Theodore Pierre Jerry, petitioner, Appellant,

This opinion will be unpublished and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
A18-1422

Theodore Pierre Jerry, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed April 29, 2019
Affirmed
Slieter, Judge

Hennepin County District Court
File No. 27-CR-13-3541

Theodore Pierre Jerry, Faribault, Minnesota (pro se appellant)

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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Schellhas, Presiding Judge; Worke, Judge; and Slieter,
Judge.
U N P U B L I S H E D O P I N I O N
SLIETER, Judge
Appellant Theodore Pierre Jerry challenges the district court’s decision denying his
petition for postconviction relief. The postconviction court, without an evidentiary
hearing, concluded that appellant’s ineffective-assistance-of-trial-counsel claim was barred

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under State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976), and that appellant’s ineffective-
assistance-of-appellate-counsel claim was vague and conclusory. The issues raised in
appellant’s petition for postconviction relief are insufficient to warrant relief. We affirm.
FACTS
On February 1, 2013, the state charged appellant with criminal sexual conduct in
the third degree in violation of Minn. Stat. § 609.344, subd. 1(c) (2012), and burglary in
the first degree in violation of Minn. Stat. § 609.582, subd. 1(c) (2012). Appellant waived
his right to a jury trial and proceeded to a three -day bench trial. The district court found
appellant guilty of both counts.
This court has previously recited the facts of this case in two prior appeals. State v.
Jerry, 864 N.W.2d 365 (Minn. App. 2015) (Jerry I), review denied (Minn. Sept. 15, 2015);
State v. Jerry, No. A16-0006, 2016 WL 4497315 (Minn. App. Aug. 29, 2016) (Jerry II),
review denied (Minn. Nov. 23, 2016). We identify only those facts in this opinion which
are relevant to the issues raised by appellant.
D E C I S I O N
I. The postconviction court properly denied appellant’s petition for
postconviction relief without an evidentiary hearing.

“[W]e review a denial of a petition for postconviction relief, including a denial of
relief without an evidentiary hearing, for an abuse of discretion. ” State v. Nicks , 831
N.W.2d 493, 503 (Minn. 2013). Legal issues raised in a postconviction petition are
reviewed de novo, but factual issues are limited to whether the record sufficiently sustains
the postconviction court’s findings. Matakis v. State, 862 N.W.2d 33, 36 (Minn. 2015).

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This court does not reverse an order denying postconviction relief “‘ unless the
postconviction court exercised its discretion in an arbitrary or capricious manner, based its
ruling on an erroneous view of the law, or made clea rly erroneous factual findings.’” Id.
(quoting Reed v. State , 793 N.W.2d 725, 729 (Minn. 2010)). When a direct appeal has
been taken, “ all matters raised therein, and all claims known but not raised , will not be
considered upon a subsequent petition for postconviction relief. ” Knaffla, 243 N.W.2d at
741 (emphasis added). Ineffective -assistance-of-appellate-counsel claim s, however, are
not barred by Knaffla because they could not be raised on direct appeal. Leake v. State ,
737 N.W.2d 531, 536 (Minn. 2007).
“To establish ineffective assistance of appellate counsel a petitioner must
demonstrate that appellate counsel ’s performance was objectively unreasonable and that
the unreasonable performance prejudiced him.” McDonough v. State, 675 N.W.2d 53, 56
(Minn. 2004); see Strickland v. Washington, 466 U.S. 668, 691-92, 104 S. Ct. 2052, 2066-
68 (1984). If the ineffective -assistance-of-appellate-counsel claim is contingent on trial
counsel’s ineffectiveness, then the appellant must first prove that trial counsel was
ineffective. McDonough, 675 N.W.2d at 56.
“Appellate counsel does not have a duty to raise all possible issues, and may choose
to present only the most meritorious claims on appeal.” Morrow v. State, 886 N.W.2d 204,
206 (Minn. 2016) . The focus is on whether the representation provided by counsel was
reasonable in light of the circumstances rather than on raising claims appellant wanted
counsel to raise. Carridine v. State, 867 N.W.2d 488, 495 (Minn. 2015).

