State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0457

State of Minnesota,
Respondent,

vs.

David Edward Campbell,
Appellant.

Filed April 11, 2022
Affirmed
Gaïtas, Judge

Hennepin County District Court
File No. 27-CR-17-22942

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

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

Bruce Rivers, Rivers Law Firm, P.A., Minneapolis, Minnesota (for appellant)

Considered and decided by Frisch, Presiding Judge; Gaïtas, Judge; and Klaphake,
Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
In this direct appeal from his convicti on for third-degree criminal sexual conduct
following a stipulated-evidence court trial, appellant David Edward Campbell argues that
his trial attorney provided ineffective assistance of counsel. We affirm.
FACTS
Campbell is a former Minneapolis Polic e Officer. L.M.G. was the teenaged
girlfriend of Campbell’s son. In early 2017, when L.M.G. was 16 years old, she began
staying with Campbell’s family. Several months later, L.M.G. reported to a school social
worker that Campbell had sexually assaulted her multiple times. She alleged that Campbell
initially bought her lingerie a nd demanded photos of her. Then, according to L.M.G.,
Campbell began sexually assau lting her in hotels where the family was living and in his
squad car. During a subsequent investig ation, police found physical evidence
corroborating L.M.G.’s allegations, including social media conversations between L.M.G.
and Campbell, Campbell’s bank statements showing the lingerie purchase, photos of
L.M.G. on Campbell’s phone, images from Campbell’s officer-worn body camera showing
L.M.G. in his squad car on the dates of the alleged sexual assaults, and Campbell’s squad
car records, which correspond with the times and locations of the alleged sexual assaults.
Following the investigation, respondent State of Minnesota charged Campbell with
three counts of third-degree criminal sexual conduct, Minn. Stat. § 609.344, subd. 1(c), (e),
(f) (2016), two counts of fourth-degree crimin al sexual conduct, Mi nn. Stat. § 609.345,
subd. 1(f) (2016), and one count of terroristic threats, Minn. Stat. § 609.713, subd. 1 (2016).
3
The charges were later amended to include a seventh charge, for engaging in a pattern of
stalking conduct, Minn. Stat. § 609.749, subd. 5(a) (2016).
Campbell initially retained a private attorney. But several months later, the private
attorney withdrew. In February 2018, a p ublic defender was appointed to represent
Campbell. The case was set for trial and continued twice before a jury trial was scheduled
for September 24, 2018.
On September 12, 2018, the private attorney filed a letter asking to be reappointed
and requesting a continuance of the trial date because Campbell had reengaged his services.
Simultaneously, the public defender filed a letter advising the district court that he had no
objection to the private attorney taking over the case. The public defender also filed a
motion seeking a continuance of the trial to prepare for expe rt-witness testimony that the
state had just disclosed.
At a hearing on September 18, 2018, the district court denied the private attorney’s
substitution-of-counsel request and the public defender’s continuance motion.1 The public
defender then renewed his continuance request, informing the district court that Campbell
had repeatedly failed to attend scheduled meeti ngs with him. He acknowledged that he
would “be effective in representing him and cross-examining the [s]tate’s witnesses.” But

