This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,





Andrew Michael Smith,



Filed May 28, 2002

Affirmed in part and reversed in part

Willis, Judge


Dakota County District Court

File No. K1002532


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


James C. Backstrom, Dakota County Attorney, Phillip D. Prokopowicz, Chief Deputy Assistant County Attorney, 1560 Highway 55, Hastings, MN  55033 (for respondent)


John M. Stuart, State Public Defender, Charles F. Clippert, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Shumaker, Presiding Judge, Kalitowski, Judge, and  Willis, Judge.

U N P U B L I S H E D  O P I N I O N


            Appellant Andrew Michael Smith challenges his conviction of second-degree felony murder and his sentence for second-degree assault.  Regarding the murder conviction, he argues that (1) the evidence presented was insufficient to support the  conviction; (2) the district court erred by failing to give a cautionary instruction to the jury on evaluating the credibility of certain witnesses; and (3) additional issues raised in his pro se brief justify a new trial.  Appellant also argues that his sentence for second-degree assault should be vacated because the offense arose out of the same behavioral conduct as the murder conviction.  Because we conclude that (1) the evidence was sufficient to support the conviction of second-degree felony murder, (2) the district court did not err in its instructions, and (3) the additional issues raised in appellant’s pro se supplemental brief provide no basis for relief, we affirm the conviction of second-degree felony murder.  But because the second-degree assault arose out of the same behavioral conduct as the second-degree felony murder, we vacate the sentence for second-degree assault.


In August 2000, several young people met at a park in Lakeville to fight.  The next morning, a nearby resident found the body of one of the participants in her backyard.  The victim had died of head injuries consistent with being hit with a baseball bat.

The next day, Lakeville police officers arrested appellant Andrew Michael Smith for the victim’s murder.  An officer read Smith his Miranda rights, Smith acknowledged that he understood them, and he agreed to talk to the police.  Smith denied being at the park during the fight and was released.  The interview was videotaped.

That same night, after further investigation, the police again arrested Smith.  An officer testified that the police once more read Smith his Miranda rights and again interviewed him on videotape.  As soon as the interview began, Smith asked to speak with an attorney.  The police immediately stopped questioning Smith and provided him with access to a telephone.  Smith called his mother but did not call an attorney; after the phone call, the police placed him in a holding cell.

After approximately an hour in the holding cell, Smith told an officer that he wanted to talk.  The officer testified at the omnibus hearing that he asked whether Smith wanted to waive his right to have an attorney present and Smith said that he wanted to waive that right.  The police also videotaped Smith’s third interview, which began with his acknowledgement that “I said I wanted to waive my right and speak to you.”

At a pretrial hearing, Smith moved to suppress the second and third interviews.  The district court denied his motion, finding that, although Smith initially invoked his right to counsel and the police properly ceased questioning him, he later waived his right to counsel.

At trial, the state played the videotape of Smith’s third interview for the jury.  During that interview, Smith said that he went to the park on the night of the fight to fight with the victim and that he brought a baseball bat to use as a weapon.  Smith said that when he arrived at the park, he ran to the passenger side of the car where the victim was sitting and used the bat to hit the side window of the car hard enough to break it.  He said that he did not think that he hit the victim with the bat, but he was not certain.

After closing arguments, the district court instructed the jury that three witnesses who had been granted immunity were accomplices, whose testimony must be corroborated.  The court did not instruct the jury regarding the credibility of another immunized witness or of a witness who was awaiting sentencing on charges related to the fight.  Smith did not request any modification to the court’s accomplice instruction and did not request a cautionary instruction regarding the credibility of the other immunized witness and the witness who was awaiting sentencing.  The jury convicted Smith of second-degree felony murder and second-degree assault, and the district court imposed concurrent sentences.  This appeal followed.



Smith argues that the evidence is insufficient to sustain his conviction of second-degree felony murder.  In considering a claim of insufficient evidence, our review is limited to whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We must assume that 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).  This 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 that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

A person is guilty of second-degree felony murder who

causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense * * * in the first or second degree with force or violence.


