This opinion will be unpublished and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 August 8, 2006
Hennepin County District Court
File No. 04002659
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
John M. Stuart, State Public
Defender, Steven P. Russett, Assistant Public Defender,
Considered and decided by Randall, Presiding Judge; Willis, Judge; and Parker, Judge.*
U N P U B L I S H E D O P I N I O N
this appeal from convictions of and sentences for aiding and abetting kidnapping
and aiding and abetting attempted first-degree murder, appellant (1) argues
that he was denied his right to a speedy trial; (2) challenges the district
court’s denial of his request for substitute counsel and acceptance of his
waiver of counsel; (3) challenges the district court’s preclusion of testimony;
(4) argues that the prosecutor committed prosecutorial misconduct during
closing argument; (5) challenges the instruction that the district court gave
in response to a question by the jury; (6) argues that his sentences must be
reduced to the presumptive guidelines sentences because the district court had
no authority to empanel a sentencing jury and that by doing so, the district
court violated appellant’s “double jeopardy rights”; (7) argues that his
sentences must be reduced to the presumptive guidelines sentences because the
sentencing jury’s findings are insufficient to support the sentencing
departures; and (8) argues that he was improperly assigned a felony point for
an Illinois burglary conviction and a custody point relating to his Illinois-probation
status. We affirm in part, concluding
that the majority of appellant’s arguments are without merit; we reverse in
part, concluding that the
In January 2004, appellant David Johnson and four codefendants were charged with kidnapping or aiding and abetting kidnapping and with attempted first-degree murder or aiding and abetting attempted first-degree murder. In June 2004, a jury trial was held, during which Johnson proceeded pro se with the assistance of a stand-by counsel.
trial, the victim, J.R., testified to the following: In November 2003, J.R. got into an argument
with several women at a friend’s house.
The women hit J.R., put her in a chair, and tied her up with duct tape
and phone cords. She was later gagged
and put in a closet. Some hours later, J.R.
heard the voice of Johnson, whom she knew.
Johnson opened the closet door and kicked J.R.’s head ten or more
times. Johnson then asked where his gun
was, and he, the women, and another man who had arrived at the house continued
to beat J.R. until she lost consciousness. When she regained consciousness, she was in
the trunk of her car. Johnson and the
others drove several cars, including J.R.’s, to an alley in north
the trial, Johnson told the jury that he was innocent of the offenses and that
he had been in
Johnson first argues that he was
denied his right to a speedy trial because his trial was held more than 60 days
after his speedy-trial demand. Both the
federal and state constitutions guarantee criminal defendants the right to a
speedy trial. U.S. Const. amends. VI,
A. Length of the Delay
first Barker factor is presumptively
met when a trial occurs more than 60 days after a defendant demands a speedy
B. Reason for the Delay
state and the courts have the burden of ensuring speedy trials for criminal
defendants. Cham, 680 N.W.2d at 125; see
Windish, 590 N.W.2d at 316. If a
defendant’s own actions caused the delay, there is no violation of the right to
a speedy trial. State v. Johnson, 498 N.W.2d 10, 16 (
Here, the record shows (1) that Johnson’s court-appointed attorney did not appear for the trial that was scheduled to begin March 22, 2004, because he was in another trial and (2) that he agreed, in open court without Johnson being present, to continue the trial to June 7, 2004. At a subsequent hearing, Johnson objected to the continuance and requested a different attorney. Johnson’s attorney told the district court at that hearing that before the March 22 trial date, he had told Johnson that because “this was a complicated case” and the state had secured his codefendants to testify against Johnson, “he would need additional time to prepare, get transcripts of [codefendant’s] pleas and look at impeachment issues.” Johnson’s attorney stated further that he believed that when he requested a continuance he had Johnson’s acquiescence and approval to get whatever time he felt he needed to prepare Johnson’s case and that he would not have waived Johnson’s speedy-trial right unless he believed that Johnson acquiesced in it. Because the record shows that Johnson’s trial was delayed because of his attorney’s unavailability and the complexity of the case and not because of any action by the state, this factor weighs against Johnson.
C. Assertion of Speedy-Trial Right
The parties do not dispute, and the record shows, that Johnson asserted his right to a speedy trial, and neither party argues here that Johnson ever waived this right. Although the record shows, despite Johnson’s claim to the contrary, that Johnson may have told his attorney that the trial could be continued so that the case could be prepared properly, the record also shows that Johnson’s attorney never explained to Johnson his right to a speedy trial and that by continuing the trial date Johnson was waiving that right. Therefore, this factor weighs in Johnson’s favor.
