This opinion will be unpublished and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
Dale Dwayne Greer,
Affirmed in part, reversed in part, and remanded
Hennepin County District Court
File No. 04048286
Mike Hatch, Attorney General, 1800
Amy J. Klobuchar, Hennepin County Attorney, Donna J.
Wolfson, Assistant County Attorney, C-2000 Government Center,
Leslie J. Rosenberg, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Dale D. Greer, OID 113819, MCF-Rush City, 7600 525th Street, Rush City, MN 55069 (pro se appellant)
Considered and decided by Toussaint, Chief Judge Presiding, Ross, Judge; and Minge, Judge.
Appellant Dale Dwayne Greer challenges his conviction and sentence for being a felon in possession of a firearm, arguing that the district court (1) erred by denying his motion to dismiss for violation of his right to a speedy trial; (2) abused its discretion by ruling that, should he testify, the state would be allowed to introduce evidence of prior convictions to impeach his testimony; and (3) violated his constitutional rights by empanelling a sentencing jury to make additional findings justifying an upward durational sentencing departure. He also argues that he is entitled to a new trial because he received ineffective assistance of counsel. Because the district court lacked inherent authority to convene a sentencing jury, we reverse the sentence and remand to the district court for imposition of the presumptive guidelines sentence. We affirm as to all other issues.
state charged Dale Greer on July 28, 2004, with one count of felony prohibited
person in possession of a firearm, in violation of Minn. Stat. §§ 624.713,
subds. 1(b), 2(b), 609.11 (2002), and two counts of felony terroristic threats,
in violation of Minn. Stat. § 609.713, subd. 1 (2002). The complaint alleges that on July 26,
Greer appeared in court on July 29, 2004, in connection with an August 2003 charge of fleeing a police officer in a motor vehicle. At that hearing, defense counsel and the court discussed Greer’s previous request for a speedy trial in the fleeing matter, but they did not discuss the July 2004 charges except to agree that Greer’s counsel would represent him in both matters.
Greer pleaded not guilty to the July 2004 charges on August 10, 2004, and requested a speedy trial. The court set the trial for October 4, but defense counsel’s scheduling conflict forced a delay. The parties appeared in court on October 14, when the prosecutor announced that, according to his notes, the matter currently set for trial was the August 2003 fleeing charge, not the July 2004 charges. He explained that the state was not prepared to try the July 2004 charges. Defense counsel re-asserted the demand for a speedy trial, but declared his immediate unavailability because of a prescheduled vacation. The district court therefore continued the trial to November 9, 2004.
On the first day of trial, Greer moved to dismiss the charges on the ground that his constitutional right to a speedy trial had been violated. The district court denied the motion. It also ruled that the state would be allowed to introduce evidence of six prior convictions for impeachment purposes if Greer decided to testify.
Neither Greer nor his ex-wife, Carolyn, testified at trial. Danyel Anderson testified that Greer had threatened her and her mother with the same gun that police found on the refrigerator. In contrast, Danyel’s cousin, Tekhola Trapps, testified that the gun admitted into evidence was not the gun she had seen Greer holding on July 26. A Minneapolis Police Department forensic scientist testified that the gun had no identifiable fingerprints.
The jury found Greer guilty of being a felon in possession of a firearm but not guilty of the terroristic-threats charges. The district court then asked the jury to decide an additional question: “Is [Greer] a danger to the public safety?” The court instructed the jury concerning the presumption of innocence and the state’s burden of proof, and it accepted into evidence certified copies of eight of Greer’s prior convictions. The jury found that Greer was a danger to public safety.
The district court sentenced Greer to 120 months’ imprisonment, twice the presumptive sentence, based on the jury’s additional finding of danger. See Minn. Stat. § 609.1095, subd. 2 (2002) (authorizing the district court to depart from the presumptive guidelines sentence if the defendant has two or more prior felonies and if the “court finds that the offender is a danger to public safety and specifies on the record the basis for the finding”). This appeal followed.
