This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed January 7, 2003
Ramsey County District Court
File No. K1011605
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, Minnesota 55103; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Suite 315, 50 Kellogg Boulevard West, St. Paul, Minnesota 55102 (for respondent)
John M. Stuart, State Public Defender, Theodora Gaїtas, Assistant Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, Minnesota 55414 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Halbrooks, Judge, and Hudson, Judge.
Sergeant Joseph Strong (Sgt. Strong), a St. Paul police officer and participant in the Minnesota Gang Strike Force investigating Asian gang crime, testified that the PBs is a particularly violent Asian gang. Sgt. Strong classified appellant as a “hard core” gang member. Sgt. Strong testified that appellant fought with other gang members at school often with a specific pattern of confrontation called a “punch down,” which involved accosting a rival gang member and gaining status and respect if the rival backed down. Appellant did not object to any of this testimony as character evidence. The trial court did not, sua sponte, strike any portion of Sgt. Strong’s testimony as unnoticed Spreigl evidence and did not give a cautionary instruction. Nor did appellant request such an instruction.
Appellant contends that much of Sgt. Strong’s testimony amounted to “improper character evidence masquerading as expert testimony.” Despite this claim, appellant acknowledges the helpfulness of some of Sgt. Strong’s testimony in deciding the ultimate issue--whether appellant aided and abetted four assaults for the benefit of a gang. Appellant does not specify, however, what parts of Sgt. Strong’s testimony are objectionable and what parts are helpful. Although appellant waived the issue by failing to object at trial, he maintains that this court should find plain error, allowing for a review of the issue on appeal. We disagree.
If a defendant did not raise an objection before the trial court, he may not do so here. State v. Chuon, 596 N.W.2d 267 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999). We consider a waived issue only where (1) there is error; (2) that is plain; and (3) the error affects the defendant’s substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Even if a defendant satisfies the “heavy burden” of showing that the prejudicial error affected the outcome of the case, we address the waived issue only if fairness and integrity of the judicial proceedings so require. State v. Vick, 632 N.W.2d 676, 685 (Minn. 2001). Because the trial court did not have the opportunity to consider the admissibility of Sgt. Strong’s testimony, our plain error analysis is limited to whether the trial court clearly erred by failing to strike the challenged testimony and give a cautionary instruction, sua sponte. See id.
We note first that appellant’s argument rests on the necessary assumption that evidence of appellant’s gang activity and membership is impermissible character evidence. But appellant cites no authority and offers no explanation for this proposition. Furthermore, evidence of gang activity and membership is admissible as an element of the substantive offense of crime committed for the benefit of a gang. State v. Matelski, 622 N.W.2d 826, 832 (Minn. App. 2001) (allowing evidence of gang membership to prove crime committed for the benefit of a gang), review denied (Minn. May 15, 2001); Chuon, 596 N.W.2d at 270 (allowing evidence of other gang members’ criminal activity). Although a defendant may be unfairly prejudiced by evidence of gang activity and membership, the prejudice “is far outweighed by the probative value” because without it, the substantive offense of crime committed for the benefit of a gang would be impossible to prove. Id.
Here, the state charged appellant with aiding and abetting first- and second-degree assault committed for the benefit of a gang. To convict appellant, the state first had to prove that appellant aided and abetted the PBs by presenting evidence that appellant had a knowing role in the assaults. Matelski, 622 N.W.2d at 831. Next, the state had to prove that appellant committed the assaults for the benefit of a gang by presenting evidence that PB is a criminal gang, that appellant is a member of the gang, and that he committed the assaults for the benefit of the PBs. Id. at 832. Thus, the state had to present evidence to prove appellant’s gang membership as well as present evidence of the gang itself.
According to Sgt. Strong, the PBs’ primary purpose is to commit violent crimes, and the PBs regularly commit “murder, rape, assault, assault with a deadly weapon, * * *, to name a few.” Sgt. Strong testified that appellant is a “hard core” gang member and meets six of the ten-point gang identification criteria used by the strike force to determine gang membership. Appellant admits that he belongs to the PBs, associates regularly with known gang members, displays a playboy bunny gang tattoo, appears in photographs with known gang members, appears by name in a gang document, hit list, or gang-related graffiti, and is named as a gang member by a reliable source. In presenting this evidence, the state was offering proof of appellant’s gang membership, not evidence of bad character. Chuon, 596 N.W.2d at 270. We conclude that the trial court did not plainly err in admitting Sgt. Strong’s testimony.
Even if we were inclined to label Sgt. Strong’s gang testimony as “bad-acts” evidence or character evidence, appellant is still not entitled to a new trial. Appellant’s argument focuses exclusively on the prejudicial nature of character evidence in general. But the prejudicial nature of gang evidence, no matter how great, is outweighed by its probative value because evidence of gang membership and activity are essential elements of a crime committed for the benefit of a gang, and is therefore critical to a conviction. Id.