To determine whether a delay
prejudiced a defendant, this court considers three interests that the right to
a speedy trial protects: (1) preventing
lengthy pretrial incarceration; (2) minimizing the defendant’s anxiety and
concern; and (3) preventing possible impairment to the defendant’s case. Windish,
590 N.W.2d at 318; Cham, 680 N.W.2d
at 125. The third interest is the most
important. Windish, 590 N.W.2d at 318.
Because a defendant often has difficulty in proving the precise manner
in which his defense was impaired, a defendant need not prove specific
Johnson argues that he was prejudiced by the delay of his trial because (1) he “suffer[ed] the oppression of pretrial incarceration, as well as anxiety and concern over his predicament, for an additional two and one-half months while awaiting trial”; (2) by the time of trial, he “had difficulty locating witnesses”; and (3) the delay “provided the state additional time to convince [Johnson’s] codefendants to testify against [him].” The state argues that the stress Johnson experienced was not more than any defendant involved in a trial would experience. The state also argues that “it is complete speculation that [Johnson] was unable to locate witnesses due to delay” and that it is “equally conceivable that witnesses could not be located because they did not wish to be located.”
The record shows that not all of Johnson’s witnesses could be located for subpoena service, despite several attempts to complete service both before and after he dismissed his attorney. And the record shows that Johnson’s codefendants had already agreed to testify against him before the first trial date. And the anxiety that Johnson claims to have suffered because of the delay is not prejudicial here. See Friberg, 435 N.W.2d at 515 (concluding that defendant was not prejudiced by a more than 60-day delay when only claimed prejudice was “the stress, anxiety and inconvenience experienced by anyone who is involved in a trial”). Because there is no evidence that the delay affected the strength of Johnson’s case, we conclude that the 64-day delay of Johnson’s trial did not prejudice him and that, therefore, this factor weighs against Johnson.
Based on consideration above of the Barker factors, we conclude that Johnson’s right to a speedy trial was not violated.
Johnson argues that the district
court erred by “accepting [Johnson’s] waiver of counsel without first
determining whether [he] was entitled to appointment of different counsel.” Essentially, Johnson alleges that the
district court refused to rule on his request for substitute counsel and
instead deferred to the policy of the public defender’s office not to provide
another attorney if the defendant discharged his assigned attorney. The decision whether to grant a request for
substitute counsel is within the district court’s discretion and will not be
disturbed absent an abuse of that discretion. State v.
Gillam, 629 N.W.2d 440, 449 (
A defendant has the burden of
showing the existence of exceptional circumstances to justify the appointment
of substitute counsel. See Worthy, 583 N.W.2d at 279. Exceptional circumstances “are those that
affect a court-appointed attorney’s ability or competence to represent the
client.” Gillam, 629 N.W.2d at 449.
“General dissatisfaction or disagreement with appointed counsel’s
assessment of the case does not constitute . . . exceptional
circumstances.” Worthy, 583 N.W.2d at 279.
Personal tension between defendant and counsel during trial preparation
also does not constitute exceptional circumstances when it does not relate to
counsel’s ability or competence to represent a defendant. State
v. Voorhees, 596 N.W.2d 241, 255 (
On appeal, Johnson argues that he requested substitute counsel because “[c]ounsel was unprepared and failed to even show for trial on March 22”; “counsel waived [his] right to a speedy trial” without Johnson’s “expressed consent”; and “counsel encouraged him to lie and say he had agreed to the continuance.” In addition, Johnson argued to the district court that his counsel visited him only once before the first trial date, was late in providing him with copies of discovery, and told Johnson that Johnson was “going to lose the case.”
Because of the serious nature of the
charges against Johnson and the district court’s concern that Johnson might
choose to represent himself, the district court referred Johnson’s request for
substitute counsel to the chief judge of the
Based on the record, we conclude that no exceptional circumstances were shown that would justify granting Johnson’s request for substitute counsel. Therefore, the chief judge did not abuse his discretion by denying Johnson’s request for substitute counsel.
