This opinion will be unpublished and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

C0-00-634

 

State of Minnesota,

Respondent,

 

vs.

 

Richard Jason Fink,

Appellant.

 

Filed March 6, 2001

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. 99053658

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Stoneburner, Judge.


U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Richard Jason Fink was convicted of second-degree intentional murder.  He contends he is entitled to a new trial because of (1) improper jury instructions; (2) improper use of his prior assault conviction; and (3) prosecutorial misconduct.  Appellant also claims the district court erred by failing to grant a downward departure from the presumptive sentence.  Finally, he alleges ineffective assistance of counsel, improper conviction on two counts of murder in the second- degree and a violation of his right to a fair trial in a pro se supplemental brief.  We affirm.

D E C I S I O N

 

I.

            Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law governing the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  Although appellant did not object to the instructions at trial, we have discretion to consider appellant’s claim if there is “plain error affecting substantial rights.”  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citation omitted).  If we find plain error affecting substantial rights, we then assess whether we “should address the error to ensure the fairness and integrity of the judicial proceedings.”  Id. (citation omitted).

            Here, appellant claims he had no intent to kill but shot the victim accidentally while attempting to dismantle the gun, which he was using to defend himself against a possible attack by the victim.  He contends the district court committed plain error in not giving an accidental death instruction and in giving the CRIMJIG 7.05 self-defense instruction rather than the CRIMJIG 7.06 self-defense instruction.  We disagree.

            In instructing the jury, the district court used CRIMJIG 7.05, which was changed in June 1999 to read “election to defend” rather than “election to kill.”  The supreme court noted that Committee modifications of CRIMJIG 7.05 did “not eliminate the problems” associated with using 7.05, and where a defendant in a homicide claims the death was unintentional, district courts “should not use CRIMJIG 7.05.”  State v. Hare, 575 N.W.2d 828, 833 n.7 (1998).  But here, the jury instructions given to the jury for second-degree intentional murder clearly stated that the jury had to find that appellant intended to kill the victim.  Thus, the jury’s guilty verdict necessarily implies a finding of intent to kill.  Finally, the closing arguments for both the prosecution and defense referred often to appellant’s contention that the shooting was an accident.  See State v. Gustafson, 610 N.W.2d 314, 319 (Minn. 2000) (finding no error when the district court failed to give an accident instruction because “intent instructions, together with the closing arguments, made the jury aware that accident was a defense.”)  Based on these facts, even if the instruction was plain error, we are satisfied that the jury understood that it should acquit appellant if it believed appellant had no intent to kill the victim, and that therefore appellant was not prejudiced by the instruction.

II.

Appellant contends the district court abused its discretion by allowing the state to impeach him with evidence of a prior assault conviction because it had little impeachment value and was too similar to the second-degree intentional murder charge.  We disagree.  Evidence of a prior conviction may be admissible to impeach a defendant’s testimony if the underlying offense is less than ten years old, punishable by imprisonment in excess of one year, and the “court determines that the probative value of admitting this evidence outweighs its prejudicial effect.”  Minn. R. Evid. 609(a).  To determine whether the probative value outweighs the prejudicial effect, the court should consider:

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime * * *, (4) the importance of the defendant’s testimony, and (5) the centrality of the credibility issue.

 

State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978) (citation omitted). 

Appellant’s prior conviction was within the ten-year time limit and had legitimate impeachment value.  Even if the prior assault crime shared elements that are arguably similar to the second-degree intentional murder charge, this does not preclude admissibility.  See State v. Bias, 419 N.W.2d 480, 487 (Minn. 1988).  Moreover, the jury had to choose whether to believe appellant’s testimony concerning the event making appellant’s credibility a central issue in the case.  Applying the Jones factors we conclude that while the court could have found the prior conviction inadmissible, it was not required to do so.  Thus the district court did not abuse its discretion in ruling that the prior conviction was admissible to impeach appellant’s testimony.

III.

