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This opinion will be unpublished and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
A18-1583

State of Minnesota,
Respondent,

vs.

William Frances Anderson,
Appellant.

Filed January 21, 2020
Affirmed
Worke, Judge

Hennepin County District Court
File No. 27-CR-18-119

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, 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 Connolly, Presiding Judge; Worke, Judge; and Bratvold,
Judge.
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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant challenges his drug-possession convictions, arguing that his attorney was
ineffective for failing to deliver on his promise made to the jury in his opening statement
that appellant would testify. We affirm.
FACTS
On June 5, 2017, officers were dispatched to a residence on a report of an
emotionally disturbed person (EDP), described as a methamphetamine user, who was
combative and had felony warrants. Wh en officers arrived, an officer heard a woman
inside the residence say “cops, cops, hide it, hide it.” Officers ordered everyone out of the
house, and four individuals exited; officers were aware that all were met hamphetamine
users. The EDP was found in a neighbor’s garage. One of the occupants told the officers
that there was “dope in the house.” A search warrant for the residence was prepared.
In executing the warrant, officers noticed that the door to the basement was locked
and none of the occupants had a key. Officers pried the door open slightly and saw that a
rope tied to the door handle prevented it from opening. At that point, appellant William
Frances Anderson walked up the basement stairs. An officer requested that Anderson untie
the rope, and he complied. Officers then confirmed that there was nobody else in the
basement. An officer told Anderson that they were search ing the house for narcotics and
contraband. Anderson stated that “the basement’s full of stuff,” but that nothing was his
except “what’s on the bed or around the bed.” He told officers that “[t]here might be some
narcotics in plastic drawers near [his] bed.”
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In Anderson’s bedroom area, officers found several items associated with
controlled-substance activity, including scales, small plastic baggies, a gas mask, a
notebook with notations of individuals who owed other individuals money, and two
baggies with contents weighing 15.9 grams that field tested positive for methamphetamine.
Officers also found a loaded firearm. And in a plastic drawer by the bed, officers found a
glass jar that contained suspected methamphetamine. A forensic scientist employed by the
Bureau of Criminal Apprehension later analyzed and weighed the substance found in the
glass jar. The substance contained methamphetamine and weighed 110.934 grams.
Anderson was charged with five counts: being an ineligible person in possession of a
firearm and ammunition, aggravated first-degree controlled-substance crime with a
firearm, first-degree sale of a controlled substance, and first-degree possessio n of a
controlled substance.
At the beginning of Anderson’s jury trial, he stipulated that he is prohibited from
possessing a firearm and ammunition because he has a controlled-substance conviction. In
his opening statement, Anderson’s attorney stated:
You’re going to hear that there were other people living
in this house . . . . You’re going to hear a witness . . . say that
[other individuals in the house] distributed drugs, and you’re
going to hear . . . this witness say that in the days prior to the
execution of the search warrant of this house, she saw the
[other individuals] chopping up drugs and preparing them for
distribution. You’ll hear the same wit ness say that
Mr. Anderson wasn’t involved in any of that. You’re going to
get a chance to hear from Mr. Anderson. You’re going to get
a chance to hear him tell you that he was struggling with a
methamphetamine addiction, that he had a firearm that he kept
under his mattress for his protection, and that he knew he
wasn’t supposed to be possessing a firearm. But what you’re
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not going to hear is any proof, at all [that] . . . Mr. Anderson
possessed anywhere near the amount of drugs that they’re
alleging.
. . . .
In fact, Mr. Anderson will tell you that when he had an
interview with the police, they told him, well, we found a half
pound of meth down in that room, and he’ll tell you that he was
incredibly surprised when they suggested that number. He
said, that’s impossible. There’s no way you found . . . that
amount.

