This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Andrew William McNaney,
Douglas County District Court
File No. K499471
Mike Hatch, Attorney General, Margaret H. Chutich, Thomas R. Ragatz, Assistant Attorneys General, 525 Park Street, #500, St. Paul, MN 55103; and
Christopher D. Karpan, Douglas County Attorney, Courthouse, 305 8th Avenue West, Alexandria, MN 56308 (for respondent)
John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Peterson, Judge.
GORDON W. SHUMAKER, Judge
Appellant Andrew William McNaney challenges his conviction of second-degree aggravated robbery, arguing that the district court erred in authorizing nighttime search of his home and in allowing into evidence an out-of-court photographic demonstration. In his pro se brief, appellant also contends that the district court erred by allowing lay opinion testimony concerning handwriting samples seized from his home; he challenges the sufficiency of the evidence; he argues that his pretrial attorney was ineffective; and he disputes the district court’s durational departure from the presumptive sentence. We affirm.
Shortly after noon on May 14, 1999, a clean-shaven man wearing a camouflage jacket, a white cap with navy-blue trim, and tinted wire-rim glasses entered a bank in Evansville, Minnesota. He gave the teller a note stating that this was a “holdup” and demanding that the teller give him the money in her cash drawer. After the teller finished reading the note, the man put his hand into his jacket pocket and made a pointing gesture toward the teller, suggesting that he had a weapon in this pocket. She then emptied her cash drawer into a brown paper grocery bag the man had given her. The money totaled $835 and included 13 five-dollar bills. The man took the bag and left.
Law-enforcement officers investigated shortly after the robbery. They learned that a man fitting the description of the robber had driven a blue Plymouth Sundance automobile and parked near a dumpster on the wrong side of the street about a block from the bank. This occurred around noon. The man then left but returned to the same spot and then left on foot. A witness told officers that he believed a local woman owned the car.
Officers went to the local woman’s address and spoke with her son. He said that he loaned the Sundance to Andrew McNaney that morning and that he was expecting McNaney to return soon. He also told the officers that McNaney had a goatee when he borrowed the car that morning.
When McNaney returned, the officers arrested him. He was clean-shaven and his hair was shorter. He also had hair-clippings in his ears. He was not dressed like the bank robber but he had 12 or 13 five-dollar bills in his wallet, and he admitted that he was the only person who used the Sundance that day. He also admitted that he had gone to the bank three days earlier to cash a hundred-dollar bill. He said he had cut off his goatee because he made a mistake while trimming his moustache.
During the evening of the robbery a sergeant with the sheriff’s department applied for a warrant to search McNaney’s apartment. The sergeant also requested authorization for a nighttime search, saying that
A nighttime search outside the hours of 7 a.m. to 8 p.m. is necessary (to prevent the loss, destruction or removal of the objects of the search) [and] (to protect the safety of the peace officers or the public) because:
This is a current active investigation in which the renter of the above named apartment has been arrested. The apartment is currently under surveillance by Douglas County Sheriff’s Posse members to prevent the loss or destruction of evidence.
A district judge issued the warrant and authorized a nighttime search. Officers executed the warrant at about 11:45 p.m. and seized a baseball cap, a camouflage jacket, sunglasses, writing materials, hair clippings, and four firearms.
The next day, officers searched the Sundance and found a piece of a brown paper bag, sunglasses, and a camouflage baseball cap.
On May 17, 1999, the investigating sergeant and an FBI agent showed a six-photo display to the bank teller and she immediately identified McNaney as the robber. On that day the state charged McNaney with aggravated second-degree robbery and possession of a firearm by a felon.
At a contested omnibus hearing, McNaney moved to suppress the items seized from his apartment on the ground that there was no proper basis for a nighttime search. The district court denied the motion and set the matter for jury trial.
Before the trial, officers showed a four-cap display to the teller and she selected a cap belonging to McNaney as the one the robber wore. She also identified McNaney’s camouflage jacket as looking like the jacket the robber was wearing. In this identification, the teller was aided by a viewing of the bank’s surveillance tape and by still photographs made from the tape.