Johnson also argues that his waiver of his right to counsel was invalid because the chief judge, in effect, refused to rule on his request for substitute counsel. Because we have concluded that the chief judge adequately considered Johnson’s substitute-counsel request and that the denial of Johnson’s request was not an abuse of discretion, Johnson’s argument lacks merit.
the record shows that Johnson waived his right to counsel knowingly,
voluntarily, and intelligently. In
Here, the record shows that one day after the hearing before the chief judge, Johnson decided to keep his court-appointed counsel for the June 7 trial, but that, on the day of trial, Johnson changed his mind again and told the district court that he wanted to proceed pro se. Johnson stated that he felt that his attorney was not doing a good job and was helping the state more than him. After attempting to explain to Johnson his attorney’s actions, the district court advised Johnson of (1) the nature of the charges against him, (2) the lesser-included offenses, (3) the range of allowable punishments, (4) the allowable defenses, (5) mitigating circumstances, and (6) the advantages and disadvantages of the decision to waive counsel. Johnson, nevertheless, continued to maintain that he wanted to proceed pro se. The district court orally placed Johnson’s petition to proceed pro se on the record, ensuring that he understood his rights. Johnson’s former attorney was present as stand-by counsel, and it is clear from the record that this attorney provided substantial advice to Johnson throughout his trial and sentencing. We conclude, therefore, that Johnson’s waiver of counsel was knowing, voluntary, and intelligent, and, therefore, valid.
Johnson argues that the district
court abused its discretion by prohibiting Johnson from calling Broderick
Thomas as a witness because Johnson had not identified Thomas as a witness
before trial. District courts have
“broad discretion in imposing sanctions for violations of the discovery
rules.” State v. Patterson, 587 N.W.2d 45, 50 (
The record shows that before trial
the district court explained to Johnson that under rule 9.02 of the Minnesota
Rules of Criminal Procedure, if he intended to offer evidence of an alibi, he
needed to tell the prosecuting attorney, inter alia, the names and addresses of
witnesses whom he intended to call at trial to support his alibi. The district court asked Johnson whom he was
with on the night of the events at issue in the trial, and Johnson responded,
“I was with Mr. Kasterdell Thomas, Mr. Demetrius Caine – I mean Demetrius
Thomas, Sedrick Guiden.” Then the
district court asked who were the witnesses that Johnson was going to call to
support his alibi, and Johnson responded, “Mr. Kasterdell Thomas, Shareka
Barnes, Briana Kruchowski.” All of these
names were included on the witness list that the district court read to the
jury. But at the end of the state’s
case-in-chief, Johnson told the district court for the first time that he
wanted to call Broderick Thomas, who, Johnson stated, was in custody in
Because Broderick Thomas was not on Johnson’s witness list, the state objected to Thomas’s appearance as a witness, arguing that it would cause a two-day delay in the trial to issue a writ to bring Thomas to testify; that a delay would prejudice the state’s case because “it distances any defense testimony from state testimony”; and that the state may have examined witnesses differently had it known Thomas would testify. The district court prohibited Johnson from calling Broderick Thomas to testify because Johnson did not tell the state “sufficiently in advance,” as required by rule 9.02, that he would call Thomas.
Johnson argues that it “was clear
early in the trial” that Broderick Thomas and Demetrius Thomas, who was
included on the witness list, were the same person. But the record shows that Johnson stated that
Broderick and Demetrius were the same person while he was cross-examining the
victim during the state’s case-in-chief.
Johnson does not claim that the state knew before the trial that
Demetrius and Broderick Thomas were the same person. Based on this record, we conclude that
Johnson did not provide sufficient or timely notice to the state that Johnson
intended to call Broderick Thomas as an alibi witness. See
Johnson next argues that the district court abused its discretion by prohibiting Thomas from testifying “without considering the Lindsey factors or explaining how those factors justified the extreme remedy of witness preclusion.” But the record shows that the state did argue to the district court two of the four Lindsey factors: that it would be prejudiced by allowing Thomas to testify and that it would not be feasible for a two-day delay or continuance to rectify the prejudice and in fact a delay would further prejudice the state’s case. Based on the record, we conclude that the district court did not abuse its discretion by precluding Thomas’s testimony.
