This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Garrett Arthur Olson,
Filed July 26, 2005
St. Louis County District Court
File No. K7-03-601028
Mike Hatch, Attorney General,
James B. Early, Assistant Attorney General,
Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, #501, Duluth, MN 55802 (for respondent)
John M. Stuart, State Public
Defender, Leslie J. Rosenberg, Assistant Public Defender,
Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant challenges his convictions of second-degree attempted murder, first-degree assault, and first-degree aggravated robbery, arguing that (1) the prosecutor committed prejudicial misconduct by vouching for the credibility of a witness; (2) the district court erred by failing to give an accomplice-testimony jury instruction; (3) the district court erred by giving the no-adverse-inference jury instruction without his consent; and (4) his attorney’s failure to challenge a search and to request an instruction on the defense of voluntary intoxication denied him effective assistance of counsel. We affirm.
During the summer of 2003, S.J.W. (the
victim) was living in a homeless shelter in
On the night of September 1, 2003, a bystander saw the victim lying on the boardwalk, bleeding, and called 911. Shortly after hearing the dispatcher relay the 911 call, Officer Ramsay saw appellant Garrett Arthur Olson stumbling away from the boardwalk area. Ramsay spoke with Olson and noticed that he was intoxicated, that there was blood smeared on his arm and clothing, and that some of the blood was still fresh. DNA testing of some of the blood taken from Olson’s clothing would ultimately match a sample taken from the victim. Ramsay became suspicious and asked Olson to empty his pockets, recovering two wallets and some keys. The victim subsequently identified one of the wallets and the keys as his.
The following morning, Olson gave a taped statement to police, repeatedly denying that he attacked the victim and claiming that he was unsure how he ended up with the victim’s wallet and keys. His statement was somewhat inconsistent, but essentially Olson claimed that the already-bleeding victim came up and hugged him in a drunken stupor, perhaps in an effort to make sexual advances, and that the hug resulted in Olson getting the victim’s blood on his arm and clothing. Olson also claimed that he may have pick-pocketed the victim during the hug or that he may have taken the victim’s keys and wallet during an alcoholic blackout. At one point during his statement, Olson seemed to suggest that Edward Davis and Constance Murray, with whom he had been drinking that day, may have been involved in the attack.
The state charged Olson with second-degree attempted murder, first-degree assault, and first-degree aggravated robbery. Olson waived an omnibus hearing and pleaded not guilty, and his case was submitted to a jury. Murray, a witness for the prosecution, testified that she spent that afternoon drinking with the victim, Olson, and Davis on the boardwalk; that the victim and Olson were arguing and pushing each other when she and Davis left to buy beer; that when she and Davis returned, Olson was stomping on the victim’s head, saying, “Die motherf***er, die”; that once she and Davis intervened, Olson “took off”; and that she and Davis went to call for help, but she could not remember if they ever made the call. Davis, a witness for the defense, also testified that he spent that afternoon drinking with the victim, Olson, and Murray on the boardwalk; that he and Murray left to buy liquor; that he later intervened when he saw Olson attacking the victim; and that he and Murray went to call 911 but that someone else had already called.
On cross-examination, the prosecutor
elicited testimony from
Prosecutor: When we took a break here a little while ago, you had a chance to talk to . . . the Chief Public Defender . . . right?
Prosecutor: And [the public defender] told you about your rights, didn’t he?
Prosecutor: He told you that if you had anything to hide you didn’t have to testify, right?
Prosecutor: And after you talked to [the public defender], you agreed to testify here; is that right?
Prosecutor: I’m sure that [the public defender] just told you to tell the truth; is that right?
Prosecutor: And you’ve told us the truth?
his closing argument, the prosecutor again made reference to
[The public defender] talked to Mr. Davis, told Mr. Davis, ‘look, if you’ve got anything to hide, you know, you don’t have to go up there and testify. You’ve got a right not to testify. But if you’re gonna, tell the truth.’
And knowing that, did Mr. Davis say, ‘no, I’m not gonna testify?’ Uh-uh. ‘I’m not going to incriminate myself?’ He didn’t say that, because he wanted to come and tell you the truth, and folks, that’s what he was doing. [Davis and Murray] are not responsible for this crime. [Olson] is responsible.
In his rebuttal,
the prosecutor argued, “Remember Mr. Davis talked to an attorney . . . halfway
through his testimony. [The attorney]
says ‘tell the truth.’ That’s what [
After the three-day trial, the jury returned a verdict of guilty on all counts, and the district court sentenced Olson to 163 months in prison on the conviction of second-degree attempted murder. This appeal follows.
D E C I S I O N
first argues that the prosecutor committed prosecutorial misconduct. On review of a claim of prosecutorial misconduct,
we “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 (
Olson argues that “the prosecutor committed serious misconduct when he improperly vouched for a witness’s credibility by speculating to the jury about the alleged content of a privileged conversation between the witness and his attorney.” But given Olson’s failure to object at trial and the substantial demonstrative and testimonial evidence against him, we are satisfied that the prosecutor’s comments did not significantly affect the verdict, and we therefore conclude that Olson has waived his right to have his claim considered on appeal.