Minn. Stat. § 609.19, subd. 2(1) (2000).  In his third videotaped interview, played at trial, Smith admitted that he went to the park to fight the victim and that he hit the car window with the baseball bat hard enough to break the window.  Witnesses corroborated that testimony and also testified that they saw the bat hit the victim’s head.  A forensic expert testified that the victim died of head injuries that were consistent with being hit with a baseball bat.  Viewing these facts in the light most favorable to the verdict and giving due deference to the jury’s credibility determinations, we conclude that the evidence is sufficient to sustain Smith’s conviction of second-degree felony murder.


Smith next argues that the district court committed reversible error by not giving a cautionary instruction to the jury regarding the credibility of the testimony of one witness who had received immunity and another witness who was awaiting sentencing.  Smith contends that those witnesses had incentives to testify favorably for the prosecution, and, therefore, the jury should have been instructed to view their testimony with heightened scrutiny.  Smith urges this court to find error in the district court’s instructions, even though he did not object to the instructions given and did not request at trial a cautionary instruction regarding the credibility of those two witnesses. 

This court

may review and correct an unobjected-to, alleged error only if:  (1) there is error;  (2) the error is plain; and (3) the error affects the defendant’s substantial rights.  If those three prongs are met, [this court] may correct the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.


State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001) (quotation and citations omitted).  As long as jury instructions, taken as a whole, fairly and accurately explain the law, they are not erroneous.  State v. Flores, 418 N.W.2d 150, 155-56 (Minn. 1988).

Smith argues that the instructions were “a plain error affecting [Smith’s] substantial rights” because they did not include a cautionary instruction about the credibility of the challenged witnesses.  Crowsbreast, 629 N.W.2d  at 437.  He does not argue that either of the two challenged witnesses was an accomplice; he argues only that their testimony should have been submitted to the jury with an instruction similar to that given regarding accomplice testimony. 

Minnesota law requires that accomplice testimony be corroborated.  Minn. Stat. § 634.04 (2000).  In 1987, the Minnesota Supreme Court approved a pattern jury instruction incorporating the corroboration requirement.  State v. Harris, 405 N.W.2d 224, 231 (Minn. 1987) (approving 10 Minnesota Practice, CRIMJIG 3.18).  But Minnesota law does not require the testimony of immunized witnesses to be corroborated, and it does not require the corroboration of the testimony of witnesses who are awaiting sentencing on other charges.  Compare Minn. Stat. § 609.09 (2000) (regarding immunity) with Minn. Stat. § 634.04 (2000) (regarding accomplices).  Moreover, even if the testimony of the two challenged witnesses needed corroboration, it was in fact corroborated by Smith’s own statement and the testimony of other witnesses who had no immunity.  Therefore, any error was harmless.  See State v. Shoop, 441 N.W.2d 475, 481 (Minn. 1989) (holding that failure to give accomplice instruction was harmless error where accomplice testimony was sufficiently corroborated by other evidence.)  We conclude that the district court’s instructions were not erroneous.


Smith argues that his sentencefor second-degree assault should be vacated.   Minn. Stat. § 609.035, subd. 1 (2000), provides:

[I]f a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them.


Statutory construction is a question of law, which is reviewed de novo.  Brookfield Trade Ctr., Inc.  v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).  “The state has the burden of showing that the conduct is not part of a single behavioral incident.”  State v. Barnes, 618 N.W.2d 805, 813 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001).

The state concedes on appeal that the second-degree assault arose out of the same behavioral incident as the second-degree felony murder.  Therefore, we conclude that the sentence imposed for second-degree assault was error, and we vacate that sentence.


            We have carefully reviewed the issues that Smith raises in his pro se supplemental brief, including claims that (1) he did not receive a fair trial because of juror bias, (2) the district court erroneously concluded that Smith had waived his right to counsel and therefore erred by refusing to suppress his second and third statements, (3) the crime scene may have been tampered with, and (4) he received ineffective assistance of counsel.  We conclude that none of these claims provides a basis for relief.

Affirmed in part and reversed in part.