                           This opinion will be unpublished and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
                                      A15-0899

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                  Ricky Donell Holifield,
                                        Appellant.

                                 Filed December 27, 2016
                                         Affirmed
                                      Stauber, Judge

                              Hennepin County District Court
                                File No. 27-CR-12-28869

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Mark D. Nyvold, Fridley, Minnesota (for appellant)

         Considered and decided by Stauber, Presiding Judge; Worke, Judge; and Bratvold,

Judge.

                          UNPUBLISHED OPINION

STAUBER, Judge

         On appeal from his conviction of second-degree sale of drugs, and from the order

denying his postconviction petition, following a stay and remand, appellant argues that

the district court abused its discretion by (1) denying him an evidentiary hearing to show
that he received ineffective assistance of counsel due to his trial attorney’s conflict of

interest and (2) denying his chain-of-custody objection to the state’s drug evidence. We

affirm.

                                             FACTS

          In August 2012, Officer Jeffrey Werner conducted a narcotics investigation

involving appellant Ricky Donell Holifield. As part of the investigation, Officer Werner

obtained a warrant to search appellant. In an effort to execute the warrant, Officer Werner

set up surveillance of an apartment located in Minneapolis. Officer Werner acted as the

case agent during the surveillance, with officers from both the third and fourth precincts of

Minneapolis reporting to him.

          Throughout the surveillance, Officer Werner observed the location from an

unmarked vehicle parked on the street in front of the apartment building. Sergeant Jeffrey

Jindra also observed the location from an unmarked vehicle in the parking lot behind the

building. Several other officers in both marked and unmarked vehicles were positioned

nearby, and all of the officers were in radio communication with one another.

          Shortly after midnight, Sergeant Jindra observed appellant drive into the parking lot

and park two spaces away from him. An unknown male then exited the apartment building

and approached the passenger side of appellant’s vehicle. The unknown male handed

money to appellant who exchanged the money for a small item. Although the parking lot

was well illuminated and he had an unobstructed view of the exchange, Sergeant Jindra was

unable to specifically identify the object exchanged. But based on his 30 years of




                                                 2
experience as a police officer, Sergeant Jindra testified that the exchange “looked like a

hand-to-hand narcotics transaction.”

       Sergeant Jindra notified Officer Werner of his observation, which prompted the other

squads to be ordered “to come in and stop [appellant].” A “marked squad came up the alley

from the south and pulled in . . . diagonally to [appellant’s] car.” The squad’s emergency

lights and spotlight were then turned on which “lit up the inside of [appellant’s] car.” When

the squad illuminated appellant’s vehicle, Sergeant Jindra observed appellant “throw

something across his body towards the passenger seat floor.” Sergeant Jindra broadcasted

his observation and a subsequent search of appellant’s vehicle revealed a bag containing

“several smaller plastic baggies” of suspected cocaine located on the “front passenger

floor.” The substance was then weighed and tested, and was identified as 3.1 grams of

cocaine. Appellant was subsequently charged with one count of second-degree sale of a

controlled substance under Minn. Stat. § 152.022 (2012), and one count of third-degree

possession of a controlled substance under Minn. Stat. § 152.023 (2012).

       At trial, Officer Werner testified that, after the cocaine was recovered from

appellant’s vehicle, he took possession of the cocaine from Officer Carl White and put it in

an evidence bag and labeled it. The state then moved to admit Exhibit 2, the suspected

cocaine. Appellant vigorously objected, claiming an insufficient chain of custody. The

district court “conditionally” accepted the exhibit in contemplation of the state’s promise to

“link up the chain of custody.”

       The state presented additional testimony that the evidence bag containing the cocaine

was transported to the Third Precinct headquarters and placed in an evidence locker by


                                               3
Officer White. An evidence technician documented his receipt of the evidence bag from the

locker. Several months later, Officer David Menter transported the sealed evidence bag to

the Minnesota Bureau of Criminal Apprehension (BCA), where it was received by forensic

scientist Rebecca Willis. According to Willis, the evidence bag was assigned a “unique

identifier” and barcode so that it could be tracked throughout the agency. Willis testified

that she weighed and tested the cocaine, and then repackaged it for return to the third

precinct. Willis further testified that as is standard BCA procedure, her analysis was

subjected to a “peer review process” and was confirmed. The district court then admitted

Exhibit 2 into evidence.

