This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-967

 

State of Minnesota,

Respondent,

vs.

Jerrett Lee Anderson,

Appellant.

 

Filed July 5, 2005

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File No. 02016378

 

Mike Hatch, Attorney General, Suite 1800, Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant Jerrett Lee Anderson challenges his conviction of murder in the third degree, arguing that the district court erred by not instructing the jury to determine if the witness to a shooting was his accomplice and, if so, whether that witness’s testimony was corroborated.  Appellant also argues that the prosecutor engaged in prejudicial misconduct entitling him to a new trial.  Because the district court did not abuse its discretion in instructing the jury and there was no prosecutorial misconduct, we affirm.

FACTS

 

            Eighteen-year-old Blake Rogers and his friends Brian Bacich and appellant were in Rogers’s bedroom when Blake Rogers was killed by a shotgun wound to the head.  Bacich and appellant both ran from the scene.  Bacich turned himself in to police two hours later, and appellant, with an attorney, turned himself in the next day.  Each claims the other was holding the gun when Rogers was shot.  The gun, which appellant threw over a fence as he ran from Rogers’s home, was recovered.  Testing revealed Bacich’s fingerprint on the gun’s barrel and no other fingerprints.

            Appellant was tried on a charge of murder in the third degree (felony), in violation of Minn. Stat. § 609.195(a) (2000); §609.11 (2000); § 609.107 (2000).  At trial, Bacich testified that he was in Rogers’s bedroom with Rogers watching television when appellant called and said he was coming over.  According to Bacich, appellant brought a shotgun with him and showed it to Rogers and Bacich.  Bacich testified that he handled the gun, including the barrel, noticed it was loaded and handed it back to appellant.[1]  He testified that Rogers asked appellant if the gun was loaded and appellant confirmed that it was.  According to Bacich, Rogers went to the corner of his room and kneeled down to put a CD into a player.  Bacich testified that appellant, in a joking manner, pointed the gun at Rogers, and the gun fired.  Rogers fell over, and Bacich and appellant ran out, Bacich yelling to Rogers’s mother to call the police.  Bacich noticed appellant was not beside him as he ran, but appellant caught up with him and said he had “wiped” and “ditched” the gun.  They went to the home of a girl appellant knew, and appellant used her telephone to call Spencer Cullen, whom Bacich had never met, to give them a ride.  Bacich testified that as Cullen drove to Bacich’s house, appellant told Cullen that appellant had shot Rogers, and appellant told Bacich not to say anything until he got a lawyer.

            Bacich testified that shortly after he arrived home, he began to cry and told his mother what had happened.  They decided he needed to go to the police immediately, despite the fact that there was a warrant out for his detention for having absconded from probation for a juvenile offense.  A police officer testified at trial that, in his judgment, because Bacich turned himself in at that time, he was more believable than appellant who turned himself in later.

            Eric Kading, who was a friend of appellant, Bacich, and Rogers, testified that he received a call on his cell phone from appellant on the night of the shooting and appellant’s voice sounded “distraught.”  Kading testified that appellant said he had been fooling around with a gun and it had gone off, and Rogers was shot.  Kading testified that appellant told him where he had been sitting in Rogers’s room at the time of the shooting.  After that call, Kading called Rogers’s home and learned that Rogers had died.  Rogers’s father asked Kading for appellant’s name and “Brian’s” last name.  Kading denied knowing this information.  At trial, he testified that he lied to protect his friends.  Kading was taken to the police station for questioning in the early-morning hours after the shooting.  Kading was at the police station at the same time Bacich was there, but there is no evidence that there was any contact between Kading and Bacich.

            Appellant testified that he had left home a few days before the shooting after fighting with his mother about a gun he brought to their home.  He testified that he stayed with Kading and brought the gun with him.  Appellant testified that Kading bought the gun from him for $150, paid in “weed.”  Appellant said that he then moved in with another friend, Chris Swanson.  Appellant said he saw the gun in Rogers’s home twice before the shooting.  The first time was when he was with Kading, and Kading brought the gun to show Rogers.  The second time was a few days later when he was in Rogers’s bedroom and saw the gun behind the leather chair that Bacich was sitting in at the time of the shooting.  Appellant testified that Kading left the gun with Rogers because Kading did not want to keep it at his home.

            Appellant, who said he had been to Rogers’s home frequently, testified that, on the night of the shooting, he stopped off at Papa John’s, where Rogers worked, to say he was coming over later, then stayed at his girlfriend’s house for a couple of hours before going to Rogers’s house.  Appellant testified that he threw a rock at Rogers’s window, as he usually did to avoid disturbing Mrs. Rogers, who sometimes slept on the living-room couch.  When Rogers let appellant into the house, Mrs. Rogers was sitting on the couch.  Appellant removed his shoes, as he always did when visiting the Rogers’s home, and went with Rogers to his bedroom.