Even if we were to conclude that
preclusion of Thomas’s testimony were an abuse of discretion, the error was harmless
beyond a reasonable doubt. See Vance, 254 N.W.2d at 359 (applying
harmless-error analysis to testimony that was erroneously admitted into
evidence). An error is harmless beyond a
reasonable doubt if “the verdict actually rendered was surely unattributable to
the error.” In re Welfare of M.P.Y., 630 N.W.2d 411, 419 (
The record shows that at sentencing the district court was aware that Thomas might have been involved in the events at issue, although he had not yet been charged. The district court informed Thomas of his right under the Fifth Amendment not to incriminate himself; when asked if he understood the court’s explanation, Thomas responded that he did not understand; the district court continued to explain to Thomas his Fifth Amendment rights. Although Thomas initially agreed to testify, after hearing the district court’s explanation and being asked again if he understood his rights, Thomas changed his mind and said that he wanted to talk to an attorney first. After speaking with an attorney during a recess, Thomas refused to testify at the sentencing trial. Based on the record, it is likely that Thomas would have refused to testify at the trial and even if Thomas had testified to the facts that Johnson claims he would have testified to, the victim’s testimony and other witness testimony still identified Johnson as one of the perpetrators, and, therefore, the verdict would not have been attributable to the erroneous preclusion of Thomas’s testimony at trial.
Johnson alleges several instances of
prosecutorial misconduct during the state’s closing argument that warrant a new
trial. “Whether the prosecutor acted
improperly in his final argument to the jury is largely a matter within the
sound discretion of the [district] court.”
State v. Fossen, 282 N.W.2d
496, 503 (
When there is prosecutorial
misconduct, this court must determine if such misconduct is harmless.
A. Prosecutor’s Comments Regarding Johnson’s Alibi Defense
Johnson argues that the prosecutor committed prejudicial misconduct in his closing argument by commenting on Johnson’s failure to call several alibi witnesses and by arguing that Johnson had not established that he could not have committed the offense and thereby shifting the burden of proof to Johnson. Johnson objects to the following statements of the prosecutor:
I’m going to talk about several other things, arguments defendant may raise, has already raised. First, defendant has talked about alibi. He has talked about several different witnesses; some we heard from, several we have not.
. . . .
We have the testimony of Sergeant Resch, who gave you the mileage and the approximate time, going highway speed, of about three and-a-half hours. I submit to you, ladies and gentlemen, that’s not a solid alibi.
. . . .
[A] solid alibi
would be somebody who says the defendant was in
. . . .
I submit, there is no alibi witness through either live testimony or testimony read into the record that establishes that the defendant could not have committed this offense.
Defendant himself, when asked on cross-examination yesterday, couldn’t even tell us exactly where he was at 10:00 o’clock, 10:15. He said possibly his mother’s, possibly a friend of his mother’s, but he couldn’t give us an exact location, exact alibi.
. . . .
I submit that there is no evidence that it’s impossible for the defendant to have been at the scene of the crime, and we don’t know that specific time, either. . . . There is no evidence that it’s physically impossible, given the alibi evidence that you have heard, for the defendant to be at the scene.
A prosecutor may
not shift the burden of proof to the defendant by commenting on the defendant’s
failure to call witnesses or to present evidence. Caron,
Even if this court were to conclude that
the prosecutor’s statements were misconduct, the misconduct was harmless because
there is substantial record evidence that Johnson was a perpetrator of the
crimes charged. See State v. Sanders, 598 N.W.2d 650, 656 (
B. Prosecutor’s Misstatements of Facts
Johnson argues that the district
court committed reversible error by sustaining the prosecutor’s objections to
Johnson’s closing argument and overruling Johnson’s objections to the
prosecutor’s closing argument. Johnson
claims that the prosecutor, and not Johnson, misstated the facts when the
prosecutor told the jury that two witnesses had testified that it was Johnson
who had ordered that the victim be taken from the house and put in the trunk of
the car. The state concedes that there
was no trial testimony that Johnson instructed others to put the victim in the
trunk of the car. The supreme court has
stated that statements made during closing arguments must be “justified by the
evidence.” State v. Wahlberg, 296 N.W.2d 408, 420 (
Johnson argues that by erroneously overruling his objections that the prosecutor was misstating testimony and by affirming the prosecutor’s objections that Johnson was misstating testimony, the district court “added an unwarranted stamp of judicial imprimatur to the state’s theory of the case” and “convey[ed] to the jury that the court believed [Johnson], not the prosecutor, had misstated the facts.” Johnson requests a new trial.
