State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0513

State of Minnesota,
Respondent,

vs.

Galen Dale Littlewind,
Appellant.

Filed February 12, 2018
Affirmed in part and reversed in part
Ross, Judge

Clay County District Court
File No. 14-CR-15-767

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Brian J. Melton, Clay County Attorney, Moorhead, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Schellhas, Presiding Judge; Ross, Judge; and Hooten,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Police arrested Galen Littlewind for drunk driving and read him the implied-consent
advisory, but they refused to allow him to speak with an attorney after he repeatedly asked
for one. Littlewind refused to submit to a chemical test. Representing Littlewind in his trial
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for both driving while impaired and chemical-test refusal, Littlewind’s attorney never
moved the district court to suppress the evidence of his refusal, and he did not argue to the
jury that Littlewind was not intoxicated. After the jury convicted Littlewind on both
charges, he petitioned unsuccessfully for postconviction relief , arguing that he received
ineffective assistance of trial counsel. Failing to move to suppress evidence related to
Littlewind’s test refusal fell below an objective standard of reasonableness, so we reverse
in part, invalidating his conviction for test refusal. But defense counsel’s decision to
concede the element of intoxication and instead challenge the state’s theory that Littlewind
was the driver was a reasonable def ense strategy under the circumstances and done with
Littlewind’s consent, so we affirm in part, validating his conviction for impaired driving.
FACTS
A green van sideswiped a car sitting at a red light on a March 2015 evening in
Moorhead. The van sped away and the car chased it across the border into Fargo and then
back again into Moorhead, where the van ran a red light and collided with another car and
flipped to its side. After Moorhead police officers arrived, six or seven people piled out of
the van followed by the billowing odor of an alcoholic beverage that one officer described
as “overwhelming.”
Police identified Galen Littlewind as the van’s driver after hearing from witnesses
that the driver was wearing a Vikings jersey. Littlewind protested, yelled, and refused to
perform field-sobriety tests. Police arrested him and he resisted, pulling away and kicking
at the officers. Officers had to drag him to the squad car and force him inside.
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Officer Brandon Desautel took Littlewind to the hospital to tend to a cut on his
forehead. Accompanied by Officer Toby Krone, Officer Desautel read Littlewind the
implied-consent advisory and Littlewind repeatedly demanded to speak with an attorney.
The officers refused the demand, however, telling Littlewind he was not allowed to contact
an attorney because of his disruptive behavior. One of the officers asked Littlewind to
submit to a breath test, and he refused.
Littlewind pleaded guilty to two charges of obstructing legal process based on his
behavior during the arrest, and he faced trial for two impaired-driving offenses—driving
under the influence of alcohol and refusing to take a breath test. His attorney took the case
to trial without moving the district court to suppress evidence of his test refusal despite the
officers having failed to allow him to contact an attorney. The attorney built Littlewind’s
defense exclusively on the theory that the state could not prove that he was the van’s driver,
implicitly conceding to the jury that Littlewind was intoxicated.
The jury found Littlewind guilty on both charges. The district court sentenced him
to a 72-month prison term for driving under the influence but stayed the sentencing on the
test-refusal conviction pending this appeal. We stayed the appeal to allow Littlewind to
litigate his contemporaneous petition for postconviction relief on the claim that his trial
attorney provided him ineffective assistance of counsel. Littlewind rested that claim on the
attorney’s failure to move to suppress the test-refusal evidence and his alleged concession
that Littlewind was intoxicated. The postconviction court denied his petition for relief. This
appeal follows.

