This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A13-1291
State of Minnesota, Respondent,
vs.
Amir Abd El Malak, Appellant.
Filed April 20, 2015 Affirmed Larkin, Judge
Washington County District Court File No. 82-CR-12-1117
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Peter J. Orput, Washington County Attorney, Robin M. Wolpert, Assistant County Attorney, Stillwater, Minnesota (for respondent)
Stanley W. Keillor, Access Justice, Minneapolis, Minnesota (for appellant)
Considered and decided by Larkin, Presiding Judge; Halbrooks, Judge; and
Johnson, Judge. UNPUBLISHED OPINION
LARKIN, Judge
Appellant challenges his two convictions of fourth-degree criminal sexual
conduct, arguing that he received ineffective assistance of counsel and that the prosecutor
engaged in prejudicial misconduct. We affirm.
FACTS
In 2012, the Stillwater Police Department received reports from four women
alleging that appellant Amir Abd El Malak, a massage therapist at Land of Pharaoh’s
Massage, engaged in nonconsensual sexual penetration or contact with each of them
during a massage. Respondent State of Minnesota charged appellant with third- and
fourth-degree criminal sexual conduct against S.K. and fourth-degree criminal sexual
conduct against P.G., A.B., and C.T. under Minn. Stat. § 609.344, subd. 1(o) (2010)
(third-degree “nonconsensual sexual penetration”) and Minn. Stat. § 609.345, subd. 1(o)
(2010) (fourth-degree “nonconsensual sexual contact”).
The case was tried to a jury. At trial, S.K. testified that during a massage,
appellant inserted his finger into her anus and brushed two of his fingers on her vagina
without her permission. P.G. testified that appellant rubbed the top half of her buttocks
and the “whole area of [her] breast,” including her nipples, without her permission. A.B.
testified that appellant massaged her “buttocks area” and touched her breasts without her
permission. C.T. testified that appellant massaged the “top of [her] buttocks area” and
her breasts without her permission.
2 Appellant testified that he massaged S.K. on three separate occasions and that he
gave her a full buttocks massage on each occasion at her request. Appellant further
testified that on S.K.’s third visit, he perceived that S.K. “want[ed] sex” and consented
before he “put [his] fingers in her.” Appellant testified that P.G. needed work on her
“pecs area” and that he massaged her chest, including her breasts, after P.G. consented to
a massage of the entire area from her neck to her stomach. Appellant testified that he
massaged A.B.’s pectoral muscles and touched a pressure point on her inner thigh, but
that he did not touch her breasts. Appellant testified that he massaged C.T.’s lower back
because she marked that area on an intake form and that he gave her a “chest” massage
after she verbally consented.
During cross-examination by the prosecutor, appellant admitted that (1) his
massage of S.K. was “sexual,” (2) his standard written client contract states that massages
are not sexual, (3) his malpractice-insurance code of ethics does not allow sexual
touching of clients, (4) he was trained to “have women properly draped” when he
massages areas “around an intimate part,” and (5) he lied to the police about whether he
engaged in sexual contact and penetration with S.K.1 The prosecutor asked appellant,
“And your testimony today is that those four women lied?” Appellant responded, “It’s
clear to me.” Later, the prosecutor asked, “But you want this jury to believe that even
though you’ve lied to the police, violated your code of ethics, violated your malpractice
insurance, that the other three women, [P.G.], [C.T.], and [A.B.] are liars, right?”
1 On redirect, appellant clarified that the police did not directly ask him about S.K.
3 Appellant responded, “From what they said, yes.” Appellant did not object to the
prosecutor’s questions.
The jury found appellant guilty of fourth-degree criminal sexual conduct against
S.K. and P.G. and not guilty of the other charges. The district court stayed imposition of
sentence and placed appellant on probation for ten years. Appellant filed an appeal with
this court and requested a stay to pursue postconviction relief in district court. This court
stayed the appeal and remanded for postconviction proceedings.