Another witness identified McNaney from a six-photo display as a man she had seen around noon on the day of the robbery walking rapidly toward the bank. The witness said McNaney was wearing a camouflage jacket. She saw the witness a few minutes later in an alley. At that time, he was carrying a folded grocery bag under his arm.
At trial, both the teller and the witness who saw the man with a folded grocery bag identified McNaney as the person they had previously described to the police. A waitress from an Evansville restaurant identified McNaney as a man who had come into the restaurant around 1:00 p.m. and pulled out a “wad of cash” to pay for his meal. The teller also compared the handwriting on the robbery note with samples of McNaney’s writing and testified about the comparison.
The state also introduced evidence at trial of a photographic demonstration by a photographic technologist. The purpose of the demonstration was to compare the jacket the robber was wearing with the jacket seized from McNaney’s apartment. The technologist worked from the bank’s surveillance film and made prints of portions of that film. He compared those prints with stills taken from a videotape of an FBI agent wearing McNaney’s jacket and cap. The technologist testified as to similarities of the sewing patterns of both jackets and stated that he could not eliminate McNaney’s jacket as the one shown on the surveillance tape. An employee of a clothing company testified that the type of jacket in question is sewn together in a random pattern and that the likelihood of locating two similar jackets would be “very rare.” Further, he noted that he has “never seen two coats exactly match up pattern-wise.”
The jury found McNaney guilty of aggravated robbery in the second degree. The district court sentenced him to an executed term of 144 months. This was an upward durational departure from the presumptive sentence of 60 months.
D E C I S I O N
1. Nighttime Search
McNaney contends that the nighttime search violated Minn. Stat. § 626.14 (1998). That statute restricts the execution of a search warrant to the hours of 7:00 a.m. through 8:00 p.m., “unless the court determines on the basis of facts stated in the affidavits” that a nighttime search beyond those hours is necessary to prevent the loss of the objects of the search or to protect the safety of the searchers or the public. Id. Thus, the affidavits offered in support of the search warrant must demonstrate the necessity of a nighttime search. State v. Lien, 265 N.W.2d 833, 840 (Minn. 1978).
There is nothing in the affidavit here that satisfies the statutory requirements for a nighttime search. In fact, the affidavit compels a conclusion that a nighttime search was not necessary because McNaney was in custody and sheriff’s deputies had the apartment under surveillance “to prevent the loss or destruction of evidence.” McNaney contends that the items seized from his apartment should have been suppressed.
The state argues that McNaney does not have standing to challenge the search because he was not at home during the search. The state also persuasively argues several bases for upholding the search.
We need not consider most of the state’s arguments because the district court’s refusal to suppress the evidence from the search was harmless error. See State v. Holmes, 273 Minn. 223, 228, 140 N.W.2d 610, 613-14 (1966) (holding that the erroneous admission of illegally seized evidence requires reversal unless the error was harmless) (citation omitted). The improper authorization of the nighttime search under the circumstances of this case was a statutory violation that did not amount to constitutional error. See Lien, 265 N.W.2d at 841 (executing nighttime warrant at reasonable hour when most people are still awake and police knew defendant had just returned home was statutory error rather than constitutional in magnitude and suppression is not required).
If a verdict is unattributable to the challenged error, the error is harmless beyond a reasonable doubt. State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997) (quotation omitted). The identity of the bank robber was the central issue. The direct evidence includes the bank teller’s eyewitness identification of the robber’s face. Another witness identified McNaney’s face from photographs and testified that McNaney was in the vicinity of the bank around the time of the robbery and that he was carrying a folded grocery bag. We believe that this evidence, coupled with the substantial circumstantial evidence, provided a rational basis for a guilty verdict even without the clothing descriptions. Thus, the error of failing to suppress the clothing was harmless.
2. Photographic Demonstration
The admission or exclusion of evidence of experiments conducted outside the jury’s presence rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Ritt, 599 N.W.2d 802, 812 (Minn. 1999). Evidence of out-of-court experiments and demonstrations is admissible in the court’s discretion if the conditions and circumstances of the experiments or demonstrations were substantially similar to those in the actual occurrence. Id. at 812.
