This opinion will be unpublished and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
Affirmed in part and remanded
Hennepin County District Court
File No. 01080426
Mike Hatch, Minnesota Attorney General, Suite 1800, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John Stuart, State Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414; and
Mark D. Nyvold, Special Assistant Public Defender, Suite W-1610, 332 Minnesota Street, St. Paul, MN 55101 (for appellant)
Considered and decided by Klaphake, Presiding Judge; Harten, Judge; and Stoneburner, Judge.
On appeal from conviction of attempted first-degree murder, Stephen William Johnson asserts that the district court erred by denying his motion to suppress evidence seized from him at the scene of the crime, abused its discretion by ruling that he could be impeached with his prior convictions, and erred by giving an unrequested instruction on his right not to testify. Appellant also asserts that his sentence was unconstitutional under Blakely v. Washington, 124 S Ct. 2531 (2004), and he was denied the effective assistance of trial counsel. Because the evidence obtained at the scene of the crime was incident to a valid arrest, the court did not abuse its discretion in its evidentiary rulings, the court’s error of instructing the jury on appellant’s right to remain silent was harmless, and appellant’s claim of ineffective assistance of trial counsel is without merit, we affirm the conviction. Because Blakely applies to appellant’s sentence, we remand for resentencing in accordance with Blakely.
Hennepin County Medical Center (HCMC) ambulance units were dispatched to a site in northeast Minneapolis where the first paramedic unit to arrive found victim James Neville near a retaining wall in a parking lot. Neville was severely beaten, with obvious head injuries, unconscious, and his legs were on fire. Another team of two paramedics arrived in response to notice that there was another “patient” at the scene. They found appellant, slumped against a wall, 3 to 7 feet away from Neville, apparently unconscious. The first response team continued to work on Neville—extinguishing the fire on his legs—while the second unit attended to appellant.
Paramedic Timothy Carpenter approached appellant, said “sir” and got no response. He put appellant on his back to see if appellant was injured, not breathing, without a pulse, or otherwise in need of medical assistance. He ascertained that appellant had a strong pulse in his wrist. Carpenter then rubbed appellant’s sternum with his knuckles, a maneuver that causes pain and indicates the patient’s level of consciousness. Appellant rolled onto his side and “grinned.” Carpenter thought something was not right and began to cut away appellant’s t-shirt. Appellant said “what are you doing?” Carpenter thought he smelled alcohol but appellant’s speech was not slurred. Carpenter and the other medic got appellant to his feet, observing that it was not hard to lift appellant, and that once appellant was upright he stood of his own accord, did not stumble or fall, and stared straight ahead with his eyes open.
Carpenter testified that he had a “suspicion” about appellant. At that point, he said to appellant, “let’s find out who you are,” and pulled a wallet out of appellant’s back pocket, over appellant’s protest that “I wouldn’t do that if I were you.” The wallet belonged to Neville.
After Carpenter’s interactions with appellant, the first police officers arrived. One of the responding police officers, Joel Carlson, took appellant into custody, searched him, cuffed him, and placed him in the squad car. During the search, Carlson found a wallet that appeared to belong to appellant. Carpenter gave the wallet he had retrieved to Carlson.
Shortly thereafter, a team of homicide investigators, including Michael Carlson arrived. Michael Carlson ordered a crime-scene technician to obtain swabs of a blood-like substance on appellant’s hands, a cutting from hair that appeared to be singed by fire, and photographs of appellant’s head, hair, hands, and clothing. Photographs depict a small burn-like smudge or mark on appellant’s little finger, various small spots of blood-like substance on his hands, and an area on the top, back part of his head where his hair appeared to be charred. Photographs taken of appellant’s legs and upper body show spatterings of blood on his upper clothing, and larger spots of blood on his pant legs and shoes.
Appellant was taken to the police station, booked, and questioned several times over the next few days. Eventually he gave a statement to officers that he remembered being at the scene, drinking with Neville and a third person, Troy Dean, who was appellant’s friend from the streets. Appellant stated that he saw Dean stand up and kick Neville in the face. Appellant stated that Dean then tossed Neville’s wallet to appellant. Appellant thought he remembered dropping the wallet on the ground, and then he blacked out.
Dean was arrested two days later and was subsequently convicted of first-degree attempted murder, first-degree assault, and first-degree aggravated robbery. This court affirmed his convictions. See State v. Dean, 2003 WL21321425, review denied (Minn. Aug. 19, 2003). Appellant was charged with attempted first-degree murder, attempted second-degree murder, first-degree assault, and first-degree aggravated robbery.
