This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1932
State of Minnesota,
Respondent,
vs.
Jack Arnold Haines,
Appellant.
Filed August 3, 2015
Affirmed
Harten, Judge
Steele County District Court
File No. 74-CR-13-723
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.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
HARTEN, Judge
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.
FACTS
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.
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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 to
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inspect 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.
DECISION
1. Ineffective Assistance of Counsel
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 to
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judge 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 (“[I]nquiry into [trial] counsel’s
conversations with the defendant may be critical to a proper assessment of counsel’s
investigation decisions . . . .”); State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000)
(“Generally, an ineffective assistance of counsel claim should be raised in a
postconviction petition for relief, rather than on direct appeal.”). 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 (claimant had not “provided any factual
support for his assertions . . . that his trial counsel failed to investigate” and that
“[b]ecause [he] has not provided any facts to support his assertions that his counsel failed
to investigate his case, he is not entitled to postconviction relief”).
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 dogs
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barking 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, “This is your last chance. Check
the smoke alarms or get the fuck out of my house.” 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.
Q. And when you say he lowered the gun, how did he
lower it?
A. Just went down like this (indicating) and pointed it at
us.
....
Q. Straight out in front of him?
A. Yep.
Q. Where was it pointed?
A. Right at me.
....
Q. And when the rifle was pointed at you, how were you
feeling then?
A. Scared.
On redirect examination, P.S. was questioned again.
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Q. Did you have concerns . . . about whether he would
use that gun or not?
A. Yes.
Q. What were your concerns?
A. That he was going to shoot us.
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.
Q. [I]t was there to give a visual effect, correct?
A. Yes.
....
Q. Well, [P.S.] and [P.M.] came into your house, and you
brought the rifle up, put it on the end of your chair, pointed it
towards the ceiling for visual effect, right?
A. They weren’t supposed to be there, so why were they
there?
Q. . . . Were you using [the rifle] at the time for visual
effect?
A. Yes.
Q. And that visual effect is that you’ll use the gun? Why
else –
A. If—if—Yes. Yes. If – yes.
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Q. And so you’re using that [gun] to intimidate them,
correct?
A. No.
Q. Isn’t it true you told [the officer in your statement after
you were arrested] that it was for intimidation?
A. The gun, yeah.
....
Q. And so the purpose then of bringing a gun from the
floor up to the ground to get your point across is to
intimidate?
A. Oh, yes. Yes.
Q. It’s to intimidate, right?
A. No. To get attention. [P.S.] was going for the stairwell,
and I said, “No, you’re going to check [the smoke detectors]
there or leave.” And at the same time I was doing that, if you
hear it on the tape, you can hear the springs of the recliner
creak as I reach over, grab [the gun], pick it up. When he
turned back around, he didn’t move again.
Q. Because there was a gun there, right?
A. I don’t – I don’t know. I guess, yes.
Q. So you’re using that for visual effect to get what you
wanted them to do?
A. Yes. Yes.
....
Q. And you had that blank there to scare them, correct?
A. To scare intruders, yes.
Q. And [P.S.] and [P.M.]?
A. Yeah, if they would have gone upstairs, gone through
my house.
....
Q. On April 10, 2013, when [P.S.] and [P.M.] were in
your home, your first shot that day was going to be a warning
shot, correct?
A. Yes.
Q. And that was with the blank, correct?
A. Yes.
Q. And that was to intimidate them or make them think it
was going to shoot them, correct?
A. Them, yeah. . . .
Q. So you’re holding the rifle, having it pointed straight
up sitting next to you, in your head, you’re thinking you can
use this to intimidate them; is that fair to say?
A. Yes . . . .
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Q. So if there’s a rifle in a room, that helps get people’s
attention, correct?
A. Yeah.
Q. So that’s why you were holding it, correct?
....
A. Yes.
Q. And it’s to get people’s attention because using a rifle
could hurt people, correct?
A. Correct.
....
Q. . . . [O]n April 10 of 2013, you needed to show them
that you were serious, right?
A. Yes, because they went for the stairwell – or [P.S.]
went towards the stairwell.
Q. And serious enough that you wanted them to know that
you would use the rifle?
A. Yeah. I spoke at the same time that I picked it up. I
don’t know if it was the gun or my words that made [P.S.]
turn around and finish doing the smoke detectors and then tell
me that he wasn’t afraid of me.
Q. . . . [Y]ou wanted him to be afraid? You wanted him
to stop what he was doing?
A. No. I wanted him to listen. You don’t have to be
afraid to listen.
Q. But to get someone to listen, you have to use a rifle?
A. Yeah. It was sitting there in the open, and he went for
the stairwell.
Q. Okay.
A. So then I picked it up to show him that it’s not just
there as a lamp shade.
Q. It’s there to be used?
A. Yeah.
Thus, appellant’s own testimony shows that he intended to shoot his rifle if P.S. and P.M.
did not comply with his wishes and that the rifle was present to intimidate them into
complying with his wishes.
Appellant relies on State v. Nicks, 831 N.W.2d 493, 508, 510 (Minn. 2013)
(defendant whose counsel failed to follow through with obtaining the murder victim’s
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cellphone records when the defense was built around a phone call had “made sufficient
allegations that counsel’s assistance fell below an objective standard of reasonableness to
warrant an evidentiary hearing” and that this failure “may have prejudiced [defendant] at
trial”). But Nicks is distinguishable. In that case, whether a phone call between the
defendant and the victim on the evening of the murder had occurred was central to the
defense and would have been resolved if the victim’s cellphone records were produced.