The state’s photographic technologist attempted to create photographs that were substantially similar to those made from the surveillance film. The district court carefully considered this evidence, concluded that it would be helpful to the jury and ruled that the photographic evidence was substantially similar to that created through the bank’s surveillance camera. We find no clear abuse of discretion in the court’s rulings. Furthermore, the photographic technologist was not able to say that McNaney’s jacket and cap were the same as those worn by the robber. The witness stated “my images from the bank robbery surveillance film are not sharp enough for me to say that the jacket robbed the bank.” With this conclusion, the evidence did nothing to bolster the state's case.
3. Pro Se Issues
a. Handwriting Samples
McNaney contends that the court erred in allowing the bank teller to testify to the similarities and dissimilarities between handwriting samples seized from McNaney’s home and the handwriting contained in the robbery note. A lay witness may testify to the “genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.” Minn. R. Evid. 901 (b)(2). The teller’s testimony was admissible and its weight was for the jury to determine.
b. Sufficiency of the Evidence
McNaney contends that the evidence was not sufficient to support the implication that he had a weapon in his pocket during the robbery. Our review of sufficiency of the evidence is limited to a
painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.
State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
McNaney was convicted under a statute providing that a person is guilty of aggravated robbery in the second degree if, while committing a robbery he implies, by word or act, that he possesses a dangerous weapon. Minn. Stat. § 609.245, subd. 2 (1998).
The teller testified that (1) the robber gave her a note indicating that he was holding up the bank; (2) as she was reading the note she looked directly at the robber; (3) the robber placed his right hand in his jacket pocket; (4) the robber pointed his jacket pocket at her; and (5) she was scared because she believed he had a gun in his pocket.
Based on the standard of review, this court may assume that the jury believed the teller’s testimony, and disbelieved evidence to the contrary. It is for the trier of fact to determine the credibility of witnesses, as well as the weight of the evidence admitted. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). Drawing all legitimate inferences from the record in a light most favorable to the decision, we find that the evidence is sufficient to support the conviction.
c. Ineffective Assistance of Counsel
McNaney claims ineffective assistance of his pretrial counsel because he failed to file necessary pretrial motions and made minimal efforts to contact McNaney over a seven-month time period. These allegations are not found within the record on appeal. See Minn. R. Civ. App. P. 110.01 (noting that papers filed in the district court and the transcripts of proceedings shall constitute the record on appeal).
The record reflects that McNaney contacted the court and requested a substitution of attorneys. The court, recognizing the “unique circumstances” of the case, granted his request and continued the trial. And although the court initially ruled that McNaney had waived certain pretrial suppression motions by failing to make them at the omnibus hearing, the court did hear the evidence supporting such motions when trial counsel asserted motions in limine. Thus, any deficiencies in pretrial counsel’s assistance were cured by trial counsel.
McNaney contends that the district court erred in departing from the presumptive sentence of 60 months for aggravated robbery in the second degree.
Minn. Stat. § 609.1095, subd. 2 (1998) provides that an increased sentence may be imposed when a dangerous and repeat felony offender is convicted of a violent felony-level crime. The court may impose an aggravated durational departure from the presumptive imprisonment sentence up to the statutory maximum sentence (here, 15 years) if the repeat offender was at least 18 years old at the time the felony was committed and
(1) * * * the offender has two or more prior convictions for violent crimes; and
(2) * * * the offender is a danger to public safety [based on]:
(i) the offender’s past criminal behavior * * * or
(ii) the fact that the present offense of conviction involved an aggravating factor that would justify a durational departure under the sentencing guidelines.
Id. The court determined on the record that McNaney had two prior convictions for aggravated robbery stemming from two separate incidents in 1991, and had a criminal history score of ten. Additionally, the court concluded that 29-year-old McNaney is a danger to public safety based on (1) his lengthy criminal record, which consists of five aggravated robberies and two attempted robberies; (2) his long involvement in criminal activity, including juvenile adjudications; (3) and the severity of his past offenses. The court also noted that since McNaney’s introduction to the criminal justice system at age 17, he has spent the majority of the past 12 years incarcerated.
The imposition of an upward durational departure of 144 months from the presumptive sentence of 60 months for aggravated robbery in the second degree was not an abuse of discretion.