This opinion will be unpublished and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,
Douglas Alan Strommen,
Polk County District Court
File No. K300377
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Wayne H. Swanson, Polk County Attorney, Crookston Professional Center, 223 East Seventh Street, Suite 101, Crookston, MN 56716 (for respondent)
John M. Stuart, State Public Defender, Marie Wolf, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Appellant appeals his conviction of attempted simple robbery, arguing that (1) the accomplice’s testimony was insufficient to convict him; (2) the district court erred in failing to give the accomplice jury instruction; (3) the district court erred in admitting inadmissible evidence; and (4) the prosecutor committed prejudicial misconduct. Appellant also argues that his counsel’s failure to request the accomplice jury instruction constitutes ineffective assistance of counsel. We affirm.
On March 23, 2000, at 10:30 p.m., appellant Douglas Strommen and accomplice Margaret Townsend entered a convenience store in Crookston. They were greeted by the store clerk, Rosalie Villa, who noticed that Townsend was wearing a mask over her face. Townsend then attempted to rob the store. While Townsend was behind the store counter near the register, appellant pulled off her mask. Appellant and Townsend left the store before they were able to take any money.
Appellant was charged with the crime of attempted simple robbery, in violation of Minn. Stat. §§ 609.24, 609.17, subds. 1, 4(2), 609.05, subd. 1 (1998). Appellant pleaded not guilty, and the case was tried before a jury. Townsend was ordered to testify at trial and was given use immunity in exchange therefor. Appellant did not testify at trial. Appellant was found guilty and was sentenced. Appellant appeals his conviction, arguing that the evidence was insufficient to convict him, that he was denied a fair trial, and that his counsel’s failure to request an accomplice jury instruction constituted ineffective assistance of counsel.
I. Sufficiency of the evidence
Appellant argues that the evidence presented at trial was insufficient to convict him of attempted simple robbery. When assessing sufficiency of the evidence, we must view the evidence in the light most favorable to the conviction, asking whether the record permitted the jurors to reach the verdict they did. State v. Hendrickson, 528 N.W.2d 263, 266 (Minn. App. 1995), review denied (Minn. Apr. 27, 1995). We must assume the jury believed the state’s witnesses and disbelieved any contrary evidence. Id. (citation omitted).
Villa testified that appellant reached over the counter and took off Townsend’s mask after Townsend moved behind the counter, but before Townsend attempted to open the register. Upon further questioning, Villa testified that then
[Townsend] yelled at him. You told me if I didn’t do this, you were going to kill me, so I’m doing this. And he’s, like, I didn’t want this, I just wanted liquor. And she’s, like, well, I did too. Then it went to: All I want to do is – she was saying all I want to do is go to bed. And that was like a little after she started hitting the keys [on the register in an attempt to open it].
Villa also testified that her impression was that appellant attempted to stop Townsend from committing the robbery, but that it was not her “impression from the very beginning,” but it was “something that evolved later” in the robbery.
Townsend then testified that appellant was going to rob the store at first, “but then I did it.” Townsend also testified that appellant did not pull the mask off of her face until she was already behind the counter, near the register.
Viewed in a light most favorable to the conviction, the evidence supports the jury’s conclusion that appellant is guilty of attempted simple robbery.
Appellant argues that the district court erred in allowing a reference to a prior criminal act into evidence. Absent a clear abuse of discretion, evidentiary rulings generally rest within the district court’s discretion. State v. Lynch, 590 N.W.2d 75, 80 (Minn. 1999). A defendant who claims the district court erred in admitting evidence bears the burden of showing the error and any resulting prejudice. Id.
Appellant argues that although the evidence of his prior crimes might be admissible to show Townsend’s state of mind at the time of the attempted robbery, it would not survive the Minn. R. Evid. 403 balancing test.
The record shows the following exchange between Townsend and the state:
Q. Did he talk about any type of criminal activity he has engaged in the past?
A. I can’t remember what brought the conversation up to that. I think it had to do with kicking in the doors, you know, I was asking him, you know, about it, and he said about a person that – something about he died or something when they were fighting.