Before trial, the defense moved to suppress all evidence seized from appellant on the basis that there was no probable cause for his arrest. Appellant also asserted that because the county employed paramedic Carpenter, he was a “state actor,” and his removal of the wallet from appellant’s pocket violated the Fourth Amendment of the United States Constitution.
The district court found that there was probable cause to arrest appellant at the scene. The district court found that evidence taken from the appellant at the scene did not involve intrusive proceedings and was properly taken without a warrant, “on the basis of exigent circumstances and . . . they were in plain view.” The district court denied appellant’s motion to suppress the evidence taken at the scene and evidence of the results of testing of that evidence. The district court rejected appellant’s argument that the paramedic’s removal of the wallet from appellant’s pocket constituted state action, stating, “I’m finding that it was proper in the exercise of the paramedic’s duties, but that it was not state action, in any event.”
Appellant also contested the state’s motion to admit, and moved to suppress, evidence of his two prior felony convictions as Spreigl or impeachment evidence. The district court reserved ruling on the Spreigl issue until trial but held that both convictions were admissible to impeach appellant should he testify.
In preliminary instructions to the jury, the district court, without appellant’s request or consent, instructed the jury on appellant’s right to remain silent, stating
when the prosecution has rested, the defendant may, if he chooses, call witnesses and introduce evidence of his own, although he is not required to do so. Should the defendant choose to remain silent and present no evidence, you must not use that fact against him in any way because that is his constitutional right.
Immediately after the court’s preliminary instructions, appellant’s counsel made a record of several objections to the instructions, noting that counsel had not been provided with a copy of the instructions before they were given. Appellant specifically noted an objection to the instruction on appellant’s right to remain silent on the grounds that such an instruction should only be given on request. Counsel did not request any corrective action, and the district court did not make any ruling on the objection.
At the close of the state’s case, appellant’s counsel stated that fear that he would be impeached with prior crimes was the reason appellant was not testifying. Appellant’s counsel declined, at that point, to provide a formal offer of proof concerning appellant’s testimony. But earlier in the proceedings, appellant’s counsel had indicated to the judge that appellant’s testimony would have been, consistent with his statement to police investigators, that he remembered being at the scene, remembered Dean saying something like, “check his pockets,” and then appellant blacked out.
During the trial, the state presented testimony from the responding and investigating officers, paramedic Carpenter, and scientists from the BCA who analyzed DNA from the blood swabbings and the blood on appellant’s clothes and found it to be a match with the victim’s DNA, and not a match with known samples from appellant and Troy Dean. The state also presented expert testimony from a “blood spatter” expert who testified that, in his opinion, the blood spatters on the clothing seized from appellant indicated that the wearer of the clothing had been crouched over the victim when the blood spatters got on the clothes. This expert testified that it was not consistent with his analysis that bloodstains got on the clothes while the wearer was lying on the ground or sitting slumped against the wall.
Neville, who had been in a coma for three months as a result of the injuries he suffered during the assault, testified that approximately 5 months after the assault, police detectives visited him in the nursing home to determine what he remembered about the assault. They showed Neville “a bunch of” photos and Neville identified Troy Dean’s photo as someone he kept remembering in connection with the assault. Neville said to the officers: “I remember yelling at [Dean]. I wanted my wallet back. He looks familiar, like the guy that tried to get my wallet, tried to take my wallet.” Neville also picked appellant out of the photo lineup and identified him as someone he remembered seeing on the streets of Minneapolis with Dean.
Neville testified that after the date of the photo lineup he regained more memory, and by the time of trial he remembered that appellant had been standing in front of him during the first few blows to his head, and Dean was behind him when he was first hit on the head. Neville testified that he heard Dean say, “check his pockets.” He testified that once he was on the ground “they both started hitting me,” and that he thought both men went through his pockets while he was on the ground. In response to questioning from the state, Neville also affirmed that he had no doubt that appellant was involved in the beating and robbery.
Appellant did not testify and did not present any other witnesses or evidence in his defense. After the close of evidence, the court reminded appellant that he could have the jury receive an instruction on his right not to testify. Appellant declined the instruction. The jury received instructions approved by both counsel and found appellant guilty on all charges.
Appellant was sentenced to 240 months, an upward departure from the presumptive guidelines sentence of 220 months. The upward departure was based on the district court’s findings of appellant’s gratuitous cruelty, the victim’s vulnerability, and the victim’s permanent, disfiguring injuries. This appeal followed.
I. Admissibility of evidence collected at the scene of the crime
The district court denied appellant’s motion to suppress all of the evidence seized from him at the scene of the crime. “When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).
