This opinion will be unpublished and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 March 9, 2004
Gordon W. Shumaker, Judge
Dakota County District Court
File No. KX-02-1917
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
James C. Backstrom, Dakota County Attorney, Shirley A. Leko, Assistant Dakota County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)
Bradford Colbert, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)
Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, Judge.
GORDON W. SHUMAKER, Judge
Appellant contends that, in his trial for aggravated robbery, he should have been allowed to introduce reverse‑Spreigl evidence on the issue of identity. He also raises issues in his pro se brief regarding the propriety of the verdict and the effectiveness of his trial counsel. Although the exclusion of the reverse‑Spreigl evidence was error, the error was harmless beyond a reasonable doubt. Further, appellant’s pro se arguments are without merit. Accordingly, we affirm.
This case concerns the admissibility of reverse‑Spreigl evidence on the issue of the identity of a robber. On the morning of June 15, 2002, two retail establishments located two blocks from each other were robbed by an adult male. The state charged appellant Terre Woods with both robberies, but then dismissed one of the charges after Woods offered a corroborated alibi. In the trial of the other robbery, Woods sought to introduce evidence of the identity of the perpetrator of the dismissed crime to invite the inference that someone other than Woods committed both robberies. The district court would not allow Woods’ proffered evidence.
The first robbery occurred at a SuperAmerica store at 5:30 a.m. The clerk described the robber to the police as being a Hispanic male, 5’ 7” tall, weighing about 210 pounds. Although Woods is not Hispanic, stands 6’ 3” in height, and weighs 270 pounds, the clerk later selected his picture from a photo display as being that of the robber. A police officer viewed a surveillance tape-recording of the robbery and stated that the robber looked like Woods.
The second robbery happened at 8:30 a.m. A man entered the Crosstown Liquor Store, put the owner in a chokehold, and removed money from a cash register. The man also tried to get the owner to open a safe, but the owner struggled and the man fled on foot. The owner gave chase, enlisted another to help in the pursuit, and called the police. He identified the robber as being 6’ 2” tall and weighing around 220 pounds. The robber was able to elude his pursuers by running between houses.
Woods, who later told the police he was out for a jog and was going to buy his daughter a pet rat, was in the vicinity of the pursuit of the robber. At one point, Woods asked a resident if he could run through her yard. He asked another if he could use her cell phone to call for assistance for his disabled car. He entered the home of a third resident and asked if he could use the telephone. By this time, the police were searching the neighborhood. They found Woods hiding behind a door at the third residence, and they arrested him. The police brought the liquor store owner to the scene and he positively identified Woods as the robber of his store.
When the police inspected the liquor store premises, they found footprints in the spilled contents of a bottle broken in the struggle between the owner and the robber. These footprints matched Woods’ shoes in size, sole tread pattern, and logo.
Woods pleaded not guilty to both robberies, and the court set separate trial dates, with the liquor store robbery being first for trial. For that trial, the state gave a Spreigl notice of the possibility that it would introduce evidence of the SuperAmerica robbery on the issue of identity. Woods indicated that he would not object to that Spreigl evidence.
When Woods’ attorney referred to the SuperAmerica robbery in his opening statement, the state objected on the ground that the evidence was improper reverse‑Spreigl evidence, and the district court required an offer of proof as to what Woods planned to introduce. Ruling that evidence relating to the SuperAmerica robbery would be confusing and misleading in the liquor store robbery trial, the district court excluded it.
On the following day, before trial, the prosecutor informed the court, counsel, and the defendant that the state intended to dismiss the SuperAmerica robbery charge. The prosecutor noted that Woods claimed that he was riding in a taxi at the time of the SuperAmerica robbery and that, based on a police interview of the taxi driver, “we have surmised enough to know that there is an alibi that could be creditable [sic] so that the case could not be proved beyond a reasonable doubt that Mr. Woods robbed the SA store.”
Defense counsel then renewed his request to be allowed to offer identification evidence from the SuperAmerica robbery. The court again denied the request, stating that “[t]he Court’s ruling is not based on relevancy under 402, but under 403 that it creates such confusion and has a high tendency to possibly mislead the jury about facts of this case.”
After a trial, the jury found Woods guilty of aggravated robbery and possession of a controlled substance. Woods contends on appeal that he was entitled to have the jury consider his reverse‑Spreigl evidence and that the district court committed reversible error by disallowing it.
