Opinion
No. C4-98-1655.
Filed May 25, 1999.
Appeal from the District Court, Itasca County, File No. K9971868.
Mike Hatch, Attorney General, and
John J. Muhar, Itasca County Attorney, Winton James Mason, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, (for appellant)
Clifford P. Somers, (pro se appellant)
Considered and decided by Short, Presiding Judge, Peterson, Judge, and Shumaker, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Clifford Paul Somers was convicted of violating an order for protection (OFP) under Minn. Stat. § 518B.01, subd. 14(c) (1998) that prevented him from having contact with his children. On appeal, Somers argues the trial court erred in prohibiting him from collaterally attacking the validity of the OFP during his criminal trial. We affirm.
DECISION
When reviewing a pretrial order regarding suppression of evidence where the facts are not in dispute and the trial court's decision is a question of law, we independently review the facts and determine whether, as a matter of law, the evidence must be suppressed. State v. Othoudt , 482 N.W.2d 218, 221 (Minn. 1992). Furthermore, this court need not give deference to a trial court's decision on a purely legal issue. State v. Camacho , 561 N.W.2d 160, 170 (Minn. 1997).
Somers argues the trial court erred in prohibiting him from collaterally attacking the OFP where the issuing court allegedly lacked jurisdiction to issue the order. See State v. Nodes , 538 N.W.2d 158, 160 (Minn.App. 1995) (discussing restraining orders may be collaterally attacked if court clearly lacked jurisdiction to issue order), review dismissed (Minn. Feb. 9, 1996). But both Somers and his children reside in Itasca County. Under these circumstances, the Itasca County court had jurisdiction to issue the OFP. See Minn. Stat. § 518B.01, subd. 3 (1998) (stating court's jurisdiction to issue order for protection includes county of residence of either party, county of pending or completed family court proceedings, or county in which alleged abuse occurred).
Moreover, an order for protection must be obeyed until a proper court proceeding reverses it. See State v. Andrasko , 454 N.W.2d 648, 650 (Minn.App. 1990) (citing United States v. United Mine Workers , 330 U.S. 258, 293-94, 67 S.Ct. 677, 696 (1947), and concluding violations of order are criminally punishable even if order is later set aside on appeal), review denied (Minn. June 25, 1990). The record shows Somers: (1) was at the hearing for the order for protection; (2) knew of the issuance of the order for protection; (3) had not appealed the order for protection against him; and (4) violated the order for protection. Because Somers did not appeal the validity of the order for protection against him, he is precluded from collaterally attacking it in a subsequent criminal trial for violation of that order. See State v. Harrington , 504 N.W.2d 500, 503 (Minn.App. 1993) (noting parties who do not appeal validity of restraining order are precluded from attacking it in subsequent criminal action for violations thereof), review denied (Minn. Sept. 30, 1993); Andrasko , 454 N.W.2d at 650 (holding violations of order are punishable as criminal contempt even though order is later set aside on appeal).
In his pro se brief, Somers also argues he was denied a fair trial due to ineffective assistance of counsel and juror bias. But defense counsel's choices regarding witness selection and other tactical decisions do not support a claim of ineffective assistance of counsel. See State v. Lahue , 585 N.W.2d 785, 790 (Minn. 1998) (holding defendant did not demonstrate his counsel's conduct was ineffective by disputing trial tactics and failing to show how different tactics would have exonerated him); Scruggs v. State , 484 N.W.2d 21, 25 (Minn. 1992) (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984), and noting ineffective assistance of counsel established by showing that counsel's performance was below objective standard, and, but for counsel's defective performance, results of proceedings would have been different); Gates v. State , 398 N.W.2d 558, 563 (Minn. 1987) (noting decisions on which witnesses to call are strategies of trial attorney and do not establish ineffective counsel when defendant did not establish testimony would change trial's outcome). As to the possibility of juror bias, the record demonstrates: (1) the parties waived conducting voir dire themselves; (2) the trial judge questioned prospective jurors about whether they knew anything about the case or parties; and (3) the trial judge questioned one juror who admitted to recognizing one witness's face, but determined the juror would not be biased. Under these circumstances, Somers was not affected by juror bias. See State v. Richards , 552 N.W.2d 197, 210 (Minn. 1996) (concluding trial court is in best position to question juror and determine if juror can be impartial); State v. Drieman , 457 N.W.2d 703, 708 (Minn. 1990) (requiring showing of actual prejudice due to juror bias).