Appellant argued to the district court that seizure of a wallet from his pocket by a county-employed paramedic constituted an unlawful search and seizure. On appeal, he cites New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S. Ct. 733, 740 (1985) (holding that Fourth Amendment’s prohibition on unreasonable searches and seizures applies to searches conducted by school officials) and Ferguson v. City of Charleston, 532 U.S. 67, 76, 121 S. Ct. 1281, 1287 (2001) (holding that urine tests taken of obstetrics patients under a policy developed in conjunction with police and hospital were searches within meaning of Fourth Amendment and tests and reporting positive test results to police were unreasonable searches in view of policy’s law enforcement purpose). The district court concluded that the paramedic took the wallet for medical purposes, and, in any event, the paramedic was not a state actor. Whether a county-employed paramedic is a state actor under the circumstances of this case is a matter of first impression in Minnesota. Because we conclude that discovery of this wallet by the police was inevitable, as further discussed below, we decline to reach this constitutional issue.
Appellant argued that police did not have probable cause to arrest him and therefore the swabbings from his hands, hair samples, and other evidence taken from him at the scene should be suppressed. The state argued that the police had probable cause to arrest appellant and that the evidence was obtained lawfully in a search incident to arrest. The district court found that there was probable cause for the arrest and that the exigency of the circumstances justified obtaining evidence from appellant that was in plain view. We agree and further conclude that because appellant was lawfully arrested, Neville’s wallet would inevitably have been discovered by the police and was therefore admissible even if its original seizure did not pass constitutional muster. See, e.g., Harris, 590 N.W.2d at 105 (Minn. 1999) (recognizing that evidence gained from illegal warrantless search can be admissible through “inevitable discovery” exception).
“On appeal from a district court’s finding that a police officer had probable cause to arrest, we make ‘an independent review of the facts to determine the reasonableness of the police officer’s actions.’” State v. Prax, 686 N.W.2d 45, 48 (Minn. App. 2004), (quoting State v. Olson, 436 N.W.2d 92, 94 (Minn. 1989), aff’d, 495 U.S. 91, 110 S. Ct. 1684 (1990)). Absent clear error, the district court’s finding that the officer had probable cause to arrest will not be disturbed. Id.
Probable cause to arrest a criminal suspect exists when police reasonably could have believed that the person to be arrested committed a crime. State v. Merrill, 274 N.W.2d 99, 108 (Minn. 1978). The Minnesota Supreme Court, reviewing the standard for probable cause to arrest, quoted a United States Supreme Court’s discussion of the standard for probable cause to search:
Articulating precisely what . . . “probable cause” mean[s] is not possible. [It is a] commonsense, nontechnical conception that deal[s] with “‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’” As such, the standard [is] “not readily, or even usefully, reduced to a neat set of legal rules.” We have described probable cause to search as existing where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found. We have cautioned that th[is] legal principle [is] not [a] “finely-tuned standard,” comparable to the standards of proof beyond a reasonable doubt or of proof by a preponderance of the evidence. [It is] instead [a] fluid concept that take[s] [its] substantive content[s] from the particular contexts in which the standard [is] being assessed.
State v. Walker, 584 N.W.2d 763, 766 (Minn. 1998), quoting Ornelas v. United States, 517 U.S. 690, 695-96, 116 S. Ct. 1657 (1996).
The lawfulness of an arrest is determined by an objective standard that takes into account the totality of the circumstances, including the expertise and experience of the arresting police officers. State v. Perkins, 582 N.W.2d 876, 878 (Minn. 1998); State v. Riley, 568 N.W.2d 518, 523 (Minn. 1997). The evidence reflects that, although the ambulance drivers thought they were responding to a second “patient,” shortly after the ambulance drivers appeared on the scene, and by the time the first police officers arrived and arrested appellant, it was clear that appellant, if injured at all, was not nearly as injured as Neville. That observation, combined with the observable blood-like substance on appellant’s clothes, shoes and hands, and burns on his finger and hair, constitutes sufficient objective probable cause under the “totality of the circumstances” to justify appellant’s arrest at the scene.
If an arrest is valid, police may conduct a warrantless search of the suspect as incident to the arrest without additional justification. Walker, 584 N.W.2d at 766. In this case, the police officers searched appellant and would have inevitably discovered Neville’s wallet during that search if it had not been removed earlier by the paramedic. As for the swabbings, hair cutting, and seizure of his clothes, the prosecution presented more than adequate evidence that these items were in plain view at the time of appellant’s valid arrest and that the need to collect evidence that might dissipate was greater than the need to get a warrant. The district court correctly concluded that appellant’s arrest was valid and did not abuse its discretion by admitting evidence obtained from appellant at the scene incident to the arrest.