The appellate courts review evidentiary issues on appeal, such as the exclusion of reverse‑Spreigl evidence, for an abuse of discretion. State v. Profit, 591 N.W.2d 451, 463 (Minn. 1999). A criminal defendant has a right to present a complete defense, although that right is not unlimited. State v. Valentine, 630 N.W.2d 429, 432 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001). Under Minnesota Rules of Evidence 404(b), a defendant may seek to introduce evidence of other crimes tending to show that a person other than the defendant committed the crime of which the defendant is accused. Woodruff v. State, 608 N.W.2d 881, 885 (Minn. 2000).
“Spreigl” is Minnesota’s label for evidence of other crimes offered for a relevant, noncharacter purpose, such as identity, under Minn. R. Evid. 404(b). It takes the form of evidence of a crime, wrong, or act. See State v. Spreigl, 272 Minn. 488, 497, 139 N.W.2d 167, 173 (1965) (evidence of other crimes is admissible upon proper foundation).
Reverse‑Spreigl is evidence of a crime, wrong, or act committed by someone other than the defendant and offered to show that the other person committed the crime of which the defendant is accused. State v. Johnson, 568 N.W.2d 426, 433 (Minn. 1997). Traditionally, reverse-Spreigl has been limited to cases in which the defendant can present clear and convincing evidence that a particular person committed the Spreigl offense. Valentine, 630 N.W.2d at 432.
When there are substantial similarities in the time, location, or modus operandi of two or more separate crimes, the reverse‑Spreigl inference is that it is unlikely to be mere coincidence that separate but substantially similar crimes were committed by different people. See Woodruff, 608 N.W.2d at 885. Reverse‑Spreigl evidence gives a criminal defendant an opportunity to invite the inference that the other person committed not only the other crime or crimes, but also the crime for which the defendant stands accused. Id. In Johnson, the Minnesota Supreme Court referred to an earlier case to explain the reverse‑Spreigl concept:
In Bock, this court stated that a defendant “should . . . have the right to show that crimes of a similar nature have been committed by some other person when the acts of such other person are so closely connected in point of time and method of operation as to cast doubt upon the identification of defendant as the person who committed the crime charged against him.”
Id. (quoting State v. Bock, 229 Minn. 444, 458, 39 N.W.2d 887, 792 (1949)).
The foundation for reverse‑Spreigl is the same as for Spreigl evidence. Id. First, there must be clear and convincing evidence that another person committed the other crime, that is, the reverse‑Spreigl crime. Id. Second, the reverse‑Spreigl evidence must be relevant to the case. Id. at 434. Third, the evidence must survive a rule 403 balancing test. Valentine, 630 N.W.2d at 433-34.
As to the first foundational element here, we look to the SuperAmerica clerk’s verbal description of the robber, her later photographic identification, and Woods’ alibi. The verbal description was inaccurate. The later photo identification contradicts the verbal description. If this is all we had, the evidence would fall very far short of being clear and convincing. But clarity and persuasiveness are restored when we consider that Woods asserted an alibi that was independently corroborated by the police through a disinterested third party and that the state found this unrebutted alibi to be sufficiently convincing that it dismissed the charge altogether. The alibi evidence is clear because it puts Woods at another location at the time of the other robbery. It is convincing because, if believed, the evidence shows that it would have been impossible for Woods to have committed that robbery. It should be kept in mind that the reverse‑Spreigl motion stage is a preliminary procedural stage and that the court need not conclude that the evidence will be believed before it can be admitted. It is sufficient if it might be believed or might create some doubt as to the identity of the defendant as the perpetrator of the charged crime. The district court did not rule on this element.
The relevancy element of the reverse‑Spreigl foundation pertains to the similarities between the crimes. Both robberies occurred in the early morning on the same day; both occurred at retail establishments; the locations of the establishments were within two blocks of each other; the robberies happened two and one‑half hours apart; and both robberies were committed by an adult male who did not use a weapon. The district court did not rule the reverse‑Spreigl crime irrelevant and, in fact, expressly stated that rule 402 was not the basis of its decision.
The final element requires that the reverse‑Spreigl survive a rule 403 balancing test. The state contended that if the reverse‑Spreigl evidence were admitted, there would be a trial within a trial. The court agreed and ruled that the reverse‑Spreigl evidence would be confusing and could mislead the jury as to the facts of the liquor store robbery. It is an inherent property of Spreigl or reverse‑Spreigl evidence that it will raise a collateral issue and that collateral issues have a potential to confuse the issues to be resolved. But here the collateral evidence on the identity issue is neither intricate nor complex. It appears from the record that the reverse‑Spreigl evidence would consist of testimony by the SuperAmerica clerk, a police officer, and the taxi driver, and of the store surveillance tape. From that evidence the jury need focus on a simple question: Did Woods rob the SuperAmerica store? The evidence Woods proposed to offer seems to have no greater potential for confusing or misleading the jury than most typical Spreigl evidence.