Appellant petitioned for postconviction relief, requesting a new trial on the ground
that his trial counsel was ineffective because he failed to present expert testimony “as to
the proper limits of a therapeutic massage.” Appellant argued the expert testimony “that
breast and full-buttocks massage may be performed upon request of a client would have
cast the victims’ testimony in a more accurate light” and rebutted the state’s theory that
“consented-to breast and buttocks massage was unheard-of.” As support for his petition,
appellant offered an affidavit from his wife, which included e-mails to his trial attorney
listing several massage therapists who were experts in breast massage. Appellant did not
provide an affidavit from his trial attorney. The postconviction court denied appellant’s
request for postconviction relief without an evidentiary hearing. This court dissolved the
stay and reinstated the appeal.
DECISION
I.
Appellant challenges the postconviction court’s summary denial of his petition for
relief. We review a summary denial of a petition for postconviction relief for an abuse of
4 discretion. Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012). “A postconviction court
abuses its discretion when its decision is based on an erroneous view of the law or is
against logic and the facts in the record.” Id. (quotation omitted).
A postconviction court must hold a hearing on a petition “[u]nless the petition and
the files and records of the proceeding conclusively show that the petitioner is entitled to
no relief.” Minn. Stat. § 590.04, subd. 1 (2014). “Any doubts about whether to conduct
an evidentiary hearing should be resolved in favor of the defendant seeking relief.” State
v. Nicks, 831 N.W.2d 493, 504 (Minn. 2013). A reviewing court “must consider [the
petitioner’s] allegations in the light most favorable to him, and also consider the files and
records of the proceeding, including the State’s arguments.” Id. at 505-06 (quotation
omitted). But “[a]n evidentiary hearing is unnecessary if the petitioner fails to allege
facts that are sufficient to entitle him or her to the relief requested.” Davis v. State, 784
N.W.2d 387, 392 (Minn. 2010). And an evidentiary hearing is not warranted when a
petitioner’s allegations are presented solely as “argumentative assertions without factual
support.” Id. (quotation omitted). In sum, “[i]f the postconviction court concludes there
are no material facts in dispute that preclude dismissal, and the State is entitled to
dismissal of the petition as a matter of law, the court is not required to hold an evidentiary
hearing.” Nicks, 831 N.W.2d at 506 (quotation omitted).
To receive an evidentiary hearing on a postconviction claim of ineffective
assistance of counsel, a petitioner must allege facts that, if proved by a fair preponderance
of the evidence, would satisfy the two-prong test of Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064 (1984). Bobo v. State, 820 N.W.2d 511, 516 (Minn.
5 2012). Under the first prong of that test, “[w]hen a convicted defendant complains of the
ineffectiveness of counsel’s assistance, the defendant must show that counsel’s
representation fell below an objective standard of reasonableness.” Strickland, 466 U.S.
at 687-88, 104 S. Ct. at 2064. “The petitioner must overcome the presumption that
counsel’s performance fell within a wide range of reasonable representation.” Wright v.
State, 765 N.W.2d 85, 91 (Minn. 2009) (quotation omitted). Under the second prong,
“[t]he defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. An appellate court “need not
address both the performance and prejudice prongs if one is determinative.” State v.
Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).
Appellant asserts that his trial attorney was ineffective because the attorney failed
to present expert testimony regarding therapeutic massage. Appellant argues that the
state presented a “unique” case theory, which “posit[ed] that even the consented-to breast
and buttocks massages that [appellant] admitted to would be (1) unethical, (2) in violation
of malpractice insurance policies, (3) in violation of the treatment contract, and
(4) unheard-of.” Appellant further argues that “[d]efense expert testimony that breast and
full-buttocks massage may be performed upon request of a client” would have “clarified
the therapist-client relationship with respect to consented-to touching of intimate areas
performed for therapeutic purposes” and would have “cast the victims’ testimony in a
more accurate light.” Appellant concludes that without expert testimony, “the
6 prosecution was allowed to present an unrebutted theory that consented-to breast and
buttocks massage was unheard-of” and “so far outside professional boundaries that a
client would never consent to it and, if they did, a therapist would be barred from
performing it.”