       After the state rested, appellant waived his right to testify and called no witnesses. A

jury found appellant guilty of the charged offenses, and the district court imposed a 108-

month sentence.

       In December 2015, this court granted appellant’s motion to stay his direct appeal to

allow appellant to pursue postconviction relief. Appellant subsequently filed a petition for

postconviction relief claiming that he had received ineffective assistance of counsel due to a

conflict of interest. Specifically, he claimed that his trial counsel failed to investigate his

story that police planted the cocaine in his car in retaliation for his refusal to act as a

confidential informant. Appellant argued that his trial counsel’s desire to conceal his

inadequate investigation created a conflict of interest that induced trial counsel to advise

him not to testify. The district court summarily denied appellant’s postconviction petition,

and in June 2016, this court granted appellant’s motion to reinstate his appeal.




                                                 4
                                      DECISION

                                              I.

       Appellant challenges the district court’s summary denial of his petition for

postconviction relief. This court reviews the “denial of a petition for postconviction relief,

as well as a request for an evidentiary hearing, for an abuse of discretion.” Riley v. State,

819 N.W.2d 162, 167 (Minn. 2012). In doing so, we review the postconviction court’s

underlying factual findings for clear error and its legal conclusions de novo. Williams v.

State, 869 N.W.2d 316, 318 (Minn. 2015). A postconviction court may deny a petition

for postconviction relief without holding an evidentiary hearing if the petition, files, and

records in the proceeding conclusively establish that the petitioner is not entitled to relief.

Minn. Stat. § 590.04, subd. 1 (2014).

       A criminal defendant has the right to effective assistance of counsel; counsel is

ineffective if (1) his or her performance is deficient and (2) the defendant was prejudiced

by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984). In addition to assistance of counsel, a criminal defendant has a

Sixth–Amendment “right to representation that is free from conflicts of interest.” Wood

v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 1103 (1981); State v. Patterson, 812

N.W.2d 106, 112 (Minn. 2012). “The burden of a defendant claiming ineffective

assistance due to a conflict of interest depends on whether and to what extent the alleged

conflict was brought to the [district] court’s attention.” Cooper v. State, 565 N.W.2d 27,

32 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997). A defendant who did not

object to the alleged conflict at trial “must demonstrate that defense counsel ‘actively


                                               5
represented conflicting interests’ and this conflict ‘adversely affected [the] lawyer’s

performance.’” Id. (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350, 100 S. Ct. 1708,

1718-19 (1980)). If a defendant establishes a conflict of interest, prejudice is “generally

presumed.” State v. Paige, 765 N.W.2d 134, 140 (Minn. App. 2009).

       Appellant argues that he received ineffective assistance of counsel because his

trial counsel failed to investigate his version of the events. According to appellant,

several unnamed officers from the fourth precinct initially searched his car and found

nothing. Appellant also claimed that the named officers from the third precinct who

testified at trial planted the cocaine in his car in retaliation for appellant’s refusal to work

as a confidential informant for the third precinct. Appellant contends that his trial

counsel’s failure to investigate appellant’s claim created a conflict of interest because it

prompted trial counsel to advise appellant not to testify at trial in order to protect himself

from either an ineffectiveness claim, a professional-responsibility complaint, or both.

       Because he did not object at trial, appellant must show an actual conflict of

interest and an adverse effect on his trial counsel’s performance. See Cooper, 565

N.W.2d at 32. A conflict of interest arises if “there is a significant risk that the

representation of [a client] will be materially limited . . . by a personal interest of the

lawyer.” Minn. R. Prof. Conduct 1.7(a)(2). A theoretical or potential conflict is not

sufficient to mandate reversal; instead, there must be “an actual conflict of

interest . . . that affected counsel’s performance – as opposed to a mere theoretical

division of loyalties.” Mickens v. Taylor, 535 U.S. 162, 171, 122 S. Ct. 1237, 1243

(2002) (emphasis omitted) (quotation omitted). “[U]ntil a defendant shows that his


                                               6
counsel actively represented conflicting interests, he has not established the constitutional

predicate for his claim of ineffective assistance.” Cuyler, 446 U.S. at 350, 100 S. Ct. at

1719.

        The alleged conflict in this case was appellant’s trial counsel’s inability to

adequately represent appellant due to trial counsel’s personal interest in concealing his

alleged failure to investigate appellant’s version of the events. But as the state points out,

appellant is unable to demonstrate an actual conflict. Unlike the circumstances presented

here, the Cuyler test for ineffective assistance of counsel has been applied only to conflict

cases involving “multiple representation of codefendants or serial defendants.” See, e.g.

