State v. Geleneau

873 N.W.2d 373

STATE of Minnesota, Respondent,

v.Larry Leo GELENEAU, Jr., Appellant.

No. A14–0718.

Court of Appeals of Minnesota.

Dec. 21, 2015.

Review Denied March 29, 2016.

Lori Swanson, Attorney General, Karen B. Andrews, Assistant Attorney General, St. Paul, MN; and David J. Hauser, Otter Tail County Attorney, Fergus Falls, MN, for respondent.

Mary Moriarty, Hennepin County Public Defender, Paul J. Maravigli, Assistant Public Defender, Minneapolis, MN, for appellant.

Considered and decided by KIRK, Presiding Judge; JOHNSON, Judge; and BJORKMAN, Judge.

OPINION

JOHNSON, Judge.

An Otter Tail County jury found Larry Leo Geleneau Jr. guilty of criminal sexual conduct based on evidence that he sexually abused a child for more than three years. On appeal, he argues that the district court erred by not dismissing two prospective jurors for cause sua sponte. He also argues that he received ineffective assistance of counsel because his trial counsel did not attempt to remove the two prospective jurors from the venire panel, either by asserting a challenge for cause or by exercising a peremptory strike. We conclude that appellate review of Geleneau's first argument is precluded by his trial counsel's express waiver of Geleneau's right to challenge the prospective jurors for cause. We also conclude that Geleneau has failed to show that his trial counsel's performance fell below an objective standard of reasonableness. Therefore, we affirm.

FACTS

In 2006, Geleneau's sister-in-law lost custody of her young daughter. The girl subsequently lived in a series of four or five foster homes. In August 2009, the girl, who then was ten years old, moved into the home that Geleneau shared with his wife and two children. Between December 2012 and February 2013, a school counselor and one of the girl's friends reported that Geleneau had sexually abused the girl. The girl moved to another foster home.

In March 2013, the state charged Geleneau with three counts of first-degree criminal sexual conduct, in violation of Minn.Stat. § 609.342, subds. 1(a), 1(g), 1(h)(iii) (2012) ; three counts of second-degree criminal sexual conduct, in violation of Minn.Stat. § 609.343, subds. 1(a), 1(g), 1(h)(iii) (2012) ; one count of third-degree criminal sexual conduct, in violation of Minn.Stat. § 609.344, subd. 1(b) (2012) ; and one count of fourth-degree criminal sexual conduct, in violation of Minn.Stat. § 609.345, subd. 1(b) (2012).

The case went to trial in November 2013. At the beginning of jury selection, the district court assembled a venire panel of 22 persons. The district court began voir dire by questioning all prospective jurors in the courtroom. The district court and counsel also questioned a few prospective jurors in private, outside the presence of other prospective jurors.

J.T. was among the prospective jurors whom the district court and counsel questioned in private, in the jury room. J.T. had disclosed in a written answer to a jury questionnaire that her son had been physically or sexually abused. In response to questions asked by the district court, J.T. revealed that, in 1983, her then-husband was convicted of the "same charges" involving a four-year-old victim, who was the husband's son and J.T.'s stepson. J.T. expressed her belief that her former husband also abused her son from a prior relationship. In addition, J.T. stated that someone once posted photographs of her then-six-year-old granddaughter on the internet. J.T. expressed anger about the situation because, she said, it caused J.T.'s son, the father of the girl, to receive a change in his military assignment and subsequently to be deployed overseas.

The district court asked counsel whether they had any questions for J.T. Counsel for both parties initially declined. The prosecutor said to the district court, "I'll leave it to your discretion." The district court responded by saying, "I leave it to counsel." Geleneau's trial counsel commented that "I struggle to hear the connection between the experience described and this particular case" but that J.T. was "clearly upset about a related situation," namely, her son's reassignment and deployment after photographs of his daughter were posted on the internet. Counsel for the parties suggested that J.T.'s suitability for jury service depended on whether her anger about "a related situation" would "cloud[ ] her judgment" or whether she could set aside the experiences she mentioned, follow the district court's instructions, and fairly evaluate the evidence. The district court asked J.T. additional follow-up questions concerning whether she could set aside her experiences and be a fair and impartial juror. Geleneau's trial counsel then asked J.T. additional follow-up questions of the same type. After both counsel declined the opportunity for further questions, J.T. was asked to report to the courtroom at a later time.