            Bacich was already there, sitting in a leather chair in the bedroom. Appellant testified that Bacich asked Rogers to put on a CD and Rogers went to the CD player.  Appellant testified that he was looking for pop in a refrigerator in the room when, from the corner of his eye, he thought he saw a gun.  He saw “fire,” heard a loud explosion, and saw Rogers fall.  Appellant testified that Bacich was sitting in the chair with the gun in his hands.  When Rogers fell, Bacich stood up looking shocked and ran from the room.  Appellant ran after him and told Mrs. Rogers, who was standing in the hall, to call 911.  Appellant said that as he and Bacich knelt to put on their shoes, appellant saw the gun on the floor by Bacich and Bacich handed the gun to appellant once they were outside.  As they ran from the house, appellant ran behind another house and threw the gun over a fence into some snow.  They ran to the home of a girl appellant knew, and appellant used her telephone to call Cullen for a ride.  Appellant testified that he told Bacich to get a lawyer but denied telling Cullen that he had shot Rogers.  Appellant also denied calling Kading or talking to Kading that night or for the next few days.  Appellant denied putting shells in the gun and testified that he did not see Kading load the gun.  Appellant testified he did not handle the gun on the night of the shooting and did not know it was loaded.

            A jury convicted appellant of murder in the third degree.  He was sentenced, and this appeal followed.

D E C I S I O N

 

I.          Jury instructions

            Appellant argues for the first time on appeal that the district court erred by not submitting to the jury the questions of whether Bacich was his accomplice and if so, whether his testimony was corroborated.  Trial courts have “‘considerable latitude’ in the selection of language in the jury charge.”  State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990).  And if there is error in a trial court’s instruction, “it is the duty of counsel to bring the matter to the attention of the court in a timely and proper manner, and if he fails to do so, he waives the right to later on object either on a motion for a new trial or on appeal.”  State v. Billington, 241 Minn. 418, 427, 63 N.W.2d 387, 392 (1954).

            Appellant concedes that he never requested an accomplice instruction and failed to object to the failure to include such an instruction but asserts that even absent an objection, failing to provide the instruction was plain error.  See State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998) (citing State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983), for the proposition that failure to object will not cause an appeal to fail if the jury instructions contained plain error affecting substantial rights or an error of fundamental law). 

            Appellant relies on State v. Shoop for the proposition that “given the long history of the accomplice testimony instruction . . . a trial court should give the accomplice testimony instruction even absent a request.”  441 N.W.2d 475, 479 (Minn. 1989).  But Shoop states that “the trial court should give such an instruction in an appropriate case whether or not one is requested.”  Id. (emphasis added).

            Because, as respondent correctly points out, the theory that Bacich was appellant’s accomplice was completely contrary to appellant’s theory of the case at trial, this was not “an appropriate case” that required the trial court to sua sponte give an accomplice instruction.  Appellant testified that he was only a witness to Bacich shooting Rogers, and Bacich testified that he was only a witness to appellant shooting Rogers.  There is no evidence in the record that would support a theory that appellant and Bacich aided and abetted each other in the shooting.[2]  See State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995) (stating that in order for a defendant to be convicted for aiding and abetting under Minn. Stat. § 609.05, the state must show “some knowing role in the commission of the crime by a defendant who takes no steps to thwart its completion”).  Inaction, knowledge, or passive acquiescence does not constitute aiding and abetting.  Id.  Because there is no

evidence that appellant or Bacich aided or abetted each other in the shooting, both could not have been charged with the shooting.  See State v. Henderson, 620 N.W.2d 688, 701 (Minn. 2001) (stating test for whether a witness is an accomplice of a defendant for purposes of section 634.04 is whether he could have been indicted for and convicted of the same crime with which the accused is charged).  Because Bacich could not have been charged once appellant was charged, he was not an accomplice, and the trial court did not commit plain error by failing to submit accomplice instructions to the jury.[3]

