State v. Bethune

State of Minnesota, Respondent, v. Brenda Lanise Bethune, Appellant.

A19-1995

STATE OF MINNESOTA IN COURT OF APPEALS

August 2, 2021

This opinion is nonprecedential except as provided by Minn.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

Affirmed in part, reversed in part, and remanded

Smith, Tracy M., Judge

Mille Lacs County District Court

File No. 48-CR-18-1819

Keith Ellison, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, St. Paul, Minnesota; and

Joe Walsh, Mille Lacs County Attorney, Timothy Kilgriff, Assistant County Attorney, Milaca, Minnesota (for respondent)

Cathryn Middlebrook Chief Appellate Public Defender, Benjamin J. Butler, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Jesson, Judge; and Florey, Judge.

NONPRECEDENTIAL OPINION

SMITH, TRACY M., Judge

In this direct appeal from a judgment of conviction for aiding and abetting attempted second-degree murder, and following a stay and remand to the district court for postconviction proceedings, appellant Brenda Lanise Bethune argues (1) that the district court abused its discretion by summarily denying her petition for postconviction relief based on ineffective assistance of counsel for failing to move to suppress evidence found during warranted searches; (2) that the district court erred by imposing sentences for both aiding and abetting attempted murder and aiding and abetting assault; and (3) in a pro se supplemental brief, that the state engaged in prosecutorial misconduct during closing argument. Because the district court did not abuse its discretion by determining that defense counsel's decisions were strategic and summarily denying postconviction relief, and because no prosecutorial misconduct occurred, we affirm in part. However, because the district court erred by imposing a sentence for assault when that offense arose out of the same behavioral incident as the attempted-murder offense, we reverse and remand for the district court to correct Bethune's sentence.

FACTS

The following facts were established at Bethune's jury trial. On August 3, 2018, C.A. and his wife N.A. were at C.A.'s mother's residence when a white Cadillac Escalade pulled up in front of the house. Bethune and a male, J.S., exited the vehicle and began to approach C.A. C.A. knew Bethune. About six months earlier, C.A. had arranged to illegally purchase prescription drugs from her. At that time, C.A. met Bethune and her son for the drug purchase; the son gave C.A. pills, and C.A. drove off without paying for them. That was the last time that C.A. saw Bethune before August 3.

Bethune and J.S. walked up the driveway and met C.A., shouting at him and demanding money. J.S. was carrying a gun. After some arguing among the parties, J.S.fired his gun at the ground. J.S. then pointed the gun at "point-blank range" at C.A.'s head and fired. C.A. moved his head, and the bullet struck him in his right ear. C.A. moved his upper body into the doorway of his car and attempted to call 911 by accessing his vehicle's Bluetooth. J.S. fired a third shot, striking C.A. near his kneecap. Bethune and J.S. then kicked and punched C.A. while C.A. was trying to place the call. A neighbor, who witnessed the altercation, reported seeing J.S. with the gun.

C.A., through his vehicle's speakerphone feature, reached a police dispatcher, and Bethune was heard demanding money from C.A., shouting, "About that money you stole from my (inaudible) right now," "no police," and "(inaudible) will be a dead mother f----r." Bethune and J.S. fled after C.A. contacted the dispatcher. C.A. described the white Cadillac, gave the direction in which Bethune and J.S. had fled, and identified the female with J.S. as "Brenda."

Police intercepted the white Cadillac approximately a quarter mile away from the scene of the shooting. During an inventory search of the vehicle, officers located a small plastic bag containing a suspected controlled substance.

Returning to the scene, police located three 40-caliber Smith and Wesson shell casings. C.A. told officers that the gun J.S. used to shoot him was "silver" and had a "black handle." The following morning, officers located a black and silver 40-caliber Smith and Wesson on the side of the road somewhere between the scene and where the white Cadillac was intercepted by police.

The shell casings found in the driveway at the scene were later determined to have been fired from the gun found on the side of the road. The owner of the gun was of somerelation to J.S. J.S.'s clothes were later analyzed for blood, and his shirt returned around "100 spatter stains" consistent with a "spatter producing event" such as a "gunshot."

