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This opinion is nonprecedential except as provided by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
A23-0404

State of Minnesota,
Respondent,

vs.

Derek Leake,
Appellant.

Filed April 14, 2025
Affirmed
Bjorkman, Judge

Hennepin County District Court
File No. 27-CR-22-9531

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

Mary F. Moriarty, Hennepin County Attorney, Matthew D. Hough, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Mark D. Nyvold, Special Assistant Public Defender, Fridley, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Bjorkman, Judge; and Bond,
Judge.

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NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellant challenges his conviction of second-degree intentional murder, arguing
that trial counsel was ineffective for failing to object to the prosecutor’s repeated use of the
word “murder” while questioning a state witness. We affirm.
FACTS
Around 2:00 a.m. on April 24, 2022, appellant Derek Leake had an altercation with
R.C. on a bus in Minneapolis, resulting in Leake fatally stabbing R.C. in the neck. Leake
was charged with second-degree intentional murder and second -degree unintentional
murder while committing a felony. At trial, the state presented the testimony of 13
witnesses and numerous exhibits, including surveillance footage from the bus where the
altercation took place. Leake asserted a self- defense claim. The jury found Leake guilty
on both charges. The district court convicted him of second-degree intentional murder and
sentenced him to 360 months in prison.
Leake appeal ed and then obtained a stay to pursue postconviction relief. In his
postconviction petition, Leake asserted, in relevant part, that trial counsel provided
ineffective assistance by failing to object when the prosecutor “repeatedly” described
R.C.’s death as “murder” while questioning a homicide investigator. The district court
conducted an evidentiary hearing.
At the hearing, trial counsel was asked about five instances in which the prosecutor
used the term “murder” when questioning the homicide investigator:
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• “When you reviewed the bus video from April 24th, Bus 1572 where this
murder took place, did the suspect, Mr. Leake, have anything with him on that
date?”

• “Did you also learn from [a probation agent] that up until right around—or I
should say just after the time of this murder, he had been having regular contact with
Mr. Leake?”

• “Was Derek Leake ultimately located and arrested for the murder of [R.C.]?”

• “In addition to getting video from Bus 1572 where this murder occurred, did
you also as part of the identification process— well, let me ask you this before I get
into this other video. Was this a—we’re kind of summing this up; right? But was
this a lengthy process, and did it require a lot of legwork to identify that person in
Bus 1572?”

• “And that’s the bus [shown in a slide] that the murder actually occurred on;
is that also correct?”