1 Although the public defender asserted that a continuance was necessary due to the state’s
disclosure of “new” expert-witness evidence, the district court determined that the state’s
addition of the forensic interviewer’s name to its witness list was not new evidence because
the witness’s identity and the forensic interview had been previously disclosed. The district
court accordingly concluded that no continuance was necessary . But the district court
stated that it would consider a pretrial moti on in limine to bar or restrict the witness’s
testimony.
4
because Campbell had refused to meet with him, the attorney relayed that he did not “know
Mr. Campbell’s story” or “his defense.” When the district court again declined to continue
the trial, the public defender stated, “I belie ve I would be ineffec tive, Your Honor, and I
would put that on the record at this time and I would move for continuance based on that.”
The district court explained that it would not continue the trial because the case had been
pending for a year.
On September 24, 2018, the parties appeared for the scheduled trial. At the outset,
the district court considered the public defe nder’s pretrial motions, including motions to
challenge L.M.G.’s credibility with evidence from a child-protection file, to admit evidence
of L.M.G.’s mental-health diagnoses, and to present the testimony of L.M.G.’s mother that
L.M.G. had made prior false sexual abuse allegations and wa s generally dishonest. The
district court denied these motions.
On the second day of trial, before jury se lection, the parties in formed the district
court that they had agreed to have a stipul ated-evidence court trial. In exchange for
Campbell’s waiver of his jury trial rights and his decision to proceed based on stipulated
evidence, the state agreed not to seek an aggravated senten ce. The state also agreed to a
sentencing cap of 57 months’ imprisonment.
During the waiver of Campbell’s jury trial rights, the public defender addressed the
communication problems that had prompted his most recent continuance request.
Campbell confirmed that he had multiple opportunities to discuss his case with the public
defender following the continuance request. He had met with the public defender, and they
had discussed the case in pers on, on the phone, and via text messaging. Campbell stated
5
on the record that he felt he had sufficient tim e to talk with the pu blic defender about the
case. And the public defender stated that he was “fully prepared to go forward with what
we have at hand and to try the case in an effort to get you found not guilty.”
In lieu of live testimony, the parties stipulated to 52 exhibits introduced by the state.
The attorneys submitted written closing arguments to the district court.
Based on the stipulated evidence, the di strict court found Campbell guilty of each
of the charged offenses. For the offense of third-degree criminal sexual conduct, the
district court sentenced Campbell to 57 months in prison followed by a lifetime
conditional-release term.
In March 2019, represented by the private attorney he initially retained for trial,
Campbell appealed to this court. He then filed a motion to stay the appeal to pursue a claim
of ineffective assistance of trial counsel in postconviction proceedings in the district court.
We stayed the appeal but reque sted monthly status updates regarding the progress of the
postconviction proceedings. Over a period of nearly two years, we issued eight orders
directing Campbell’s counsel to file the require d status letters and warning that failure to
comply could result in dismissal of the appeal . In August 2021, due to counsel’s lack of
compliance, we dissolved the stay and ordered counsel to file an appellate brief.
2