Officers later secured a warrant to search the white Cadillac and located "blue pills in a plastic bag" and prescription bottles belonging to Bethune. The pills in the vehicle returned as oxycodone-acetaminophen, hydrocodone (Vicodin), and Xanax. Bethune had prescriptions for two of the substances but not for the Vicodin. And, although Bethune had a prescription for the oxycodone-acetaminophen, the bottle was filled the day of the shooting, and, of the 60 pills dispensed, only 23 remained. During this search, a phone on the passenger seat was also collected. Pursuant to a second warrant, texts messages were recovered from Bethune's phone, including a series of messages exchanged between Bethune and C.A. surrounding the incident six months earlier, when C.A. stole approximately $400 worth of drugs from Bethune's son. In those messages, Bethune and C.A. referred to guns.

Respondent State of Minnesota charged Bethune with aiding and abetting attempted second-degree murder of C.A., second-degree assault of C.A., and fifth-degree possession of a controlled substance.

At a pretrial hearing, defense counsel discussed the "phone dump" and requested a continuance to review the evidence. Both defense counsel and the prosecutor indicated that they had received the evidence from the "phone dump" approximately ten days earlier, and defense counsel stated that she was not prepared to go forward. The district court granted a continuance on the basis of the additional evidence received, noting that it did not "want [the state's] case to be vulnerable to any claim of ineffective assistance of counsel becausesomething wasn't gone over and something was missed." Defense counsel did not thereafter challenge the text messages, the warrants, or the search of appellant's cellphone. Defense counsel also did not object to the state's introduction of the text messages at trial and, in fact, referred to those messages during direct examination of Bethune and referred to information reflected in the text messages during cross-examination of prosecution witnesses.

The jury found Bethune guilty of aiding and abetting second degree assault, aiding and abetting attempted second-degree murder, and fifth-degree drug possession.¹ The district court sentenced Bethune to a presumptive 173 months' imprisonment on the third count.

Bethune appealed, and this court stayed the appeal pending postconviction proceedings. Bethune petitioned for postconviction relief, arguing that she was entitled to a new trial because her lawyer provided ineffective assistance of counsel by failing to challenge the search warrants executed in this case. The district court denied Bethune's petition without an evidentiary hearing. We then reinstated this appeal.

DECISION

Bethune raises two challenges to her convictions: first, that the district court abused its discretion by summarily rejecting her ineffective-assistance-of-counsel claim; and second, in her uncounseled brief to this court, that the state engaged in prosecutorial misconduct. She also argues, and the state agrees, that the district court erred by sentencingher for aiding and abetting second-degree assault because that offense occurred during the same behavioral incident as aiding and abetting second-degree attempted murder. We address each argument in turn.

I. The district court did not abuse its discretion by summarily denying postconviction relief.

Appellate courts review a district court's decision to deny postconviction relief for an abuse of discretion. Chavez-Nelson v. State, 948 N.W.2d 665, 671 (Minn. 2020). A district court may summarily deny postconviction relief if the allegations in the petition are legally insufficient to entitle the petitioner to relief. Id. If a petitioner's claim is premised on ineffective assistance of counsel, the petitioner is entitled to an evidentiary hearing if the petitioner "allege[s] facts that, if proven by a fair preponderance of the evidence would satisfy the two-prong test set forth in Strickland v. Washington." Id. (quotation omitted).

The two-prong Strickland test requires a petitioner to prove that (1) "counsel's performance was deficient"—in other words, that the representation fell below an objective standard of reasonableness—and (2) "the deficient performance prejudiced the defense"—that is, that there was a reasonable probability that, but for counsel's deficiency, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see also State v. Nicks, 831 N.W.2d 493, 504 (Minn. 2013). If one prong is determinative, we need not review the other. Chavez-Nelson, 948 N.W.2d at 671. "Because claims of ineffective assistance of counsel involve mixed questions of law and fact," appellate courts review decisions by the postconviction court de novo. Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004).

We begin with the first prong of the Strickland test—the performance prong.

Bethune argues that her trial counsel's performance was objectively unreasonable because her counsel did not move to suppress text messages discovered during a warranted search of Bethune's cellphone. She contends that the two warrants under which the cellphone was searched violated her Fourth Amendment rights...