This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Lewis B. Dickson,
Filed January 23, 2007
Stearns County District Court
File No. K3-05-1820
Attorney General, Binh T. Tuong, Assistant Attorney General, 1800
John M. Stuart,
State Public Defender, Benjamin J. Butler, Assistant Public Defender,
Considered and decided by Dietzen, Presiding Judge; Lansing, Judge; and Kalitowski, Judge.
Appellant challenges his convictions of attempted first- and second-degree aggravated robbery arguing that the district court erred by (1) failing to suppress the results of a photographic lineup, (2) giving the no-adverse-inference jury instruction without obtaining appellant’s consent, and (3) allowing prosecutorial misconduct during the trial. We affirm.
evening in April 2005, A.H. was walking home from work near the civic center in
Officer Lucas Dingmann responded, and A.H. gave him her account of the attack. Dingmann observed that A.H. appeared to be shaken, upset, and in shock. Dingmann also saw three marks on one side of A.H.’s neck and a single mark on the other, which were consistent with her account that she had been grabbed by the neck. A.H. described her assailant as a young, black male, who was 6 feet 2 inches tall and weighed approximately 180 pounds. A.H. also stated that her assailant wore his hair in long, black dreadlocks and had a “scruffy beard.”
Officer Dingmann believed that appellant Lewis Dickson matched the description A.H. provided and prepared a photographic lineup of six black men with dreadlocks, including appellant. Since appellant’s picture had a different background than the others, Dingmann decided to print all the photos in black and white so that appellant’s picture would not stand out. Before showing A.H. the photographic lineup, Dingmann had her read and sign a photographic lineup instruction form. A.H. quickly identified appellant as her assailant stating that she was “100 percent certain” and then became very upset and started to cry.
Appellant was charged with attempted first- and second-degree aggravated robbery. Before trial, appellant moved to suppress A.H.’s identification of him from the photographic lineup. The district court denied the motion.
At trial, A.H. testified regarding the attack, her injuries, and her identification of appellant from the photographic lineup. She admitted that she gave inconsistent descriptions of her assailant’s age. Dingmann testified regarding the results of the photographic lineup. Appellant’s girlfriend testified that appellant was at her apartment on the day of the attempted robbery, but she admitted that she was napping from approximately 6 p.m. to 9 p.m. and could not verify his whereabouts during that time.
The district court asked appellant’s attorney if he wanted the jury to be given the no-adverse-inference instruction regarding appellant’s right not to testify, and appellant’s attorney, in appellant’s presence, answered affirmatively. After the instructions were given to the jury, both attorneys declined the court’s invitation to make any corrections or additions to the instructions.
Shortly before the jury verdict, appellant’s attorney objected to comments made by the prosecutor during closing argument and moved for a mistrial. The district court denied the motion, and the jury returned guilty verdicts on both counts. This appeal follows.
D E C I S I O N
Appellant argues that the
district court erred in denying his motion to suppress the results of the
photographic lineup. In general,
“[e]videntiary rulings rest within the sound discretion of the [district] court
and will not be reversed absent a clear abuse of discretion.” State
v. Amos, 658 N.W.2d 201, 203 (
Identification evidence must
be excluded if the procedure used is so impermissibly suggestive that it gives
rise to a substantial likelihood of irreparable misidentification. Simmons
The determination of whether
an identification procedure was unnecessarily suggestive “turns on whether the
defendant was unfairly singled out for identification.”
Appellant contends that the
photographic lineup was unnecessarily suggestive because appellant was (1) taller,
(2) lighter skinned, and (3) 10-to-25 years older than the other five men
included in the lineup. But courts
have upheld lineups with conditions that are similar to those appellant argues
were present here. See State v. Montjoy, 366 N.W.2d 103, 106 (
Appellant next argues that the identification was unreliable under the totality of the circumstances. The district court concluded that the lineup was not unnecessarily suggestive, and it did not address the second factor. Because the lineup was not unnecessarily suggestive, we need not reach the second factor and, therefore, we decline to do so. Ostrem, 535 N.W.2d at 921.
Appellant argues that the
district court erred by giving the no-adverse-inference instruction to the jury
without first obtaining appellant’s permission on the record. But appellant failed to make a timely objection
to the instruction. Thus, our review is
limited to a plain-error analysis. State v. Darris, 648 N.W.2d 232,
“[F]ailure to testify shall
not create any presumption against the defendant, nor shall it be alluded to by
the prosecuting attorney or by the court.”