D E C I S I O N
that the 91-day delay between his speedy-trial request on August 10 and the
start of trial on November 9, 2004, violated his right to a speedy trial. Under the federal and state constitutions,
criminal defendants are entitled to a speedy trial. U.S. Const. amend. VI;
controlling procedural rule provides that a defendant shall be tried within 60
days from the date of a demand for a speedy trial unless good cause is shown by
the prosecutor or the defendant why he should not be brought to trial within
a delay results from circumstances over which the prosecutor has no control, “it
weighs less heavily against the state than would deliberate attempts to delay
trial.” Friberg, 435 N.W.2d at 513. The
supreme court has pointed out that such circumstances have proven to be “good
cause for delays up to fourteen months where the defendants suffered no unfair
We are even less persuaded by the “most serious” consideration—whether the delay impaired the defense. Windish, 590 N.W.2d at 318. Greer’s trial counsel acknowledged that “we don’t have prejudice [because of the delay] in the sense that we are somehow handicapped in our ability to fight this charge, quite candidly.” Nothing in the record casts doubt on that assessment. Because the minimal delay here did not arise from the prosecutor’s conduct and did not prejudice Greer’s defense, the district court did not err by denying Greer’s motion to dismiss.
that the district court abused its discretion by ruling that should he choose
to testify, the state could introduce evidence of six prior convictions for
impeachment purposes. We review a
district court’s ruling on admission of prior-conviction evidence for an abuse
of discretion. State v. Ihnot, 575 N.W.2d 581, 584 (
(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.
State v. Jones, 271 N.W.2d 534, 537-38 (
We will consider admission of Greer’s convictions under these factors. At issue are six convictions between 1985 and 1997: (1) theft from person, May 1985; (2) first-degree assault, October 1986; (3) felon in possession of a firearm, April 1993; (4) third-degree possession of controlled substance, June 1993; (5) second-degree assault, August 1997; and (6) terroristic threats, August 1997. The conduct of the conviction now being appealed occurred on July 26, 2004.
A. The impeachment value of the prior crimes
prior convictions involved theft, assault, terroristic threats, felon in
possession of a firearm, and possession of a controlled substance. While only crimes of dishonesty are presumptively
admissible for impeachment purposes, other crimes may also be admitted.
B. Date of conviction and subsequent history
the timing of the convictions because, generally, “[e]vidence of a conviction
under this rule is not admissible if a period of more than ten years has
elapsed since the date of the conviction or of the release of the witnesses
from the confinement imposed for that conviction, whichever is the later
consider the date of the conviction and the defendant’s subsequent history “to
determine whether the prior offense has lost its relevance over the passage of
time.” State v. Vanhouse, 634 N.W.2d 715, 719 (Minn. App. 2001), review denied (
[t]he  offense was very shortly followed by one in 1986 that resulted in a prison commit, and very shortly after release from prison on that matter, a third offense in 1991 occurred [which the state did not seek to admit for impeachment purposes], which also resulted in a prison commit bringing us up to 1993.
Although Greer argues that “a stale conviction cannot be imbued with probative value where the only value found by the court is that the frequency and duration tend to show a propensity to commit crimes,” the supreme court has held that the probative value of an otherwise stale conviction may be enhanced by a “history of lawlessness and convictions.” Ihnot, 575 N.W.2d at 586. Greer’s history of lawlessness and convictions enhances the probative value of his older theft conviction. We conclude that this factor tends slightly to favor admission of the prior convictions.
C. Similarity of past and charged crimes
Greer’s prior crimes vary in similarity to the crime underlying his presently appealed conviction. The supreme court has held that “the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach.” Jones, 271 N.W.2d at 538. “[I]f the prior conviction is similar to the charged crime, there is a heightened danger that the jury will use the evidence not only for impeachment purposes, but also substantively.” Gassler, 505 N.W.2d at 67.
The present appeal arises from conduct that prompted charges of terroristic threats and felon in possession of a firearm. Greer’s history includes one conviction for terroristic threats and one for felon in possession. The state maintains that because the jury did not convict Greer on the two 2004 terroristic-threats charges, their existence is “legally irrelevant” to the district court’s ruling on the admissibility of the impeachment evidence. We need not address that argument because we believe the similarity of both the prior terroristic-threats and the felon-in-possession convictions to the current conviction of felon in possession weighs against their admission to impeach.
had Greer chosen to testify, “a cautionary instruction would presumably have
been given which directs the jury to consider the prior conviction[s] only as [they]
relate to [Greer’s] credibility.” State v. Brouillette, 286 N.W.2d 702,
D. Importance of Greer’s testimony and centrality of credibility
We next consider the importance of a defendant’s testimony in light of how the district court’s decision to admit evidence of prior convictions will likely affect whether the defendant will choose to give that testimony. The supreme court has applied this factor by considering that a defendant’s “version of the facts may be centrally important to the result reached by the jury. If so, this fact would support exclusion of the impeachment evidence if by admitting it, [the defendant’s] account of events would not be heard by the jury.” Gassler, 505 N.W.2d at 67. But the Gassler court also reasoned that when
it is clear from the record that appellant’s version was presented to the jury via the testimony of other witnesses [and when] no offer of proof was made as to any additional testimony appellant would have added if he had taken the stand[, b]oth these factors support the trial court’s decision to admit the evidence for impeachment.