II. Impeachment with prior convictions
Appellant argues that the district court erred in evaluating his prior felony convictions under the factors listed in State v. Jones and in determining that the prejudicial effect of admitting evidence of the convictions would be outweighed by their probative value. See Jones, 271 N.W.2d 534, 537-38 (Minn. 1978) (establishing five factor test to determine whether to admit prior convictions). Evidentiary rulings rest within the district court’s discretion and will not be disturbed in the absence of a clear abuse of discretion. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). Evidence of a witness’s prior convictions is admissible for impeachment if the crime is a felony and the district court determines that the probative value of admitting this evidence outweighs its prejudicial effect. Minn. R. Evid. 609(a)(1). “On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).
The district court made extensive and detailed findings on each of the five factors set out in Jones. From our careful review of the record we conclude that the record supports the district court’s analysis of each factor.
Appellant also argues that because of the district court’s ruling on this issue, he was denied his right to testify in his defense because of the threat of impeachment by prior convictions if he were to testify.
“[A] defendant’s right to testify in his or her own defense is protected by both the 14th Amendment Due Process Clause of the Federal Constitution and Minnesota state law.” Ihnot, 575 N.W.2d at 587 (citations omitted). The supreme court has previously addressed “the relationship between a ruling on impeachment evidence and the right to testify.” Id. at 587. The court noted that
[t]he mere fact that a trial court would allow impeachment evidence if a defendant chooses to testify does not necessarily implicate his constitutional right to testify in his own defense. At a minimum, in order to prevail on this argument, appellant would have to show that the trial court abused its discretion in ruling that the probative value of the impeachment evidence outweighed its prejudicial effect; it is only when a trial court has abused its discretion . . . that a defendant’s right to testify may be infringed by the threat of impeachment evidence.
Id. (quoting State v. Gassler, 505 N.W.2d 62, 68 (Minn. 1993)).
If the admissibility of prior convictions prevents a jury from hearing a defendant’s version of events, this weighs against their admission. Gassler, 505 N.W.2d at 67. To determine the importance of the defendant’s testimony, courts examine the other evidence available to support the defendant’s version of events. State v. Kissner, 541 N.W.2d 317, 324 (Minn. App. 1995), review denied (Minn. Feb. 9, 1996). If another witness presents the defendant’s version of events, the defendant’s decision to not testify is not necessarily prejudicial. Gassler, 505 N.W.2d at 67. This is especially the case if the defendant does not make an offer of proof that he would have presented additional testimony. Id.
In this case, defendant told the police in his statement that he was intoxicated and blacked out at the scene after Dean took the victim’s wallet. The possibility that appellant was unconscious during the beating and robbery was clearly conveyed to the jury during the course of the trial, particularly in opening and closing arguments. Because we conclude that appellant’s version of events was conveyed to the jury and because we have already determined that the district court did not abuse its discretion in its weighing of the Jones factors, appellant was not denied his right to testify.
When requested by a criminal defendant who did not testify at trial, a state trial judge must instruct the jury not to draw an adverse inference from the defendant’s decision not to testify. McCollum v. State, 640 N.W.2d 610, 617 (Minn. 2002) (citing Carter v. Kentucky, 450 U.S. 288, 305, 101 S. Ct. 1112, 67 L.Ed.2d 241 (1981)). “In Minnesota, the standard no-adverse-inference instruction is: ‘The defendant has the right not to testify. This right is guaranteed by the federal and state constitutions. You should not draw any adverse inference from the fact that the defendant has not testified in this case.’” Id. (quoting 10 Minn. Dist. Judges Ass’n, Minnesota Practice--Jury Instruction Guides, Criminal, CRIMJIG 3.17 (4th ed.1999)). A trial court ordinarily should not give this instruction unless the defense requests it and, then, the better practice is for the trial court to inquire of the defendant himself whether he wishes to have such an instruction. State v. Thompson, 430 N.W.2d 151, 153 & n.3 (Minn.1988). Failure to obtain the defendant’s consent to giving the instruction on the record is error. State v. Duncan, 608 N.W.2d 551, 558 (Minn. App. 2000), review denied (Minn. May 16, 2000). Giving the instruction without the defendant’s permission, however, is not reversible error unless the defendant can demonstrate that it significantly affected the jury’s verdict. State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002).
Appellant argues he was prejudiced by the preliminary instruction because it left the jury to sit throughout the entire trial with an undue impression of his guilt. But considering the length of the trial, the number of witnesses presented, and the highly technical nature of some of the evidence presented, it is unlikely the jury focused on this instruction, which was given prior to opening statements.
