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This opinion will be unpublished and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
A18-0267

State of Minnesota,
Respondent,

vs.

Vincent Illya Cotten,
Appellant.

Filed January 7, 2019
Affirmed
Rodenberg, Judge

Hennepin County District Court
File No. 27-CR-17-1582

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

Michael O. Freeman, Hennepin Coun ty Attorney, Linda K. Jenny, A ssistant County
Attorney, Minneapolis, Minnesota (for respondent)

Bradford Colbert, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Hooten, Judge; and
Stauber, Judge.


 Retired judge of the Minnesota Court of Appeals, serving by app ointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Vincent Illya Cotten appeals from his multiple convic tions, arguing that
he was denied effective assistance of counsel. We affirm.
FACTS
Appellant was charged with and convicted of possession of a fi rearm by a prohibited
person in violation of Minn. Sta t. § 624.713, subd. 1(2) (2016) , first-degree aggravated
robbery in violation of Minn. Sta t. § 609.245, subd. 1 (2016), and second-degree assault
with a dangerous weapon in violation of Minn. Stat. § 609.222, subd. 1 (2016),1 after he
shot E.A.G. in the leg during a drug transaction.
On direct appeal, appellant alleges that his trial counsel was ineffective.
Specifically, appellant asserts that his trial counsel asked on ly “perfunctory” questions
during voir dire, failed to adequately cross-examine the state’s witnesses, failed to establish
a coherent theory of the case, and argued to the jury about evidence not introduced at trial.
D E C I S I O N
“An ineffective assistance of counsel claim is an alleged viola tion of the right to
reasonably effective assistance of counsel as guaranteed by the Sixth Amendment of the
United States Constitution.” State v. Rhodes , 657 N.W.2d 823, 842 (Minn. 2003). To
succeed on such a claim, an appellant first must show that his counsel’s representation fell

1 The state initially charged appellant with second-degree assault with a dangerous weapon
causing substantial bodily harm in violation of Minn. Stat. § 6 09.222, subd. 2 (2016).
Before trial, and without objection, the charge was amended to second-degree assault with
a dangerous weapon in violation of Minn. Stat. § 609.222, subd. 1.

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below an objective standard of re asonableness, despite the “str ong presumption that
counsel’s conduct falls within the wide range of reasonable pro fessional assistance.”
Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065 (1984); see also State
v. Jones , 392 N.W.2d 224, 236 (Minn. 1986). “We presume that trial cou nsel’s
performance was reasonable and we give particular deference to trial strategy.” Schneider
v. State, 725 N.W.2d 516, 521 (Minn. 2007). Appellate courts do not review an ineffective-
assistance-of-counsel claim based o n a n a t t o r n e y ’ s t r i a l s t r a t egy. State v. Vang , 847
N.W.2d 248, 267 (Minn. 2014).
Typically, an ineffective-assistance-of-counsel claim is raised in a petition for
postconviction relief rather than on direct appeal. State v. Gustafson, 610 N.W.2d 314, 321
(Minn. 2000); State v. Ellis-Strong , 899 N.W.2d 531, 535 (Minn. App. 2017). “A
postconviction hearing provides the court with additional facts to explain the attorney’s
decisions, so as to properly consider whether a defense counsel ’s performance was
deficient.” Gustafson, 610 N.W.2d at 321 (quotation omitted). On direct appeal, we must
base our decision solely on the record before us, without the b enefit of a postconviction
hearing. We do so here.
I. Appellant’s trial counsel did not render objectively unreasonable assistance.

A. Voir dire
Appellant first contends that his trial counsel was so “inatten tive or indifferent
during the jury selection process that [appellant] was denied his constitutional right to the
effective assistance of counsel.” Specifically, appellant alleges that trial counsel’s voir dire