Q. Did he talk in much great detail about that incident?
A. He just said that he killed somebody.
Q. Did he say that he had been charged for that crime?
A. Yes, he did.
Q. Did he say whether he was convicted?
A. I don’t remember.
The district court, sua sponte, called a short recess after this line of questioning was completed. When court reconvened, the district court gave the following curative instruction:
I’m going to give you a cautionary instruction on the evidence which was just received in this matter. The state has offered evidence of alleged occurrences on unspecified dates prior to March 23, 2000. This evidence is being offered for the limited purpose of assisting you in determining whether the defendant committed those acts with which the defendant is charged in the complaint in this proceeding. The defendant is not being tried for and may not be convicted of any offense other than the charged offense. You are not to convict the defendant on the basis of any of the occurrences referred to prior to March 23, 2000. To do so might result in unjust double punishment.
However, even with this curative instruction, we are left with the conclusion that evidence of appellant’s prior crime should not have been admitted. Since appellant’s defense at trial was that he abandoned the crime before the attempt occurred, any references to appellant’s prior crime to establish Townsend’s state of mind are irrelevant. See Minn. R. Evid. 401 (stating that relevant evidence means “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”) and 402 (“Evidence which is not relevant is not admissible.”).
However, because appellant’s counsel never objected to the admission of this evidence, we will review whether the admission of the evidence constituted plain error. State v. Patterson, 587 N.W.2d 45, 52 (Minn. 1998). To establish plain error, appellant must show that the ruling (1) was error; (2) was plain; and (3) affected appellant’s substantial rights. State v. Bauer, 598 N.W.2d 352, 363 (Minn. 1999). To show that the error affected appellant’s substantial rights, appellant has the heavy burden of showing that “the error was prejudicial and affected the outcome of the case.” Id. at 364 (quotation omitted). We conclude that the admission of this evidence is not plain error because the evidence is so strong that appellant is guilty of attempted simple robbery that the district court’s error in admitting this evidence would not have affected the outcome of the case.
Appellant argues that the district court erred in admitting testimony that may have inferred that appellant had a prior criminal record. Appellant’s argument rests on the following exchange between the state and one of the responding officers:
Q. Had you ever had any contact with the [appellant] before then?
Q. Did you recognize him as Doug Strommen?
A. Oh, yes, I know who he is.
Q. How do you know him?
A. From, like you say, prior contacts and incidents.
Q. Do you know him on a first name basis?
A. I don’t know if he knows me by my first name or not. I know him though.
Appellant argues that this exchange was irrelevant to the case, and was so prejudicial that it warrants a new trial. We disagree. Although it may be irrelevant, at the very most, this conversation only shows that the police are aware of who appellant is; it in no way shows that the police have ever arrested appellant, or that they have charged him with any crimes in any of these prior contacts. Furthermore, the record shows that counsel for appellant did not object to this line of questioning at trial. As discussed above, failure to object to evidence generally constitutes waiver of those issues on appeal, unless appellant shows that admission of the evidence was plain error. Id. at 363-64. Because the evidence against appellant is so strong, the admission of this statement would not have changed the outcome of this case. Thus, there was no plain error.
C. Whether the prosecutor engaged in misconduct by misstating the law
Appellant argues that the prosecutor engaged in misconduct by misstating the law during his argument regarding a “substantial step” in a crime. During closing arguments, the prosecutor stated the following regarding “substantial step” in the context of an attempted crime:
You’re also going to be getting an instruction on what it means to have an attempted crime, because this is not a fully completed crime. There was nothing actually stolen. It was just an attempt. * * * Now, just take a look at the evidence. What would be a substantial step here? I tell you, the crime was committed, a substantial step occurred as soon as they walked in the store. As soon as they walked in the store with that mask on, with the intent to commit a crime, boom, the crime is committed. It doesn’t matter what happened after that.
Right after this statement was made, counsel for appellant objected, an off-the-bench discussion was had between the court and counsel, and the court gave the following curative instruction:
Members of the jury, as I told you in preliminary instructions, the law as it applies to this case is the law that will be given to you by this court in the instructions I will give you later, and you’re to take the law from the instructions that I give you and not from the attorneys.
