This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-00-1673

 

 

State of Minnesota,

Respondent,

 

vs.

 

Mitchell Jay Landa,

Appellant.

 

 

Filed August 7, 2001

Affirmed

Parker, Judge^*

 

Ramsey County District Court

File No. K00077

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102 (for respondent)

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, 2829 University Avenue Southeaset, Suite 600, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Schumacher, Presiding Judge, Anderson, Judge, and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

            Appellant Mitchell Jay Landa contends that his conviction of first-degree robbery was in error.  He argues that this court should grant him a new trial or reverse his conviction because: (1) there was insufficient evidence to support the conviction; (2) the prosecutor’s characterization of a witness’s statement constituted prejudicial misconduct; and (3) the trial court abused discretion in refusing to give an alibi instruction to the jury.  We affirm.

D E C I S I O N

I.

In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state’s witnesses and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Appellant contends the evidence presented at trial was insufficient because the eyewitness identifications were inaccurate and unreliable.  However, an eyewitness identification does not have to be “positive and certain to support a conviction.”  State v. Daniels, 361 N.W.2d 819, 827 (Minn. 1985) (citations omitted).  Rather, an identification is sufficient if “a witness testifies that in his belief, opinion, and judgment the defendant is the one he saw commit the crime.”  Id. (citations omitted).  Furthermore, “identification is a question of fact for the jury to determine.”  State v. Oates, 611 N.W.2d 580, 586 (Minn. App. 2000) (citation omitted), review denied (Minn. Aug. 22, 2000).  And, “it is the jury’s function to determine the weight and credibility of individual witnesses,” despite any “inconsistencies [or] less-than-certain identifications among the eyewitnesses.”  Id. (citation omitted).

            In analyzing eyewitness identification, five factors to be considered are

(1) the opportunity of the witness to see the defendant at the time the crime was committed, (2) the length of time the person committing the crime was in the witness’ view, (3) the stress the witness was under at the time, (4) the lapse of time between the crime and the identification, and (5) the effect of the procedures followed by the police as either testing the identification or simply reinforcing the witness’ initial determination that the defendant is the one who committed the crime.

 

State v. Capers, 451 N.W.2d 367, 370 (Minn. App. 1990) (citation omitted), review denied (Minn. Apr. 25, 1990).

            Appellant robbed the Minnehaha Tavern in daylight and, because of the conspicuous aviator cap he was wearing, several patrons noticed him.  Witnesses Rita Boyles and Sharon Engevik claim that during the robbery they could see appellant’s face.  Although the robbery itself was rather brief and the occurrence stressful, “neither brevity of observation nor stress preclude[s] the accuracy of eyewitness identification” when “eyewitness report[s] include[] numerous details.”  Id.  Significantly, the witnesses informed the police of several details regarding appellant’s clothing, height, weight, facial hair, and hair color.  The witnesses submitted descriptions of the robbery to the police shortly after the robbery occurred, and several positively identified appellant from a photo lineup several days after the robbery.  Based on this assessment of the eyewitness identifications, we hold there was sufficient evidence for the jury to determine that appellant robbed the Minnehaha Tavern.

            Appellant, however, argues that the eyewitness identifications are doubtful, particularly because the robber was wearing a hat that covered his head and part of his face.  Appellant cites the following inconsistencies to diminish the credibility of the eyewitness testimony: (1) the witnesses told the police that the robber had brown hair, but appellant has sandy-blond hair; (2) appellant and his friend Roger Blahowski claim that they had been to the Minnehaha Tavern on prior occasions, but the eyewitnesses do not recall ever seeing appellant; and (3) appellant has an alibi.  Despite appellant’s expressed skepticism about the eyewitness identifications, it is the jury’s duty to determine the weight and credibility of individual witnesses.  Therefore, it was not error for the jury to believe the state’s witnesses and disbelieve all contrary evidence or alleged inconsistencies.

            Appellant also argues that this case is “devoid of any evidence significantly corroborating the eyewitness testimony.”  But this statement does not withstand examination.  The primary corroborating evidence in this case is the car a witness observed leaving the scene of the robbery.  The witness gave a description of the car and the license plate number to the police who, in turn, determined that the car was registered to Robert Albee.  Because Albee was incarcerated at the time of the robbery, he was excluded as a suspect in the robbery.  But Albee’s associates, including Ronald Class, were considered possible suspects.  On the evening of the robbery, police did not observe the car at Class’s residence, but it was parked in the driveway several days later.  The police then observed appellant’s girlfriend exit Class’s residence and drive away in that car.  The record indicates that when appellant’s girlfriend was stopped by the police, she informed Officer Kevin Moore that the car in question belonged to appellant.  In fact, appellant was located in the house where the getaway car was parked.  This evidence corroborates the eyewitness identifications linking appellant to the robbery, and thus, provides additional sufficient evidence to support the jury verdict.

II.

A defendant who fails to object to the prosecutor’s statements or to seek specific cautionary instructions is deemed to have forfeited the right to have the issue considered on appeal.  State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980).  The reviewing court, however, may reverse despite the defendant’s failure to preserve the issue if the court deems the error sufficient to do so.  Id.

The test for determining whether prosecutorial misconduct was harmless depends partly upon the type of misconduct.  In cases involving “unusually serious prosecutorial misconduct,” the court must be certain beyond a reasonable doubt that the misconduct was harmless before it will affirm.  In cases involving less serious prosecutorial misconduct, the test is “whether the misconduct likely played a substantial part in influencing the jury to convict.”  State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974) (citation omitted).

