This opinion will be unpublished and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
Filed April 4, 2006
St. Louis County District Court
File No. KX-03-101882
Mike Hatch, Attorney General,
Alan L. Mitchell,
John M. Stuart, State Public
Defender, Theodora Gaïtas, Assistant Public Defender,
Considered and decided by Peterson, Presiding Judge; Klaphake, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from his 2004 conviction and sentence for aiding and abetting aggravated robbery and an order denying a postconviction petition challenging the conviction, appellant argues that the postconviction court erred in (1) denying appellant’s due-process claim that the prosecutor failed to disclose the victim’s 1996 conviction for first-degree criminal sexual conduct; and (2) denying his right to a jury trial by imposing an upward durational departure based on a judicial finding that the victim was particularly vulnerable. We affirm appellant’s conviction, but we reverse appellant’s sentence and remand for resentencing.
On October 1, 2003, officers arrested appellant Burton Benner and his brother Aaron Benner after Brent Galindo reported that the two men assaulted and robbed him. The state charged appellant with one count of first-degree aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1 (2002), and one count of simple robbery in violation of Minn. Stat. § 609.24 (2002). The matter went to trial in April 2004.
Galindo testified for the state, describing the events of October 1 and his attackers. The jury found appellant guilty of both counts. Appellant’s presumptive sentence was 98 months for the aggravated-robbery conviction. The district court sentenced appellant to 196 months, a double upward departure, upon a finding that Galindo was particularly vulnerable. Appellant filed a direct appeal on July 28, 2004, but this court stayed that appeal to accommodate appellant’s request to pursue postconviction relief.
Appellant petitioned for postconviction relief arguing that (1) the state obtained the conviction in deprivation of appellant’s due process rights because the state failed to disclose that Galindo had a 1996 conviction for first-degree criminal sexual conduct, and (2) the district court violated appellant’s Sixth Amendment right to a jury trial by imposing a double durational departure based on judicial findings of fact. The prosecutor in appellant’s case acknowledged that he failed to disclose Galindo’s prior conviction to appellant but stated that the failure to disclose was inadvertent.
postconviction court denied relief on June 13, 2005, reasoning that Galindo’s
prior conviction would not have been admissible for impeachment purposes
because the probative value of its admission did not outweigh the prejudicial
effect. The postconviction court then
concluded that the
D E C I S I O N
Appellant argues that the
postconviction court erred in denying him a new trial because the prosecutor’s
failure to disclose its witness’s prior conviction was prejudicial. Appellate courts “review a postconviction
court’s findings to determine whether there is sufficient evidentiary support
in the record.” Dukes v. State, 621 N.W.2d 246, 251 (
“[S]uppression by the prosecution of
evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” State v. Hunt, 615 N.W.2d 294, 299 (
The United States Supreme Court has
adopted a three-part inquiry into whether the failure to disclose evidence
violates due process: “The evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is impeaching; that evidence
must have been suppressed by the State, either willfully or inadvertently; and
prejudice must have ensued.” Strickler v. Greene, 527
Here it is undisputed that Galindo’s
prior conviction for first-degree criminal sexual conduct was impeaching and
favorable to appellant, and that the state inadvertently failed to disclose the
evidence. The issue on appeal is whether
the prosecutor’s failure to disclose the conviction prejudiced appellant,
entitling him to a new trial. When
examining prejudice, this court looks at whether the evidence would have been
admissible at trial and whether the evidence could “in any reasonable
likelihood have affected the judgment of the jury.” Hunt,
615 N.W.2d at 299; see also Gorman v.
State, 619 N.W.2d 802, 806 (
prior conviction for criminal sexual conduct is not a crime involving
dishonesty and, therefore, its admission for impeachment purposes depends on
whether its probative value outweighs its prejudicial effect.
Acknowledging that crimes of violence do not have the same impeachment value as crimes of dishonesty, appellant argues that the postconviction court abused its discretion in concluding that the prejudicial effect of admitting Galindo’s prior conviction outweighed the probative value because admission of the conviction would have aided the jury in evaluating Galindo’s credibility. Appellant contends that Galindo’s credibility was central to the prosecution’s case because he was the only witness and victim. Appellant also argues that admission of the one conviction would not have unnecessarily delayed the trial or confused the issues. We disagree.
arguments are unsupported by
Lanz-Terry, a defendant attempted to
impeach the victim’s testimony and credibility with evidence of five prior
felony convictions for property crimes and controlled substances.
Applying Lanz-Terry, the postconviction court did not abuse its discretion
in concluding that the probative value of admitting Galindo’s prior conviction
did not outweigh the prejudice. With
respect to probative value, the relevancy of Galindo’s conviction was
diminished by its age; the conviction was eight years old at the time of
trial. Galindo’s credibility was central
to the case, but Galindo testified that he knew one of his attackers from a
prior incarceration in the
In addition, admission of the conviction would have resulted in considerable prejudice and confusion. Galindo’s prior conviction for first-degree criminal sexual conduct involved repeated sexual contact with a girl under the age of 16. Admission of the conviction may have distracted the jury or tempted the jury to punish Galindo rather than consider the facts supporting appellant’s guilt. In light of the marginal value of admitting the impeaching evidence for purposes of attacking Galindo’s credibility, the postconviction court’s decision was not an abuse of discretion.
district court sentenced
appellant to an executed prison term of 196 months, which is a double upward
durational departure from the 98-month presumptive sentence. Appellant argues that the sentencing
departure violated his constitutional right to a jury trial under Blakely v. Washington, 542
“Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” Apprendi v.
The postconviction court reasoned
from United States v. Booker, 125
S. Ct. 738, 751–52 (2005), and concluded that “[i]n the second part of the
Booker opinion, the Sixth Amendment
problem was eliminated by making the federal guidelines advisory, not
mandatory. This means judges may
increase a sentence when they make factual findings beyond those made by the
jury, but they are not required to do so.”
But at the time, the district court did not have the Minnesota Supreme
Court’s decision in Shattuck, wherein
the court rejected the Booker solution
of making the guidelines advisory. Shattuck, 704 N.W.2d at 146–47. Accordingly, in Shattuck, the supreme court held that the imposition of an upward
durational departure from the presumptive sentence prescribed by the
Here, the district court made the sentencing departure based on the fact, found by the judge, that “[the victim] was in a vulnerable condition that was apparent to both [brothers].” Thus, the district court erred in imposing a sentencing departure for the aggravated robbery conviction. The proper remedy is a remand to the district court for resentencing consistent with Shattuck.
Affirmed in part, reversed in part, and remanded.