If a defendant’s credibility is the central issue, “a greater case can be made for admitting the impeachment evidence, because the need for the evidence is greater.” Ihnot, 575 N.W.2d at 587 (quotation omitted). Greer maintains that his credibility was not a central issue. But the primary evidence presented at trial that Greer threatened his ex-wife and her daughter with a gun was the daughter’s testimony; her cousin countered that the gun was not the weapon involved in the July 2004 dispute. Had Greer testified, the jury’s determination of witness credibility would have been critical, calling for the state to impeach his testimony. See Heidelberger, 353 N.W.2d at 590-91 (observing that because “the jury would have had to decide whether to believe [Heidelberger’s] testimony or [another witness’s,] . . . there was a strong need for evidence of the prior convictions for impeachment purposes”). As the district court observed, if Greer testified, “[h]e would be the only one testifying as to his version of the facts, which would then make credibility a central issue in the case.”
The district court noted that of the Jones factors, only the last—the centrality of Greer’s credibility—clearly favors admitting evidence of the six prior convictions. But the district court recognized that the credibility factor outweighs the others in importance, particularly because the others do not clearly favor admission or exclusion. We agree, and we conclude that the district court did not abuse its discretion by ruling that should Greer choose to testify, the state could introduce evidence of his six prior convictions to impeach his testimony.
argues that the district court had neither inherent nor statutory authority to
bifurcate the proceedings after the verdict and to ask the jury to make a
separate factual determination as to whether he is a “danger to public safety,”
for the purpose of deciding the propriety of an enhanced sentence under Minn.
Stat. § 609.1095, subd. 2 (2002). Greer
acknowledges that Blakely v. Washington,
The district court imposed an enhanced sentence under Minn. Stat. § 609.1095, subd. 2, which provides:
Whenever a person is convicted of a violent crime that is a felony, and the judge is imposing an executed sentence based on a sentencing guidelines presumptive imprisonment sentence, the judge may impose an aggravated durational departure from the presumptive imprisonment sentence up to the statutory maximum sentence if the offender was at least 18 years old at the time the felony was committed, and:
(1) the court determines on the record at the time of sentencing that the offender has two or more prior convictions for violent crimes; and
(2) the court finds that the offender is a danger to public safety.
Greer’s challenge does not require
us to directly apply Blakely, but
understanding Blakely’seffect will frame the question before
us. In Blakely, the United States Supreme Court held that a defendant’s
Sixth Amendment right to a jury trial is violated when an upward durational
departure increases a presumptive sentence based on findings of fact not made
by a jury. 542
Responding to this
constitutional problem, the legislature amended Minn. Stat. § 609.1095,
subd. 2, in 2005 to include new requirements for sentencing departures, and
Minn. Stat. § 244.10, subd. 5, to specifically authorize sentencing
juries and bifurcated trials. See 2005
Before Blakely (which has no retroactive effect, see State v.
Recent supreme court
jurisprudence that developed after Greer’s sentencing leads us to conclude that
it did not. In State v. Shattuck, the supreme court announced that it “has the
inherent authority to authorize the use of sentencing juries and a bifurcated
trial process” to remedy Blakely
violations. 704 N.W.2d at 147. The Shattuck
court concluded that it would nonetheless “proceed cautiously in exercising
that authority in order to respect the equally unique authority of the
executive and legislative branches of government over their constitutionally authorized
While this court has the authority to establish
procedures to apply the requirements of Apprendi
and Blakely to sentencing in
Shattuck’s cautious restraint concerning
the exercise of inherent judicial authority over sentencing might be read either
narrowly or expansively. Reading
narrowly, one might conclude that although Shattuck
precludes requiring a district court
to submit a sentencing question to a jury in a bifurcated trial, it does not
necessarily prohibit a district court
from doing so. This is the position
recently taken by this court in State v.
Lushenko, which concludes that Shattuck’s
reluctance to engraft mandatory sentencing-jury requirements onto the guidelines
does not restrict—or compromise—the district court’s inherent authority to
craft sentencing procedures following Blakely. ____ N.W. 2d ____, ____ 2006 WL 1460585, at *5
The Shattuck court was reluctant to act on its inherent authority and to
craft a remedy. 704 N.W.2d at 148. Instead, it deferred and urged the
legislature to correct the statutory scheme to comport with Blakely.
developments also discourage such an exercise.