The state presented evidence regarding the items found in the basement. Forensic
scientists testified that the gun and ammunition were processed for DNA and fingerprint
analysis, and that Anderson’s DNA was on the handgun. But although a scientist testified
that a glass jar would be a good place to find latent prints, an officer testified that the glass
jar was not held for DNA or fingerprint testing, and the lab would not process it, fearing
contamination. The state also offered evidence that Anderson told an investigator that he
was a methamphetamine user.
Before trial, the state had moved to impeach Anderson, if he testified, with prior
convictions and statements he made in jail phone calls indicating that he was “willing to
be untruthful in order to get something in return.” Halfway through the state’s case, the
district court ruled that the state could impeach Anderson with two convictions.
Anderson’s attorney did not object to the state questioning Anderson about the jail phone
calls.
After the stated rested, Anderson waived his right to testify. Anderson agreed that
he “weighed the pros and cons,” and considered the state’s intention to impeach him with
prior convictions and the jail phone calls. In his closing argument, Anderson’s attorney
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argued that the state failed to prove its case because it proved only that the gun had
Anderson’s DNA on it and that Anderson was a methamphetamine addict.
The jury found Anderson guilty of all counts, except first-degree drug sale. The
district court sentenced Anderson to 134 months in prison. This appeal followed.
D E C I S I O N
Ineffective assistance of counsel
Anderson argues that his attorney was ineffective for promising the jury in his
opening statement that Anderson would testify about his methamphetamine addiction, the
reason a firearm was near his bed, and not possessing the methamphetamine in the glass
jar. Anderson raises his claim on direct appeal. Generally, an ineffective-assistance-of -
counsel claim should be raised in a postconviction petition, because a postconviction
hearing provides the district court with explanations for counsel’s decisions and allows for
proper consideration of counsel’s performance. State v. Gustafson, 610 N.W.2d 314, 321
(Minn. 2000). But if an ineffective-assistance-of-counsel claim can be determined on the
basis of the trial record, then the claim can be reviewed on direct appeal. State v. Ellis-
Strong, 899 N.W.2d 531, 535 (Minn. App. 2017). Here, we are able to address Anderson’s
claim because it does not appear that further development of the record is required. See
State v. Thomas, 590 N.W.2d 755, 759 (Minn. 1999) (addressing ineffective-assistance
claim on direct appeal when record was clear).
This court reviews claims of ineffective assistance of counsel de novo. Williams v.
State, 764 N.W.2d 21, 29 (Minn. 2009). A defendant must show by a preponderance of
the evidence that his counsel’s representation “fell below an objective standard of
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reasonableness” and that, but for counsel’s deficient performance, the outcome would have
been different. State v. Doppler , 590 N.W.2d 627, 633 (Minn. 1999) (quoting Strickland
v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984)). Whether representation
was objectively unreasonable requires a determination as to whether the representation was
“reasonable in the light of all the circumstances.” Dent v. State, 441 N.W.2d 497, 500
(Minn. 1989). A strong presumption exists that counsel’s representation was reasonable.
King v. State, 562 N.W.2d 791, 795 (Minn. 1997).
Anderson argues that Ouber v. Guarino is “precisely on point” in resolving his claim
in his favor. See 293 F.3d 19 (1st Cir. 2002). In Ouber, the defendant testified at her first
trial on a drug- trafficking charge, which resulted in a mistrial. Id. at 21-22. Ouber was
retried with the same evidence and the jury deadlocked again. Id. at 22. At Ouber’s third
trial, her attorney, the same who had represented her throughout, promised the jury four
times in his opening state ment that Ouber would testify. Id. In doing so, he emphasized
the importance of her testimony, and stated that the case came down to whether the jury
believed Ouber or a narcotics agent. Id. But Ouber did not testify at her third trial as she
had done in both earlier trials, and the jury found her guilty . Id. at 23. The First Circuit
held that Ouber’s attorney’s representation was deficient because he repeatedly vowed to
the jury that it would hear from Ouber and then subsequently advised her against testifying.
Id. at 35-36. The court also held that Ouber was prejudiced because the first two trials,
without counsel’s error, produced materially different results. Id. at 36.
In State v. Bahtuoh, the appellant also argued that his “trial counsel was ineffective
when he told the jury during his opening statement that Bahtuoh would testify and then
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later advised Bahtuoh not to testify.” 840 N.W.2d 804, 816 (Minn. 2013). The supreme
court determined that “it was reasonable for defense counsel to believe, at the time of his
opening statement, that Bahtuoh would testify.” Id. at 817. The supreme court stated that
it has cautioned against relying on hindsight when reviewing decisions made by trial
counsel, and that “[i]t is only in hindsight, with the knowledge that Bahtuoh did not testify,
that defense counsel’s representations in his opening statement appear imprudent.” Id. The
supreme court decided that Ouber did not support Bahtuoh’s claim, and explained how the