Appellant’s arguments appear to raise an issue of trial strategy. Appellate courts
“give trial counsel wide latitude to determine the best strategy for the client.” Nicks, 831
N.W.2d at 506. Generally, the extent of any investigation—including interviewing
prospective witnesses and calling prospective witnesses at trial—is part of trial strategy
and “should not be readily second-guessed.” Id. Minnesota caselaw includes many
examples of cases holding that an attorney’s decisions regarding which witnesses to
interview or call is unreviewable trial strategy. See, e.g., State v. Davis, 820 N.W.2d 525,
539 n.10 (Minn. 2012) (stating that “decisions about which witnesses to interview are
typically matters of trial strategy that we will not review”); State v. Jones, 392 N.W.2d
224, 236 (Minn. 1986) (stating that decisions about “[w]hich witnesses to call at trial and
what information to present to the jury are questions that lie within the proper discretion
of the trial counsel”). Thus, the postconviction court here reasoned, in part, that the
decision whether to call an expert witness was unreviewable trial strategy. The
postconviction court noted that “[w]hile there may be some instance in which the failure
to present an expert witness is, arguably, reviewable and may deprive a defendant of a
fair trial, this simply is not the case here.”
As the postconviction court recognized, in some circumstances, trial counsel’s
failure to call a witness is reviewable for ineffective assistance of counsel. For example,
7 in Nicks, trial counsel subpoenaed cellphone records to support his defense theory that
certain alleged threatening phone calls did not occur. 831 N.W.2d at 506-07. But trial
counsel did not obtain the cellphone records because he did not read or understand the
cellphone service provider’s response to his subpoena. Id. at 507. Even without the
records, trial counsel presented a theory at trial that the phone calls never occurred. Id.
The supreme court concluded that counsel’s conduct was not unreviewable trial strategy.
Id. The supreme court reasoned:
Obtaining [the] cellphone records was not a course of action that trial counsel considered and rejected; rather, it remained a central part of counsel’s theory of the case and his strategy at trial. Unlike the cases where trial counsel has considered possible strategies and rejected them, it appears that the cellphone-record evidence was not obtained because trial counsel did not follow up on information received and did not perform the necessary steps to successfully execute on his main theory of the case.
Id. The supreme court explained that the case was “analogous to a trial counsel stating
that he wanted to call a certain witness, issued a subpoena to get that witness to trial,
implemented a strategy at trial that relied on that witness testifying, and then, after that
witness failed to appear, inexplicably took no further action.” Id.
Appellant contends his attorney’s failure to call an expert witness is reviewable for
ineffective assistance of counsel and that his postconviction submissions were sufficient
to obtain an evidentiary hearing on that issue. He argues that “it is clear from the petition
and exhibits what [the evidentiary hearing] testimony would have concerned” and that
wife’s e-mails to defense counsel “surely constituted a suggestion that he consult with
one of the experts she listed.” But even if we view appellant’s allegations in the light
8 most favorable to him and construe the e-mails to mean that appellant encouraged his
defense counsel to call an expert witness at trial, appellant does not allege facts showing
that counsel’s failure to do so was the result of anything other than an unreviewable
strategic decision. Unlike the circumstances in Nicks, the facts alleged here do not
suggest that defense counsel decided to call an expert witness but failed to execute that
decision.
And although “[c]riminal cases will arise where the only reasonable and available
defense strategy requires consultation with experts or introduction of expert evidence,”
Harrington v. Richter, 562 U.S. 86, 106, 131 S. Ct. 770, 788 (2011), it is not obvious that
this case falls into that category. Appellant’s proffered testimony regarding massage
therapy does not necessarily fit within the category of “scientific, technical, or other
specialized knowledge” that defines admissible expert testimony. See Minn. R. Evid.