The state argues that any error is harmless beyond a reasonable doubt and that, therefore, no new trial is required. The state claims that the district court’s jury instructions “eliminated any ‘stamp of judicial imprimatur [on] the state’s theory of the case.’” The record shows that the district court instructed the jurors that they were not to concern themselves with the court’s rulings on objections and that the court had not “by any ruling or expression during the trial . . . intended to indicate [the court’s] opinion regarding the facts or the outcome of [the] case.”
The state argues that any error by the prosecutor was corrected by the district court’s instruction to the jury that arguments of counsel are not evidence and that where counsel’s statements differ from the jurors’ own memories, they should disregard counsel’s statements. The state claims that the prosecutor’s misstatements regarding witness testimony could not have been relied on by the jury to convict because the jury was instructed that the two witnesses were accomplices and, therefore, the jury could not convict Johnson based on their testimony, unless that testimony was corroborated by other evidence. Finally, the state argues that there is strong evidence establishing Johnson’s guilt of the charge of aiding and abetting kidnapping, including the victim’s testimony that Johnson hit and kicked the victim while she lay bound and confined to a closet, accompanied the group when the victim was transported by car to another site, and prevented the victim’s escape.
Because there is strong record evidence that Johnson aided and abetted kidnapping the victim and because of the district court’s instructions to the jury, we conclude that the prosecutor’s statements were harmless misconduct and do not, therefore, warrant a new trial.
Johnson argues that the district
court committed reversible error by responding to a jury question with an
additional instruction that “misstated the law, diminished the requirement of
proof beyond a reasonable doubt, and gave the state’s case an unwarranted stamp
of judicial approval.” A district court
may, in its discretion, “give additional instructions in response to a jury’s
question on any point of law.” State v. Murphy, 380 N.W.2d 766, 772 (
The record shows that during its deliberations, the jury asked the district court if it could have a legal definition of “aid and abet.” Over Johnson’s objection, the district court read the following instruction to the jury in response to its question:
All that is necessary for a conviction of aiding in a crime is that the accused plays at least some knowing role in the commission of the crime and takes no steps to thwart its completion. A person may be held criminally liable as an aider and abettor without actively participating in the overt act constituting the primary offense. Criminal intent may be inferred from presence, companionship and conduct before and after the offenses are committed.
After trial, Johnson moved for a new trial because of this instruction; the district court denied the motion. Johnson argues that the instruction is reversible error because the use of the phrase “aider and abettor” could only have further confused the jury, which was already confused by the term “abet.” Johnson proposes that the district court “simply should have advised the jury the word ‘abet’ was synonymous with ‘aid.’” But this proposal ignores the fact that the jury asked the court to define both “aid” and “abet.” Although the district court’s definition used a version of the term that it was attempting to define, we conclude that the definition is not confusing when viewed in its entirety.
Johnson next argues that the phrase “all that is necessary” diminishes the state’s burden of proof “by suggesting it is a burden easily met and that the jury could convict so long as there was some evidence consistent with [Johnson’s] guilt.” But the record shows that the district court specifically instructed the jury that the state had the burden of proving Johnson’s guilt beyond a reasonable doubt, and the additional instruction does not contradict the initial instruction on the burden of proof.
Johnson also argues that it is not enough to support his convictions for the state to prove that Johnson played some “knowing role” in the crimes charged. The state argues that by using the word “role,” the instruction provided that Johnson had to have full knowledge of what was taking place and had to have assumed a part in the commission of the crime, which, the state argues, is an accurate statement of the law. This court has previously concluded that an “aider and abettor” is one who “play[ed] a knowing role in the commission of the offense and took no steps to thwart its completion.” State v. Evans, 347 N.W.2d 813, 817 (Minn. App. 1984), review denied (Minn. July 26, 1984).
Johnson argues that the portion of the district court’s additional instruction
that relates to criminal intent intruded on the jury’s deliberative process by
improperly “encourag[ing] the jury to infer the requisite intent from certain
facts to the exclusion of others.” The
state argues that this instruction “did no more than state the obvious:
[Because] a criminal defendant will rarely, if ever, admit that he possessed
the requisite intent, intent must be inferred from objective facts and
circumstances.” The Minnesota Supreme
Court has concluded that intent is generally proved “by inferences drawn from a
person’s words or actions in light of all the surrounding circumstances.” State
v. Thompson, 544 N.W.2d 8, 11 (
The record shows that the district
court took language from State v.