When the prospective jurors were gathered in the courtroom, Geleneau's trial counsel asked D.G. whether he believed that the criminal justice system is fair, and D.G. answered in the affirmative. Geleneau's trial counsel also questioned D.G. about one of his written answers on the jury questionnaire, in which he had disclosed that his father-in-law worked at, and his son had attended, a summer camp at which a volunteer had committed a sex-based offense against another child. Geleneau's trial counsel elicited information from D.G. to the effect that his son had not been harmed by the volunteer. Geleneau's trial counsel also took the opportunity to ask J.T. some additional follow-up questions concerning whether she would "have ... a difficult time" serving as a juror and whether she would "hold it against" either party if she were required to serve. After Geleneau's trial counsel had an opportunity to question all prospective jurors, he stated, "That's all the questions I have this afternoon. I pass for cause, Your Honor."

The district court then gave the prosecutor an opportunity to question the prospective jurors. The prosecutor asked D.G. whether he could set aside the fact that she also served as the prosecutor in a criminal case concerning the volunteer at the summer camp, and D.G. answered in the affirmative. The prosecutor asked J.T. some additional questions about her prior contact with victims of child sexual abuse when she worked as a volunteer in a chemical-dependency-rehabilitation program. After the prosecutor had the opportunity to question all prospective jurors, she stated, "Your Honor, I believe I'll pass the jurors for cause."

Throughout voir dire, the district court dismissed seven prospective jurors for cause sua sponte. The district court replaced each dismissed prospective juror by adding another person to the venire panel. At the end of voir dire, the prosecutor and Geleneau's trial counsel used their respective allotments of peremptory strikes. SeeMinn. R.Crim. P. 26.02, subd. 6. Ultimately, the district court seated twelve jurors, including J.T. and D.G., and two alternate jurors.

During the evidentiary phase of trial, the state called eight witnesses: the girl; two employees of the county's child-protection program; a physician associated with a child-abuse advocacy center who had examined the girl; two deputy sheriffs; and two forensic scientists employed by the Bureau of Criminal Apprehension. The girl testified that Geleneau required her to engage in sexual contact on numerous occasions. Specifically, the girl testified that Geleneau touched her buttocks, vagina, and breasts; inserted his penis into her mouth; and inserted his penis into her anus. The girl testified that Geleneau's sexual abuse occurred "[a] lot," starting shortly after she moved into Geleneau's home and concluding only when she moved out. She testified that she did not tell anyone about the abuse because she was afraid. The girl's testimony was corroborated in part by one of the forensic scientists, who testified that Geleneau's DNA was found on the girl's underwear.

Geleneau testified in his own defense. He denied having any sexual contact with the girl. He suggested that she had fabricated the allegations of sexual abuse in an effort to be returned to her mother. He also implied that the girl fabricated the DNA evidence by retrieving from a wastebasket a condom that he and his wife had used. Geleneau also called four other witnesses: his wife, his two daughters, and a co-worker.

The jury found Geleneau guilty on all counts. In January 2014, the district court imposed a sentence of 144 months of imprisonment on count 3. Geleneau filed a timely notice of appeal and then asked this court to stay the direct appeal to allow him to seek postconviction relief. This court granted the stay. See Minn. R.Crim. P. 28.02, subd. (4).

In November 2014, Geleneau filed a postconviction petition in which he alleged that his trial counsel had provided him with ineffective assistance by not seeking to remove two prospective jurors whom he alleged were biased, including J.T. In February 2015, the district court denied the petition without an evidentiary hearing. In March 2015, this court dissolved the stay and reinstated the appeal.

ISSUES

I. Did the district court err by not dismissing two prospective jurors for cause sua sponte?

II. Has Geleneau established that his trial counsel provided ineffective assistance of counsel by not seeking to remove two prospective jurors from the venire panel, either by asserting challenges for cause or by using peremptory strikes?

ANALYSIS

I.

Geleneau first argues that the district court erred by not dismissing two prospective jurors for cause sua sponte. Specifically, Geleneau argues that the district court should have dismissed J.T. and D.G. for cause because their answers to the written jury questionnaire and their answers to questions during voir dire revealed biases that justify dismissal for cause.

A.

The Sixth Amendment to the United States Constitution provides, "In all criminal prosecutions, the accused shall enjoy the...