State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-2065

State of Minnesota,
Respondent,

vs.

Norman Darnell Toney,
Appellant.

Filed March 2, 2020
Affirmed
Larkin, Judge

Hennepin County District Court
File No. 27-CR-16-25152

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Sean P. Cahill, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal -Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, P residing Judge; Larkin, Judge; and Florey,
Judge.

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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challe nges his convictions of aiding and abetting first -degree burglary
and aiding and abetting third-degree assault, arguing that he received ineffective assistance
of counsel at his jury trial. We affirm.
FACTS
A jury found appellant Norman Darnell Toney guilty of aiding and abetting first -
degree burglary (assault of person in building) and aiding and abetting third-degree assault
(substantial bodily harm), and the district court entered judgments of conviction. At trial,
T.F. and L.F. testified that Toney and D.M., the mother of Toney’s child and T.F.’s half-
sister, entered T.F.’s apartment after kicking down her door and that Toney punched T.F.
after D.M. yelled for Toney to hit her. T.F. testified that the crime occurred around 1:00
a.m. on September 9, 2016 . The trial evidence included a recorded phone call between
T.F. and Minneapolis Police Department Sergeant Troy Walker in which T.F. told Sergeant
Walker that Toney had punched her in the nose.
Toney’s trial attorney presented an alibi defense based on the testimony of Toney’s
mother, S.H. S.H. testified that Toney came to her house around 12:00 a.m. on the night
of the alleged crime, that she did not hear Toney leave the house that night , and that she
had no reason to believe that he left.
The district court sentenced Toney to a term of 78 months of imprisonment for the
burglary offense and a stayed term of 24 months for the third-degree assault offense. Toney

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appealed, but later requested to stay t he appeal so he could pursue postconviction relief.
This court granted Toney’s request.
Toney petit ioned for postconviction relief, arguing that “his trial attorney was
ineffective for failing to subpoena [D.M.] and, if she refused to testify, to move the district
court to admit [D.M.’s] statement to police under [the Minnesota Rules of Evidence].” In
his petition for relief, Toney asserted that D.M. told police that Toney “had nothing to do”
with the assault and burglary. He explained that D.M. told police that on the night of the
incident she was angry with T.F. because T.F. threw a drink on her two-year-old son and
in retaliation, she went to T.F.’s apartment, kicked the door, and punched T.F. Toney
asserted that D.M. “insisted [Toney’s] only involvement was that he happened to be at the
apartment building to pick up her and their son earlier in the evening ,” and that D.M. told
police it “was a sister ordeal” and that she had acted on her own. Toney requested a new
trial, or in the alternative an evidentiary hearing, because the jury did not hear D.M.’s
statements to police that he “had nothing to do with the evening’s events.”
The postconviction court granted Toney’s request for an evidentiary hearing. At the
hearing, Toney’s trial counsel testified that he did not think he would have been able to get
a statement from D.M. because she had been charged as a codefendant, she was represented
by counsel, and her case w as pending. Toney’s trial counsel explain ed that his defense
strategy was to assert an alibi defense through the testimony of T oney’s mother, S.H .
Toney’s trial counsel further explained that without D.M.’s statements, the state had to rely
on its own witnesses to produce evidence of the assault , but that if D.M.’s statements had
been admitted, they would have corroborated T.F.’s trial testimony . Recordings of the

