This opinion will be unpublished and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

C8-02-921

 

 

State of Minnesota,

Respondent,

 

vs.

 

Luke Anthony Bina,

Appellant.

 

Filed May 27, 2003

Affirmed

Lansing, Judge

 

Todd County District Court

File No. K601171

 

 

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

 

Gaylord Saetre, Todd County Attorney, Todd County Government Center, 221 First Avenue South, Long Prairie, MN  56347 (for respondent)

 

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge, Lansing, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            A jury convicted Luke Bina of three counts of second-degree burglary.  Because testimony of Bina’s accomplices was sufficiently corroborated by other evidence, and because we can identify no reversible error in the district court’s evidentiary rulings, its jury instructions, or the prosecutor’s conduct, we affirm.

F A C T S

            Four businesses in the town of Long Prairie were burglarized on the same night.  Investigation of the burglaries led police to appellant Luke Bina, Daniel Rossberg, and Bradley Wong, after Bina and Rossberg were arrested while committing a subsequent burglary in another town.  In statements to police, Rossberg implicated Wong and Bina in the Long Prairie burglaries, and Rossberg and Wong ultimately pleaded guilty to charges stemming from those burglaries. 

During their investigation, police spoke with Dean and Dan Lochner, brothers who are employed by a St. Cloud used-car dealership that reported a minivan having been stolen the same night as the burglaries.  Dan Lochner told police he suspected that a young man who had test-driven the minivan a week previously might have stolen the vehicle.  Dean Lochner, who had waited on the young man and given him the keys to the minivan in exchange for his driver’s license, provided a physical description.  He remembered that the license showed that the test-driver was the same age as he, nineteen, and that it listed an address in Eden Valley.  Dan Lochner saw the young man when he returned the keys and was also able to provide a physical description.

Police twice showed the Lochners photo arrays of possible suspects.  The Lochners first looked at an array of six photographs, including one photograph of Bina.  When neither brother identified a photograph as the test-driver, the officer pointed out the photograph of Bina as the suspect.  A second police officer later showed Dan Lochner another array of six photographs, which included a different picture of Bina.  After considering the photographs for approximately one minute, Dan Lochner identified Bina as the person who had test-driven the minivan.

            At an omnibus hearing Bina moved to suppress Dan Lochner’s identification as the product of an overly suggestive identification procedure.  Bina argued that the inclusion of a photograph of him in each of the arrays made it more likely that Dan Lochner would select his photograph from the second array.  The district court denied the motion, but did not know at that time that the first officer had pointed out Bina’s photograph to Dan Lochner as the suspect.

            The Lochners both testified at trial.  Dean Lochner identified Bina in court, but then acknowledged he was only “90 percent certain.”  When asked if he could identify the test-driver in court, Dan Lochner said he assumed the driver was the person sitting next to defense counsel.  He also testified that his identification of Bina in the second photo array was influenced by the officer’s having pointed out Bina’s photo in the first photo array.  After this testimony the district court told counsel that the omnibus ruling was based on an understanding that Dan Lochner had received no suggestive information and that, in light of his testimony, a mistrial might be appropriate.  Bina’s trial counsel opposed a mistrial because he believed his client would prevail in the jury trial for lack of evidence corroborating the accomplice testimony.  The prosecutor also opposed declaring a mistrial.  The trial resumed and Bina’s counsel did not move for a mistrial, a reconsideration of the omnibus ruling, or any curative instruction. 

            Daniel Rossberg testified that he and Bina stole the minivan together using a key, but claimed that he and Wong committed the burglaries alone and that Bina was not involved in those crimes.  The state impeached Rossberg with statements he had made to a police officer after his arrest, as well as with his plea colloquy from his own prosecution for the van theft and the burglaries, in which Rossberg stated that Bina had a key to the minivan, that Bina drove the minivan during the burglaries, and that Bina had acted as a lookout at one burglary and entered the premises at two others.