2 The record shows that the a ttorney filed a postconviction petition in the district court
while the appeal was stayed. This court’s or der dissolving the stay suspended the district
court’s jurisdiction over the postconviction petition. State v. Barnes, 81 N.W.2d 864, 866
(Minn. 1957) (“Pending a duly executed appeal, the jurisdiction of the [district] court is
[s]uspended . . . as to those matters necessa rily involved in the appeal.”). On appeal,
Campbell does not challenge this court’s orde r dissolving the stay or contend that a
postconviction hearing was necessary to pursue his claims.
6
DECISION
Campbell argues that the public defender who represented him at trial provided
ineffective assist ance of counsel. Under the federal and state constitutions, a criminal
defendant is entitled to the assistance of counsel. U.S. Const. amend. VI; Minn. Const. art.
I, § 6. This right means “the right to effective assistance of counsel.” McMann v.
Richardson, 397 U.S. 759, 771 n.14 (1970) (emphasis added). The threshold for assessing
any ineffective-assistance-of-counsel claim is “whether counsel’s conduct so undermined
the proper functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail
on a claim that counsel was ineffective, a defendant must show that (1) counsel was
deficient and (2) the deficient performance prejudiced the defense. Id.
“Generally, an ineffective- assistance-of-counsel clai m should be raised in a
postconviction petition for relief” because a pos tconviction evidentiary hearing provides
the district court with additional facts regarding an attorney’s decisions. State v. Gustafson,
610 N.W.2d 314, 321 (Minn. 2000). However, “[w]hen a claim of ineffective assistance
of trial counsel can be determined on the basis of the trial record, the claim must be brought
on direct appeal.” Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013).
When, as here, an ineffectiv e-assistance-of-counsel claim is raised in a direct
appeal, we examine the claim under the two-prong test set forth in Strickland. State v.
Ellis-Strong, 899 N.W.2d 531, 535 (M inn. App. 2017) (citing Andersen, 830 N.W.2d at
10). “Application of the Strickland test involves a mixed question of law and fact, which
we review de novo.” State v. Mouelle, 922 N.W.2d 706, 715 (Mi nn. 2019). “If a claim
7
fails to satisfy one of the Strickland requirements, we need not consider the other
requirement.” State v. Mosley, 895 N.W.2d 585, 591 (Minn. 2017) (citation omitted).
Campbell asserts that his attorney’s perfo rmance was inadequate in three ways.
First, he argues that, because the attorney did not ask the district court to review L.M.G.’s
confidential records for possi ble impeachment evidence, th e attorney failed to fully
investigate the case. Second, he contends that the record sh ows his attorney was
unprepared to represent him at trial. Third, he argues that the attorney’s advice to waive
most of his trial rights and to have a stipulated-evidence court trial was per se deficient.
Trial counsel’s representation is deficien t when counsel “does not exercise the
customary skills and diligence that a reasonably competent attorney would perform under
similar circumstances.” White v. State, 248 N.W.2d 281, 285 (Minn. 1976) (quoting United
States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976)); see also Leake v. State, 737 N.W.2d
531, 536 (Minn. 2007). Whether an attorney ’s performance was adequate “is necessarily
linked to the practice and expectations of th e legal community: ‘The proper measure of
attorney performance rema ins simply reasonableness under prevailing professional
norms.’” Padilla v. Kentucky, 559 U.S. 356, 366 (2010) (quoting Strickland, 466 U.S. at
688). “There is a strong presumption that a counsel’s performance falls within a wide
range of reasonable assistance.” State v. Reek, 942 N.W.2d 148, 166 (Minn. 2020).
An attorney’s tactical decisions are within the discretion of counsel and will not be
reviewed for competence. State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999). But an
attorney’s strategic decisions are only entitle d to deference when “made after thorough
investigation of law and facts relevant to plausible options.” Strickland, 466 U.S. at 690.
8
Where an attorney’s fa ilure to investigate thoroughly is the result of “inattention, not
reasoned strategic judgment,” counsel’s performance may be deficient. Wiggins v. Smith, 539 U.S. 510, 526 (2003). Mo reover, the fact that an attorney’s failing could be
characterized as a “trial strategy” should not be an “impregnable barrier” to an ineffective-
assistance-of-counsel claim; the Minnesota Supreme Court has specifically rejected “such
a formalistic approach.” State v. Nicks, 831 N.W.2d 493, 507 (Minn. 2013).
Still, appellate courts’ “reluctance to scrutinize trial tactics is grounded in the public
policy of allowing counsel to ha ve the flexibility to represent a client to the fullest extent
possible.” Opsahl v. State , 677 N.W.2d 414, 421 (Minn. 2004) (quotation omitted).
Matters involving trial strategy th at we generally do not review include “[t]he extent of
counsel’s investigation,” id., counsel’s decisions regarding what evidence to present, see
Voorhees, 596 N.W.2d at 255 (“What evidence to present to the [court], including which
defenses to raise . . . , represent[s] an atto rney’s decision regarding trial tactics which lie
within the proper discretion of trial c ounsel and will not be reviewed later for
competence.”), and counsel’s advice to the client, e.g., State v. Brocks, 587 N.W.2d 37, 43
(Minn. 1998) (concluding that counsel’s advice about what the defendant should discuss
at trial was reasonable trial strategy).
Against this legal backdrop, we consider whether the performance of Campbell’s
attorney was inadequate.
Campbell first argues that the attorney’s performance was deficient because he
failed to file a motion seeking in camera review of L.M.G.’s confidential medical records.
Such a motion is often called a “Paradee motion,” named for the Minnesota Supreme Court
9
decision setting forth the procedure to be follo wed in criminal cases when the defendant
seeks relevant evidence that may be in confidential records, such as medical records. See
State v. Paradee, 403 N.W.2d 640, 642 (Minn. 1987).
But Campbell’s claim that impeaching records may have existed is purely
speculative.3 And “it is not proper to reverse a conviction on speculation that an
investigation might have found evidence that would have helped the defendant’s case.”
Swaney v. State , 882 N.W.2d 207, 218 (Minn. 2016) (citing Gates v. State, 398 N.W.2d
558, 563 (Minn. 1987)). Moreover, before trial, the attorney knew th at the district court
was not likely to allow impeaching evidence of this nature. Counsel attempted to admit
statements about L.M.G.’s reputation for truthfulness a nd credibility from L.M.G.’s
mother, a social worker, and L.M.G. herself. Th e district court rejected this evidence as
irrelevant. Finally, we do not second-guess an attorney’s investigation decisions. See
Opsahl, 677 N.W.2d at 421. T hus, we reject Campbell’s argument that his attorney’s
decision not to file a Paradee motion constituted deficient performance.
Campbell next argues that his attorney admitted that he was unprepared to represent
Campbell at trial when he told the district court on September 18, 2018 that he would
provide ineffective assistance if he were forced to try the case the following week.
Campbell contends that the attorney’s decision to recommend a stipulated-evidence trial is
further evidence of the attorney’s lack of preparation.