Trial counsel agreed that he did not object to any of these questions. He explained that, in
his experience trying “[w]ell over two hundred” criminal cases, it is best to “move on”
rather than objecting in most instances because it avoids highlighting the matter and builds
credibility and goodwill with the jury, which accrues to the defendant’s benefit “when it
comes to deliberations.” Trial counsel also said that he did not “at any point” during the
trial think that the state was describing R.C.’s death as murder “in order to convince the
jury that that’s what happened.” Rather, he believed that in each instance the prosecutor
used the word “murder” to describe other aspects of the evidence, not Leake’s conduct or
the “legal classification” of Leake’s conduct.
Leake also testified at the postconviction hearing. He acknowledged that he was
not concerned by the prosecutor’s use of the word “murder” during the trial because, at that
time, he was unfamiliar with the distinction between homicide and murder.
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The district court denied postconviction relief, reasoning that (1) trial counsel’s
decision not to object was strategic and not subject to review for competence; and (2) the
failure to object was not objectively unreasonable because the use of the term “murder”
was not “unfairly emphasized” but used simply as “a marker for certain events,” and the
average person sees “no meaningful distinction” between murder and homicide.
After Leake moved to reinstate the appeal, we dissolved the stay. The parties
subsequently briefed the ineffective-assistance-of-counsel claim.
DECISION
To prevail on a claim of ineffective assistance of counsel, a defendant must show
that: (1) “counsel’s representation fell below an objective standard of reasonableness,” and
(2) “there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Tichich v. State, 4 N.W.3d 114, 122 (Minn.
2024) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). Either prong
may be dispositive. Id. We review a district court’s application of Strickland de novo.
Pearson v. State, 891 N.W.2d 590, 600 (Minn. 2017). We address Leake’s challenge to
the district court’s application of each prong in turn.
Performance
Under the first Strickland prong, counsel’s performance is objectively reasonable if
counsel exercised “the customary skills and diligence that a reasonably competent attorney
would perform under similar circumstances.” Davis v. State, 15 N.W.3d 635, 644 (Minn.
2025) (quotation omitted). In assessing counsel’s performance, we recognize that “[l]egal
representation is an art, not a science.” State v. Rhodes, 657 N.W.2d 823, 844 (Minn.
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2003); see Strickland, 466 U.S. at 693 (stating “an act or omission that is unprofessional in
one case may be sound or even brilliant in another”). And we presume that counsel’s
representation was reasonable. Davis, 15 N.W.3d at 644.
Leake argues that it was objectively unreasonable for trial counsel not to object to
the prosecutor’s use of the word “murder.” This argument is unavailing. Decisions about
objections are matters of trial strategy, which we generally will not review for competence.
State v. Mosley, 895 N.W.2d 585, 592 (Minn. 2017); see also State v. Nicks, 831 N.W.2d
493, 506 (Minn. 2013) (stating that courts “give trial counsel wide latitude to determine
the best strategy for the client”). Leake points to certain cases in which appellate courts
have reviewed the depth or breadth of counsel’s investigation, but he identifies none that
abandon the well-established principle that “[s]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually unchallengeable.”
Wiggins v. Smith, 539 U.S. 510, 521- 22 (2003) (quoting Strickland, 466 U.S. at 690-91).
Particularly where, as here, there is no claim of inadequate investigation and counsel
articulated a strategic decision not to object, we will not second-guess that decision.
Moreover, even if we review the reasonableness of counsel’s failure to object,
Leake’s ineffective-assistance claim still fails. Leake asserts that the prosecutor should not
have used the word “murder” during questioning and, therefore, counsel should have
objected. But whether it was improper for the prosecutor to use the word is different from
whether trial counsel’s failure to object to that usage was objectively unreasonable. The
circumstances show that it was not unreasonable because the prosecutor did not use the
word “murder” in a way that asked the jury to assume that the killing of R.C. was murder.
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In one instance, the prosecutor used the word merely to describe the offense that
Leake was arrested for—“the murder of [R.C.].” In every other instance, she used the word
“murder” simply as a marker for R.C.’s killing to facilitate asking about other subjects,
such as whether the video from the bus “where this murder took place” showed that Leake
had anything on him, or what police learned about Leake’s contact with his probation agent
“just after the time of this murder.” While it may have been more appropriate to use the
word “homicide” rather than “murder,” we agree with the district court that, for the jurors,
there likely was “no meaningful distinction” between the two words. In fact, Leake himself
acknowledged during the postconviction hearing that he saw no such distinction at the time
of his trial. This record persuades us that trial counsel’s reasoned decision not to object to
the handful of times the prosecutor used the word “murder” to mark the event of R.C.’s
killing was not objectively unreasonable.
Prejudice
As noted above, even if a defendant establishes that counsel’s performance was
objectively unreasonable, they are not entitled to relief unless they also show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Tichich, 4 N.W.3d at 122 (quotation omitted). This means the
defendant “must show that counsel’s errors actually had an adverse effect.” Peltier v. State,
946 N.W.2d 369, 373 (Minn. 2020) (quotation omitted). This prejudice analysis looks to
“the totality of the evidence before the jury.” Pearson, 891 N.W.2d at 600.
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Leake contends the prosecutor’s use of the word “murder” during questioning was
prejudicial because he “had a viable self-defense claim.” This argument fails for three
reasons.
First, the conduct at issue was a small part of the trial record. Leake points to five
instances of the prosecutor using the word “murder” while questioning one of the state’s
13 witnesses. That amounts to a small fraction of the trial, during which the state presented
four days of testimony. The record also confirms that, when questioning witnesses, the
state much more commonly used the words “homicide” and “stabbing,” which Leake does
not dispute are factual and appropriate. On this record, the use of the word “murder” was
limited, and its impact was presumably similarly limited.
Second, the district court’s jury instructions likely mitigated the effect of the
prosecutor’s use of the term “murder.” Both before trial and in final instructions, the court
advised the jury that the attorneys’ statements are not evidence. We presume the jury
followed that instruction. State v. Taylor, 650 N.W.2d 190, 207 (Minn. 2002).
Finally, the evidence against Leake was very strong. The state presented
surveillance video from the bus, complete with audio, which shows the following sequence
of events. Leake and R.C. were in a verbal altercation at the back of the bus. R.C. told
Leake that he was going to “push” (according to the state) or “punch” (according to Leake)
him in the face. As the altercation continued, Leake rummaged in his pockets and pulled
out a knife, which he held in front of him near his waist. As the two men stood facing each
other, R.C. either pushed or punched Leake once in the left shoulder, close to the neck.
Leake leapt toward R.C. and stabbed him in the neck with the knife with enough force that
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it looked to the driver at the front of the bus like Leake punched R.C. in the face. As blood
spurted from R.C.’s neck, Leake grabbed his belongings and left the bus. R.C. died shortly
thereafter.
Regardless of how the jury viewed the exchange between the two men up to the
point of R.C. pushing or punching Leake, it is unlikely that the jury viewed R.C.’s actions
as actually and reasonably causing Leake to fear death or great bodily harm, or viewed
Leake stabbing R.C. forcefully in the neck as reasonably necessary for Leake to defend
himself. See State v. Baker, 13 N.W.3d 401, 409 (Minn. 2024) (listing requirements for
self-defense claim). Because that video evidence “completely undermined” Leake’s self-
defense claim, there is no reasonable likelihood that the handful of unobjected-to references
to “murder” impacted the jury’s verdict. See Pearson, 891 N.W.2d at 600 (concluding no
prejudice from claimed ineffective assistance in trial counsel’s failure to cross-examine a
witness because of strength of other evidence).
On this record, there is no reasonable likelihood that, but for trial counsel’s failure
to object to the five instances of the prosecutor using the word “murder,” the jury would
have reached a different verdict.
Affirmed.