            Bradley Wong was called to the witness stand and refused to testify.  The district court then permitted the state to read into the record Wong’s pleas to the van theft and burglary charges.  In the car-theft guilty plea, Wong stated that Bina and Rossberg removed the minivan from the car lot using a key, that he waited for the two elsewhere in his own car, and that the three then drove off together in the minivan.  In his guilty plea to the burglary charges, Wong stated that Bina and Rossberg were with him the night of the burglaries but that Bina was asleep in the van and did not know the burglaries were occurring.  During the plea colloquy, Wong acknowledged he had earlier given statements to police implicating Bina and said he did it to help his case.  The state impeached Wong’s plea colloquies with statements Wong made to a police investigator.  The investigator testified that during an interview Wong implicated Bina in the burglaries, but the investigator acknowledged that Wong had been looking for a “deal” when he agreed to speak to him.

The state also introduced evidence that Bina’s driver’s license listed an Eden Valley address, that Eden Valley had approximately 700 inhabitants, and that the minivan had not been hot-wired or otherwise damaged during the theft.

The jury found Bina guilty of the three counts of second-degree burglary.  Bina appeals, challenging the (1) adequacy of the evidence to corroborate accomplice testimony, (2) admissibility of identification testimony and a plea transcript, (3) prosecutorialconduct, (4) propriety of a no-inference instruction, and (5) effective assistance of counsel.

D E C I S I O N

I

            Bina argues that the evidence corroborating the accomplice testimony was insufficient to link him to the theft of the minivan or tie the minivan to any of the burglaries.  A conviction may not be based on the testimony of an accomplice unless the state corroborates that testimony with other evidence that tends to convict the defendant of the crime charged.  Minn. Stat. § 634.04 (2002).

Bina’s challenge to the sufficiency of the corroborating evidence appears to hinge on his belief that the accomplice-corroboration rule requires the state to offer evidence corroborating each element of the crime.  This is an overly broad interpretation of the rule.  The accomplice-corroboration rule does not require independent proof of each element of the crime, State v. Jinkerson, 469 N.W.2d 723, 725 (Minn. App. 1991), review denied (Minn. July 24, 1991), but rather requires the state to bring forth evidence “to support the testimony of the accomplice to aid in establishing his credibility.”  State v. Rasmussen, 241 Minn. 310, 313, 63 N.W.2d 1, 3 (1954) (emphasis added).  Accordingly, “corroborative evidence is sufficient when it is weighty enough to restore confidence in the truth of the accomplice’s testimony.”  State v. Guy, 259 Minn. 67, 72, 105 N.W.2d 892, 896 (1960); see also State v. Elsberg, 209 Minn. 167, 176, 295 N.W. 913, 917-18 (1941) (describing corroboration at common law as requiring “a rehabilitation by means of corroboration as to some part of the accomplice’s story”) (emphasis added).

The state established Bina’s participation in the burglaries through accomplice testimony.  This evidence includes Rossberg’s testimony that he and Bina stole the minivan using a key supplied by Bina and also includes Rossberg’s testimony that Bina had served as lookout during one of the burglaries and entered the other two burglarized premises.  To corroborate Rossberg’s testimony, the state presented evidence that the minivan showed no sign of forced entry, that the ignition had not been altered to permit starting without a key, and that Bina, having test-driven the van before it was stolen, would have had an opportunity to make a duplicate key.  This evidence supported Rossberg’s in-court testimony recounting the theft of the van and made his out-of-court statements implicating Bina in the burglaries more credible.  We conclude therefore that the evidence of the manner in which the minivan was stolen and the evidence supporting the theory that Bina obtained a key to the minivan before the theft was sufficient to corroborate the accomplice testimony establishing Bina’s involvement in the burglaries.

II

 

Bina challenges three evidentiary rulings:  allowing evidence of Dan Lochner’s out-of-court identification of Bina, permitting transcripts of Wong’s guilty plea colloquies to be read into the record, and allowing the state to call Wong to the witness stand essentially to facilitate the introduction of impeachment testimony.  Bina did not raise the third argument, the impropriety of calling Wong as a witness, in the district court, and we therefore do not consider it on appeal.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (explaining that appellate courts generally do not consider matters not argued and considered in the district court).

Appellate courts largely defer to the district court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  If the alleged error was in the admission of evidence, we determine whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  If it is reasonably possible that the verdict might have been more favorable to the defendant without the evidence, then the error is prejudicial.  Id.

