habit of keeping his guns loaded. Tobi said that the gun was not in the breezeway but in the living room, leaning against the wall near the gun case. Defendant's tenant said that he did not remember seeing a gun in the breezeway when he walked through the breezeway in the early afternoon.

Medical evidence indicated that Forrest was shot in the back from one to two feet away at a downward angle of between 10 and 20 degrees. The wound was 44 1/2 inches from Forrest's bare feet, and her boots added another 1 3/4 to 2 inches. Defendant measured between 47 3/8 inches and 53 inches from stocking foot to armpit (measurements at different times yielded different results); his boots added another 1 3/4 inches. The downward angle and the measurements of the two bodies were relevant to the question of whether the gun was under defendant's arm when it went off, as he claimed, or whether it was at his shoulder, a normal position for intentional firing, as the state hypothesized.

Expert testimony concerning the gun established that the gun required cocking before firing, though it had no other safety device, and that a moderate to heavy amount of force was needed for pulling the trigger. The gun would not discharge without the trigger being pulled when it was tested by dropping it or striking it with a rubber mallet when it was cocked. No tests were made concerning pulling the gun along clothing, though the expert agreed that the gun could be cocked by catching it on clothing. The expert did not comment on whether the trigger could be pulled by drawing it across clothing.

Id. at 493-494. See also Rainer v. Department of Corrections, 914 F.2d at 1068-69.

Additional facts, not mentioned in our previous opinion, are material to appellant's petition. These facts are as follows:

Appellant's trial attorney, Daniel Eller, contacted Herr McDonald to be an expert witness for the defense, and to testify about the gun used to shoot Forrest. McDonald lived in New York, so Eller only talked to him over the phone. During one of their phone conversations, McDonald told Eller that it was unlikely that the gun could go off as appellant stated. Before he could look at the gun, however, McDonald had to go overseas and became unavailable for trial. Eller then looked for another expert.

Eller was referred to two experts in Minnesota, but because they were agents of the Bureau of Criminal Apprehension, he did not want to use them. He then contacted the Milwaukee Public Defender, who referred him to Richard Thompson, in Madison, Wisconsin.

After visiting Thompson and confirming that he was competent, Eller arranged for a member of the Sherburne County Sheriff's Department to transport appellant's gun and clothing to Madison. Sherburne County assigned Deputy Sheriff Ferdinand Trebesch to transport the gun and clothing. Trebesch remained with Thompson while he tested the gun, asking questions and giving advice about the tests. Thompson never asked Trebesch to leave. During the tests, Thompson evidently expressed disbelief in appellant's account that the gun went off accidentally. Trebesch noted Thompson's disbelief, and reported it to the Sheriff's Department. Thompson never tested appellant's clothing.

During appellant's trial, Trebesch presented Eller with a note stating that Thompson said appellant was "full of shit." Eller and appellant then met with Thompson to discuss his proposed testimony, and it was decided not to call Thompson. The defense did not call an alternative expert. Instead, Eller supported appellant's defense of accident by cross-examining the state's BCA agent.

Eller called witnesses for the defense to testify as to appellant's love for Forrest and his desire to marry her. To counter this evidence, the state introduced testimony that Forrest did not love appellant and wanted to end their relationship. Eller did not object to the state's witnesses. Appellant waived his right to testify in his own defense.

About a year and a half after the conviction, appellant discovered new evidence, consisting of photographs of his home. These photos were taken by his insurance company two days after the shooting, and show that his gun case was in a slightly different location than shown by the photos the state introduced at trial which were taken about one year after the shooting.

After the writ of habeas corpus sought by appellant in the federal court was denied, he filed this petition for postconviction relief. The postconviction court denied relief to appellant. He now seeks review of that denial by this court. Appellant alleges that he was denied effective assistance of counsel because his attorney failed to prevent the expert witness for the defense from talking with Deputy Trebesch, failed to call an expert witness regarding the gun involved in the shooting, failed to have appellant's clothing tested for residue of gun powder, failed to move to suppress evidence, did not allow appellant to testify at trial, and did not bring a motion in limine nor object to hearsay statements regarding the victim's state of mind. As to his allegation that the newly discovered photos merit a new trial, appellant argues that these photos are more reliable than those of the state, that they cast doubt on Tobi's story that appellant picked up the gun while it was leaning against the gun rack, and support his theory of the case that he picked up the gun in the breezeway and accidentally shot Forrest. ¹

A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts which warrant a reopening of the case. Minn.Stat. Sec. 590.04, subd. 3. On appeal, the decision of the postconviction court is reviewed under an abuse of discretion standard, and the scope of review is limited to determining whether there is sufficient evidence in the record to sustain the postconviction court's findings. Gustafson v. State, 477 N.W.2d 709, 712 (Minn.1991). Here, the record contains sufficient evidence to support the postconviction court's findings.

The right to counsel is guaranteed by the Sixth Amendment of the United States Constitution. The Supreme Court has stated that "the right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970). In order to receive postconviction relief on the grounds of ineffective assistance of counsel, a convicted defendant must...