3 Campbell has not identified any particular records of interest, although his brief once
references “medical records.” It appears that Campbell is ar guing that his trial attorney
should have requested in camera review of all of L.M.G.’s confidential records.
10
But the attorney stated th at he was not prepared b ecause Campbell repeatedly
missed their scheduled meetings. Thus, it was Campbell’s own conduct that impacted the
attorney’s ability to pr epare. “Defendants cannot take advantage of their own willful
choice to defeat the ends of justice.” State v. Worthy , 583 N.W.2d 270, 277-78 (Minn.
1998) (holding that defendants’ strategic and voluntary absence from trial could not form
the basis for a claim that they did not validly waive their right to be present at trial).
Moreover, the record shows that after the September 18 hearing, the attorney and Campbell
met to prepare for the trial. During Cam pbell’s waiver of trial rights, the attorney
specifically addressed the issue, and Campbell acknowledged that there had been sufficient
opportunity to discuss the case with the attorney.
ATTORNEY: Now, we’ve talk ed a little bit about some
communication problems you and I have had in the past but
since we were in court last we ek you and I have talked about
your case at length, correct?
CAMPBELL: Yes.
ATTORNEY: In fact, we have met in person?
CAMPBELL: Yes.
ATTORNEY: We have talked about your case here in the
courthouse?
CAMPBELL: Yes.
ATTORNEY: And we’ve texted each other about it, correct?
CAMPBELL: Yes.
ATTORNEY: And we’ve talked on the phone about it,
correct?
CAMPBELL: Yes.
ATTORNEY: Do you feel that, si nce the last time we were
in court to today’s court appearance, you’ve had sufficient time
to talk with me about your case? Yes?
CAMPBELL: Yes.