702. Moreover, defense counsel presented a consent defense at trial, arguing that S.K.,
P.G., and C.T. consented to the sexual penetration or contact. See Minn. Stat.
§§ 609.344, subd. 1(o) (providing that third-degree criminal sexual conduct requires
“nonconsensual sexual penetration”), .345, subd. 1(o) (providing that fourth-degree
criminal sexual conduct requires “nonconsensual sexual contact”). As to A.B., trial
counsel argued that appellant simply did not engage in sexual contact. Given the defense
strategy at trial, it is not apparent that expert testimony regarding massage therapy was
relevant or necessary. Appellant contends that an expert could have testified that if a
woman consented, then the alleged sexual contact would be within the bounds of
9 acceptable practice.2 That proffer does not persuade us that the only reasonable and
available defense strategy in this case required expert testimony.
Appellant’s arguments regarding the need for expert testimony really focus on the
prosecutor’s inquiries and arguments at trial, and not on an obvious need for expert
testimony. Appellant argues that “to meet the state’s aggressive theory of this case,”
which he calls “unique,” “the defense badly needed expert testimony on massage therapy
practices.” Essentially, appellant relies on the prosecutor’s particular approach at trial to
show that his attorney was ineffective. That reliance is unavailing because “[a] fair
assessment of attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland,
466 U.S. at 689, 104 S. Ct. at 2065. Thus, the proper analysis here must focus on what
defense counsel knew before trial, when a decision whether to retain an expert would
have been made, and not on what defense counsel learned during trial. Appellant does
not allege any facts showing that it was objectively unreasonable for his defense attorney
to fail to anticipate the prosecutor’s “unique” strategy. Cf. State v. Rhodes, 627 N.W.2d
74, 88 (Minn. 2001) (concluding that an “evidentiary hearing [was] necessary to
determine whether the level of trial counsel’s advocacy was unreasonable” based in part
2 At oral argument to this court, appellant’s counsel acknowledged that appellant’s alleged penetration of S.K. “would have been beyond any kind of permissible massage therapy practice” and therefore “completely outside of any expert testimony.”
10 on affidavits submitted by “two expert defense lawyers,” which addressed the
effectiveness of trial counsel’s representation).
In sum, appellant’s postconviction submissions regarding defense counsel’s failure
to call an expert witness do not allege facts showing that the failure was the result of
anything other than an unreviewable strategic decision. Nor do his submissions
overcome the “strong presumption” that counsel’s performance fell “within the wide
range of reasonable professional assistance.” State v. Cram, 718 N.W.2d 898, 910
(Minn. 2006) (quotation omitted).
Appellant also asserts, in an argument heading, that his trial counsel was
ineffective for “fail[ing] to object to prosecution evidence.” But appellant did not raise
that issue in his petition for postconviction relief, and he does not present legal argument
to support his assertion. We therefore limit our review to issues that were raised and
determined in the postconviction proceeding. See Schleicher v. State, 718 N.W.2d 440,
445 (Minn. 2006) (“It is well settled that a party may not raise issues for the first time on
appeal from denial of postconviction relief.” (quotations omitted)); State v. Wembley, 712
N.W.2d 783, 795 (Minn. App. 2006) (“An assignment of error in a brief based on mere
assertion and not supported by argument or authority is waived unless prejudicial error is
obvious on mere inspection.” (quotation omitted)), aff’d, 728 N.W.2d 243 (Minn. 2007).
In conclusion, because appellant did not show that there were material facts in
dispute precluding dismissal, the postconviction court did not abuse its discretion by
summarily dismissing appellant’s petition for relief.
11 II.
Appellant claims that he is entitled to a new trial because the prosecutor engaged
in prejudicial misconduct. Specifically, he argues that the prosecutor asked improper
“were they lying” questions during cross-examination and impermissibly vouched for the
credibility of the victims in his closing argument. Appellant did not object to the alleged
misconduct at trial.