Bina argues that the district court erred in admitting Dan Lochner’s out-of-court identification because it was the product of a suggestive identification procedure.  Appellate courts use a two-part test to determine whether pretrial identification evidence is admissible.  State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999).  First, the court determines whether the identification procedure was “unnecessarily suggestive.”  Id. (quotation and citation omitted).  “Included in that inquiry is whether the defendant was unfairly singled out for identification.” Id. (alteration in original) (quotation and citation omitted).  Second, if the court determines that the identification procedure was unnecessarily suggestive, the court must then determine whether the identification caused “a very substantial likelihood of irreparable misidentification.”  Id. (quotations omitted).

            Bina argues that the identification procedure was unnecessarily suggestive because Dan Lochner identified Bina from a group of six photographs after having been shown a different group of six photographs, which also included a photograph of Bina.  The U.S. Court of Appeals for the Eighth Circuit has considered the admissibility of a positive photo identification made in very similar circumstances.  In Armstrong v. Gammon, 195 F.3d 441 (8th Cir. 1999), police presented an assault victim with an array of six photographs, which included a three-year-old photograph of the defendant.  Id. at 443.  After several minutes, the victim tentatively selected the defendant as her attacker.  Id.  Two days later, police presented the victim with a new array of six photos, including one of the defendant taken the day of his arrest.  Id.  This time the victim immediately identified the defendant.  Id.  The Eighth Circuit held that the fact of the defendant’s inclusion in both arrays was insufficient to show suggestiveness, particularly because different photographs of the defendant had been used in each array.

The district court received testimony that Bina’s appearance differed markedly in the two photographs, and Bina concedes on appeal that he had a different hairstyle in each photo.  Unlike the cases cited by Bina, which involved multiple photographs of the defendant in a single array, the procedure identifying Bina did not unfairly single him out by repetitive inclusion.

Although Bina does not argue that the identification procedure was overly suggestive because the officer had pointed out his picture as the suspect in the first array, he argues that the officer’s action created a substantial likelihood of misidentification, the second prong of the admissibility analysis.  We only reach this prong if the first prong is satisfied.  Because the use of the two photo arrays was not unnecessarily suggestive, we do not address the substantial likelihood of misidentification.  In any event, the probable error in this flawed procedure was waived when Bina declined the district court judge’s offer of a mistrial.

With respect to the admission of Wong’s guilty pleas, Bina argues that the district court violated his right to confront witnesses when it permitted the state to read the plea colloquies into the record.  This court reviews de novo the issue of whether admitted testimony violates a defendant’s confrontation-clause rights.  State v. King, 622 N.W.2d 800, 806 (Minn. 2001). 

For an accomplice’s plea testimony to be admissible under the confrontation clause, the district court must find that the accomplice is unavailable to testify and that the testimony bears sufficient indicia of reliability.  Id. at 807.  It is undisputed that Wong was unavailable.  Therefore, the dispositive question is whether the state demonstrated that Wong’s guilty plea was sufficiently reliable.  The supreme court in King explained that the reliability standard is satisfied if cross-examination of the witness would have been of only marginal utility.  Id. at 808.

            It is doubtful that the opportunity to cross-examine Wong would have provided Bina with any measurable benefit.  Wong’s plea to the burglary charge was largely exculpatory as to Bina:  Wong stated that Bina was asleep in the van during the burglaries and would not have known they had occurred.  When Wong did implicate Bina in the burglaries—in confirming he had initially told police Bina was involved in the burglaries—he stated that he had done this in an attempt to benefit himself.  Because the inconsistencies in Wong’s testimony were laid bare in the colloquy itself, cross-examination would likely have been only marginally useful.

            Even if admission of the plea statements did violate the confrontation clause, Bina’s conviction may nevertheless stand if the error was harmless beyond a reasonable doubt.  Id. at 809.  An error is harmless if the verdict was “surely unattributable” to the error.  Id. (quotation omitted).  In King, the supreme court found that the erroneous admission of accomplice testimony required a new trial because the accomplice’s statement provided the only direct evidence of certain elements of the charge.  In contrast to the facts of King, the state presented evidence independent of Wong’s statements to prove each of the elements.  The pivotal element—Bina’s act of assisting in the burglaries—was evidenced by Rossberg’s plea colloquy, in which Rossberg stated that Bina had a key to the minivan, that he drove the minivan during the burglaries, and that he had acted as a lookout at one burglary and had entered the premises at two others.  Accordingly, we conclude that admission of Wong’s testimony, even if erroneous, was harmless beyond a reasonable doubt.