II.        Prosecutor’s conduct

            a.         Appellant’s contact with attorney

            The prosecutor asked Bacich if he heard appellant speak by telephone to Kading when they were in Cullen’s car.  Bacich answered that although appellant “made a couple of phone calls” from Cullen’s car, he did not know to whom appellant was talking.  Appellant now argues that this exchange amounted to the prosecutor improperly bringing up, by innuendo, the fact that appellant called an attorney from Cullen’s car.  We reject this claim as without merit because the record does not contain any reference to or innuendo that appellant called an attorney from Cullen’s car.  And even if there were an innuendo that appellant called an attorney prior to appearing at the police station, the information did not implicate a constitutional right because appellant was not charged with any crime or subject to custodial interrogation at that time.  The constitutional right to counsel attaches only after a person is in custody or has been charged.  See, e.g., United States v. Gouveia, 467 U.S. 180, 187, 104 S. Ct. 2292, 2297 (1984) (Sixth Amendment right attaches “only at or after the initiation of adversary judicial proceedings”); Miranda v. Arizona, 384 U.S. 436, 469-470, 86 S. Ct. 1602, 1625-1626 (1966) (recognizing existence of suspect’s right under the Fifth Amendment to counsel when deciding whether to answer police questions as well as during entire police interrogation session, in order to protect Fifth Amendment privilege against self-incrimination and requirement that interrogators warn suspect of the right to counsel prior to beginning any questioning).

            b.         Appellant’s silence

            Appellant asserts prosecutorial misconduct based on the prosecutor’s questions about and comments on appellant’s pre-counseled, pre-arrest silence.  The issue of the prosecutor’s ability to question appellant on his failure to talk to Rogers’s parents after the shooting was discussed among counsel and the district court prior to and during the trial.  The district court ruled that no comment could be made about appellant’s silence after he obtained counsel.  The prosecutor carefully questioned Mrs. Rogers about whether appellant had contacted her between the time of the shooting and the time appellant turned himself in to police.  The prosecutor cross-examined appellant on his failure to call police right after the shooting, his failure to come forward to talk to police before Bacich did, and the fact that he turned himself in with an attorney.

            In closing, the prosecutor referred to appellant’s failure to tell the police his version of the events and his failure to remain at the scene or otherwise talk to Rogers’s parents and tell them what happened.  Counsel for appellant objected, but because the prosecutor limited these comments to the time “[r]ight after it happened,” the objection was overruled.  In closing, the prosecutor also questioned the defense theory that appellant was only a witness, stating:

[D]oes a witness to a crime sit there and tell the family what happened and talk to the police, or do they [sic] run?  Now certainly you can apply this to Brian Bacich as well.  Brian Bacich ran.  He was afraid.  He didn’t know what was going on.  He had warrants.  He wanted to get out of there.  But it certainly applies to the defendant as well, as one of the pieces you can look at to determine whether he committed this.

 

            The propriety of a prosecutor’s final argument is a matter within the sound discretion of the trial court.  State v. Fossen,282 N.W.2d 496, 503 (Minn. 1979).  Appellant argues that the prosecutor improperly commented on appellant’s right to remain silent and his right to counsel. 

            A prosecutor may not impugn a defendant’s exercise of a constitutional right, for example, by commenting on a defendant’s failure to testify.  State v. DeRosier,695 N.W.2d 97, 107 (Minn. 2005).  In State v. Dunkel, 466 N.W.2d 425, 428 (Minn. App. 1991), this court discussed the continuum fashioned by the United States Supreme Court regarding when silence may be used to impeach a defendant taking the stand in his own defense:

In Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 2245, 49 L. Ed.2d 91 (1976), the [C]ourt ruled that post-arrest, post-Miranda silence was inadmissible as a means of impeachment.  In contrast, the [C]ourt held in Fletcher v. Weir, 455 U.S. 603, 607, 102 S. Ct. 1309, 1312, 71 L. Ed.2d 490 (1982), that post-arrest, pre-Miranda silence could be admitted on cross-examination to impeach.  Finally, in Jenkins v. Anderson, 447 U.S. 231, 238-39, 100 S. Ct. 2124, 2129, 65 L. Ed.2d 86 (1980), the [C]ourt determined that pre-arrest, pre-Miranda silence was also properly admissible on cross-examination.  The [C]ourt reasoned: “[I]mpeachment follows the defendant’s own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial.”   

 

Id.  The Minnesota Supreme Court held in State v. Billups, 264 N.W.2d 137, 139 (Minn. 1978), that counseled, pre-Miranda silence is constitutionally protected and cannot be used for impeachment.  Id.  Dunkel extended Billups to hold that the use of “counseled, pre-arrest, pre-Miranda silence in the state’s case-in-chief was erroneous.”  466 N.W.2d at 428.  In this case, the district court carefully limited the impeachment evidence to pre-counseled, pre-Miranda, pre-arrest silence, and the prosecutor respected that limitation.  We therefore conclude that no prosecutorial misconduct occurred.

            Affirmed.