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questions lacked purpose and were “at best, perfunctory.” Appellant also argues that trial
counsel should have done additional follow-up questioning of jurors.
“We presume that trial counsel’s performance was reasonable and we give particular
deference to trial strategy.” Schneider, 725 N.W.2d at 521. Courts give an attorney’s
strategic decisions, especially in matters of jury selection wh ich depend “heavily on
counsel’s experience, perception of and rapport with prospectiv e jurors,” a strong
presumption of reasonableness. State v. Geleneau , 873 N.W.2d 373, 382 (Minn. App.
2015) (quotation omitted), review denied (Minn. Mar. 29, 2016).
In State v. Caldwell , Caldwell alleged that his cou nsel was ineffective because
counsel failed to use voir dire effectively, alleging “[defense ] counsel’s questioning of
prospective jurors was perfunctory.” 803 N.W.2d 373, 381 (Minn. 2011). The Minnesota
Supreme Court, however, concluded that, because defense counsel had asked questions
regarding the jurors’ questionnaires, had a list of prospective jurors to strike, attempted to
strike several jurors for cause, and seemed well prepared, defe nse counsel was not
ineffective. Id. at 386-87.
Appellant relies on Jama v. State, 756 N.W.2d 107 (Minn. App. 2008) to support
his contention that “defense c ounsel was so inattentive or indi fferent during the jury
selection process that [appella nt] was denied his constitutiona l right to the effective
assistance of counsel.” See Jama, 756 N.W.2d at 114. Appella nt over-reads the portion
of Jama’s holding to which he refers. The language that appellant cit es to support his
Jama-based argument is actually a lengthy quote from the Utah Supreme Court’s decision
in State v. Litherland, 12 P.3d 92, 100 (Utah 2000). Although our opinion in Jama referred

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to and quoted Litherland, we did not specifically adopt the Utah Supreme Court’s decision
or reasoning concerning ineffective assistance of counsel. We noted that “[t]he Litherland
opinion may be helpful in evaluat ing a claim of ineffective ass istance of counsel, and we
do not read it to conflict with our own jurisprudence.” Id. We then went on to apply well-
established Minnesota caselaw regarding claims of ineffective assistance of counsel. Id. at
114-16. As discussed, Minnesota c aselaw requires that we gener ally defer to counsel’s
trial strategy.
At voir dire in this case, the district court began by asking preliminary questions of
the jurors such as whether the jurors would be able to apply the law as instructed, whether
they accepted the presumption of innocence until a defendant is proven guilty, whether any
juror would be unable to be impartial, the jurors’ occupations and hobbies, if any, and other
basic questions. Appellant’s trial counsel began voir dire by asking:
Are there any gun owners? And then among those that don’t
have their hands raised, does anybody have strong beliefs
about whether guns should be legal?

And then the defendant in this case is African-
American. Is there anything ab out the defendant’s racial or
ethnic status that would prev ent you from being fair and
impartial in this case?

Have you had experiences with African-Americans that
might influence your ability to [be] fair and impartial?

Appellant’s trial counsel then as ked prospective jurors individ ually about their favorite
books and movies. Trial counsel later asked, “has anyone here been incarcerated at any
time in your life for any period of time? Thank you.” Trial counsel asked some questions
regarding biases to the jurors collectively. The record contains no indication of the jurors’

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responses, although it seems from counsel’s questioning that some, but not all, of the jurors
were gun owners. The absence of follow-up questions suggests that no jurors indicated an
affirmative response to the other questions.
Here, like Caldwell and Jama, appellant’s trial counsel actively participated in voir
dire and asked potential jurors several questions that were directed at jurors’ ability to fairly
serve in this case. In context, the group questioning appears designed to determine whether
any potential jurors had any bia s e s t h a t m i g h t i m p a c t t h e i r a b ility to consider the case
impartially.
Appellant argues that two jurors should have had additional que s t i o n s a s k e d o f
them. But neither of those jurors were seated on the jury. Ap pellant does not argue that
these two jurors should have been seated but were not. The rec ord indicates that one of
those potential jurors was dismissed by the court for cause, and without objection, because
o f t h e j u r o r ’ s e m o t i o n a l d i f f i c u l t i e s . T h e s t a t e a t t e m p t e d t o strike the second juror for
cause, but appellant’s trial counsel successfully opposed the for-cause motion to strike that
juror. The juror was later dismissed by a peremptory challenge, presumably exercised by
the state.
Although the voir dire by appellant’s trial counsel was not robust, that seems to have
been counsel’s strategy. Appellant has not shown that his trial counsel’s efforts during voir
dire fell below an objectively reasonable standard.
B. Questioning of witnesses
Next, appellant argues that his trial counsel was ineffective b y “incompetently”
cross-examining the state’s witnesses. Appellant contends that his trial counsel was “at