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D E C I S I O N
Littlewind argues that he received ineffective assistance of counsel when his
attorney failed to move to suppress evidence obtained after police ignored his request to
speak with an attorney. We review a postconviction court’s denial of an ineffective-
assistance claim de novo. Opsahl v. State, 677 N.W. 2d 414, 420 (Minn. 2004). To receive
a new trial, Littlewind must show that his attorney’s performance fell below an objective
standard of reasonableness and that there is a reasonable probability that, but for his
counsel’s unprofessional errors, the result of the proceeding would have been different. Id.
at 420–21; see also Strickland v. Washington, 466 U.S. 668, 689, 104. S. Ct. 2052, 2065
(1984)). Because the failure to litigate a suppression motion is Littlewind’s principal
allegation of ineffectiveness, he must prove that his suppression claim is meritorious and
that there is a reasonable probability that the verdict would have been different absent the
excludable evidence. Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 2583
(1986).
We begin with the merit of the hypothetical suppression motion. Applying the state
constitution, “an individual has the right, upon request, to a reasonable opportunity to
obtain legal advice before deciding whether to submit to chemical testing.” Friedman v.
Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). It is not enough that police
officers inform the person of this right, “the police officers must assist in its vindication.”
Id. (quotation omitted). The officers meet this duty by providing a telephone and allowing
a reasonable period for the person to reach and speak with an attorney. Id. The district court
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must suppress evidence obtained in violation of the right to counsel in the implied-consent
context. See State v. Slette, 585 N.W.2d 407, 410 (Minn. App. 1998).
The officers here undisputedly did not provide Littlewind a telephone or give him
time to contact an attorney, but the state maintains that in this case providing a telephone
was unnecessary. This is because the right to consult with counsel before submitting to
chemical testing is not absolute. The implied-consent law requires a driver not to frustrate
the implied-consent process. State v. Collins, 655 N.W.2d 652, 658 (Minn. App. 2003).
The postconviction court agreed with this position, concluding that “[t]he facts of the
instant case undoubtedly indicate that Petitioner forfeited his limited right to an attorney
through his unreasonable and uncooperative behavior.” Our caselaw does not sup port the
conclusion.
We have previously concluded that a defendant frustrated the implied-consent
process so as to forfeit the right to contact an attorney , but the circumstances here do not
resemble the circumstances in those cases. In Busch v. Comm’r of Pub. Safety, 614 N.W.2d
256, 259–60 (Minn. App. 2000), we held that a defendant who requested to talk to a lawyer
before hearing the implied-consent advisory but remain ed silent after an officer read the
advisory frustrated the implied-consent process and implicitly retracted his previous
request for an attorney. And in Collins, we held that a defendant who asserted the right to
an attorney at the scene of the accident but who screamed, swore, made accusations of rape,
and insisted that she would not listen during the reading of the advisory at the jail—
preventing police from reading the advisory in full—similarly frustrated the testing process
and essentially retracted her previous request to contact an attorney. 655 N.W.2d at 658.
6
The defendants in Collins and Busch, unlike Littlewind, prevented the implied- consent
process from being completed. That process includes an officer’s reading of the complete
advisory accompanied by the officer’s request for a chemical test, the defendant’s
opportunity to contact an attorney before deciding whether to submit to a chemical test,
and the defendant’s response to the officer’s request for a chemical test. Here, police were
able to present the implied-consent advisory completely and Littlewind plainly and
repeatedly requested to speak with an attorney . As the district court put it, Littlewind
“unequivocally requested an attorney after the implied consent advisory was read.” That
police read the complete implied-consent advisory and Littlewind then requested an
attorney undermines the notion that Littlewind frustrated the implied-consent process.
We do not question the district court’s understanding that Littlewind was
belligerent, but the record and caselaw inform us that the court overstated the i mportance
of Littlewind’s being in handcuffs. It found that removing the handcuffs “would most
definitely have created a significant safety risk.” But both officers who participated in the
implied-consent process testified that they had previously assisted defendants who were
unable to use their hands but who had asserted their right to an attorney. According to the
officers, they have read through phone books and dialed numbers to reach attorneys on the
defendants’ behalf. The officers’ practice fits our precedent, as we have already held that
a defendant’s limited right to counsel may be vindicated even if police do not allow him to
dial the telephone himself. See Linde v. Comm’r of Pub. Safety, 586 N.W.2d 807, 808,
810–11 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999). That safety concerns
may have required officers to keep Littlewind in handcuffs does not excuse the officers
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from vindicating his right to counsel. Because the officers did not vindicate Littlewind’s
limited right to contact an attorney , a motion to suppress evidence of Littlewind’s test
refusal would have had merit.
To demonstrate that he received ineffective assistance of counsel, Littlewind must
also show that his attorney performed below an objective standard of reasonableness. State
v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003). To do so, he must overcome the strong
presumption that his attorney’s action might be considered sound trial strategy. Strickland,
466 U.S. at 689, 104. S. Ct. at 2065. We see no strategic benefit to foregoing a meritorious
motion to suppress the most critical evidence in a test-refusal trial, and the state does not
offer any benefit. Because his trial counsel’s performance fell below an objective standard
of reasonableness, Littlewind was denied his Sixth Amendment right to the effective
assistance of counsel. We therefore reverse his test-refusal conviction.
Littlewind also challenges his conviction for driving under the influence of alcohol,
arguing that his attorney was ineffective because he allegedly conceded the element of
intoxication during closing argument. “When counsel . . . admits a defendant’s guilt
without the defendant’s consent, the counsel’s performance is deficient and prejudice is
presumed.” State v. Prtine, 784 N.W.2d 303, 317–18 (Minn. 2010). Counsel’s concession
of guilt need not be explicit to be objectively unreasonable, but we exercise caution when
defining an implied concession so as to avoid using semantics to find automatic grounds
for a new trial. Torres v. State, 688 N.W.2d 569, 573 (Minn. 2004). And our scrutiny of
close statements must be highly deferential in light of the strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance. Dukes v. State ,
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660 N.W.2d 804, 811 (Minn. 2003). If the defendant acquiesced in a concession, we will
not grant a new trial. State v. Pilcher, 472 N.W.2d 327, 337 (Minn. 1991). Although this
is a close question in this case, we conclude that the attorney implicitly conceded that
Littlewind was intoxicated but that Littlewind acquiesced in this approach.
We infer that the attorney essentially conceded the element when he m ade the
following comments about the state’s evidence that Littlewind was intoxicated:
[The prosecutor] asked you to look at the elements of
each of these charges. For driving under the influence of
alcohol, the first element is that Mr. Littlewind had to have
driven or operated or been in physical control of the motor
vehicle. And the government has to prove that beyond a
reasonable doubt.
The government has to provide enough evidence that
you are so confident that that is true that you couldn’t possibly
have a reasonable doubt about that fact. That that’s something
that in your most important affairs -- making a decision about
one of your children, about what to do with your retirement
plan -- that you have that much confidence in pulling the
trigger on believing that there’s that proof.
The second element is whether Mr. Littlewind was
under the influence of alcohol at the time the vehicle was being
driven. Well, there’s plenty of evidence that Mr. Littlewind
was under the influence of alcohol, and the government really
hammered on that. And I don’t think we challenge that at all.
That’s really not the issue at all.
It’s not a crime to be intoxicated in a motor vehicle.
That’s not the problem. And as the judge read you the
instructions, Mr. Littlewind is facing two charges. He’s not
being charged with being an extraordinarily unruly problem for
law enforcement; which he very clearly was in that audio.
That’s not what this case is about. It’s not about whether he
was intoxicated at any given time.
State’s got to prove that he was under physical control
of that motor vehicle. And they can’t even clearly, conclusively
identify what kind of clothing the person operating the motor
vehicle was wearing.