It appears that all foundational elements were satisfied. In Johnson, the supreme court said that if it is unclear as to whether Spreigl evidence is admissible, the defendant should be given the benefit of the doubt and the evidence should be excluded. Johnson, 568 N.W.2d at 433. Conversely, when it is unclear as to whether reverse‑Spreigl is admissible, the defendant should be given the benefit of the doubt and the evidence should be received. Thus, it was error for the district court to exclude Woods’ reverse‑Spreigl evidence on the issue of identity.
We now consider whether the court’s exclusion of the reverse‑Spreigl evidence was prejudicial or harmless. “Harmless error impact analysis applies to the erroneous exclusion of defense evidence in violation of the defendant’s right to present evidence.” State v. Post, 512 N.W.2d 99, 102 (Minn. 1994). Error is harmless “[i]f the verdict actually rendered is ‘surely unattributable’ to the error.” State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997).
The question before the jury was whether Woods robbed the liquor store. On that issue, the jury heard a verbal description by the victim of the robbery that reasonably matched the height and weight of Woods. The jury heard of the victim’s positive identification of Woods at the scene of his arrest. The jury heard the victim’s in‑court identification of Woods and learned of footprints left by the robber that matched Woods’ shoes. The jury learned that Woods was running through yards, permitting the inference that he was fleeing from someone, as was the robber. The jury heard of Woods’ efforts to use the telephone to obtain assistance with his disabled car, but also learned that he did not have his car but claimed to be out jogging. When the police found Woods, he appeared to be hiding.
Had the reverse‑Spreigl been received, the jury would have heard about a misdescription but a later positive identification of Woods from a photo display. And the jury would have heard of the alibi for the SuperAmerica robbery.
The evidence that Woods committed the liquor store robbery was strong. There was nothing compelling about the reverse‑Spreigl that would likely dilute that strength. At best, the jury might have doubted that Woods robbed the SuperAmerica, but it is not rational or reasonable to conclude that the jury would have doubted his robbery of the liquor store.
Finally, Woods submitted a pro se brief in which he contends (1) that he was found guilty of aggravated robbery but not of a lesser-included offense of simple robbery; (2) that, when there exists a reasonable doubt as to which degree of the same offense a defendant is guilty of, he is entitled to conviction of the lowest degree; and (3) his assistant public defender did not adequately represent him.
The district court instructed the jury on the charged offense of aggravated robbery and the lesser-included offense of simple robbery. The jury found Woods not guilty of simple robbery. Woods claims that, if he committed aggravated robbery, he necessarily also committed simple robbery.
Juries enjoy the power of lenity, that is, “the power to bring in a verdict of not guilty despite the law and the facts.” State v. Perkins, 353 N.W.2d 557, 561 (Minn. 1984). The supreme court explained this power in Perkins:
It is also true that a recognition of this power underlies a number of doctrines or rules of law. For example, recognition of this power underlies our ruling in State v. Juelfs, 270 N.W.2d 873 (Minn. 1978) (defendant found guilty of one count of a two count complaint is not entitled to a new trial or dismissal simply because the jury found him not guilty of the other count, even if the guilty and not guilty verdicts may be said to be logically inconsistent; jury may have believed the defendant guilty of both offenses, but, in the exercise of its power of lenity, could have found defendant guilty of only one of the two counts).
Id. Perkins answers both the contention that Woods must be found guilty of the lesser-included offense and the proposition that Woods urges, without citation to authority, that he is entitled to be convicted of only the lowest degree of a crime.
Wood’s complaint about his lawyer may be viewed as a claim of ineffective assistance of counsel. To succeed on such a claim “[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.’” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)).
Woods complains that his defense counsel did not talk to him before trial, did not provide Woods with copies of discovery, and was not prepared for trial. Woods also claims that his attorney was under some kind of stress because he was sweating and fidgeting during the trial.
An attorney meets the objective standard of reasonable representation when he or she exercises customary skills and diligence that a reasonably competent attorney would exercise under similar circumstances. State v. Gassler, 505 N.W.2d 62, 70 (Minn. 1993). There is a strong presumption that an attorney who exercises his judgment at trial provided competent representation. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
We have reviewed the record and we conclude that Woods’ defense attorney provided competent representation at trial. He appeared prepared on the facts, made appropriate objections, and thoroughly cross-examined the state’s witnesses. Furthermore, he adequately identified and preserved for appellate review the very error that forms the basis of this appeal. Woods has failed to carry his burden of showing how his attorney’s representation fell below an objective standard of reasonableness.