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phone calls between D.M. and police regarding the incident were admitted as evidence at
the postconviction proceeding.
The postcon viction court denied Toney’s petition for relief on his ineffective -
assistance-of-counsel claim, reasoning that Toney “did not meet his burden to overcome
the strong presumption” that trial counsel’s performance was reasonable. It explained that
Toney’s trial counsel “believed the alibi defense was stronger than a defense involving
[D.M.’s] testimony or statements” and that “in pursuing the alibi defense, [trial counsel]
opted to focus on [Toney’s] mother placing him at [her] house at the time of the incident.”
The postconviction court noted that trial counsel “was aware that [D.M.] had made
inconsistent statements, some of which place d [Toney] at the crime scene.” The
postconviction court concluded that trial counsel’s decision not to seek admission of
D.M.’s statements “was a trial tactic; [counsel] was making a decision about who to call as
a witness to best present the alibi defense.”
The postconviction court further explained that trial counsel “chose not to attempt
to admit the recorded phone calls without producing [D.M.] as a live witness for a variety
of reasons” including that Toney “was charged with aiding and abetting the crimes” and if
the calls were played, “the State would have only needed to corroborate the elements
admitted by the caller .” “Without those codefendant admissions, the State had to prove
every element without help from any defendant.” The postconviction court also noted that
“the recorded phone calls had . . . inconsistencies in addition to discrepancies with the alibi
witness which could not be explained without [D.M.] testifying in person.” The
postconviction court again concluded that counsel’s decision not to seek admission of

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D.M.’s statements was “a classic example of trial strategy” and therefore did not “support
a finding that [trial counsel] was ineffective. ” It noted that “[i]n reality, [counsel] was
diligent and competent in his representation of [Toney].”
Lastly, t he postconviction court explained that “[i]t is unreasonable to believe
[D.M.’s] testimony would have led to a different result” because “a jury would have judged
her credibility in light of the victim’s testimony stating [ that Toney] was the person who
punched her.” The postconviction court noted that the jury made a credibility
determination regarding the alibi claim and still found Toney guilty, and therefore
“obviously believed [T.F. and L.F.] .” The postconviction court concluded that “[g] iven
the inconsistencies in [D.M.’s] statements, and the conflict between her statements and
[Toney’s] alibi defense, the statements were just as likely to harm [Toney’s] case as to aid
it.” The postconviction court concluded that there was “no reasonable probability [Toney]
would have been found not guilty with the addition of [D.M.’s] statements.”
Toney appeals.
D E C I S I O N
Toney argues that “trial counsel was ineffective for failing to subpoena [D.M.] to
testify and, if she refused to testify, to have her declared unavailable and move to admit
her statement to police as a statement against interest.” When a defendant initially files a
direct appeal and then moves for a stay to pursue postconviction relief, we review the
postconviction court’s decisions using the same standard that we apply on direct appeal.
State v. Beecroft , 813 N.W.2d 814, 836 (Minn. 2012). Because a claim of ineffective

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assistance of counsel involves mixed questions of law and fact, our standard of review is
de novo. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).
“The United States and Minnesota Constitutions guarantee a criminal defendant the
right to effective assistance of counsel.” Crow v. State, 923 N.W.2d 2, 14 (Minn. 2019).
Ineffective-assistance-of-counsel claims are generally analyzed as trial errors under
Strickland v. Washington , 466 U.S . 668, 104 S. Ct. 2052 (1984). Dereje v. State , 837
N.W.2d 714, 721 (Minn. 2013). To prevail under Strickland, a “defendant must show that
counsel’s representation fell below an objective standard of reasonableness” and “there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 688, 694, 104 S. Ct. at
2064, 2068; see also Rhodes, 657 N.W.2d at 842-45 (applying Strickland). An objective
standard of reasonableness is defined as the level of customary skill and diligence that a
reasonably competent attorney would employ in representatio n under similar
circumstances. Leake v. State, 767 N.W.2d 5, 10 (Minn. 2009). Appellate courts apply “a
strong presumption that [an attorney’s] performance falls within the wide range of
‘reasonable professional assistance.’” State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).
Attorneys have discretion in representing their clients, and trial tactics, including
“[w]hat evidence to present to the jury” and “which witnesses to cal l” are within that
discretion. State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999); see Opsahl v. State, 677
N.W.2d 414, 421 (Minn. 2004) (“We are in no position to second-guess counsel’s decision
to focus his strategy on other defenses instead of investigating [other] suspects.”); Jones,
392 N.W.2d at 236 (“Which witnesses to call at trial and what information to present to the

