This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Hennepin County District Court
File No. 01081218
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Mark V. Griffin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, Minnesota Public Defender, Leslie J. Rosenberg, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Harten, Presiding Judge, Stoneburner, Judge, and Minge, Judge.
Troy Richard Dean appeals his convictions of first-degree attempted murder, first-degree assault, and first-degree aggravated robbery and challenges his sentence. Appellant alleges that the district court abused its discretion in evidentiary rulings, the prosecutor committed misconduct, his sentence violates the Apprendi rule, and the district court erred by granting an upward durational departure for particular cruelty. In his pro se brief, appellant also alleges that he was denied effective assistance of counsel and alleges that clothing was illegally seized from his girlfriend’s home. We affirm.
Responding to an anonymous 911 call, ambulance and police crews found James Neville unconscious, severely beaten, and lying on top of a small fire with his legs burning. Neville survived his injuries but both legs had to be amputated.
Steven Johnson, a co-defendant in this case, was found semi-conscious at the scene with Neville’s wallet in his pocket, blood on his clothing, and what looked like a burn on his hand. Johnson was arrested. He told the police that appellant Troy Richard Dean was involved.
Police went to appellant’s girlfriend’s home to arrest him. Appellant was not present when the police arrived. The mother of appellant’s girlfriend gave police the clothing she believed appellant had been wearing on the day of the incident. The clothing had been washed. Appellant arrived and spontaneously told police they would not find any blood on his clothes. Appellant was arrested and charged.
The clothes, including those worn by appellant at the time of his arrest, were tested for blood and subjected to DNA analysis using polymerase chain reaction – short tandem repeats process, known as PCR-STR. Appellant’s pants tested positive for blood despite having been washed, and the hooded shirt appellant was wearing at the time of his arrest tested positive for blood. No DNA profile was obtained from either of these items but the quilted flannel shirt that appellant was wearing at the time of his arrest had blood on it that matched Neville’s DNA profile “exactly” according to the BCA forensic scientist who testified at trial.
Johnson and appellant told police that they had been drinking on the day of the incident and were sharing a bottle of vodka when they encountered Neville who began to drink from the bottle with them. Appellant asked Neville for some money for the alcohol. According to appellant, when Neville didn’t respond, Johnson got a board and began to hit Neville on the head. Appellant said he left to get help and walked to a pay telephone to call 911. Neville testified that it was appellant who hit him in the back of the head, both Johnson and appellant were hitting him, and he heard appellant say “get his wallet and check his pockets for money.” Appellant’s girlfriend told police that appellant had told her that he was with Johnson on the day of the incident and that he, Johnson, and Neville had been involved in a fight. She saw that appellant’s knuckles were scratched, as if he had been in a fight and she washed his clothes on the day of the incident.
Prior to trial, the state gave notice of its intent to offer four prior assaults appellant had committed between 1990 and 1998 as Spreigl evidence. After a hearing, the district court excluded all of the offered Spreigl evidence, but noted that if appellant chose to testify, his 1998 conviction could be used for impeachment purposes. Appellant testified at trial and on direct examination disclosed his 1998 conviction of aggravated robbery. During cross-examination, appellant denied that he owned the shirt that the state claimed he was wearing at the time of his arrest. The court then permitted the prosecutor to cross-examine appellant about his having lied to the police regarding the 1998 offense. After this questioning, and after appellant was shown a booking photograph of himself wearing the shirt, he admitted that the shirt belonged to him.
The jury found appellant guilty of first-degree attempted murder, second-degree attempted murder, first-degree assault, and first-degree aggravated robbery. The state moved for an upward sentencing departure. The district court granted the state’s motion, executed the 58-month 1998 sentence for which appellant was on probation at the time he committed the current offenses, and sentenced appellant to a consecutive 240 months for first-degree attempted murder. This appeal followed.
1. Evidentiary issues
Evidentiary rulings are reviewed under an abuse of discretion standard. State v. Edwards, 485 N.W.2d 911, 914 (Minn. 1992). Absent erroneous interpretation of the law, whether to admit or exclude evidence is within the district court’s discretion. Kroning v. State Farm Auto Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).
a. 1998 conviction
Appellant asserts that the district court abused its discretion by allowing the state to question him about the 1998 aggravated robbery conviction after having excluded use of that conviction as Spreigl evidence. We disagree. The district court allowed the evidence under Minn. R. Evid. 608(b). The district court expressly stated that if appellant took the stand, the 1998 conviction would be admissible for impeachment purposes under Minn. R. Evid. 608(b). While on the stand, appellant began asserting that evidence against him had been manufactured by police and the state. Appellant denied that he owned a shirt the state claimed he was wearing at the time of his arrest. The state requested the court’s permission to inquire, under Rule 608(b), into a specific act of lying committed by appellant in connection with the 1998 aggravated robbery charge.