Appellant first contends that the prosecutor improperly stated that appellant possessed the getaway car during the day on December 31, 1999.  While the record does not reflect that appellant’s girlfriend told Officer Moore that appellant had the getaway car during the day on December 31, there is evidence that she told Officer Moore that the car belonged appellant.  Thus, the prosecutor may have inferred that since the car belonged to appellant and appellant had left the house on December 31, he had the car during the day of the robbery.  Such an inference is harmless considering the other substantial evidence linking appellant to the crime.  Most importantly, however, appellant did not object at trial to the prosecutor’s statement that he had the car during the day of the robbery.  Therefore, appellant has forfeited his right to have the issue considered on appeal. 

Second, appellant contends that the prosecutor committed misconduct by stating that the jury could conclude that appellant’s girlfriend had lied because Moore contradicted her testimony.  The prosecutor stated in closing argument:

[Y]ou don’t have to, but you could certainly conclude that [appellant’s girlfriend] lied to you when she denied ever having that conversation with Officer Moore about that car and about [appellant’s] whereabouts on the afternoon of December 31st of 1999.

 

Appellant contends that the prosecutor improperly failed to inform the jury that a finding that appellant’s girlfriend lied at trial did not necessarily mean that she told Officer Moore the truth in the alleged statement.  Again, appellant did not object at trial to the prosecutor’s statement regarding the credibility of appellant’s girlfriend as a witness.  Furthermore, although the prosecutor did not explain to the jury that a finding that appellant’s girlfriend gave untruthful testimony did not mean that what she allegedly told Moore was the truth, that was not the responsibility of the prosecutor.  The court instructed the jury:

Evidence of a statement by a witness on some prior occasion which is inconsistent with present testimony: Evidence of any prior inconsistent statement should be considered only for the purpose of testing the believability and weight of a witness’s testimony.

 

(Emphasis added.)  We conclude that the prosecutor’s statement did not prejudice appellant in any way and therefore, appellant is not entitled to a new trial.

III.

The refusal to give a requested jury instruction lies within the discretion of the trial court and will not be reversed absent an abuse of discretion.  State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).  Trial courts are allowed “considerable latitude” in the selection of language for the jury instructions.  State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986)).  '”[J]ury instructions must be viewed in their entirety to determine whether they fairly and adequately explain[] the law of the case.”  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988) (citation omitted).

            Appellant contends the trial court committed reversible error by denying his request to give an alibi instruction to the jury.  Although federal courts require an alibi instruction if any evidence is offered concerning an alibi, United States v. Dawn, 897 F.2d 1444, 1450 (8th Cir. 1990); United States v. Webster, 769 F.2d 487, 490 (8th Cir. 1985), the Minnesota Supreme Court has instructed courts to avoid instructions that emphasize particular types of evidence.  See State v. Persitz, 518 N.W.2d 843, 848-49 (Minn. 1994) (no abuse of discretion in refusing requested defense instruction that because of his mental state he was responsible for only first-degree manslaughter); State v. Olson, 482 N.W.2d 212, 215-16 (Minn. 1992) (instructions on particular kinds of evidence should be avoided).  Moreover, an attorney’s closing argument may sufficiently explain alibi evidence and its significance to the jury.  See generally Daniels, 361 N.W.2d at 832 (affirming refusal to give proposed witness credibility instruction where both attorneys argued the issue in closing argument and court gave general instructions on credibility).

In denying appellant’s request for the alibi instruction, the district court explained:

[There is a footnote in a case cited by appellant which states that] if there is going to be an alibi defense, a trial judge will instruct the jurors on the possible bias in the testimony by the Defendant’s family or friends. And it is one of those instructions that, I think, can cut both ways and is, potentially, dangerous.

           

This statement, explaining the trial court’s exercise of discretion, illustrates why it is not always wise for judges to give requested alibi instructions, and leads us to the conclusion that there was no abuse of that discretion in this instance. 

Furthermore, despite the trial court’s refusal to give the jury a specific alibi instruction, an instruction informing the jury that the state has the burden of proving that appellant is guilty was included in the jury charge.  This burden necessarily includes proving that appellant was actually at the Minnehaha Tavern on the day of the robbery and not sleeping, as purported by his alibi.  Similarly, appellant’s attorney thoroughly presented appellant’s alibi argument in his closing statement.

Appellant also argues that the trial court abused discretion in failing to instruct the jury on his theory of the case.  But appellant’s counsel did not provide a sample instruction on the theory of the case to the court.  Furthermore, while the supreme court has acknowledged a defendant’s right to an instruction on his theory of the case, it has held that it is enough if the substance of defendant’s request is contained in the trial court’s charge.  State v. Ruud, 259 N.W.2d 567, 578 (Minn. 1977).  As we explained above, the trial court’s instructions to the jury sufficiently addressed appellant’s request and therefore, it was not an abuse of discretion to refuse to give a separate instruction on appellant’s theory of the case.

IV.

            Appellant argues in his pro se brief that he was denied effective assistance of counsel.  “Generally, an ineffective assistance of counsel claim should be raised in a postconviction petition for relief, rather than on direct appeal.”  State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000) (citations omitted); see also State v. Bjork, 610 N.W.2d 632, 633 n.3 (Minn. 2000) (deferring ineffective assistance claim to postconviction proceedings).  Therefore, we will not address the issue of ineffective assistance of counsel because it is best raised, when appropriate, in a petition for post-conviction relief.

            We have examined appellant’s other pro se arguments and find them to be without merit because they address issues of the weight of evidence and credibility of witnesses.  These are issues for the jury to consider.

            Affirmed.