Id. at 506-08. Here, the audio recording would do nothing to resolve whether appellant
pointed his rifle at P.S. and P.M. and would add nothing to the undisputed evidence as to
what appellant told them while they were in his house.1
Appellant was not deprived of his right to effective assistance of counsel.
2. Sentencing
Appellant’s motion for a downward dispositional departure was denied, and he
was sentenced to the mandatory minimum of 36 months in prison. See Minn. Stat.
§ 609.11, subds. 5(a), 9 (2012) (imposing sentence of “commit[ment] to the
commissioner of corrections for not less than three years” on anyone who, while
committing assault, “had in possession or used, whether by brandishing, displaying,
threatening with, or otherwise employing, a firearm”). Only in a “rare” case will an
1
Appellant’s reliance on Dereje v. State, 812 N.W.2d 205, 212 (Minn. App. 2012)
(concluding that “because trial counsel entirely failed to subject the prosecution’s case to
meaningful adversarial testing, appellant was deprived of his right to effective assistance
of counsel”), is misplaced. Dereje was reversed. See Dereje v. State, 837 N.W.2d 714,
717 (Minn. 2013) (“Ineffective-assistance-of-counsel claims fail when counsel
demonstrates reasonable strategic calculation throughout the representation and secures a
favorable outcome for his client in the face of multiple felony charges and considerable
evidence of guilt.”).
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appellate court reverse the imposition of a presumptive sentence. State v. Kindem, 313
N.W.2d 6, 7 (Minn. 1981). Review of a district court’s decision whether to depart from
the guideline sentence when there is a proper basis for departure is “extremely
deferential.” Dillon v. State, 781 N.W.2d 588, 595-96 (Minn. App. 2010), review denied
(Minn. July 20, 2010). However, “a [district] court has no discretion to depart from the
sentencing guidelines unless aggravating or mitigating factors are present.” State v.
Spain, 590 N.W.2d 85, 88 (Minn. 1999). Factors to consider in a dispositional departure
include a defendant’s age, prior record, remorse, cooperation, attitude while in court, and
support of friends and/or family. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).
Appellant argues that “[t]he [district c]ourt’s failure to discuss the low risk to
reoffend and carefully consider all of the Trog factors constituted an abuse of discretion.”
But there is no requirement that the district court discuss all the Trog factors before
imposing a presumptive sentence. State v. Pegel, 795 N.W.2d 251, 254 (Minn. App.
2011); see also State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985) (stating that, if
district court considers reasons to depart but elects to impose the presumptive sentence,
no explanation for denying departure is required).
In any event, the district court’s statement at the sentencing hearing demonstrates
its consideration of some of the Trog factors and gives its reasons for denying departure:
You do have some positives here. I’m not going to deny
that . . . . You’ve got a fairly minimal record. You’re fairly
older in age. You do have support of friends and family, no
doubt about it. But you’re here because of April 10, 2013,
one snapshot in time, [and] what you did [then] was a very
serious charge under Minnesota law.
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You just can’t point a weapon at others, assault them,
cause fear. And it’s obvious you caused fear in the
individuals that were involved in this case. And quite
frankly, the reason seems kind of petty. They were [t]here to
just do an inspection in your apartment. They gave you
notice. They knocked on the door. You didn’t answer. They
kind of opened the door, called again. You’re there with a
gun. You assault them with a gun. We know you had altered
a bullet. But legally it doesn’t matter; it could be a disabled
gun. It caused fear in the victim here. And there are
mandatory minimums that flow from this.
Appellant also argues that the district court failed to consider that he is at “low risk
to reoffend” and amenable to probation, based on information in the presentence
investigation (PSI) that his Level of Service/Case Management Inventory (LSCMI) score
was 13. But the PSI recommended that appellant “be committed to the Commissioner of
Corrections for a period of 36 months.” Moreover, at the sentencing hearing, appellant’s
attorney said she “believe[d] . . . that score would be on the high end of low or on the low
end of moderate, a moderate score.” The district court did address appellant’s argument
that he is amenable to probation:
But I’m not satisfied that there is a specific probationary
program that you could fit into in this situation. You
obviously don’t want to suffer the consequences of your own
behavior, but this is a mandatory minimum sentence.
I don’t really find substantial and compelling
circumstances to put you on some behavioral program in a
probationary setting to keep the community safe. You know,
you couldn’t get along with your own landlords, you know, in
a fairly minimal relationship during a smoke detector alarm
check. I’m not real confident you’re going to do real well in
a probationary setting either. If you’re a tenant in an
apartment and they have to do these minimal checks for the
safety and security of everybody involved, including yourself,
and you think you have . . . to have a gun involved, point the
gun, threaten people.
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. . . And to the extent you make decisions that are very,
very poor that can cause a lot of fear in individuals, I’m not
confident you won’t do that into the future either.
This court “may not interfere with the sentencing court’s exercise of discretion, as
long as the record shows the sentencing court carefully evaluated all the testimony and
information presented before making a determination.” Van Ruler, 378 N.W.2d at 80-81.
The sentencing court here clearly evaluated the testimony and information presented
before imposing the presumptive sentence on appellant. There is no basis to reverse that
sentence.
Affirmed.
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State of Minnesota v. Jack Arnold Haines
Combined Opinion