Caban v. United States, 281 F.3d 778, 781-82 (8th Cir. 2002) (describing the

development of the Cuyler standard and other ineffective-assistance-of-counsel standards

involving conflicts of interest). And as the supreme court recognized in State v. Moore,

“The danger that a lawyer’s interest in protecting that lawyer’s professional reputation

may create a conflict of interest is inherent in all attorney-client relationships. Absent

evidence to the contrary, however, we must presume that a lawyer resolves those

conflicts in favor of the client.” 481 N.W.2d 355, 363 (Minn. 1992).

        In Moore, the defendant’s second trial was conducted by the same lawyer whose

representation of defendant was deemed ineffective in the first trial. Id. at 362. The

claimed conflict arose from the possibility that defense counsel was so preoccupied with

not being labeled ineffective a second time that he bent over backwards to please the

defendant and, in doing so, abdicated his professional responsibilities and compromised

his judgment. Id. In addressing the defendant’s claim, the supreme court stated, “We are


                                               7
unaware of any cases where courts have found that a lawyer’s concern for his or her

professional reputation has been deemed a conflict with the client’s interest in a zealous

defense.” Id. at 363. The court held that “[w]ithout proof that counsel actually did

breach his duty of loyalty to the client and let his personal desire to avoid being labeled

ineffective a second time override his professional judgment, we are unwilling to

presume that such a conflict exists.” Id.

       Appellant argues that his allegations that trial counsel failed to investigate

appellant’s version of the events is proof of an actual conflict, and at the very least, is

sufficient to warrant an evidentiary hearing. To support his claim, appellant cites State v.

Nicks, in which the defendant was convicted of first-degree murder. 831 N.W.2d 493,

496 (Minn. 2013). A key piece of evidence was that the defendant had threatened the

victim in a phone call on the night of the murder. Id. Defendant’s trial counsel requested

cell phone records, but failed to correctly read or understand the cell phone provider’s

response. Id. at 505-07. Without evidence of cell phone records, counsel still argued at

trial that the calls never took place. Id. The supreme court concluded that the defendant

had proven ineffective assistance of counsel by a fair preponderance of the evidence and

was entitled to an evidentiary hearing. Id. at 504, 508. The supreme court distinguished

other trial strategy cases as follows: “Unlike the cases where trial counsel has considered

possible strategies and rejected them, it appears that the cell [] phone-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.”




                                               8
Id. at 507. Thus, in Nicks, the trial counsel received evidence, but failed to analyze it

correctly.

       Here, in contrast to Nicks, appellant failed to allege any facts suggesting that trial

counsel decided to pursue appellant’s theory of the case but did not execute on that

decision. Instead, the record reflects that trial counsel decided to attack the credibility of

the reporting and testifying officers, emphasizing their lack of memory of the incident,

their allegedly sloppy handling of the evidence, their failure to document or forensically

confirm the connection of the seized cocaine to appellant, and their failure to investigate

the third party who engaged in the alleged narcotics transaction. This strategy avoided

the need for appellant to testify, which was significant considering appellant’s prior

conviction of fifth-degree controlled substance crime.1 Thus, even when appellant’s

allegations are viewed in the light most favorable to him, trial counsel’s failure to

investigate appellant’s claims was nothing more than an unreviewable strategic decision.

See Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004) (“We are in no position to

second-guess counsel’s decision to focus his strategy on other defenses instead of

investigating other suspects.”); see also State v. Jones, 392 N.W.2d 224, 236 (Minn.

1986) (considering the extent of counsel’s investigation as trial strategy). And because

appellant only presented evidence demonstrating that trial counsel’s failure to investigate

appellant’s version of the events was a strategic decision, appellant is unable to establish

an actual conflict for purposes of establishing ineffective assistance of counsel. See


1
 Although the district court ruled that appellant’s prior conviction was inadmissible,
appellant’s testimony at trial could have opened the door to admission of that evidence.

                                              9
Cuyler, 446 U.S. at 350, 100 S. Ct. at 1719 (“[U]ntil a defendant shows that his counsel

actively represented conflicting interests, he has not established the constitutional

predicate for his claim of ineffective assistance.”).