The prosecutor then continued with his argument:
We may have a bit of a disagreement as to exactly what I meant when I said that, and I just want to be real clear as to what I said when I said the crime is committed. There is a caveat to that. It can be true that a crime is committed as soon as a substantial step is taken. There is also going to be another step in there also, and that is: it can be possible that a crime is abandoned after a step is taken, and it’s going to be your decision as to whether there is sufficient abandonment.
A prosecutorial misstatement of the law does not necessarily constitute misconduct, but it may be the basis for a defense objection. State v. Jolley, 508 N.W.2d 770, 773 (Minn. 1993). The proper remedy for a misstatement of the law is a curative instruction. Id. (finding that “[a]ny time a prosecutor makes a misstatement of the law, the defense is free to object and ask for a curative instruction.”).
Appellant argues that the court’s instruction did not cure the error, because the court did not explicitly tell the jury that the prosecutor’s statement was erroneous. However, since the record does not show the basis for appellant’s objection, and appellant made no further objection after the curative instruction was given, we conclude that the court’s curative instruction, as well as the prosecutor’s clarification, were sufficient to cure any possible misstatement of the law.
D. Whether the prosecution engaged in misconduct by misstating the burden of proof
Appellant argues that the prosecutor engaged in misconduct by diluting the state’s burden of proof. The prosecutor made the following argument in his closing argument:
If you also remember Ms. Townsend’s testimony she said she thinks, she couldn’t remember exactly, but during the altercation outside the Kum & Go right after the incident, she thinks she might have slapped him. Well, just think about the defendant’s statement. He is trying to cover up a story. He thinks maybe I had a mark on my face and I’m going to have to explain how that happened, so he’s going to say, well, I got hit by a man. Well, there isn’t any other evidence about any kind of altercation between now and then. The story is one that was just created by the defendant right there on the spot. It’s not believable, just like the story about him, the story he created about there being burns, it’s not believable. It’s the kind of story that’s created on the spur of the moment by somebody who is drunk. When we have difficult cases like this, sometimes the only way to deal with it is just to weigh the story in each hand and decide which one is most reasonable, which one makes the most sense. If you do that, if you look at all the testimony and think of all the things that would have to happen, all the things that would have to go in people’s minds for the defendant’s story to be true, then you’re going to realize that it’s Ms. Townsend’s testimony that is the most believable, and that, in fact, the defendant was entirely involved in this, and it wasn’t until they walked in there and realized things were not going well that he abandoned it. By that time it’s too late.
Counsel for appellant did not object to these statements.
After closing arguments, the district court properly instructed the jury as to the appropriate burden of proof, stating that
[t]he defendant is presumed innocent of the charges made, and that presumption abides with the defendant unless and until the defendant has been proved guilty beyond a reasonable doubt. That defendant is on trial, has been arrested, and has been brought before the court by the ordinary processes of law should not be considered by you as in any way suggesting guilt. The burden of proving guilt is on the state. The defendant does not have to prove innocence. Proof beyond a reasonable doubt is such proof as ordinarily prudent men and women would act upon in their most important affairs. A reasonable doubt is a doubt based upon reason and common sense. It does not mean a fanciful or capricious doubt, nor does it mean beyond all possibility of doubt.
Misstatements of the burden of proof are highly improper and would, if demonstrated, constitute prosecutorial misconduct. State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000). In the absence of a timely objection to the improper statements, the claim is reviewed under the plain-error rule,
asking whether the alleged conduct was so clearly erroneous under applicable law and so prejudicial to the defendant’s right to a fair trial that the defendant’s right to a remedy should not be forfeited.
Id. (citation omitted). From the full context of the prosecutor’s argument that appellant disputes, the statements were made in the context of judging the credibility of the witnesses; the statements were not regarding the burden of proof. Furthermore, the judge’s clear instructions to the jury regarding the appropriate burden of proof in this case were more than sufficient to cure any possible confusion on the part of the jury regarding the proper burden of proof. Thus, there is no plain error.