Shortly after the release of Shattuck,
a panel of this court issued an unpublished opinion holding that a district
court does not exceed its authority by submitting an aggravating sentencing
factor to the jury in a bifurcated trial after the jury has rendered its
verdict on the issue of guilt. State v. Chauvin, No. A05-726, 2005 WL
2979382, at *5 (Minn. App. Nov. 8, 2005), review
Curious or not, in State v. Barker the supreme court concluded
that the district court lacks authority to empanel a sentencing jury in the
absence of explicit legislative authority to do so. 705 N.W.2d 768, 776 (
We recognize that the district
court’s submission of the sentencing factor to the convicting jury arguably might
be distinguished from the empanelling of a sentencing jury to determine the
sentencing factor. Indeed, the Chauvin court partly relied on that
distinction and described submitting the sentencing factor to the convicting
jury as tantamount to submitting special interrogatories on sentencing issues
to an existing jury—a practice the Chauvin
court considered to be within the district court’s authority. Chauvin,
2005 WL 2979382, at *3-4 (citing cases).
But while Barker considered
empanelling a jury on remand and the district court here simply submitted the
question of whether Greer is a danger to public safety to the
already-empanelled jury that had determined his guilt, the reasoning in Barker is expressly applicable to
judicially crafted bifurcated sentencing procedures as well. See Barker,
705 N.W.2d at 775-76 (quoting Shattuck’s
“requirement” restriction on either process, “sentencing-jury or bifurcated
trial”). And in
Barker’s analysis of the court’s inherent authority also demonstrates that this issue does not hang on whether the district court merely has the authority to regulate—and improvise—court sentencing procedures, but on whether the district court may, as a practical matter, exercise that authority to remedy the facial infirmity identified by Blakely. Applying Barker, district courts seeking to impose enhanced sentences under Minn. Stat. § 609.1095, subd. 2 in the period between Blakely and the 2005 legislative enactments are prohibited from exercising this inherent authority. Although the Shattuck and Barker acknowledgement of the existence of inherent judicial authority and their simultaneous reservation of the exercise of that authority suggest that the surrender to the legislature was discretionary rather than mandatory, we are bound to follow the supreme court’s guidance. Consequently, we conclude that the district court erred by imposing an enhanced sentence under Minn. Stat. § 609.1095, subd. 2, and by resting that departure on the additional question submitted to the jury in the sentencing phase. Despite the district court’s careful attempt to avoid a constitutional error on the one hand and an inappropriately light sentence on the other, we must reverse the enhanced sentence and remand for a sentence within the presumptive range.
In his pro se supplemental brief, Greer argues that he received ineffective assistance of counsel because his attorney (1) refused to call Carolyn Greer, Greer’s ex-wife, as a witness, and (2) refused to investigate statements made by Danyel Anderson to defense counsel before trial recanting her July 26, 2004 assertion to the police that Greer had threatened her with a handgun.
observe that the preferred method for raising an
ineffective-assistance-of-counsel claim is through a petition for
claim of ineffective assistance of counsel raises a constitutional issue, which
appellate courts review de novo. State v. Blom, 682 N.W.2d 578, 623 (
The complaint charging Greer alleges that both Carolyn Greer and Danyel Anderson told police that Greer had threatened them with a gun. At the October 14, 2004 hearing, defense counsel stated that Carolyn Greer had later contacted him to say that statements attributed to her by the police concerning Greer’s guilt were false. At the same hearing, defense counsel also stated that Danyel Anderson had told him that she wished to give his investigator a statement asserting Greer’s innocence with respect to the July 2004 incident.
At trial, defense counsel made what he called a “tactical” decision not to call Carolyn Greer to testify. Greer then asserted his own right to call her, and the district court denied his request, observing that the decision to call witnesses is a tactical choice ultimately reserved for defense counsel. The court also opined that the decision not to call Carolyn Greer appeared to be a “very good tactical decision” in light of the uncertainty about whether her testimony would help or hinder Greer’s case. When Danyel Anderson was called by the state to testify, she affirmed the version of events contained in the complaint.
contends that defense counsel should have taken Danyel Anderson’s statement of his
innocence and used it to impeach her testimony.
He also contends that, if called, Carolyn Greer would have asserted his
innocence. Greer’s claims about the
alleged lost opportunity to impeach Danyel Anderson with her own prior
statement raise only theoretical questions about the thoroughness of his
attorney’s performance, because any expectation that
Affirmed in part, reversed in part, and remanded.