Dereje v. State

PAGE, Justice

(dissenting).

I respectfully dissent. Although I agree with Justice Wright that Dereje did not receive a stipulated-facts trial and that Dereje’s trial counsel was ineffective, I write separately to point out two additional problems with the court’s decision in this case.

I.

It is undisputed on appeal that both Dereje and the State intended that De-reje’s guilt be determined using the “Trial on Stipulated Facts” procedure pursuant to Minn. R.Crim. P. 26.01, subd. 3(a) (providing that “[t]he defendant and the prosecutor may agree that a determination of defendant’s guilt ... may be submitted to and tried by the court based on stipulated facts”). But, as the court correctly concludes, the trial procedure Dereje actually received was not a valid stipulated-facts trial because the parties did not agree on the facts and submitted documentary evidence containing conflicting versions of the events underlying the fifth-degree criminal sexual conduct charge. Although the court acknowledges that the trial was procedurally improper under subdivision 3, the court denies Dereje relief on this ground by post-hoc labeling the procedure a proper court trial under Minn. R.Crim. P. 26.01, subd 2.

The problem with the court’s analysis is that it ignores the fact that Dereje waived several of his constitutional trial rights in contemplation of receiving a stipulated-facts trial under subdivision 3. Indeed, Minn. R.Crim. P. 26.01, subd. 3, compels defendants to waive those rights in order to receive a stipulated-facts trial, stating:

Before proceeding, the defendant must acknowledge and personally waive the rights to:

(1) testify at trial;

(2) have the prosecution witnesses testify in open court in the defendant’s presence;

(3) question those prosecution witnesses; and

(4) require any favorable witnesses to testify for the defense in court.

*725 Minn. R.Crim. P. 26.01, subd. 3(a). Dereje complied with this requirement by executing a written waiver of his trial rights tracking the language of subdivision 3(a).

In contrast, in order to receive a court trial under subdivision 2, a defendant need only waive his right to a trial by jury. See Minn. R.Crim. P. 26.01, subds. 1(2), 2. Under subdivision 2, a defendant is not also required to waive his rights to have the prosecution witnesses testify in open court, to confront and question those witnesses, and to require any favorable witnesses to testify for the defense. Compare Minn. R.Crim. P. 26.01, subd. 2, with Minn. R.Crim. P. 26.01, subd. 3(a). In other words, the rule governing stipulated-facts trials requires the defendant to waive three important trial rights that the rule governing court trials does not require the defendant to waive.

The court assumes, without analysis, that Dereje’s waiver of his trial rights— given in contemplation of a stipulated— facts trial under subdivision 3 — remained valid even though the type of trial Dereje received was actually a court trial under subdivision 2. I cannot make this assumption. “Waiver ‘is an intentional relinquishment of a known right or privilege, and its validity depends ... upon the particular facts and circumstances surrounding the case.’ ” State v. Blom, 682 N.W.2d 578, 617 (Minn.2004) (alteration in original) (quoting State v. Richards, 456 N.W.2d 260, 264 (Minn.1990)). In order for a waiver to be valid, the record must show that the defendant’s waiver of a constitutional right was “knowing, intelligent, and voluntary.” State v. Jones, 772 N.W.2d 496, 504 (Minn.2009).

Here, I cannot conclude from the present record that Dereje’s waiver of his constitutional trial rights was “knowing” or “intelligent” because Dereje waived his rights on the mistaken premise that the waiver was required because he was pursuing a stipulated-facts trial under subdivision 3. See State v. Rhoads, 813 N.W.2d 880, 888 (Minn.2012) (“To establish a knowing and intelligent waiver ... the record must demonstrate among other things that the defendant’s waiver is ‘made with eyes open.’ ” (quoting State v. Camacho, 561 N.W.2d 160, 173 (Minn.1997))). A defendant’s waiver of trial rights cannot be valid when all parties and the court are proceeding on the mistaken assumption that such a waiver is required in order to proceed.

