This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Michael Dennis Stanke,
Filed January 4, 2001
Ramsey County District Court
File No. K9992936
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Appellant was convicted of first-degree aggravated robbery and first-degree assault. He argues that the district court erred in failing to instruct the jury sua sponte that a criminal defendant cannot be convicted on the uncorroborated testimony of an accomplice. Appellant also claims ineffective assistance of counsel on the ground that his lawyer did not request such an instruction. Finally, appellant argues that the district court erred in sustaining four hearsay objections during defense counsel’s examination of a defense investigator. Because appellant did not request an accomplice-testimony instruction and because appellant was not prejudiced by defense counsel’s failure to request such an instruction or by the exclusion of portions of the defense investigator’s testimony, we affirm.
In May 1999, Ralph Fuller was assaulted and robbed after leaving a house shared by appellant Michael Dennis Stanke, Michael Kinnicom, and Michael Malloy. Malloy witnessed Kinnicom hit Fuller on the head from behind with an object. After Fuller had fallen to the ground, apparently unconscious, Malloy saw Stanke swing at Fuller with what he thought was a flashlight. Malloy then saw Stanke crouching down and “scuffling,” “[a]lmost like still fighting,” with Fuller’s body. The police arrested Stanke and Kinnicom after several separate interviews with Kinnicom regarding the crime.
Stanke and Kinnicom were charged with assault in the first degree and aggravated robbery in the first degree. At Stanke’s trial, the prosecutor told the jury that Kinnicom would testify against Stanke and that they could not convict him solely on the basis of Kinnicom’s testimony because Kinnicom was an accomplice. The prosecutor also told the jury that Kinnicom was testifying pursuant to an agreement that he had reached with the state. She explained that if Kinnicom testified truthfully at Stanke’s trial and pleaded guilty to both first-degree assault and first-degree aggravated robbery, the state would recommend that he be sentenced according to the Minnesota Sentencing Guidelines. On two other occasions during her opening argument the prosecutor told the jury that the testimony of other witnesses would corroborate that of Kinnicom.
During her closing argument the prosecutor restated the need for corroborating evidence:
If you do not believe the state’s witnesses, if you do not believe the testimony of Michael Kinnicom as corroborated by a number of other witnesses, you have a reasonable doubt.
The prosecutor described at length how Kinnicom’s testimony was corroborated by the testimony of other witnesses, including Malloy’s. Stanke argued in closing that Kinnicom had acted alone.
The district court instructed the jury on the elements of first-degree assault, first-degree aggravated robbery, and liability for the crimes of an accomplice. The court did not instruct the jury that a criminal defendant cannot be convicted on the uncorroborated testimony of an accomplice; defense counsel did not request such an instruction or object to the failure to give such an instruction.
The jury found Stanke guilty of first-degree assault and first-degree aggravated robbery, and he was sentenced to a term of 171 months. This appeal followed.
D E C I S I O N
1. Failure to give accomplice-testimony instruction
Stanke argues that he is entitled to a new trial because of the district court’s failure to instruct the jury that they could not convict him on Kinnicom’s uncorroborated testimony. Stanke made no request for such an instruction and did not object to the jury instructions that were given. While an accomplice-testimony instruction should have been given, the supreme court has held that failure to give such an instruction in the absence of a request is not reversible error. State v. Jones, 277 Minn. 174, 189, 152 N.W.2d 67, 78 (1967). Moreover, Malloy’s testimony amply corroborated Kinnicom’s accomplice testimony. Any error by the district court in failing to give the instruction sua sponte was harmless.
2. Ineffective assistance of counsel
Stanke next argues that defense counsel’s failure to request an accomplice-testimony instruction constitutes ineffective assistance of counsel. This court will not reverse his conviction on that ground unless he shows that (1) defense counsel’s performance was deficient and (2) but for the alleged error “there is a reasonable probability that * * * the result of the proceeding would have been different.” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).
Here, the prosecutor told the jury that Stanke could not be convicted on the uncorroborated testimony of Kinnicom during both her opening and closing arguments. The prosecutor also explained at length the manner in which Kinnicom’s testimony was corroborated by that of other witnesses, including Malloy’s testimony that Stanke had swung what appeared to be a flashlight at Fuller and had been “scuffling” with Fuller’s body. We conclude Stanke has not established ineffective assistance of counsel. There is no reasonable probability that the result of the trial would have been different if an accomplice-testimony instruction had been given.
3. Hearsay objections
Stanke argues that the district court erred in sustaining four hearsay objections made by the prosecution during defense counsel’s examination of a defense investigator, Khamla Chanthala, because there was a non-hearsay basis for admission of the testimony. We review the exclusion of evidence under a harmless-error standard. State v. Post, 512 N.W.2d 99, 102 (Minn. 1994).
At trial, an acquaintance of Stanke, Paul Lattin, testified that Stanke told him that Stanke was “involved in” a “scuffle” up at Malloy’s house. On cross-examination, Lattin testified that he recalled telling Chanthala that Stanke told him there was “a scuffle,” but Lattin could not remember whether he told Chanthala that Stanke had told him that Stanke had participated in the event. Defense counsel later sought to elicit testimony by Chanthala concerning the statements Lattin made to her during their interview, asking her: “What did [Lattin] tell you that [Kinnicom and Stanke] told him?” and “Did Mr. Lattin tell you that Michael Stanke admitted hitting [Fuller]?” The prosecutor made hearsay objections to both of these questions and on two other occasions. The district court sustained all four objections. Stanke made no offer of proof concerning Chanthala’s proposed testimony. In his brief on appeal, Stanke contends that the district court erred in sustaining the prosecutor’s objections because there was a non-hearsay basis for the introduction of the investigator’s testimony:
[T]he import of the [defense investigator’s] testimony was to impeach Lattin’s credibility by showing that his assertion at trial that appellant had admitted involvement in the assault was inconsistent with what he would have been reasonably expected to say when previously interviewed.
Stanke claims that Chanthala’s testimony would have shown that Lattin did not tell her that Stanke reported to Lattin that Stanke had participated in the events at Malloy’s house. But even if we assume that the district court erred in sustaining the prosecutor’s hearsay objections, the exclusion of Chanthala’s testimony was harmless error.
The wrongful exclusion of evidence is harmless error only if this court is “satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, an average jury (i.e., a reasonable jury) would have reached the same verdict.” Id. (footnote omitted). But if there is a reasonable possibility that the verdict would have been different if the evidence had been admitted, the error is not harmless. Id. Here, there is no such reasonable possibility. Even if Chanthala’s proposed testimony would have caused the jury to disregard entirely Lattin’s testimony, a reasonable jury would have reached the same verdict on the basis of Kinnicom’s and Malloy’s eyewitness accounts of the assault and robbery.