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An evidentiary hearing on a petition for postconviction relief is required when
factual disputes must be resolved to address the issues raised on the m erits. Ferguson v.
State, 645 N.W.2d 437, 446 (Minn. 2002). If doubts arise as to whether a postconviction
evidentiary hearing should be held, it should be resolved in favor of the party requesting a
hearing. Id.
Appellant argues his appellate counsel was ineffective for failing to raise six claims
on his direct appeal. We will address each claim raised by appellant in turn.
A. Admission of Forensic Expert Testimony
Appellant argues his appellate counsel failed to raise on direct appeal the argument
that the district court abused its discretion by allowing forensic -expert testimony and
scientific testing he asserts was novel and without acceptance in the scientific community.
Also, appellant contends the state’s DNA expert testified improperly by identifyi ng
appellant as the source of the DNA at the exclusion of others. Appellant’s issues
functionally involve a state expert performing an initial testing on a sexual -assault exam
(SAE) kit, a P30 test and visual examination that found semen , and a subsequent state
expert matching appellant’s known DNA to the single-source DNA profile from the SAE
sample.
Pursuant to Minn. R. Evid. 702, an expert may testify to “ scientific, technical, or
other specialized knowledge ” when the opinion has “foundational reliability.” “ In
addition, if the opinion or evidence involves novel scientific theory, the proponent must
establish that the underlying scientific evidence is generally accepted in the relevant
scientific community.” Minn. R. Evid. 702; State v. Obeta, 796 N.W.2d 282, 289 (Minn.

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2011). Minnesota applies the two -prong Frye-Mack standard in addressing scientific
evidence to show the methodology used is generally reliable and produces reliable results
in specific cases. State v. Bailey, 677 N.W.2d 380, 397-98 (Minn. 2004).
First, appellant contends the testimony regarding the P30 test performed on the SAE
kit should not have been admitted because it is a novel scientific method. Appellant did
not request a Frye-Mack hearing at the district court on the P30 test performed. On appeal,
appellant would only be able to obtain relief on a showing of plain error that affected his
substantial rights. State v. Ali, 775 N.W.2d 914, 920 (Minn. App. 2009) , review denied
(Minn. Feb. 16, 2010) . Appellant cites to no authority which supports the denial of P30
testing as a novel scientific method. The P30 test performed in this matter was merely a
preliminary step to assess whether the samples contained a protein known to be in seminal
fluid. After the positive P30 test, the Minnesota Bureau of Criminal Apprehension (BCA)
forensic scientist visually observed the presence of semen on the samples. Appellant does
not identify any issues with the expert’s ability to visually identify the presence of sperm
based on his tr aining and experience. Due to the limited value of the P30 test testimony
and the lack of a demonstrated basis to have requested a Frye-Mack hearing, appellate
counsel’s decision to not raise this issue on direct appeal was objectively reasonable.
Second, appellant challenges the testimony from a BCA forensic scientist that he
was the source of the DNA found following the creation of a single -source DNA profile.
The Minnesota Supreme Court in State v. Roman Nose noted the use of single-source DNA,
a sample containing the DNA profile of one person, allows an expert to testify to statistical
evidence based on that sample. 667 N.W.2d 386, 398 (Minn. 2003). The record provided

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by the state included the generation of a single-source DNA sample from the SAE kit that
the state expert used to compare the known sample of appellant’s DNA to find a match.
Appellant’s DNA sample matched all 16 of the short-tandem-repeat (STR) areas analyzed
by the BCA, which the forensic scientist opined would not occur more than once among
unrelated individuals in the world population. This testimony was not improper.
Therefore, appellate counsel ’s decision to not raise this issue on direct appeal was
objectively reasonable.
B. Admission of Photographs
Appellant argues his app ellate counsel failed to challenge the admission of still
photographs admitted as part of a detective’s testimony over his trial counsel’s objection.
Appellant focuses his challenge on authentication and foundation.
Evidentiary rulings are reviewed “for an abuse of discretion, and any error is subject
to harmless error analysis.” State v. Greer , 635 N.W.2d 82, 91 (Minn. 2001) (citation
omitted). A reversal on an evidentiary error made by the district court is appropriate when
it “substantially influence[d] the [fact-finder] to convict.” State v. Loebach, 310 N.W.2d
58, 64 (Minn. 1981). Pursuant to Minn. R. Evid. 901(a): “ The requirement of
authentication or identification as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in question is what its proponent
claims.” District courts possess “ considerable discretion under Minn. R. Evid. 901(a) in
deciding whether evidence has been adequately authenticated or identified .” State v.
Dulak, 348 N.W.2d 342, 344 (Minn. 1984).