E. New trial based upon cumulative errors
Although none of the individual errors above prejudiced appellant, we must still determine whether “the cumulative effect of these errors may have deprived appellant of a fair trial.” State v. Erickson, 610 N.W.2d 335, 340 (Minn. 2000) (citation omitted). Since the evidence against appellant was so strong, we conclude that the cumulative effect of the errors did not deprive appellant of his right to a fair trial. Cf. State v. Underwood, 281 N.W.2d 337 (Minn. 1979) (holding that the cumulative effect of the errors in a very close factual case warranted a new trial, even though none of the errors standing alone necessarily would have).
Appellant argues that the district court erred in failing to give a jury instruction on accomplice testimony. A defendant may not be convicted solely on the uncorroborated testimony of an accomplice. State v. Henderson, 620 N.W.2d 688, 700 (Minn. 2001). Minn. Stat. § 634.04 (1998) states that
[a] conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
An accomplice instruction “must be given in any criminal case in which any witness against the defendant might reasonably be considered an accomplice to the crime.” Henderson, 620 N.W.2d at 700 (quotation omitted). There is no dispute in this case that Townsend is an accomplice to the crime.
Ordinarily, a criminal defendant must either request an accomplice instruction or object to the lack of one if he wishes to preserve the issue for appeal. State v. Shoop, 441 N.W.2d 475, 479 (Minn. 1989). In this case, counsel for appellant did not object to the jury instructions on the record, nor is any request for an accomplice instruction noted on the record. Nevertheless, the district court should give such an instruction in an appropriate case, whether or not one is requested. Id. Thus, since Townsend is a witness-accomplice in this case, the district court erred in failing to so instruct the jury.
However, even though the court erred, we must consider whether the error was harmless, for a new trial is required if the error is deemed prejudicial, but is not required if the error is deemed harmless. Id. at 479-80. In determining whether the error is harmless, a mere review is insufficient; rather, the focus must be “upon the impact of the error on the verdict.” Id. at 481. If, after consideration of the record and all other factors, it can be concluded that the jury may have been prompted to reach a harsher verdict than it might have otherwise if the instruction was given, then appellant must be given a new trial. Id. However, if it is determined beyond a reasonable doubt that the omission did not have a significant impact on the verdict, reversal is not warranted. Id.
In this case, the two witnesses testifying as to the fulcrum of the case - whether appellant abandoned the robbery before an attempt was made - are the accomplice, Townsend, and the store clerk present at the time of the attempted robbery, Villa. Both witnesses testified that appellant’s first action - to pull off Townsend’s mask - was made at least after Townsend had moved behind the counter. Thus, after consideration of the record, we conclude that the district court’s omission of the accomplice jury instruction did not have a significant impact on the jury verdict beyond a reasonable doubt, and reversal is not warranted.
IV. Ineffective assistance of counsel
Appellant argues that his counsel’s failure to request an instruction regarding accomplice testimony constituted ineffective assistance of counsel. Minnesota has adopted the federal standard for ineffective assistance of counsel, which requires a defendant to prove (1) that counsel’s representation “fell below an objective standard of reasonableness,” and (2) “that there is a reasonable probability that, but for counsel’s unprofessional errors, 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, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).
“Generally, an ineffective assistance of counsel claim should be raised in a postconviction petition for relief, rather than on direct appeal.” State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000) (citations omitted). In Gustafson, the supreme court stated that a postconviction hearing provides the reviewing court with “additional facts to explain the attorney’s decisions,” which enables the court to properly consider whether the attorney’s performance was deficient. Id. (citation omitted). Because the record in Gustafson was “devoid of the information needed to explain the attorney’s decisions,” the court declined to reach the merits of the issue and preserved the appellant’s right to pursue a claim for ineffective assistance of counsel in a petition for postconviction relief. Id.
This issue comes before us on direct appeal. There is no discussion on the record regarding an accomplice instruction, or lack thereof. Thus, it is impossible to analyze whether counsel’s representation fell below an objective standard of reasonableness, because there may have been an agreement between the parties off-the-record, or appellant’s counsel may have had a tactical reason not to request this instruction. Thus, appellant has not met his burden of proof in his claim for ineffective assistance of counsel.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.