Goodridge, 352 N.W.2d 384 (
A. Inherent Authority
Johnson argues that his sentences
must be reduced to the presumptive terms because the district court had no
authority to empanel a sentencing jury to determine whether aggravating factors
existed that would support an upward departure from the presumptive
sentences. The day after Johnson was
convicted, the United States Supreme Court released its decision Blakely v. Washington, 542 U.S. 296, 124
S. Ct. 2531 (2004). Under Blakley, any fact supporting an upward
departure from the maximum sentence authorized by the jury’s verdict must be
submitted to a jury and proved beyond a reasonable doubt. 542
In Shattuck, the supreme court examined whether it had inherent
authority to authorize the use of sentencing juries and bifurcated-trial
proceedings to remedy a Blakely
violation. 704 N.W.2d at 147. The court stated that it had inherent
authority, arising from its judicial powers, to regulate court procedure to
apply the requirements of Blakely to
an unpublished opinion after Shattuck,
this court held that a district court did not exceed its authority by
submitting an aggravating sentencing factor to the jury in a bifurcated trial
after the jury 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 granted (
in State v. Barker, the supreme court
held that the mandatory minimum sentence provided by Minn. Stat. § 609.11 for
possessing a firearm while committing certain offenses was unconstitutional to
the extent that it authorized the district court to impose an upward durational
departure upon finding a sentencing factor without the aid of a jury or
admission by the defendant. 705 N.W.2d
768, 772-73 (
recognize that there are differing views on this issue within this court. Compare
State v. Hobbs, 713 N.W.2d 884, 889-90 (Minn. App. 2006) (holding that the district
court did not have statutory or inherent authority to submit to a jury the
issue of dangerousness to public safety under Minn. Stat. § 609.1095,
subd. 2 (2002)), pet. for review filed
B. Double Jeopardy
also argues that the Double Jeopardy Clauses of the federal and state
constitutions prohibit the submission of aggravating factors to a sentencing
jury. This court reviews de novo the
constitutional issue of double jeopardy. State v.
Watley, 541 N.W.2d 345, 347 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996). The Double Jeopardy Clauses protect a
criminal defendant against “a second prosecution for the same offense after
acquittal; a second prosecution for the same offense after conviction; and
multiple punishments for the same offense.”
State v. Humes, 581 N.W.2d
317, 320 (
Johnson claims that “facts used to aggravate a sentence above the maximum authorized by the verdict alone . . . are elements of a greater offense.” Johnson argues that, therefore, the sentencing trial actually constituted a second trial on the same facts for a “‘greater offense’ than [he] was tried for at the first trial.” But as the state points out, “[Johnson’s] assertion is based upon [his] erroneous assumption that aggravating factors are elements of an offense or the functional equivalents of elements of an offense.”
Supreme Court stated in Apprendi v. New
Jersey that “when the term ‘sentence enhancement’ is used to describe an
increase beyond the maximum authorized statutory sentence, it is the functional
equivalent of an element of a greater offense than the one covered by the
jury’s guilty verdict.” 530
Johnson argues that the findings of
the sentencing jury are insufficient to support the upward durational
departures from the presumptive guidelines sentences for the crimes of which
Johnson was convicted. This court will
not reverse a district court’s sentencing decision unless the district court
clearly abused its discretion. State v. Oberg, 627 N.W.2d 721, 724
(Minn. App. 2001), review denied (
The district court empanelled a
sentencing jury to determine whether the following aggravating factors existed
for both of Johnson’s convictions: that
the victim was particularly vulnerable, which was known to the offender; that the
victim was treated with particular cruelty for which the individual offender
should be held responsible; and that the offender committed the crime as part
of a group of three or more persons who all actively participated in the
A. Separate Findings
Johnson argues that the district
court abused its discretion by “not identify[ing] and separately analyz[ing]
each aggravating factor as it related to each offense.” In State
v. Williams, the Minnesota Supreme Court held that a district court must
separately identify the aggravating factors supporting each sentencing
departure. 608 N.W.2d 837, 841 (
The record supports the jury’s finding that the victim was particularly vulnerable during the kidnapping, because she was bound and unable to move, and during the attempted murder, because Johnson had held her down on the car seat to prevent her escape as someone approached to shoot her. The record supports the jury’s finding that the victim was treated with particular cruelty during the kidnapping, because Johnson repeatedly kicked the victim in the head while she was bound, and during the attempted murder, because the victim was shot twice at close range with a shotgun after Johnson prevented her escape. And the record shows that more than three persons actively participated in the kidnapping and attempted murder of the victim.