Rule 608(b) provides in relevant part:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, * * * may, * * * in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness * * * concerning the witness’ character for truthfulness or untruthfulness * * * .
The court allowed the inquiry. Appellant’s credibility was a central issue in the case, and appellant’s conduct in connection with the 1998 charges was probative of his truthfulness or untruthfulness. Appellant admitted that he lied to the police in 1998 to protect himself and only told the truth about that incident when he learned about the possibility that incriminating DNA could be found on his clothes. The district court acted within its discretion in allowing the inquiry under Rule 608(b).
b. DNA evidence
Appellant argues that the admission of the DNA test obtained through the PCR-STR method was improperly admitted because that method of DNA testing has not been shown to be generally accepted. Additionally, he argues that the trial court erred by allowing the BCA representative to testify that the DNA profile of the blood taken from his sweatshirt matched the DNA profile of the victim. But appellant failed to object to the admission of the DNA evidence at trial or to the testimony by the BCA representative. Where a defendant fails to object to a particular error at trial, he is deemed to have forfeited his right to appeal the alleged error unless it was plain error affecting a substantial right and deprived him of a fair trial. State v. Williams, 525 N.W.2d 538, 544 (Minn. 1994).
Appellant admitted in his own testimony that the victim’s blood was found on the shirt he was wearing when he was arrested. After his own admission of this fact, allowing the expert testimony to confirm that the DNA on the sweatshirt matched the victim’s did not have the effect of depriving appellant of a fair trial and therefore was not plain error affecting his substantial rights. Because appellant did not object at trial, he effectively waived his right to appeal the introduction of the DNA evidence.
Appellant argues that several of the prosecutor’s statements unfairly prejudiced the jury against him and denied him a fair trial. He argues that these statements amounted to prosecutorial misconduct. Establishment of prosecutorial misconduct does not require a reviewing court to grant a new trial if the prosecutor’s misconduct was harmless beyond a reasonable doubt. State v. Atkins, 543 N.W.2d 642, 648 (Minn. 1996). A conviction should only be reversed if the misconduct appears to be inexcusable and so serious and prejudicial that the defendant’s right to a fair trial is denied. State v. Smith, 541 N.W.2d 584, 588 (Minn. 1996). In determining whether misconduct occurred in closing argument, courts must
consider the closing argument as a whole rather than focus on particular ‘phrases or remarks that may be taken out of context or given undue prominence.’
State v. Johnson, 616 N.W.2d 720, 728 (Minn. 2000) (citation omitted).
Appellate courts determine whether prosecutorial misconduct was harmless beyond a reasonable doubt based in part on the type of misconduct. State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974). In cases involving serious misconduct, the reviewing court requires certainty beyond a reasonable doubt that the misconduct was harmless before affirming. Id. In a case involving less serious misconduct, the reviewing court should apply the test of whether the misconduct likely played a substantial part in influencing the jury to convict. Id.
Appellant argues that the prosecutor committed misconduct by commenting on appellant’s choice to invoke his constitutional right to remain silent, by disparaging the defense counsel’s trial strategy, and by inflaming the passions of the jury through a character attack on the appellant. But appellant’s characterizations of the prosecutor’s comments are not supported by the record.
Appellant claims that statements made by the prosecutor in his closing argument implied to the jury that appellant must be guilty because he exercised his constitutional right to remain silent when police questioned him about the incident. But the prosecutor’s statements referred only to the fact that appellant left the scene of the crime rather than waiting for police to arrive, which was inconsistent with appellant’s assertion that he was only a surprised witness to Johnson’s attack on Neville. The prosecutor suggested that appellant’s failure to remain at the scene demonstrated his guilt. He said:
But instead of presenting himself and disclosing this evidence [of his innocence], what does he do? He runs. That’s an innocent man? What does your common sense and reason tell you? Why does he need to run if he’s an innocent man?
These statements referred to the appellant’s behavior in leaving the crime scene. No reference was made to appellant’s failure to make a statement or choice to remain silent at the time of, or after, his arrest. By reminding the jury that the appellant left the scene of the crime, the prosecutor did not infringe appellant’s constitutional right not to incriminate himself.
Appellant argues that the prosecutor impermissibly disparaged defense counsel’s trial strategy by questioning the defendant as to whether or not he was aware he had the opportunity to ask the court to suppress any statements that he made prior to the trial. He fails to demonstrate, and we cannot conclude, that this question impermissibly disparaged the defense.