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Appellant relies on an incorrect reading of In re Welfare of S.A.M., to find the district
court abused its discretion . 570 N.W.2d 162 (Minn. App. 1997). In S.A.M., this court
rejected the concept that a videotape can only be authenticated “by a continuous observer
who testifies from personal knowledge that the events are accurately portrayed.” Id. at
166. This court held:
A videotape may be authenticated by testimony describing the
reliability of the process or system that created the tape, as well
as by testimony from an observer that the videotape is an
accurate portrayal of the event, if the evidence sufficiently
demonstrates that the videotape is what its proponent claims.
Id.
The district court heard arguments from couns el related to the admissibility of the
still photographs on the first day of trial and reserved its ruling. A component of the
detective’s investigation involved obtaining a videotape from Metro Transit. The detective
captured still photographs from the videotape identified, met appellant during the course
of the investigation, and determined that the man depicted in the Metro Transit video was
appellant.
The district court, in its order finding appellant guilty, referenced the Metro Transit
still photographs in one brief paragraph. The paragraph reads in its entirety: “A Metro
Transit bus surveillance video shows the [appellant] with facial hair and wearing a ‘Knicks’
basketball jacket on January 8, 2013, one week after S.E. was sexually assaulted .” The
district court’s finding does not distinguish between its reliance on the photograph,
testimony from the detective, or a combination of the two.

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The district court’s admission of the still photographs did not constitute an abuse of
discretion. The district court must only find sufficient evidence from the proponent that
the item is what the proponent claims it to be. Appellant did not object that the still
photographs were from a Metro Transit videotape collected as part of law enforcement’s
investigation. Further, appellant did not object that the photographs showed an individual
wearing a Knicks jacket getting on and off a Metro Transit bus. The still photographs meet
the necessary requirements for foundation and authentication for admission in to evidence
at the time of trial. The primary dispute is whether the identification of the person depicted
was appellant. This question is one for the fact-finder’s determination. The district court,
upon reviewing all the evidence, made a factual determination appellant was the individual
depicted. Appellate counsel did not act in an objectively unreasonable manner by not
appealing this issue on direct appeal.
C. Miranda
Appellant argues his appellate counsel failed to raise a challenge under Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966) . Both the United States and Minnesota
Constitutions protect criminal defendants from compelled self-incrimination. State v. Risk,
598 N.W.2d 642, 647 (Minn. 1999). To further this fundamental protection, the United
States Supreme Court in Miranda created a procedural safeguard when a person is in a
custodial interrogation to be informed of certain constitutional rights, which incl udes the
Fifth Amendment right against self -incrimination. Miranda, 384 U.S. at 444, 467-79, 86
S. Ct. at 1612, 1624-30. A “custodial interrogation” occurs when “questioning [is] initiated
by law enforcement officers after a person has been taken into cu stody or otherwise