Johnson also argues that the jury did not identify which aggravating factor related to which offense nor did it identify the specific facts underlying its conclusion that the three aggravating factors existed. But because the record from the sentencing trial supports the finding of aggravating factors for both offenses, we conclude that the jury did not need to specify which facts supported which aggravating factor.
B. Sufficient Findings
Johnson argues that the aggravating factors do not justify departures for both offenses. First, Johnson argues that victim vulnerability does not support a departure for the attempted-murder offense because the victim, although bound during the kidnapping, had freed herself and was attempting to escape at the time of the shooting and therefore was no longer particularly vulnerable. And Johnson argues that the record does not support the conclusion that the victim was treated with particular cruelty during the attempted murder because “attempting to kill the victim by shooting her with a shotgun is no more cruel than any other murder attempt.” We disagree. As discussed above, the record shows that the victim was vulnerable and treated with particular cruelty by the defendant both during the kidnapping and the attempted murder.
Johnson also argues that the fact
that three or more persons were involved may not be used as an aggravating
factor for either crime because he was convicted of aiding and abetting the
commission of both crimes, so this fact was already “essential to the general
findings of guilt.” Under
Finally, Johnson argues that the
finding that the “victim suffered great bodily harm during the course of the kidnapping”
does not justify departing from the presumptive guidelines sentence for either
of Johnson’s convictions of aiding and abetting kidnapping and aiding and
abetting attempted first-degree murder. When
the jury convicted Johnson of aiding and abetting kidnapping, it indicated in
its verdict that it found that the victim had suffered great bodily harm during
the course of the kidnapping. Such a
finding increases the statutory maximum prison sentence for a kidnapping
offense from 20 years to 40 years.
C. Severe Aggravating Factors
Johnson argues that the district
court was required to find, but did not find, that “severe aggravating factors
existed” to support “the greater than double departure for the kidnapping or
consecutive sentences.” Generally, when
an upward departure is justified, “the upper limit will be double the
presumptive sentence length.” Williams, 608 N.W.2d at 840 (quotation
omitted). But when severe aggravating
factors exist, a departure of up to the statutory maximum sentence and
consecutive sentences may be appropriate.
The difference between aggravating
and severe aggravating circumstances is “based on our collective, collegial
experience in reviewing a large number of criminal appeals.” State
v. Norton, 328 N.W.2d 142, 146 (
Johnson argues that the district
court abused its discretion by improperly assigning him a felony point and a custody-status
point when neither the sentencing jury nor the district court determined that
The record shows that the state told
the district court that it had confirmed that Johnson had one
Johnson argues that because the records relied on by the prosecutor are not part of the court file, it is “impossible to determine whether those records . . . would support a finding that [Johnson] had a felony and custody status point.” The state argues that the assignment of the two criminal-history points is justified because there is no caselaw holding that “a prior conviction can be proven only by certain documents” and that the state met its burden of showing that Johnson had an Illinois conviction and was on probation at the time of the Minnesota offenses.
The state has the burden of proving
by the preponderance of the evidence “the facts necessary to justify
consideration of out-of-state convictions in determining a defendant’s criminal
history score.” State v.
The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.
record shows that Johnson is inconsistent in his position regarding whether he
the state is not required to provide certified copies of a conviction to meet
its burden of proof, the state must provide some evidence of an out-of-state
conviction. See Griffin, 336 N.W.2d at 525 (concluding that certified copies of
a foreign conviction are not required and noting that the district court relied
on other documentation that proved the conviction); State v. Jackson, 358 N.W.2d 681, 683 (Minn. App. 1984) (concluding
that probation officer’s in-court advice and testimony based on specific
documentation identified in court regarding defendant’s prior convictions was
sufficient evidence to prove defendant’s prior conviction in California). We conclude that the state’s oral representations
to the district court regarding the Illinois conviction and probation are not
evidence and that the probation officer’s statements in the PSIs are not
sufficient evidence when the documents that the probation officer relied on to
prepare the PSIs are neither attached nor identified. The district court, therefore, abused its
discretion by assigning Johnson criminal-history points for an unproved
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.