Appellant argues that the prosecutor inflamed the passions of the jury in his opening statement by demeaning appellant’s character instead of focusing on what the evidence proved, and compounded the misconduct by telling the jury during his closing that the appellant had committed perjury. Specifically, appellant claims the prosecutor’s statement that the perpetrators of the crime were “merciless and gratuitous” and cruel “just for the sake of being cruel” had an egregious effect on the appellant’s right to a fair trial. And appellant asserts that the prosecutor improperly focused the jury’s attention on the appellant’s character, telling the jury that appellant seemed to have no trouble lying to avoid responsibility.
The prosecutor’s use of the words “inhumanity,” “merciless,” and “cruel” were not an inaccurate description of the crime. The injuries sustained by the victim were severe and the acts required to inflict them were brutal. The prosecutor’s description of the crime does not exaggerate. Additionally, the appellant admitted that he lied in 1998 and lied on the witness stand in this trial. The prosecutor’s single brief reference to appellant’s lying under oath was accurate and was not misconduct. The evidence in this case weighed strongly in support of appellant’s conviction. Appellant has not shown that any statements made by the prosecutor amounted to misconduct or that, even if misconduct, the comments contributed substantially to influencing the jury’s decision. State v. Race, 383 N.W.2d 656, 664 (Minn. 1986).
The trial court imposed an upward durational departure from the sentencing guidelines in sentencing appellant to 240 months in prison. The decision to depart from sentencing guidelines is within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999). The trial court possesses broad discretion to depart from a presumptive sentence if substantial and compelling aggravating or mitigating factors are present. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989).
Appellant argues that his sentence is barred by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). That case limits a sentence to the statutory maximum unless the upward departure is based upon facts “submitted to a jury, and proven beyond a reasonable doubt.” Id. at 490, 120 S. Ct. at 2363. Appellant argues that the rule of Apprendi was violated by his sentence because the upward departure lengthened the sentence beyond the maximum sentence in the applicable grid box in the sentencing guidelines. But Apprendi limits the sentence to the statutory maximum, not the sentencing-grid maximum. First-degree murder carries a life sentence, which is statutorily calculated at 480 months, or 40 years. Minnesota law provides that a person who attempts to commit a crime for which the maximum sentence is life imprisonment may be sentenced to not more than 20 years. Minn. Stat. § 609.17 subd. 4 (2002). The statutory maximum sentence allowable for an attempted first-degree murder, therefore, is 240 months, which is exactly what appellant received. Since appellant received the statutory maximum sentence, his Apprendirights were not violated.
Appellant also argues that the trial court erred by ordering an upward durational departure on the basis that the victim was particularly vulnerable. He supports his claim by asserting that an upward departure is warranted by analyzing a defendant’s conduct, not the severity of the victim’s injury. See State v. Valentine, 630 N.W.2d 429, 436 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001). The court explicitly stated that the reason for the upward departure was the brutality of the attack, particularly in light of appellant’s knowledge that the victim had suffered significant injury. The sentencing guidelines specifically provide for an upward durational departure in cases where the crime is committed with particular cruelty. See Minn. Sent. Guidelines II.D.2.b.(3). The district court acted within its discretion when it chose to depart upward from the guidelines in sentencing.
Appellant asserted as an issue, but did not brief the argument, that the district court erred by double-counting the aggravated-robbery conviction where the sentences for that offense and the current offense were made consecutive. Because appellant has failed to advance any argument or authority, we decline to review this issue. See State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989).
4. Appellant’s pro se supplemental brief
In appellant’s supplemental pro se brief he argues that he was denied effective assistance of counsel. To prove ineffective assistance of counsel,
[t]he defendant must affirmatively prove that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’
Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (citation and quotation omitted). The record shows that defense counsel was prepared for trial. He made a motion to release appellant when DNA testing had not been completed by the date originally set for trial, he thoroughly cross-examined each witness called, and he defeated the state’s motion to introduce Spreigl evidence. Appellant makes no claim that there was evidence that was not presented at trial that might have exonerated him. Appellant has not met his burden of proof on this claim.
Appellant contends that the evidence obtained from his girlfriend’s home should have been suppressed as it was seized without a warrant and without his consent. This issue was not raised in the district court and therefore is waived. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). We note that appellant has not advanced any expectation of privacy in clothes he had turned over to his girlfriend to wash at her home and further note that the clothing that contained the most critical evidence against appellant was the shirt appellant was wearing at the time of his arrest. Suppression of the washed clothing from his girlfriend’s house would not have affected the outcome of this trial.
 We note that the Minnesota Supreme Court recently determined that the PCR-STR method of testing is generally accepted within the relevant scientific community. State v. Traylor, 656 N.W.2d 885, 893 (Minn. 2003). Once the Supreme Court has reviewed and confirmed the general acceptance of a scientific technique, the evidence produced by the technique may be admitted without the need for a pretrial hearing. State v. Roman Nose, 649 N.W.2d 815, 821 (Minn. 2002).