Respondent concedes that the district court erred by giving this “no-adverse-inference” instruction without obtaining appellant’s permission, thus satisfying prongs (1) and (2) of Griller. But respondent argues that this error did not affect substantial rights. We agree.
A non-objecting defendant
bears a heavy burden of showing that substantial rights have been
affected. Griller, 583 N.W.2d at
741. This burden “is satisfied if the
error was prejudicial and affected the outcome of the case.”
Here, appellant has not shown how the facts of this case make the error prejudicial or how giving the instruction had a substantial effect on the jury’s verdict. Appellant had several opportunities to object to the instruction and failed to do so. We conclude that giving the “no-adverse-inference” instruction was not prejudicial and did not affect substantial rights.
Appellant argues that the
prosecutor engaged in misconduct during the trial in two ways, which
deprived him of a fair trial. A conviction will be
reversed for prosecutorial misconduct “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 (
Minnesota Supreme Court concluded that “appellate courts should use the plain
error doctrine when examining unobjected-to prosecutorial misconduct.” State v. Ramey, 721 N.W.2d 294, 299 (
Appellant first argues that
the prosecutor improperly elicited testimony from appellant’s girlfriend that
she was afraid of him. Evidence of a
defendant’s character is generally inadmissible.
Here, the prosecutor asked appellant’s girlfriend the following questions:
Q. [W]hen you were speaking to Officer Dingmann, were you at all concerned that whatever you were going to tell Officer Dingmann might come to the attention of [appellant]?
A. Yes, I was.
Q. Were you scared of what might happen if that happens?
A. Yes, I was. He promised me he wouldn’t tell.
Appellant relies heavily on Harris, 521 N.W.2d 348 and State v. Montgomery, 707 N.W.2d 392 (
purpose of impeaching the girlfriend’s credibility.
But even if it was error to admit the girlfriend’s testimony, we conclude that the error was not prejudicial. Here, the testimony was isolated, and the state provided strong identification evidence of appellant as the perpetrator. Also, appellant’s case relied in large part on his alibi, i.e., that he was with his girlfriend during the attempted robbery. But since appellant’s girlfriend could not completely substantiate his alibi, it is unlikely that her testimony affected the outcome of the case.
Secondly, appellant argues that the prosecutor engaged in misconduct during closing argument when he improperly alluded to appellant’s right not to testify. Because it was unobjected-to misconduct, we review for plain error. Ramey, 721 N.W.2d at 299.
In general, prosecutors “may
not directly or indirectly comment on a defendant’s failure to testify.” State
v. DeRosier, 695 N.W.2d 97, 107 (
During closing argument, the prosecutor stated:
Now, [appellant], on the other hand, does have a motive for lying in this case. Now, he didn’t testify in this case. He is not required to do so. And you shouldn’t consider that factor at all in your considerations – whether or not he testified here. That should not be considered. And I believe the judge will instruct you about that.
Thus, the prosecutor merely paraphrased the no-adverse-inference instruction and argued that appellant had a motive to lie to the police. Therefore, we conclude that it was not plain error to allow the prosecutor’s comments on appellant’s right not to testify. But even if it was plain error, it was not prejudicial. The prosecutor made a single comment regarding appellant’s right not to testify. This case centered on credibility and, as appellant concedes, his “imperfect alibi.” The prosecutor’s comments were aimed at showing that appellant had a motive to lie in his statements to the police. But the prosecutor did not attempt to persuade the jury to infer guilt from appellant’s silence. On this record, we conclude that the prosecutor’s single comment on appellant’s right not to testify would not have had a significant effect on the jury’s verdict.
Appellant argues that we should reverse his conviction in the interests of justice and argues that DeRosier supports his position. See 695 N.W.2d at 106 (stating that “[a] reviewing court . . . retains, under its supervisory power, the right to reverse prophylactically or in the interests of justice, without a further finding of prejudice.”). But in cases involving prosecutorial misconduct, only the supreme court has clearly retained the authority to reverse a conviction under its supervisory powers. Ramey, 721 N.W.2d at 303. Therefore, we decline to do so.
supplemental brief, appellant argues that Officer Dingmann’s investigation was
“biased and prejudiced,” and that the state violated due process by failing to disclose
Dingmann’s police report. “[T]he
suppression 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.” Brady v.
But even if we were to consider appellant’s argument, we conclude that it lacks merit. Appellant was aware of Dingmann’s investigation and questioned Dingmann extensively at trial about that investigation. In fact, appellant fails to point to anything in the report that was not brought out at trial. Appellant’s main argument is that Dingmann’s report reveals a lack of investigation, which appellant brought out during cross-examination. Therefore, we conclude that there was no Brady violation here.