Moreover, “[w]hile trial courts are advised, even absent a request, to give a cautionary instruction upon the receipt of other-crimes evidence, failure to do so is not ordinarily reversible error.” Vick, 632 N.W.2d at 685 (citations omitted). Because Sgt. Strong’s testimony was not bad-acts evidence, but rather evidence submitted to prove an essential element of each charged offense, the trial court did not abuse its discretion by failing to strike the testimony in question and issue a curative instruction, sua sponte.
Appellant next argues that the cumulative effect of the prosecutor’s purported misconduct during cross-examination and closing argument deprived him of a fair trial. First, he claims the prosecutor improperly commented on appellant’s right to be present during trial. Next, appellant asserts that the prosecutor made sarcastic remarks about appellant and his attorney. Lastly, he argues the prosecutor appealed to the jury’s passions by telling the jury of Houa Vang’s fear of retaliation for his testimony. But by not objecting to these comments or requesting a curative instruction, appellant has waived this issue for consideration on appeal. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (this court will generally not consider matters not argued and considered in the court below); State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984). “To review such a case we must look for ‘plain error.’” State v. Haala, 415 N.W.2d 69, 75-76 (Minn. App. 1987), review denied (Minn. Dec. 22, 1987) (citations omitted); Minn. R. Crim. P. 31.02. This narrow exception to the waiver rule prevents a defendant from allowing prosecutorial errors in summation to pass without objection only to use it later as a basis for a new trial. State v. Stofflet, 281 N.W.2d 494, 497 (Minn. 1979). On this record, we find no plain error.
Appellant argues that the prosecutor made repeated references to his continued presence throughout the trial, thus drawing an adverse inference to appellant’s exercise of his constitutional right. It is axiomatic that criminal defendants have a constitutional right to testify on their own behalf, to confront the witnesses against them, and to be present during trial. U.S. Const. amends. V, VI, XIV; Minn. Const. art. I, § 6. During cross-examination, the prosecutor asked appellant whether he understood English, confirming on the record that appellant did not need an interpreter. Next, the prosecutor asked appellant a series of questions, confirming whether appellant understood what was happening, whether appellant had been paying attention, and whether appellant voluntarily chose to testify after consulting with his attorney. Then the prosecutor asked appellant if he had testified truthfully and whether he wanted to change anything he had previously said. From this exchange, we have difficulty construing the prosecutor’s inquiry as drawing an adverse inference on appellant’s exercise of his constitutional right to be present at trial.
Next, appellant argues that the prosecutor made inappropriate sarcastic remarks to him and about his attorney in the presence of the jury. While cross-examining appellant, the prosecutor stated, “[Y]ou did a good job on direct examination telling the jury that you weren’t involved * * *.” During his rebuttal closing argument the prosecutor stated,
I am tempted to talk at length about all of the things that [defense counsel] just got done talking about. Fantastic performance.
Whether these comments were unduly sarcastic may depend in part on the prosecutor’s demeanor and tone of voice when he made them. On appeal, we obviously cannot make that assessment. In any case, we would defer to the trial court which had an opportunity to observe the prosecutor’s cross-examination and closing argument as a whole. See State v. Daniels, 332 N.W.2d 172 (Minn. 1983) (stating prosecutor’s argument must be evaluated as a whole, without solitary comments taken out of context). The trial court did not think the comments were objectionable, as evidenced by the fact that it did not, sua sponte,take any action. Moreover, we note again that defense counsel did not object, suggesting that he did not believe the comments were unduly sarcastic or otherwise objectionable. Daniels, 332 N.W.2d at 180 (holding that absent an objection to prosecutor’s remarks, court may logically infer that defense counsel, having better sense and understanding of situational context at the given moment, did not consider the argument improper).
Appellant also contends that the prosecutor improperly appealed to the passions and prejudices of the jury by stating that co-defendant Houa Vang feared gang retaliation against him and his family as a result of his testimony. A prosecutor may not distract the jury from its fact-finding role by “inflaming the jury’s passions and prejudices against the defendant.” State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995) (citation omitted). But a prosecutor may address a witness’s fear of retaliation in closing when this fact is at issue in the case. State v. Ashby, 567 N.W.2d 21, 28 (Minn. 1997) (finding no misconduct where “the prosecutor’s comments about gangs and fears of retaliation were not directed specifically at the jury, but rather were describing the circumstances of the case”). Here, there was a factual basis for the comment. Houa Vang testified that he was concerned that he or his family could be subjected to harm because he was testifying. The prosecutor was entitled to comment on this testimony. And again, appellant’s failure to object at trial or to raise the issue in a motion for a new trial strongly suggests that he did not consider the prosecutor’s comment to be misconduct.
Appellant lastly contends that the cumulative effect of the various instances of alleged prosecutorial misconduct deprived him of a fair trial. We are hard-pressed to find the prosecutor’s actions amounted to misconduct, much less the prejudicial variety that would entitle appellant to relief. See State v. Rose, 353 N.W.2d 565 (Minn. App. 1984), review denied (Minn. Sept. 12, 1984) (finding allegations of misconduct harmless, even cumulative, where prosecutor made improper argument, but substantial evidence of defendant’s guilt existed). Furthermore, it is only in the extreme case of “unduly prejudicial” prosecutorial misconduct that relief will be granted in the absence of an objection at trial. See State v. Salitros, 499 N.W.2d 815 (Minn. 1993). We see no such misconduct here. On these facts—where two of the victims conclusively identified appellant as one of the assailants—we conclude appellant received a fair trial and suffered no prejudice from the prosecutor’s complained-of conduct.