A defendant who fails to object to alleged prosecutorial misconduct ordinarily
forfeits the right to appellate review of the purported misconduct. State v. Ture, 353
N.W.2d 502, 516 (Minn. 1984). This court has discretion to review unobjected-to
prosecutorial misconduct if plain error is shown. Minn. R. Crim. P. 31.02; State v.
Ramey, 721 N.W.2d 294, 299 (Minn. 2006). To establish plain error based on a claim of
prosecutorial misconduct, the prosecutor’s unobjected-to act must constitute error, the
error must be plain, and the error must affect the defendant’s substantial rights. Ramey,
721 N.W.2d at 302. The burden rests with the defendant to demonstrate error that is
plain. Id. If the defendant satisfies his burden, the burden shifts to the state to
demonstrate that the error did not affect the defendant’s substantial rights. Id. “The third
prong, requiring that the error affect substantial rights, is satisfied if the error was
prejudicial and affected the outcome of the case.” State v. Griller, 583 N.W.2d 736, 741
(Minn. 1998). “If these three prongs are satisfied, [this] court then assesses whether the
error should be addressed to ensure fairness and the integrity of the judicial proceedings.”
Ramey, 721 N.W.2d at 302.
12 “Were They Lying” Questions
“Generally, questions designed to elicit testimony from one witness about the
credibility of another have no probative value and are considered improper and
argumentative.” State v. Simion, 745 N.W.2d 830, 843 (Minn. 2008). “But the
prosecutor may ask these questions when the defendant holds the issue of the credibility
of the state’s witnesses in central focus.” Id. (quotations omitted).
Appellant argues that he did not hold the issue of the credibility of the state’s
witnesses in central focus, but merely “pointed out how that testimony was inconsistent
with (a) what was marked on the client intake forms and (b) the victim’s actions after the
massage, including leaving a tip.” Appellant points out that his closing argument referred
to “a difference in perception between victim and alleged perpetrator” and did not
“engage in a credibility contest.” Appellant relies on State v. Morton, which concluded
that the defendant did not put the witnesses’ credibility at issue because he merely
“contradicted their testimony” and “did not state or insinuate that they were deliberately
falsifying any of it.” 701 N.W.2d 225, 235 (Minn. 2005). Appellant also relies on State
v. Leutschaft, in which this court stated that “[t]he ‘central focus’ test appears to apply
when the defense expressly accuses opposing witnesses of falsehoods or fabrications.”
759 N.W.2d 414, 422 (Minn. App. 2009), review denied (Minn. Mar. 17, 2009).
The state argues that appellant “insinuated that the victims were fabricating
testimony” during his opening statement when his trial counsel stated, “And more
importantly you will hear that none of the women gave any indication that they
misunderstood what was happening, or that my client could not continue with his
13 massage.” The state points to several statements appellant made during direct
examination that appear to insinuate that the state’s witnesses were deliberately falsifying
testimony, such as “And I have no idea what all they was talking about yesterday” and “I
don’t know what [C.T.] [was] talking about.” The state further argues that “[a]ppellant
did not need to expressly accuse the victims of falsehoods or fabrications to fall within
the scope of the ‘central focus’ test.” The state relies on Simion, in which the supreme
court held that the “central focus” test was satisfied merely because the defendant
“maintained throughout the trial and during closing argument that [a company’s] version
of the events was wrong, that [the company] in fact owed him money, and that the
testimony of [the company’s] general manager and the repairman was incorrect.” 745
N.W.2d at 843.
“An error is plain if it was clear or obvious,” which is usually shown “if the error
contravenes caselaw, a rule, or a standard of conduct.” Ramey, 721 N.W.2d at 302
(quotation omitted). When “it is reasonably debatable whether . . . ‘were they lying’
questions were error,” the alleged error is not plain. Leutschaft, 759 N.W.2d at 423.
Here, appellant and the state present opposing but reasonable arguments regarding
whether the prosecutor’s “were they lying” questions were improper under caselaw.
Because it is reasonably debatable whether the questions were improper, appellant has
not met his burden to demonstrate that the alleged error is plain.