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best, ineffectual,” that counsel failed to cross-examine a witn ess, and that other witnesses
were questioned “in a manner that damaged the defense rather th an helped the case.”
Specifically, appellant identifies his trial counsel’s question ing of Detective Valleau and
E.A.G., the man who was shot, as ineffective and damaging to appellant’s case.
Questioning witnesses at trial involves counsel’s trial strategy. “[W]hat information
to present to the jury . . . [is trial strategy and thus] within the proper discretion of the trial
counsel.” Jones, 392 N.W.2d at 236. But even an unsuccessful trial strategy c an still
constitute effective assistance, because “trial tactics that are providential for one defendant
[may] prove to be unfortunate for another.” Rhodes, 657 N.W.2d at 845.
At trial, Detective Valleau, the officer assigned to administer a photo-lineup,
testified that, when E.A.G. iden tified appellant’s photo as tha t of the shooter, he said, “I
think so, yeah.” The state quest ioned Detective Valleau about E.A.G.’s reactions to the
photo-lineup:
Q: Did you ask him if he was sure about that identification?
A: Yes.
Q: All right. What did he say to that?
A: I asked him is this the one that shot you, and he said I think
so, yeah.

(Emphasis added.) In cross-examination, appellant’s trial coun sel asked Detective
Valleau:
Q: Isn’t it true that [E.A.G.] did not have a strong reaction to
seeing the photos?
A: No.
. . . .

Q: So, initially, [E.A.G.] hesitated before he said that he
identified somebody. He said I think so. He didn’t say a strong
yes, that’s him. He just said I think so.

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A: When I initially showed him t he picture of Number 3, he
immediately threw himself over on the other side of the bed,
turned over and said that’s him.
Q: And then, did he look at the other pictures?
A: Yes.
Q: How many times did he look at all the pictures?
A: He looked at all the pictures one time.

Appellant’s trial counsel attempted to attack Detective Valleau ’s testimony regarding
E.A.G.’s identification of appe llant by focusing on E.A.G.’s no ncommittal verbal
response. Although unsuccessful, counsel’s strategy was a reas onable way of attempting
to discredit E.A.G.’s identification of appellant as the shoote r. The trial strategy of
appellant’s trial counsel appears to have been reasonable. See Vang, 847 N.W.2d at 266-
67.
Our review of the transcript rev eals that appellant’s trial cou nsel’s cross-
examination of E.A.G. focused on highlighting his dishonesty to the police. Appellant’s
trial counsel was able to elicit repeated admissions by E.A.G. that he had been dishonest
in the aftermath of the shooting. E.A.G. admitted that he “ was making a drug transaction
for marijuana, and [he] didn’t want the police to get involved at that moment.” Appellant’s
trial counsel thereby highlighted E.A.G.’s dishonesty with the police. This effort tended
to undercut the weight of E.A.G.’s identification of appellant as his assailant.
To the extent that appellant’s trial counsel’s questioning was unsuccessful in
achieving appellant’s acquittal, that is no indication of ineffectiveness. A hindsight-based
review of an unsuccessful trial strategy has no place in our de ferential review of an
ineffective-assistance argument.