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jury are questions that lie within the proper discretion of the trial counsel. Such trial tactics
should not be reviewed by an appellate court, which, unlike the counsel, has the benefit of
hindsight.”). Appellate courts “give trial counsel wide latitude to determine the best
strategy for the client.” State v. Nicks, 831 N.W.2d 493, 506 (Minn. 2013). Appellate
courts generally “will not review an ineffective -assistance-of-counsel claim that is based
on trial strategy.” State v. Vang, 847 N.W.2d 248, 267 (Minn. 2014).
Toney argues that “ [a] reasonably competent attorney would have subpoenaed
[D.M.] to testify” and if D.M. refused, would “have her declared unavailable and moved
to admit her statement to police as a statement against interest.” He contends that trial
counsel’s “lapse in considering the applicable rules was not a strategic or tactical decision.”
Toney’s trial counsel testified at the postconviction hearing that his defense theory
was that another person committed the crime and that Toney was not present because he
was at his mother’s home at the time of the offense. Trial counsel ind icated that his alibi
defense could have been negated by the admission of D.M.’s statements , some of which
placed Toney at the scene of the crime . He also indicated that calling D.M. as a witness
and pursuing the alibi defense were alternative defense theories. Trial counsel believed the
alibi defense was stronger than a defense based on D.M.’s testimony or statements and
therefore opted to emphasize Toney’s mother’s testimony placing him at her home at the
time of the offense. As the postconviction cour t correctly concluded, “This was a trial
tactic; [counsel] was making a decision about who to call as a witness to best present the
alibi defense.”

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Moreover, trial counsel testified that D.M.’s recorded statements would have
corroborated the victim’s t rial testimony because D.M. admitted several elements of the
offense, leaving the state to prove only that Toney aided and abet ted D.M. As t he
postconviction court correctly reasoned, “[i]f the phone calls were played, the State would
have only needed to corroborate the elements admitted by the caller” and “[w]ithout those
codefendant a dmissions, the S tate had to prove every element without help from any
defendant.”
Toney additionally argues that trial counsel’s admission that “he was not aware of
the applicable rules and procedures he could have relied on” demonstrates that “not calling
[D.M.] or moving to admit her statements was not a course of action trial counsel
considered and rejected.” At the postconviction hearing, trial counsel acknowledged that
it had not “occur[ red] to [him]” that D.M.’s statements would have been admissible as
substantive evidence under the rules of evidence. Even so, trial counsel’s testimony shows
that counsel’s decision not to seek admission of D.M.’s statements ultimately was based
on trial strategy.
In sum, the record shows that trial counsel’s decision not to offer D.M’s statements
is a classic example of trial strategy, which is not subject to appella te review. Toney
therefore fails to satisfy the first part of the Strickland test.
Moreover, we are not persuaded that there is a reasonable probability that the jury
would have reached a different result if it had heard D.M.’s statement that “she alone”
assaulted T.F. At trial, both T.F. and L.F. testified that D.M. and Toney broke into T.F.’s
apartment and that Toney punched T.F. In a recorded call with Sergeant Walker , T.F.

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reported that Toney punched her in the nose. The postconviction court soundly reasoned
that “[i]t is unreasonable to believe [D.M.’s] testimony would have led to a different result”
because “a jury would have judged her credibility in light of the victim’s testimony stating
[Toney] was the person who punched her.” As the p ostconviction court correctly
determined, the jury “made a credibility determination on the alibi claim, and still found
[Toney] guilty” and “[b]ased on the verdicts, the jury obviously believed [T.F. and L.F.] in
this trial.”
In sum, the record shows that there is no reasonable probability that Toney would
have been found not guilty based on D.M.’s statements. Toney therefore fail s to satisfy
the second part of the Strickland test.
Affirmed.