III

Bina maintains that he was denied the right to a fair trial because the prosecutor’s “fail[ure] to control his witnesses” amounted to prosecutorial misconduct.  This court “reviews claims of prosecutorial misconduct and will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.”  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).  Serious misconduct requires a new trial unless it was harmless beyond a reasonable doubt.  Id.  For less serious misconduct, the standard is “whether the misconduct likely played a substantial part in influencing the jury to convict.”  Id. (quotation omitted).

            Bina points first to the prosecutor’s failing to prevent a police officer from testifying that police had had previous contact with Bina and that Wong told police that he, Rossberg, and Bina were going to commit a burglary in Brainerd.  Bina points, second, to the prosecutor’s eliciting testimony from an investigator that police had been unable to locate a pair of Bina’s shoes for testing when the prosecutor knew or should have known that Bina had a pair of shoes with him in custody.  Bina objected at trial to the reference to previous contact and to Wong’s statement.  The district court gave a curative warning to the jury on each statement.  Because Bina did not object at trial to the prosecutor’s questions about the shoes, we need not consider that issue in this appeal.  See id. at 678 (explaining that if a defendant fails to object to misconduct at trial, he forfeits the right to have the issue considered on appeal).

            As to the gravity of the two instances of alleged misconduct, because both of the challenged statements were volunteered by the witness and were not responsive to the prosecutor’s questions, we review them under the second Powers standard, applicable to less serious misconduct.  Applying that standard, we are not convinced that the alleged misconduct substantially affected the outcome of the trial.  The officer’s reference to prior contact with Bina came in response to the question of why he thought a witness’s description matched Bina.  When the defendant’s identity is at issue, an officer’s reference to prior contacts with the defendant may be harmless.  See State v. Strommen, 648 N.W.2d 681, 687-88 (Minn. 2002) (concluding that district court erred in admitting officer testimony that he knew defendant from “prior contacts and incidents” in part because identity was not at issue).  As for the reference to a burglary in Brainerd, it is also highly unlikely that this isolated comment played a substantial part in influencing the jury’s verdict, given the credibility issues surrounding Wong.

IV

Bina also argues that the district court committed reversible error when it instructed the jury on his right not to testify without first obtaining his consent on the record.  A court should obtain the defendant’s permission before instructing the jury of a defendant’s right not to testify and of the jury’s duty not to draw any negative inferences from the exercise of that right.  State v. Thompson,  430 N.W.2d 151, 153 (Minn. 1988).  But when the defendant fails to object to the instruction, this court will review the error only if it affected substantial rights.  State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002).  An erroneous no-inference instruction affects substantial rights “when there is a reasonable likelihood that the giving of the instruction would have had a significant effect on the jury’s verdict.”  Id.  On this issue the defendant bears a “heavy burden” of proof.  State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998).

Bina contends that the instruction affected the jury’s verdict because the jury “doubtless wanted to hear [Bina] testify to clarify evidence presented through Wong and Rossberg that appellant did not participate in the charged burglaries” and because the instruction “singled out [Bina’s] failure to give his version of events.”  These arguments are insufficient to satisfy Bina’s heavy burden of showing a reasonable likelihood that the instruction prejudiced the outcome of his trial.  The argument that the jury would have wanted to hear Bina’s version of events is likely true regardless of whether or not the court gave the no-inference instruction.  In this case the impact of the instruction was also diminished by the fact that Bina’s trial counsel stressed Bina’s right not to testify in his closing argument.

V

            Bina argues for the first time in his reply brief that trial counsel provided ineffective assistance.  Because an issue not raised in an appellant’s main brief is not properly before this court, Berg v. State, 557 N.W.2d 593, 596 (Minn. App. 1996), we decline to consider Bina’s ineffective assistance claim in this appeal. 

            Affirmed.