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deprived of his [or her] freedom of action in any significant way. ” Id. at 444, 86 S. Ct. at
1612; see S tate v. Heden , 719 N.W.2d 689, 694 -95 (Minn. 2006). “An ‘interrogation’
under Miranda refers to (1) ‘express questioning’ or ‘any w ords or actions on the part of
police (other than those normally attendant to arrest and custody)’ that (2) ‘the police
should know are reasonably likely to elicit’ (3) ‘an incriminating response from the
suspect.’” State v. Heinonen , 909 N.W.2d 584, 589 (Minn. 2018) (footnote omitted)
(quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689-90 (1980)).
The detective testified that she met appellant at the Hennepin County Jail in
September of 2013 and showed him the still images from the Metro Transit videotape. The
detective admitted that she did not read appellant his Miranda rights. Appellant, initially,
was willing to talk to her until she explained the nature of the discussion resulting in him
denying knowledge of the events. Subsequently, the detective placed the still photographs
on the table and appellant responded it was him but he did not know why she was meeting
with him.
Appellant was in custody and it appears law enforcement engaged in an
interrogation after placing the photog raphs in front of him under Miranda. A person is
reasonably likely to respond to photographs provided by law enforcement that may depict
them after denying any involvement in criminal activity. Contrary to the state’s assertions,
appellant’s statement was not spontaneous because it was prompted by law enforcement
behavior.
Even though appellant’s response to the photographs was improperly obtained
without a Miranda warning and received at trial, the detective testified as to her certainty

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that appellant was the same person depicted in the photographs. Further, t he state
possessed evidence of appellant’s DNA found from the victim’s SAE kit and a latent
fingerprint of appellant found on the window entering the victim’s residence. This
information, in its totality, constitutes a strong case against appellant. Even if we assume
appellate counsel acted unreasonably by not raising this claim, the result did not prejudice
appellant based on the totality of the evidence offered at trial in support of the convi ction.
McDonough, 675 N.W.2d at 56 (recognizing an ineffective -assistance-of-counsel claim
requires showing of both objectively unreasonable performance and that the performance
resulted in prejudice).
D. Denial of a Fair Trial by an Impartial Judge
Appellant argues his appellate counsel failed to challenge the impartiality of the
district court. The concept of impartiality is “the very foundation of the American judicial
system.” Payne v. Lee, 24 N.W.2d 259, 264 (Minn. 1946). “A judge shall act at all times
in a manner that promotes public confidence in the independence, integrity, and
impartiality of the judiciary, and shall avoid impropriety and the appearance of
impropriety.” Minn. Code Jud. Conduct Rule 1.2.
“When reviewing a claim that a judge was partial against the defendant, we presume
the judge ‘discharged his or her judicial duties properly.’” State v. Munt, 831 N.W.2d 569,
580 (Minn. 2013) (quoting McKenzie v. State, 583 N.W.2d 744, 747 (Minn. 1998)). “ An
impartial judge has no actual bias against the defendant or interest in the outcome of his
[or her] particular case.” Id. (quotation omitted). And “‘[p]rior adverse rulings . . . clearly

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cannot constitute bias.’” Greer v. State, 673 N.W.2d 151, 157 (Minn. 2004) (quoting Olson
v. Olson, 392 N.W.2d 338, 341 (Minn. App. 1986)).
As to his first claim that the judge was biased , appellant claims the district court
limited effective cross -examination. Appellant’s trial counsel cross -examined a state’s
witness related to the transfer of the SAE evidence from the hospital to the BCA laboratory
and back into law enforcement’s custody. The state’s witness did not recall the name of
the person who retrieved the SAE kit from the hospital, the person he gave the kit to at the
BCA laboratory, or the specific clerk in his agency’s evidence unit he returned it to after
the BCA issued a report. The district court interjected to ask if the questions would be
satisfied after other “chain of c[ustody] people” testified. The cross-examination ended
shortly after an off -the-record discussion between co-counsel. Appellant’s claim that the
district court acted in a bias ed manner by disallowing cross-examination is not supported
by the record.
Next, appellant asserts the district court made “a bias statement favorable to the
prosecutor when she stated that she is not leaning on [sic] bringing in everyone in the chain
of custody to testify.” Contrary to appellant’s assertion, the district court did not make
such a statement. Instead, the district court —after taking the matter under advisement on
the second day of trial—identified specific caselaw in reaching its determination on chain
of custody. The district court stated that the state established “a reasonable probability that
tampering or substitution did not occur” and continued to reserve a ruling on whether the
kit was admissible into evidence. The district court’s decision was not a function of
favoritism but, instead, an analysis of the casela w to the particular facts of the case.