       In sum, the evidence in the record conclusively establishes that the decision by

appellant’s trial counsel not to investigate appellant’s version of the events was

unreviewable trial strategy. Because trial counsel’s decision not to investigate was a

matter of trial strategy, no actual conflict of interest was created by his decision. And

because appellant is unable to establish an actual conflict of interest, his ineffective-

assistance-of-counsel claim fails. The district court did not err by summarily denying

appellant’s petition for postconviction relief.

                                              II.

       Appellant also challenges the district court’s admission of Exhibit 2 over his

chain-of-custody objection. A determination as to foundation or the chain of custody

relates to an evidentiary ruling. State v. Farah, 855 N.W.2d 317, 321 (Minn. App. 2014),

review denied (Minn. Dec. 30, 2014). “Evidentiary rulings are within the discretion of

the district court and will not be overturned absent an abuse of that discretion.” State v.

Jenkins, 782 N.W.2d 211, 224 (Minn. 2010); see also McDonald v. State, 351 N.W.2d

658, 660 (Minn. App. 1984), review denied (Minn. Oct. 16, 1984) (“The standard of

review of the adequacy of foundation for the admission of evidence is whether an abuse

of discretion is shown.”).

       The “chain of custody” rule requires “the prosecution to account for the

whereabouts of physical evidence connected with a crime from the time of its seizure to


                                              10
its offer at trial.” State v. Johnson, 307 Minn. 501, 504, 239 N.W.2d 239, 242 (1976). A

chain-of-custody “procedure is essential when common items such as drugs . . . are

involved.” State v. Bellikka, 490 N.W.2d 660, 663 (Minn. App. 1992), review

denied (Minn. Nov. 25, 1992). “All possibility of alteration, substitution, or change of

condition need not be eliminated in laying a chain-of-custody foundation,” but “the more

authentication is genuinely in issue, and the more susceptible the item is to alteration,

substitution, or change of condition, the greater the need to negate such possibilities.”

State v. Hager, 325 N.W.2d 43, 44 (Minn. 1982) (quotations omitted). If the district

court determines that evidence is admissible, the credibility of the supporting proof may

be challenged at trial, and “[t]he trier of fact renders the ultimate decision as to whether

the item of real evidence admitted in evidence is as it is purported to be.” Id. at 44-

45 (quotation omitted).

       Here, in overruling appellant’s chain-of-custody objection, the district court found

that “[f]rom the testimony of the State’s witnesses up to this point, I don’t view that

there’s any sign that the drugs that are Exhibit 2 have been tampered with.” The district

court then concluded that the state “established enough foundation to admit Exhibit 2,”

and that “the weight to be given Exhibit 2 or how much weight to give it at all will be up

to the jury.”

       Appellant argues that the district court “abused its discretion and denied [him] a

fair trial when it denied his chain-of-custody objection to the state’s drug evidence”

because the state’s “witnesses could not account for the location and security of that

evidence for significant periods of time.” But the chain-of-custody rule does not create a


                                              11
“rigid formulation of what showing is necessary in order for a particular item of evidence

to be admissible.” Johnson, 307 Minn. at 504, 239 N.W.2d at 242. Rather, in order to

warrant a reversal, appellant must show that the district court abused its discretion in

concluding that it was “satisfied that, in all reasonable probability, the item offered is the

same as the item seized and is substantially unchanged in condition.” Id. at 505, 239

N.W.2d at 242; see also Minn. R. Evid. 901(a) (“The requirement of authentication or

identification as a condition precedent to admissibility is satisfied by evidence sufficient

to support a finding that the matter in question is what its proponent claims.”).

       The record reflects that Officer White and Sergeant Jindra searched appellant’s

vehicle and Officer White recovered the cocaine from the passenger floorboards. Officer

White then “turned [the cocaine] over to . . . Officer Werner,” who put it in an evidence

bag and labeled it. The record also reflects that Officer Jeffrey Imming weighed and

“field tested” the narcotics, and Officer White ultimately transported the drugs from the

Third Precinct office to the “evidence lockers” where he filled out a property sheet and

put the sheet, along with the evidence, “into the locker [and] locked it.” The next

morning, the evidence technician documented his receipt of the evidence bag from the

locker, and several months later, the evidence was transported to the BCA by Officer

Menter where it was weighed and tested by Willis. This testimony accounts for the

cocaine from the time of seizure to the time of trial, and there is no indication that the

evidence was tampered with or that its condition was substantially changed. Therefore,

the district court did not abuse its discretion by admitting the evidence.

       Affirmed.


                                              12