While Dereje’s waiver of rights may have been valid with respect to a stipulated-facts trial, the court concludes that is not the procedure he received. Therefore, we must assess the validity of Dereje’s waiver of his trial rights against the procedure that was actually employed. When a defendant receives a proper stipulated-facts trial, the rules require him to waive his right to confront the prosecution’s witnesses because the underlying facts are not in dispute. See Minn. R.Crim. P. 26.01, subd. 3. The defendant and prosecution agree as to the actual events or circumstances underlying the defendant’s case and there are no factual issues for the trial court to resolve. But when, as here, the defendant denies the prosecution’s allegations against him, and the truth of the prosecution’s allegations turns entirely on a credibility determination, the defendant’s rights to confront and cross-examine the prosecution’s witnesses are critically important because those rights are the principal means by which the underlying factual dispute will be resolved.

It is the exclusive function of the finder of fact to determine the credibility of witnesses. First Trust Co. of St. Paul v. McLean, 254 Minn. 75, 78 , 93 N.W.2d 517, 519-20 (1958); accord State v. Reese, 692 N.W.2d 736, 741 (Minn.2005). We have *726 long held that “the credibility of a witness depends on his or her ‘demeanor, disposition, and character,’ ” and therefore courts are typically ill-equipped to make witness credibility determinations without having the witnesses testify live and in person. Bobo v. State, 820 N.W.2d 511 , 517 n. 4 (Minn.2012) (quoting Albertson v. Albertson, 2 43 Minn. 212, 215 , 67 N.W.2d 463, 466 (1954)). 1 Likewise, we have recognized that cross-examination is “the principal means by which a defendant may test the credibility of his accuser’s testimony.” State v. Myers, 359 N.W.2d 604, 608 (Minn.1984) (citing Davis v. Alaska, 415 U.S. 308, 316 , 94 S.Ct. 1105 , 39 L.Ed.2d 347 (1974)). Thus, without in-person testimony from the defendant’s accuser, the defendant has few means to test the veracity of the allegations against him.

Because a defendant’s right to confront and cross-examine the witnesses against him plays a more critical role in a court trial under subdivision 2 than in a stipulated-facts trial under subdivision 3, a waiver of rights given in contemplation of a trial under subdivision 3 is not valid for a trial under subdivision 2. And because De-reje’s waiver of rights was not valid outside of the context of a stipulated-facts trial, he is entitled to a new trial on his fifth-degree criminal sexual conduct charge. 2

II.

But even if Dereje was not entitled to a new trial for the reasons discussed above, he is nonetheless entitled to a new trial based on his ineffective-assistance-of-counsel claim. The court correctly observes that ineffeetive-assistanee-of-counsel claims are typically analyzed as trial errors under the two-part test of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). State v. Dalbec, 800 N.W.2d 624, 627 (Minn.2011). Under that test, a defendant must show both: (1) deficient performance (i.e., that trial counsel’s performance fell below an objective standard of reasonableness); and (2) prejudice (i.e., that there is a reasonable probability that, but for counsel’s errors, the result of the trial would have been different). See Strickland, 466 U.S. at 687 , 104 S.Ct. 2052 ; Patterson v. State, 670 N.W.2d 439, 442 (Minn.2003). “Certain counsel- *727 related errors, however, may be structural errors, which do not require a showing of prejudice” because prejudice in such cases is presumed. Dalbec, 800 N.W.2d at 627 ; accord United States v. Cronic, 466 U.S. 648, 658 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984). Stated differently, a finding of structural error relieves the defendant of his usual responsibility of proving that his counsel’s errors prejudiced him.