Prosecutorial Vouching
Impermissible vouching occurs “when the government implies a guarantee of a
witness’s truthfulness, refers to facts outside the record, or expresses a personal opinion
14 as to a witness’s credibility.” State v. Lopez-Rios, 669 N.W.2d 603, 614 (Minn. 2003)
(quotations omitted). “But the state may argue that particular witnesses were or were not
credible.” Id.
Appellant argues that the following three statements by the prosecutor during
closing argument constitute impermissible vouching: “No other witnesses [except
appellant] lied to the police”; “I submit to you that . . . the witness[es]’ testimony in this
case, they are credible”; and “You didn’t get any attitude [from the state’s witnesses].
They were—their demeanor, their presence. They were telling the truth.” The state
argues that the first statement was proper because appellant testified that he lied to the
police. As to the other two statements, the state argues that they “constitute arguments
about witness credibility based on what occurred at trial” and that “[t]hroughout the 33
pages of his closing and rebuttal arguments, the prosecutor meticulously reviewed each
witness’s testimony and evaluated what they said as well as their demeanor, body
language, and credibility.”
A prosecutor has “a right to analyze the evidence and vigorously argue that the
state’s witnesses were worthy of credibility.” State v. Googins, 255 N.W.2d 805, 806
(Minn. 1977). When evaluating whether a prosecutor improperly vouched for a witness,
a reviewing court must look at the closing argument as a whole. State v. Swanson, 707
N.W.2d 645, 656 (Minn. 2006). Appellant acknowledges that “a prosecutor may argue
credibility based on relevant factors, such as corroborative evidence and the witnesses’
demeanor,” but argues that the second two statements amount to “categorical vouching,”
which “can’t be justified simply by recitations to evidence.”
15 In Swanson, the supreme court held that “the statement ‘[t]he state believes [Karol
House] is very believable’ is impermissible vouching on its face because the state directly
endorsed the credibility of witness House.” Id. (emphasis added). And in Ture v. State,
the supreme court held that it was improper for the prosecutor to use “the first-person
pronoun ‘I’ during closing argument” when addressing witness credibility because a
prosecutor “may not interject his or her personal opinion so as to personally attach
himself or herself to the cause which he or she represents.” 681 N.W.2d 9, 20 (Minn.
2004) (quotation and alteration omitted).
Of the three challenged statements, only the second—“I submit to you that . . . the
witness[es]’ testimony in this case, they are credible”—could clearly contravene case law
and constitute plain error. But we need not decide whether the statement satisfies the first
two prongs of the plain-error test if the statement did not affect appellant’s substantial
rights. See State v. Jackson, 714 N.W.2d 681, 690 (Minn. 2006) (“If any prong of the
[plain-error] test is not met, the claim fails.”).
Impermissible vouching is not sufficiently prejudicial to warrant a new trial where
the evidence against the defendant is strong and the vouching “constituted only a small
part of the prosecutor’s closing argument.” Swanson, 707 N.W.2d at 656. Here, the
evidence against appellant was strong: four witnesses testified that appellant engaged in
nonconsensual sexual penetration or contact during therapeutic massages. And the
allegedly improper personal endorsement occurred once during a closing argument that
spans 33 pages of the trial transcript. Moreover, the jury acquitted appellant of three of
the five charges, suggesting that it was not improperly swayed by the alleged vouching.
16 For those reasons, we conclude that the alleged error did not affect the appellant’s
substantial rights and that a new trial is not warranted.
Lastly, because appellant has not shown that his trial counsel was ineffective, that
the prosecutor’s “were they lying” questions constitute error that was plain, or that he
was prejudiced by the alleged improper vouching, we reject his assertion that his
conviction should be reversed based on cumulative error. See State v. Yang, 774 N.W.2d
539, 560 (Minn. 2009) (“An appellant is entitled to a new trial if the errors, when taken
cumulatively, had the effect of denying appellant a fair trial.” (quotation omitted)).
Affirmed.