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C. Case theory
Appellant also argues that his t rial counsel was ineffective for failing to “establish
a coherent theory of the case.” Appellant argues that “it is i mpossible to detect counsel’s
theory of the case.” Here agai n, appellate courts give “partic ular deference” to trial
counsel’s strategy. Schneider, 725 N.W.2d at 521. “[W]e generally will not review attacks
on counsel’s trial strategy.” Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004).
We disagree with appellant’s assessment that his trial counsel had no coherent
strategy. Our review of the record indicates that trial counse l’s theory was simple: “The
State is required to prove beyond a reasonable doubt that [appe llant] possessed a firearm,
attempted to rob [E.A.G.] and assaulted him. The evidence does not prove beyond a
reasonable doubt that this incident occurred.” As is common in criminal cases, appellant’s
trial counsel argued that the attempted robbery did not occur or, alternatively, that the state
had not carried its burden of proving the elements of the charg ed offenses beyond a
reasonable doubt.
Appellant’s trial counsel repeatedly questioned the state’s witnesses about whether
the gunshot wound to E.A.G. could have been self-inflicted or i f the recovered physical
evidence near the alleged crime scene (a shell casing and some suspected marijuana) could
have could been from an unrelated incident. Appellant’s trial counsel elaborated on this
theme in cross-examination of the state’s witnesses. In summat ion, appellant’s trial
counsel postulated that E.A.G. accidentally shot himself and ma de up the robbery to
explain the gunshot wound. Tri al counsel also repeatedly remin ded the jury that the
applicable standard of proof was beyond a reasonable doubt.

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Although it was ultimately unsuccessful, this was not an unreasonable strategy and
overall approach to the case. We decline to second-guess trial counsel’s evident theory of
the case and how counsel chose to present that theory to the jury.
D. Evidence not in the record
Finally, appellant contends that his trial counsel was ineffective for referring to facts
not in evidence when counsel addressed the jury. Specifically, appellant contends that
“counsel referred several times to evidence that was never introduced at trial” in the form
of two references that appellant and E.A.G. had known each othe r before the shooting
incident.
Appellant is correct that, during trial, appellant’s trial counsel briefly referred to two
facts not in evidence. In her opening statement, in summation, and in questioning the one
defense witness, trial counsel stated that appellant and E.A.G. might have played football
together in high school and indicated that appellant had commen ted on E.A.G.’s birthday
via Facebook. The parties agree, and our review confirms, that the record contains no
evidence of these things. In summation, trial counsel argued that “there’s no question they
knew each other” as part of an overarching narrative that E.A.G. was habitually dishonest.
Although the record does not support these statements by appell ant’s trial counsel, it is
evident that they were mentioned by counsel because they tended to help appellant’s trial
theory.
Had the state objected to these statements by trial counsel, th e objection would
likely have been sustained. But we cannot say that trial couns el’s performance was
objectively unreasonable by reference to two facts, arguably he lpful to appellant, that are

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not supported by the record. Bef ore the jury deliberated, the district court instructed the
jury that “the arguments or other remarks of an attorney are no t evidence.” We presume
that the jurors followed this instruction. See State v. Miller, 573 N.W.2d 661, 675 (Minn.
1998) (noting that courts assume that jurors follow a judge’s i nstructions at trial). That
being so, the unsupported statements of trial counsel were of no consequence.
II. Appellant was not prejudiced in the outcome of his trial by his trial counsel’s
performance, even if that performance were to be regarded as ineffective.

Appellant also bears the burden of proving that his trial couns el’s claimed
ineffective assistance prejudiced him. The second element of Strickland requires appellant
to show that there is “a reasonable probability that, but for [ his] counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694, 104 S. Ct. at 2068.
Having determined that appellant’s trial counsel’s performance was not objectively
unreasonable, we need not address the second element of Strickland. See Rhodes, 657
N.W.2d at 842. We do so briefly because appellant has not proven the second element of
Strickland, even were we to assume that he proved the first.
Appellant makes only a general conclusory allegation that “[c]ounsel’s performance
in this case fell so far below an objective standard of reasona bleness that ‘a reasonable
probability exists that the outco me would have been different b ut for counsel’s errors.’”
Appellant does not specifically argue that the outcome of his trial was different because of
trial counsel’s actions during voir dire or counsel’s brief references to facts not in evidence.

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Appellant also fails to demonstrate how, in light of the state’s strong evidence of his guilt,
there would have been a different outcome had it not been for t rial counsel’s (allegedly
ineffective) questioning of witnesses at trial or his overall trial strategy. The outcome here
appears to us to reflect the strength of the evidence of appell ant’s guilt, rather than the
effectiveness of appellant’s trial counsel.
I n s u m , appellant’s ineffective-assistance-of-counsel claims fail to satisfy either of
Strickland’s elements.
Affirmed.