The court concludes that no structural error occurred in this case. For the reasons stated in Justice Wright’s dissent, I disagree with the court’s conclusion. But even if there was no structural error in this case, the court errs by ending its analysis without analyzing whether Dereje can prove his ineffective-assistance-of-counsel claim by establishing both prongs of the two-part Strickland test. Structural error is an exception to the general requirement that a defendant who asserts an ineffective-assistance-of-counsel claim must demonstrate prejudice. Dalbec, 800 N.W.2d at 627 -28 (citing Florida v. Nixon, 543 U.S. 175, 190 , 125 S.Ct. 551 , 160 L.Ed.2d 565 (2004)). Thus, the court’s perceived lack of structural error in this case does not mean that Dereje cannot prove prejudice from his counsel’s deficient performance; it merely means that such prejudice will not be presumed. See id. By addressing the issue of structural error only, the court effectively ignores the substance of Dereje’s ineffective-assistance-of-counsel claim and deprives him of a meaningful hearing on appeal as to the merits of that claim.

As discussed in Justice Wright’s dissent, Dereje can succeed on his ineffective-assistance-of-counsel claim even in the absence of structural error. The outcome of De-reje’s trial turned entirely on a credibility determination as to whether S.J. was telling the truth in alleging that Dereje touched her. In light of the uncorroborated nature of the accusation against Dereje, a reasonably competent attorney would have made some argument as to why S.J. should not be believed or why there was at least a reasonable doubt as to the veracity of her allegation. But De-reje’s counsel failed to advance a single reason why the district court should discredit S.J.’s accusation, request that the district court acquit Dereje, or make any argument on behalf of his client. Therefore, Dereje has met the first element of the Strickland test by showing that his counsel’s performance fell below an objective standard of reasonableness.

The majority posits that, because Dereje waived his trial rights, he cannot base an ineffective-assistance-of-counsel claim on his counsel’s failure to exercise those rights on his behalf. But, as I already explained, Dereje did not validly waive those rights. He waived his rights for a stipulated-facts trial that he did not receive. Thus, Dereje’s waiver cannot excuse his trial counsel’s failure to meaningfully contest his guilt in the trial that occurred. Instead, counsel’s ineffectiveness began when he allowed his client to waive his trial rights in order to receive a nonexistent stipulated-facts trial.

Having reviewed the record, I conclude that, had counsel made such arguments on behalf of his client, there is a reasonable probability that the result would have been different. As Justice Wright points out, there were internal inconsistencies and deficiencies in S.J.’s statement that might have created a reasonable doubt as to De-reje’s guilt had they been identified and argued by a competent attorney. Therefore, counsel’s failures prejudiced Dereje and he can succeed on his ineffective-assistance-of-counsel claim under the two-part Strickland test.

I respectfully dissent.

. Accord Opsahl v. State, 677 N.W.2d 414, 423-24 (Minn.2004) (postconviction court erred by concluding that witnesses were unreliable without first evaluating the credibility of the witnesses at an evidentiary hearing); Kornberg v. Kornberg, 542 N.W.2d 379, 385 (Minn.1996) (" '[Wjhere witnesses give their testimony in the presence and hearing of the trial judge he thereby is better able to determine the worth and weight of the testimony than one who has not seen or heard the witnesses on the stand.’ ” (quoting Great N. Ry. Co. v. Becher-Barrett-Lockerby Co., 200 Minn. 258, 261 , 274 N.W. 522, 523 (1937))); Stiff v. Associated Sewing Supply Co., 436 N.W.2d 777, 779 (Minn.1989) (noting that the deference given to a trial court’s findings of fact "is based on the judge having had the advantage of fully hearing the testimony, observing the demeanor of the witnesses as they testify, and acquiring a thorough familiarity with all of the circumstances of the case”); State v. King, 88 Minn. 175, 181 , 92 N.W. 965, 968 (1903) (noting that a witness’s "appearance, demeanor, and the manner in which he gave his testimony” could inform the jury’s judgment as to credibility).

. The court contends that Dereje "chose to forgo his right to confront and cross-examine witnesses in favor of an agreement in which the State dropped a felony charge and agreed to a favorable sentencing request on his behalf." But this contention is speculative. After careful review of the record, I find no evidence that Dereje's waiver of his trial rights was in consideration of either the State’s decision to dismiss the felony criminal sexual conduct charge or the State’s sentencing recommendation on the witness tampering charge. Accordingly, the court improperly relies on the existence of an "agreement” or "deal” in order to support its conclusion.