Appellant argues that the trial court erred by failing to give the jury, suasponte, an accomplice-testimony instruction. Alternatively, appellant contends that his trial counsel was ineffective because he did not request such an instruction. We disagree.
Normally, appellant’s failure to object at trial would waive the claim on appeal. Roby, 547 N.W.2d at 357. Like other unobjected-to trial errors, we address a waived jury instruction issue only where plain error exists and fairness mandates such review. State v. Ihle, 640 N.W.2d 910, 916 (Minn. 2002). In addition, a defendant may not be convicted solely on uncorroborated accomplice testimony. State v. Henderson, 620 N.W.2d 688, 700 (Minn. 2001). A trial court should give an accomplice instruction where a state’s witness could be considered an accomplice. Id. Because we conclude the trial court’s failure to give an accomplice instruction was plain error, we review this issue as a matter of fairness.
A trial court should instruct the jury on accomplice testimony whether counsel requests the instruction or not because “the credibility of an accomplice is inherently untrustworthy.” State v. Strommen, 648 N.W.2d 681, 689 (Minn. 2002). Without an accomplice instruction, “there is the very real possibility that the jury could reject corroborating evidence and convict on the testimony of the accomplice standing alone.” Id. But such error does not automatically mandate a reversal. State v. Shoop, 441 N.W.2d 475, 480 (Minn. 1989).
The state concedes that Houa Vang and Fue Moua were appellant’s accomplices and that the trial court erred by failing to give the accomplice instruction. But evidence of appellant’s guilt was strong and his convictions would stand without the two accomplices’ testimony. The evidence, minus the accomplice testimony, establishes appellant’s gang involvement and his participation in the crime, not merely his presence at the scene. Appellant admits gang membership. Several officers testified about appellant’s “hard core” status in a violent gang. Most importantly, V.Y. and C.C., two of the four victims, identified appellant as one of their assailants, both in photographic lineups and later in court. V.Y. testified that appellant was wearing a yellow vest, as did an eyewitness and one of appellant’s alibi witnesses. A jury is entitled to believe a victim’s account of events. State v. Trotter, 354 N.W.2d 539, 541 (Minn. App. 1984), review denied (Minn. Dec. 20, 1984). The jury decided the ultimate issue of identity by weighing witness credibility and, by virtue of its verdict, chose to believe the victims’ account of events over that of the assailants. See State v. Johnson, 568 N.W.2d 426, 436 (Minn. 1997) (stating witness credibility determination is jury’s exclusive prerogative). Because the accomplice testimony is amply corroborated in the record, we conclude that the jury’s verdict is surely unattributable to the trial court’s omission and that appellant received a fair trial.
Finally, appellant argues that his attorney’s failure to request an accomplice instruction constitutes ineffective assistance of counsel. A defendant seeking reversal on the basis of ineffective assistance of counsel must show that counsel’s performance was not only deficient, but also resulted in prejudice. State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999). A defendant must show that, but for the deficient performance, the outcome would have been different. Id. (citation omitted).
Failure to request an accomplice instruction might be, as the state suggests, a tactical decision meant to keep appellant as far removed from his co-defendants as possible. Here, the record does not reflect whether counsel’s failure to request an accomplice instruction was a tactical move or a careless omission. But in either event, such a failure does not fall below an objective standard of reasonableness, and does not satisfy the deficiency prong. Because a trial court should instruct on accomplice testimony regardless of whether counsel asks for the instruction, failure to request an instruction the court is already obligated to give is not ineffective assistance of counsel. See Strommen, 648 N.W.2d at 689 (noting trial court’s duty to give instruction even absent request). Further, an accomplice instruction would not likely have impacted the jury’s verdict because there was ample evidence—in particular the victims’ identification of appellant as one of the assailants—corroborating the testimony of the two accomplices.
 According to the testimony of Sgt. Strong, a “hard core” gang member has tattoos, sports the [gang] colors, participates in gang activities, treats their gang as a family, and [for them] the gang always come first.
 The strike force classifies an individual as a gang member if three or more of the following criteria is satisfied: (1) admits gang membership or association; (2) is observed to regularly associate with known gang members; (3) has gang tattoos indicating gang membership; (4) displays gang symbols; (5) photographed with known gang members and/or using gang-related hand signs; (6) name is in a gang document, hit list, or gang-related graffiti; (7) identified by a reliable source as a gang member; (8) arrested in the company of known gang members or associates; (9) corresponds with known gang members; and (10) writes gang-related messages in graffiti, books, or paper. State v. DeShay, 645 N.W.2d 185, 192 (Minn. App. 2002) (holding ten-point criteria sufficiently reliable to form basis of expert opinion).