two cases were different. Id. at 817-18. First, Ouber’s counsel made Ouber’s testimony
the focus of the case, and second, nothing unexpected happened during Ouber’s trial to
change counsel’s strategy, and counsel had the two prior trials to form an idea as to how
the jury would react to Ouber’s testimony. Id. at 818.
Here, Anderson’s case is more similar to Bahtuoh than Ouber. Like Bahtuoh, the
record does not show that when Anderson’s attorney made his opening statement he knew
that Anderson was not going to testify. In fact, in his opening statement, Anderson’s
attorney stated that another witness would testify about who possessed the
methamphetamine, but his attorney did not call any witnesses. See Carridine v. State, 867
N.W.2d 488, 494 (Minn. 2015) (stating that what evidence to present to jury and whether
to call witnesses to testify are part of counsel’s trial strategy, which lie within counsel’s
discretion and are not generally reviewable for competence). This demonstrates that
Anderson’s attorney altered his strategy after making his opening statement.
Counsel’s decision was likely based on the district court ruling on the admissibility
of Anderson’s prior convictions, and the state’s intention to impeach Anderson with
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statements he made in jail phone calls indicating that he would be willing to be untruthful
if he received something in return. See State v. Tice, No. A07-1712, 2009 WL 65217, at
*3 (Minn. App. Jan. 13, 2009) (stating that appellant failed to show that his attorney was
ineffective for promising the jury “13 times in his opening statement that appellant would
testify [but then declining to present appellant’s testimony] . . . even though counsel had
notice that if appellant testified the state intended to impeach him with evidence of two
prior felony convictions”), review denied (Minn. Mar. 31, 2009). When Anderson waived
his right to testify, he agreed that he “weighed the pros and cons,” and considered the
district court’s ruling on the admissibility of two felony convictions and the state’s
intention to introduce the jail phone calls to show Anderson’s “ untrustworthiness or
untruthfulness.”
Anderson’s attorney evidently did not want the jury to hear about Anderson’s prior
convictions, because Anderson stipulated to having a controlled-substance conviction that
prohibited him from possessing a firearm and ammunition. If Anderson’s attorney did not
want the jury to hear that Anderson has a controlled-substance conviction, he likely did not
want the jury to hear that Anderson has two other convictions. And if Anderson testified,
and wanted the jury to believe him , his attorney likely did not want the jury to hear tha t
Anderson made comments indicating that he would be untruthful if it benefitted him.
Finally, similar to Bahtuoh, Anderson’s attorney argued that the state did not prove
its case. In Ouber, trial counsel emphasiz ed the importance of the defendant’s testimony
and stated that the jury would have to decide “the truth and veracity” of the defendant and
the undercover narcotics agent. 293 F.3d at 22. Here, Anderson’s attorney’s strategy was
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not based on whether the jury believed Anderson or the police officers, but rather that the
state failed to prove that the glass jar of methamphetamine belonged to Anderson.
Anderson’s attorney stated in closing argument that the glass jar could have easily been
tested for fingerprints, but was not. He stated that the glass jar was not stored in a way to
ensure that it was not contaminated, so there was no way of knowing whose fingerprints
or DNA were on the glass jar, who it belonged to, or what was in it because the substance
was not tested for purity.
Moreover, Anderson’s attorney told the jury that the state proved that Anderson’s
DNA was on the gun, and that Anderson was addicted to methamphetamine. This evidence
represents what Anderson’s attorney stated Anderson would testify about—“that he was
struggling with a methamphetamine addiction [and] that he had a firearm that he kept under
his mattress for his protection.” Thus, the jury heard evidence that Anderson would have
provided had he testified. Therefore, Anderson fails to show that his attorney’s
representation fell below an objective standard of reasonableness. Because we conclude
that Anderson failed to meet his burden with respect to the first Strickland prong, we need
not address the second. See Schleicher v. State, 718 N.W.2d 440, 447 (Minn. 2006) (stating
reviewing court may dispose of an ineffective-assistance- of-counsel claim on one pro ng
without analyzing the other).
Pro se supplemental brief
In his pro se supplemental brief, Anderson raises several issues related to the search
warrant, including (1) a Brady violation, (2) that the sources for the application were
unreliable, (3) that the search was unreasonable, (4) that the warrant lacked specificity, and
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(5) that he never had a chance to challenge the warrant. Anderson fails to cite authority
and present legal argument, or point to anything in the record to support his claims. Thus,
his claims are deemed forfeited. See State v. Bursch, 905 N. W.2d 884, 889 (Minn. App.
2017) (“Arguments are forfeited if they are presented in a summary and conclusory form,
do not cite to applicable law, and fail to analyze the law when claiming that errors of law
occurred.”); State v. Wembley, 712 N.W.2d 783, 795 (Minn. App. 2006) (holding that
unsupported assignments of error are forfeited “unless prejudicial error is obvious on mere
inspection”), aff’d, 728 N.W.2d 243 (Minn. 2007).
Affirmed.