The transcript of the September 18 hear ing shows that the attorney clearly
understood how to make a record of his co ncerns about insufficien t preparation. The
11
attorney made no such record during Campbell’s trial. And other than the remarks at the
September 18 hearing, there is no record su pport for Campbell’s claim that the attorney
was unprepared for trial. To the contrary, the attorney stated that he was “fully prepared”
for trial. Thus, Campbell’s claim that his attorney was unprepared fails.
Finally, Campbell argues that his attorney’s advice to proceed with a stipulated-
evidence trial was per se de ficient performance. Citing Dereje v. State, 837 N.W.2d 714
(Minn. 2013), Campbell contends that his attorn ey entirely failed to challenge the state’s
case and was therefore ineffective.
In Dereje, where the defendant alleged that his attorney was ineffective for advising
him to proceed with a stipulated-facts court trial, the Minnesota Supreme Court addressed
the “narrow exception” to Strickland’s requirement that a defe ndant show both deficient
performance and prejudice to es tablish ineffective assistance of counsel. 837 N.W.2d at
722 (quoting Florida v. Nixon, 543 U.S. 175, 190 (2004)). When an attorney “entirely fails
to subject the prosecution’s case to mean ingful adversarial testing,” the resulting
conviction must be reversed without regard to prejudice because “t he adversary process
itself [is] presumptively unreliable.” Id. (emphasis added) (quoting United States v.
Cronic, 466 U.S. 648, 659 (1984)). But in Dereje, the supreme court found no such
deficient performance because the defendant’s attorney ch allenged the state’s case by
including stipulations that cont ained the defendant’s version of the events to the district
court. Id. at 723. Moreover, the supreme court observed that the stipulated-facts court trial
“was part of a negotiated plan” that ensured the defendant would receive a more favorable
12
sentence. Id. Given these circumstances, the supreme court concluded that the defendant
failed to satisfy his burden of showing that the narrow exception to Strickland applied. Id.
Campbell likewise has not shown that his attorney entirely failed to advocate on his
behalf. The attorney subjected the state’s case to “meaningful adversarial testing” by filing
and arguing defense motions, investigating witnesses, and submitting a written closing
argument. Moreover, in exch ange for Campbell’s decision to have a stipulated-evidence
court trial, the attorney secu red a negotiated sentence of no more than 57 months and
ensured that there would be no upward durational departure from the sentencing guidelines.
Had Campbell proceeded with a jury trial, the state would have pursued an aggravated
sentence of 96 months’ imprisonment based on the presence of several aggravating factors,
including Campbell’s violation of his position of trust, posse ssion of a firearm during the
commission of the offenses, and abuse of hi s authority, as well as the multiple sexual
assaults over an extended time period and L.M.G.’s particular vulnerability. Because the
record shows that the attorney did, in fact, subject the state’s case to meaningful adversarial
testing, we cannot conclude that his advice to proceed by stipulated evidence was per se
deficient. Moreover, we reject Campbe ll’s suggestion that the narrow exception to
Strickland applies here.
Campbell also addresses the second Strickland prong, arguing that there is a
reasonable probability that but for his trial attorney’s lack of preparation and advocacy, the
outcome of his trial would have been different. If the first Strickland prong is not satisfied,
we do not need to reach the second Strickland prong. See Mosley, 895 N.W.2d at 591. We
briefly discuss the second prong, nonetheless.
13
To prove prejudice resulting from an attorney’s deficient performance, a defendant
must show that there is “a reasonable probability that, but for counsel’s errors, the result of
the proceeding would have been different.” Nicks, 831 N.W.2d at 504 (citing Strickland,
466 U.S. at 687-96). “A reasonable pr obability is a pr obability sufficient to undermine
confidence in the outcome” of a proceeding. Strickland, 466 U.S. at 694.
Beyond a bald assertion that the outcome of his case would have been different but
for the alleged errors of his trial attorney, Campbell does not explain what that outcome
would have been or how the a lleged errors impacted the guilty verdicts and his sentence.
Moreover, we note that the evidence against Campbell was strong. In addition to L.M.G.’s
allegations, the state presented corrobora ting social media conversations between
Campbell and L.M.G., Campbell’s bank statements, photos from Campbell’s officer-worn
body camera, photos of L.M.G. on Campbell’s phone, and Campbell’s squad car records.
Given the strength of the state’s case and Campbell’s failure to articulate how the attorney’s
performance impacted the outcome of his case, we reject his prejudice argument.
Affirmed.