This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. §subd. 3 (1994).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Leon Henry Carter,
Filed September 3, 1996
Hennepin County District Court
File No. 95-040246
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)
Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)
John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, 2829 University Avenue Southeast, #600, Minneapolis, MN 55414 (for Appellant)
Leon H. Carter III, Box B, St. Cloud, MN 56302 (Pro Se)
Considered and decided by Norton, Presiding Judge, Schumacher, Judge, and Harten, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his convictions and his sentence for two counts of second-degree murder. We affirm.
Appellant was charged with second-degree murder following the shooting death of Larry Craig on the streets of North Minneapolis. See Minn. Stat. §(1) and (2) (1994). Witnesses in the victim's car identified appellant. A neighbor witnessed a vehicle at the scene that matched the description of appellant's vehicle. An inmate also testified that appellant had confessed to this crime when incarcerated while awaiting trial.
On May1995, appellant was "hanging out" around 28th and Bryant Avenue North. Tamika Miller, an 18-year-old female, was with appellant. Miller's friend, Darryl Robinson, picked her up and brought her back to his house. A dispute arose between them after Robinson found appellant's keys in Miller's possession. Miller left the house and Robinson followed. The victim, Larry Craig, offered Robinson a ride. Robinson caught up with Miller and all three drove back to return the keys to appellant. After returning the keys, Craig drove a couple of blocks before appellant's car caught up with him at the intersection of 30th and Fremont.
The first shot killed Larry Craig, severing his aorta.
After the witnesses identified appellant as the shooter, the police seized his car and informed his father that appellant was a suspect. Appellant voluntarily came to the police station and gave a statement.
Appellant contends he was prejudiced by the admission of testimony regarding allegations of his prior possession of a handgun. We disagree. Usually, evidence admitted in error "is cured when that evidence is stricken from the record and accompanied by a clear instruction to disregard so that the evidence is not put to use by the jury". State v. Bergland, 290 Minn. 249, 254, 187 N.W.2d 622, 626 (1971). "A reversal is warranted only when the error substantially influences the jury to convict." State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).
Appellant's failure to object to the curative instruction at the time it was given causes him to forfeit any right to raise this issue on appeal. State v. Gorham, 306 N.W.2d 123, 125 (Minn. 1981). Even if we were to address the issue, however, our close scrutiny of the record reveals that the trial court properly cured any prejudice from the stricken testimony by giving the jury a curative instruction. The instruction appears clear on its face. One can readily assume the jurors engaged in their deliberations pursuant to that instruction.
Appellant argues the trial court erred in its preliminary instruction to the jury by commenting on the accused's silence. We agree. The comments, although made in a preliminary attempt to explain the procedures and formalities of the case, were erroneous. See Griffin v. California, 380 U.S. 609, 616, 85 S. Ct. 1229, 1231 (1965) (error for court to comment on criminal defendant's failure to testify). While it is wrong for a trial court to comment upon an accused's silence, the error was harmless in the present case as it was overcome by clarifications made as the trial progressed. "In construing a charge to a jury, the jury instructions must be viewed *in their entirety to determine whether they fairly and adequately explained the law of the case." State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988), cert denied, 498 U.S. 945 (1990).
Any confusion which may have arisen due to the court's preliminary comments to the jury was superseded by the totality of the instructions, especially the court's final instructions to the jury, which were taken into the jury room.
Appellant maintains that the record fails to show substantial and compelling reasons to warrant an upward departure from the presumptive sentence. We disagree. Departure from sentencing guidelines is within the trial court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981). If substantial and compelling factors exist, we will not disturb the trial court's decision unless a full review gives us "a strong feeling" that the sentence is disproportionate to the offense. State v. Schantzen, 308 N.W.2d 484, 487 (Minn. 1981).
The trial court here pointed out substantial and compelling reasons for the imposition of the statutory maximum sentence. Specifically, the court found that appellant's offense endangered the lives of three persons. Indeed, the offense occurred during the daytime at a heavily traveled intersection, thus undermining the confidence of the public to move safely in the community. Given these factors, the trial court did not abuse its discretion by imposing the statutory maximum sentence.
In his pro se brief, appellant contends that his trial attorney was ineffective because he failed to put defense witnesses on the stand. To obtain a reversal,
Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068 (1984)).
- [appellant] must affirmatively prove that his counsel's representation "fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Appellant has made only cursory allegations of error with little explanation or factual support. He does not suggest that counsel prevented him from testifying, nor does he name any witnesses he wished to present who were denied the opportunity. Appellant overlooks the numerous, skillful cross-examinations performed at trial and ignores counsel's performance during opening and closing statements.
Appellant's mere allegations do not, without more, give sufficient proof of deficiency on the part of his trial counsel and do not demonstrate actual prejudicial effect. See Harris v. State, 470 N.W.2d 167, 169 (Minn. App. 1991) (postconviction hearing develops record to afford proper review). Further, with the overwhelming evidence of guilt here, appellant has not proven that, but for counsel's errors, the result of the trial would have been different. Gates, 398 N.W.2d at 561. Appellant's claim of ineffective assistance of trial counsel must fail.
Appellant argues the trial court abused its discretion by allowing an inmate to testify that appellant confessed to the crime while incarcerated awaiting trial. We disagree. "[R]ulings on evidentiary matters rest within the sound discretion of the trial court." State v. Olkon, 299 N.W.2d 89, 101 (Minn. 1980), cert. denied, 449 U.S. 1132 (1981).
Appellant questions the credibility of this witness, yet, he has shown no abuse of the trial court's discretion in allowing the jury to determine the veracity of the witness's testimony. As an admission against interest such testimony is not hearsay and is admissible. Minn. R. Evid. Once admissible as non-hearsay, no rule excludes evidence of statements voluntarily given to a fellow inmate of the county jail. See State v. King, 286 Minn. 392, 399, 176 N.W.2d 279, 284 (Minn. 1970) (voluntary confession to fellow inmate held admissible).
VI.of the Evidence
Lastly, appellant maintains the evidence produced at trial was insufficient to support his conviction. We disagree. On appeal, a challenge to the sufficiency of the evidence requires an extensive review of the record. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must view the evidence in a light most favorable to the conviction to determine if it was sufficient to support the jury's verdict. Id.
Given the standard set forth in Webb, the evidence against appellant is sufficient to affirm the conviction. Darryl Robinson identified appellant as the shooter and his car as the vehicle used in the "drive-by." Robinson and Tamika Miller both testified to their contact with appellant immediately prior to the shooting. Wade Slavik, an eyewitness who lived in the neighborhood, described the car used in the drive-by shooting with notable similarity to appellant's car. Appellant's car has a distinctive, custom appearance, with a dark color, tires wider than the car, and gold, shiny rims. In addition, Lester Wiley, a fellow inmate who was acquainted with appellant's sister, testified that appellant told him he did the drive-by shooting in which Larry Craig was killed.
The foregoing evidence, when viewed in the light most favorable to the conviction, was sufficient to permit the jurors to reach their verdict of guilty.