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Appellant cannot rely on th is mere adverse ruling to assert bias. Greer, 673 N.W.2d at
157.
Finally, appellant raises the issue of the district court asking questions related to the
detective’s personal knowledge of appellant’s appearance and, therefore, acted “as an
advocate for the state.” A trial judge has the discretion to ask questions of a witness and
“ordinarily a court of review will not scrutinize his [or her] conduct in this respect very
closely.” State v . Sandquist , 178 N.W. 883, 884 ( Minn. 1920); see also State ex rel.
Hastings v. Denny, 296 N.W.2d 378, 379 (Minn. 1980) (recognizing a district court may
examine witnesses but it should exercise that authority “with great caution, particularly
when the cre dibility of key witnesses is at issue”). The concern, broadly, by the district
court engaging in questioning exists when cases are presented to a jury because the conduct
“could have influenced the jury on such a closely contested issue ” to disallow an
opportunity for a fair trial. Hastings, 296 N.W.2d at 379.
However, appellant proceed ed to trial without a jury. The Minnesota Supreme
Court in State v. Burrell, recognized the important distinction between jury trials and bench
trials. 772 N.W.2d 459, 467 (Minn. 2009). “ The risk of unfair prejudice . . . is reduced
because there is comparatively less risk that the district court judge, as compared to a jury
of laypersons, would use the evidence for an improper purpose or have his [or her] sense
of reason overcome by emotion.” Id.
The district court’s examination of the detective involved questioning of the still
photographs from the Metro Transit videotape. The questioning involved asking how she
came to recognize the individual in th e photographs to be appellant. In particular, the

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district court asked if the detective had personal contact with appellant—a fact previously
testified to by the officer on direct examination. After a discussion at the bench, the district
court directed the state to provide more foundation. Following further examination by the
state, the district court received the still photographs over an objection by appellant’s trial
counsel.
Though the district c ourt engaged in questioning of the state’s witnesses a nd,
initially, made a determination that the exhibits would be received, the judge reversed her
decision by requiring the state to provide more foundation for admissibility. Contrary to
appellant’s argument, the district court’s behavior does not support a finding of bias.
Appellate counsel acted in an objectively reasonable manner by not raising this challenge
on direct appeal because it lacked merit.
E. Imposition of a Ten-Year Conditional-Release Term
Appellant argues his appellate counsel should have challenged the imposition of a
ten-year conditional-release term in addition to his 225-month sentence because it violates
his right to a jury finding of facts necessary to impose a conditional-release term. Pursuant
to Minn. Stat. § 609.3455, subd. 6 (2012), a mandatory ten -year conditional-release term
applies to offenders committed to the custody of the commissioner of corrections for a
violation of criminal sexual conduct in the third degree under section 609.344, and other
offenses. Cf. State v. Noggle , 881 N.W.2d 545, 547 (Minn. 2016) (recognizing the
mandatory nature of the conditional -release statute in criminal -sexual-conduct cases
applies). Appellant’s reliance on Blakely v. Washington , 542 U.S. 296, 124 S. Ct. 2531
(2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), are misplaced

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in this context. Minn. Stat. § 609.3455, subd. 6, requires a conditional-release term without
any requirement for a fact-finder to make any additional determination. Appellate counsel
acted reasonably by not raising this issue.
F. Ineffective Assistance of Trial Counsel
Appellant argues his appellate counsel failed to challenge the ineffective assistance
of trial counsel. This court has reviewed the allegations raised in appellant’s submissions
based on the record and find s no basis to support an ineffective -assistance-of-counsel
claim. Appellant’s trial counsel made timely objections and effectively cross -examined
witnesses. Further, appellan t provides no justification for his allegation that trial counsel
failed to investigate facts related to his case or failed to notify him of the consequences of
waiving an omnibus hearing.
After review of the record, appellant does not present grounds for postconviction
relief to be granted . The district court properly denied appellant’s request for
postconviction relief without a hearing because the trial record provided sufficient evidence
to have resolved his claims.
Affirmed.