            Appellant contends his conviction should be reversed because unobjected to statements made by the prosecutor vouching for the veracity of witnesses and “belittling” appellant’s defense during closing arguments constituted misconduct.  We disagree.  Generally, a failure to object to a prosecutor’s improper statements results in a waiver of that issue for the purposes of appeal.  State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984).  But even in the absence of an objection, a court may take notice of plain errors affecting substantial rights if they are prejudicial.  State v. Salitros, 499 N.W.2d 815, 820 (Minn. 1993).

            While it is improper for prosecutors to attempt to establish the credibility of a witness in a closing statement, the alleged improper remarks here do not reach a “threshold of impropriety” amounting to prosecutorial misconduct.  State v. Parker, 353 N.W.2d 122, 128 (Minn. 1984) (affirming conviction where the prosecutor’s personal endorsement of witness’s veracity was nonprejudicial and did not reach the “threshold of impropriety”).  Viewing the prosecutor’s argument in its entirety, we conclude there was no “plain error” nor prejudice requiring reversal of appellant’s conviction.


IV.

            Appellant contends the district court abused its discretion when it failed to consider mitigating circumstances and depart downward from the presumptive sentence. The sentences provided in the sentencing guidelines are presumed appropriate for every case, and only in the “rare case” will an imposition of the presumptive sentence be reversed.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); Minn. Sent. Guidelines II.D.  Appellant argues substantial factors exist to warrant a downward departure, including the fact that the victim was the aggressor, the issue of intent was close, and there were substantial grounds mitigating appellant’s guilt.  Even assuming the truth of these allegations, we conclude that this is not the rare case where the district court abused its discretion by imposing the presumptive sentence.       

V.

Appellant submitted a supplemental pro se brief raising an ineffective assistance of counsel claim.  To be successful appellant must show that the attorney’s representation “fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel’s errors.”  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998) (citation omitted).  An attorney’s decisions with regard to trial tactics “lie within the proper discretion of trial counsel and will not be reviewed later for competence.”  State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999) (citation omitted).

Appellant alleges his attorney failed to:  (1) call a key witness who would confirm the shooting was accidental; (2) properly question a witness and elicit an answer to confirm the shooting was accidental; (3) properly investigate the person from whom he obtained the gun; (4) present a person the same size as the victim to the jury; (5) present character witnesses for appellant; (6) object to the jury instructions; and (7) object to the jury composition.  The first five of these allegations relate to trial tactics.  Given the deference afforded trial counsel on trial tactics, we cannot say that the behavior of counsel fell below “an objective standard of reasonableness.”  In addition, as discussed in this opinion, objections to the jury instructions and composition would not have affected the outcome of this case.  We thus conclude appellant’s claims of ineffective assistance of counsel are without merit.

Next, appellant alleges he was convicted of two charges of second-degree murder in violation of Minn. Stat. § 609.04 (1998).  We conclude this claim has no merit.  Appellant is correct in asserting that the jury found him guilty of two charges of murder in the second-degree.  But, the record indicates the district court properly adjudicated formally and imposed sentence on only one count.  See State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984).

            Finally, appellant contends that his Sixth-Amendment right to a fair trial and his right to Equal Protection were violated because his jury venire was made up entirely of Caucasians.  But while the jury venire must reflect a fair cross-section of the community, this requirement “does not guarantee a defendant a petit jury of a particular racial composition or one that mirrors the racial makeup of the community.”  State v. Willis, 559 N.W.2d 693, 700 (Minn. 1997) (citations omitted).  Rather, a defendant must test “the manner of selection and not the makeup of a particular panel of jurors * * * to determine whether constitutional requirements have been observed.”  State ex. rel. Bush v. Tahash, 281 Minn. 244, 247, 161 N.W.2d 326, 328 (1968) (citation omitted).  Here, appellant presents a number of statistics but does not link the alleged disparities to a systematic exclusion of minorities over a period of time.  We conclude, therefore, that appellant has failed to establish a violation of his constitutional rights.

Affirmed.