Olson next challenges the district
court’s failure to give an accomplice-testimony jury instruction. Generally, a defendant waives his right to
have a claim of failure to give a jury instruction considered on appeal when he
fails “to propose specific jury instructions.”
State v. Cross, 577 N.W.2d
721, 726 (
Olson argues that the district court committed plain error “by failing to instruct the jury that if it determined that Davis or Murray were accomplices, then the jury would have to determine if their testimony was properly corroborated.” Olson did not ask the district court to give the accomplice-testimony instruction at trial, and the district court did not give the instruction.
defendant may not be convicted solely on an accomplice’s uncorroborated
testimony. State v.
[y]ou cannot find the defendant guilty of a crime on the testimony of a person who could be charged with that crime, unless that testimony is corroborated by other evidence that tends to convict the defendant of the same crime. Such a person who could be charged for the same crime is called an accomplice.
We conclude that Davis and Murray cannot reasonably be considered accomplices in this case. They have not been charged with any crime relating to the incident on September 1, 2003, and Olson did not propose their liability as a theory of his case at trial. In his closing, Olson argued that there was sufficient reason to doubt that he committed the crimes, but as to the liability of Davis and Murray, his counsel stated, “I am consistent in what I said earlier at the very beginning. I don’t know what happened. We don’t know what happened. Nobody really knows what happened.” And even if accomplice liability had been alleged at trial, the record does not demonstrate that either Davis or Murray intentionally aided, advised, hired, counseled, conspired with, or otherwise procured Olson to commit the crimes charged.
Because Davis and Murray cannot reasonably be considered accomplices in this case, we conclude that it was not error—let alone plain error affecting substantial rights—for the district court not to give the accomplice-testimony jury instruction.
Olson also argues that
the district court erred by giving the jury a no-adverse-inference
instruction. When a defendant fails to
object to an erroneous jury instruction, he generally has waived his right to
have his claim considered on appeal. State
v. Darris, 648 N.W.2d 232, 240 (
Olson argues that the district court committed plain error “by instructing the jury with the adverse inference instruction when appellant did not personally request the instruction.” Olson did not ask the district court to give the no-adverse-inference instruction at trial, but the district court nonetheless gave the instruction. Olson did not object.
A district court has a duty to protect a
witness’s privilege against self-incrimination “by preventing cross-examination
in areas which could invade his constitutional protection under the Fifth
Amendment.” State v. Spencer, 311
The state concedes that giving the
instruction without Olson’s permission on the record was error. But the Minnesota Supreme Court has held that
giving the no-adverse-inference instruction without the defendant’s consent to
be harmless error when there is a failure to show “that the facts of [his] case
make the error prejudicial.” Darris, 648 N.W.2d at 240 (citing State v. Thompson, 430 N.W.2d 151, 153 (
Given the substantial physical and testimonial evidence against Olson and because he has not carried his heavy burden of persuasion in showing prejudice, we conclude that the district court’s error in giving the no-adverse-inference instruction without Olson’s consent was not plain error affecting Olson’s substantial rights.
argues finally that he received ineffective assistance of counsel. We review claims of ineffective assistance of
counsel de novo. State v. Rhodes,
657 N.W.2d 823, 842 (
Olson claims that his counsel was ineffective for failing to raise a pre-trial challenge to Officer Ramsay’s search because “as a street person with no home to go to, being questioned by an officer in uniform on patrol late at night, [Olson] was not likely to have believed he could say no without consequences,” rendering his consent involuntary. Olson merely asserts that “under these circumstances, it was unreasonable for defense counsel not to have challenged the legality of the search,” without showing that the alleged error would have produced a different outcome of the proceeding. Again, an assignment of error in a party’s brief that is based on “mere assertion” and not supported by argument is waived unless prejudicial error is obvious on mere inspection. Modern Recycling, 558 N.W.2d at 772. And an inspection of the record before us, including the police report cited in Olson’s brief, shows that Ramsay simply “asked Olson if he would mind emptying his pockets” and that Olson responded by saying, “Sure, I don’t have anything,” voluntarily throwing everything in his pockets on the ground.
Given the substantial evidence against Olson, including the results of the DNA testing, and because he has not shown that the outcome of the proceeding would have been different had his counsel challenged Ramsay’s search, we conclude that Olson’s claim of ineffective assistance of counsel is without merit.
also claims that his counsel was ineffective for failing to request a jury
instruction on the defense of voluntary intoxication. But the decision to request jury instructions
is a tactical matter, which we leave to the discretion of trial counsel. State
v. Doppler, 590 N.W.2d 627, 635 (
Finally, Olson claims that “in the
alternative, these issues of ineffective assistance should be deemed preserved
for review in a postconviction evidentiary hearing.” But a postconviction evidentiary hearing is
necessary only when the record is not sufficient to allow proper review of a
claim of ineffective assistance of counsel.
Voorhees v. State, 627 N.W.2d 642, 649 (
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.