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In context of the argument as a whole, the statements, “there’s plenty of evidence that
Mr. Littlewind was under the influence of alcohol” and “I don’t think we challenge that at
all” appear together as a concession.
We are persuaded, however, that Littlewind acquiesced in his attorney’s decision to
challenge the driving element but not the intoxication element. Littlewind’s brief on appeal
acknowledges that his attorney’s “opening statement regarding this offense focused
primarily on the state’s inability to prove the identity of the van’s driver” and “did not
mention the issue of intoxication or indicate that it would be an issue” in the trial. And
Littlewind acknowledged in his testimony dur ing the postconviction hearing that he was
“okay” with this strategy:
A. . . . [Counsel said] if he could prove that I wasn’t the driver,
we don’t have to worry about the alcohol or the refusal.
That was his whole strategy, so I left it at that.

Q. All right. And did you know about that strategy beforehand?

A. Before we went [to trial], yeah.

Q. . . . And that seemed okay to you.

A. That I wasn’t the driver, yeah.

The testimony of acquiescence is not expansive, but it is sufficient.
We have no difficulty concluding that this strategy of defending only the driving
element was objectively reasonable. Littlewind insists that the strategy “had no appreciable
benefit to his defense” because conceding the intoxication element does not promote any
affirmative defense or lay the groundwork for receiving a favorable sentence. To the
contrary, these are not the only reasonable grounds for a concession. W e can see the
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strategic benefit to the defense: persuasion by credibility. If a reasonable defense attorney
faces nearly unquestionable evidence establishing that his allegedly drunk-driving client
was indeed drunk but only questionable evidence establishing that he was actually driving,
he may with the defendant’s consent or acquiescence attempt to demonstrate his objectivity
and credibility to the jury by admitting the essentially indefensible element and defending
only the defensible one. The state’s evidence that Littlewind was intoxicated was
exceedingly strong, leaving his attorney with few credible arguments. His rhetorical
comparison between the state’s evidence on the different elements might arguably help the
jury to notice a dearth of support for the driving element.
Littlewind raises additional arguments in a supplemental brief on his own behalf .
Among other things, he argues that the five-year conditional-release mandate for his first-
degree drunk -driving conviction violates the Eighth Amendment’s prohibition against
cruel and unusual punishment because it punishes him for having the disease of alcoholism.
He also says that it violates his Sixth Amendment right to trial by jury because it increases
his maximum sentence without the benefit of a jury . To the extent that alcoholism is a
disease, driving is not a symptom. It is not cruel and unusual to punish an alcoholic for a
crime that is related only causally—if at all —to his condition. See State v. DeFoe, 308
Minn. 436, 437, 241 N.W.2d 635, 636 (Minn. 1976). And because Littlewind is being
punished for operating a motor vehicle while impaired— not being addicted to alcohol—
his sentence does not violate the Eighth Amendment. See Robinson v. California, 370 U.S.
660, 665–66, 82 S. Ct. 1417 (1962). Because the sentencing factor that subjected Littlewind
to a mandatory conditional release of five years was based on Littlewind’s prior criminal
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convictions, his additional punishment does not run afoul of the Sixth Amendment. See
Apprendi v. New Jersey, 530 U.S. 466, 488, 120 S. Ct. 2348, 2361–62 (2000); Minn. Stat.
§ 169A.24 (2016); Minn. Stat. § 169A.27 6, subd. 1 (2016). None of Littlewind’s other
arguments requires further discussion.
Affirmed in part and reversed in part.