The supreme court has stated that harmless error analysis “is better labelled as ‘harmless error impact analysis,’ because it is the impact of that error that the appellate court must consider. The overwhelming evidence of guilt is a factor, often a very important one, in determining whether, beyond a reasonable doubt, the error has no impact on the verdict.” State v. Juarez, 572 N.W.2d 286, 291 (Minn. 1997). In this case, the evidence against appellant was overwhelming and we cannot conclude that the preliminary instruction prejudiced appellant or that the error requires a new trial.
IV. Ineffective assistance of counsel claim
In his pro se supplemental brief, appellant argues that his trial counsel was ineffective because counsel failed to call or subpoena Troy Dean’s girlfriend to testify about statements Dean made to her that he, Dean, was in a fight with the victim that “was bloody;” failed to call to testify or subpoena a jail inmate who allegedly told an investigator for the defense that Dean told the jail inmate that he had beaten up the victim and left appellant unconscious at the scene; and failed to call a “blood spatter” analyst to rebut the testimony given by the state’s “blood spatter” expert.
An appeal from a judgment of conviction is generally not the proper method of raising an issue concerning the effectiveness of defense counsel. See State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000) (stating that an ineffective assistance of counsel claim should be raised in a petition for post-conviction relief). On direct appeal, however, when the record provides a sufficient basis to review an ineffective assistance of counsel claim and the claim requires no “additional facts to explain the attorney’s decision,” this court may review the matter as the interest of justice may require. Minn. R. Civ. App P. 103.04; Black v. State, 560 N.W.2d 83, 85 (Minn. 1997).
A claim of ineffective assistance of counsel is reviewed under a two-pronged test of performance and prejudice. Gates v. State, 398 N.W.2d 558, 561 (1987). Under the performance prong, an appellant has the burden of showing by a preponderance of the evidence that his counsel’s performance fell below an “objective standard of reasonableness.” Id. Questions of trial strategy are left to the discretion of trial counsel, which this court will not review later for competence. State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999). All the challenges appellant raises to his counsel’s decisions relate to trial strategy. See Voorhees, 596 N.W.2d at 255 (holding decisions regarding evidentiary issues are a matter of trial strategy); State v. Lahue,585 N.W.2d 785, 789-90 (Minn. 1998) (holding that whether to locate and call a witness is a matter of trial strategy). In reviewing trial strategy, the presumption is that a challenged action by counsel is considered sound trial strategy. State v. Strodtman,399 N.W.2d 610, 616 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987). Appellant does not present any argument as to how his counsel’s performance fell below an “objective standard of reasonableness.” Accordingly, his claim of ineffective assistance of counsel must fail.
V. Application of Blakely
After this appeal was submitted to this court, the United States Supreme Court issued its opinion in Blakely v. Washington, 124 S. Ct. 2531 (2004). In Blakely, the Supreme Court determined that, in the context of Washington state’s sentencing laws, allowing judicially-found facts to enhance a sentence deprives a defendant of the federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to sentencing. Id. at 2537-38. Appellant argues that Blakely applies to sentences in Minnesota and makes his judicially-enhanced sentence unconstitutional. “[I]f a case is pending on direct review when a new rule of federal constitutional criminal procedure is announced, a criminal defendant is entitled to benefit from that new rule.” O’Meara v. State, 679 N.W.2d 334, 336 (Minn. 2004). “[A] case is pending until such time as the availability of direct appeal has been exhausted, the time for a petition for certiorari has elapsed or a petition for certiorari with the Supreme Court has been filed and finally denied.” Id.
The state argues that Blakelydoes not apply to Minnesota’s sentencing guidelines scheme because it is dissimilar to the scheme in Washington State that Blakely addressed. But this court has recently held that Blakely does apply to upward durational departures under the Minnesota sentencing guidelines, therefore we remand this matter to the district court for consideration of appellant’s sentence consistent with the holding of Blakely. See State v. Conger, 687 N.W.2d 639 (Minn. App. 2004), pet. for rev. filed (Minn. Nov. 10, 2004); State v. Saue, 688 N.W.2d 337 (Minn. App. Nov. 2, 2004).
Affirmed in part and remanded.
 Appellant’s prior convictions included two felony convictions of First Degree Aggravated Robbery and Theft over $500. The motion to use the convictions as Spreigl evidence was later withdrawn by the state at the close of its case.
 Appellant was charged with several lesser-included offenses, including aggravated robbery, assault, and attempted murder in the second degree. He was sentenced only on the attempted first-degree murder conviction.