This opinion will be unpublished and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

A04-1062

 

State of Minnesota,

Respondent,

 

vs.

 

Garrett Arthur Olson,

Appellant.

 

Filed July 26, 2005

Affirmed

Willis, Judge

 

St. Louis County District Court

File No. K7-03-601028

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN  55101-2134; and

 

Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, #501, Duluth, MN  55802 (for respondent)

 

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

 

            Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Crippen, Judge.*

           
U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges his convictions of second-degree attempted murder, first-degree assault, and first-degree aggravated robbery, arguing that (1) the prosecutor committed prejudicial misconduct by vouching for the credibility of a witness; (2) the district court erred by failing to give an accomplice-testimony jury instruction; (3) the district court erred by giving the no-adverse-inference jury instruction without his consent; and (4) his attorney’s failure to challenge a search and to request an instruction on the defense of voluntary intoxication denied him effective assistance of counsel.  We affirm.

FACTS

 

            During the summer of 2003, S.J.W. (the victim) was living in a homeless shelter in Duluth.  On September 1, 2003, he spent the afternoon drinking at a Labor Day party sponsored by the mayor.  That night, the shelter refused to admit him because he had been drinking.  After being turned away, he began walking toward Lake Superior.  He had a wallet and some keys on his person.  A week later he awoke in the hospital and was told that he had been in a coma as a result of being beaten. 

On the night of September 1, 2003, a bystander saw the victim lying on the boardwalk, bleeding, and called 911.  Shortly after hearing the dispatcher relay the 911 call, Officer Ramsay saw appellant Garrett Arthur Olson stumbling away from the boardwalk area.  Ramsay spoke with Olson and noticed that he was intoxicated, that there was blood smeared on his arm and clothing, and that some of the blood was still fresh. DNA testing of some of the blood taken from Olson’s clothing would ultimately match a sample taken from the victim.  Ramsay became suspicious and asked Olson to empty his pockets, recovering two wallets and some keys.  The victim subsequently identified one of the wallets and the keys as his.

The following morning, Olson gave a taped statement to police, repeatedly denying that he attacked the victim and claiming that he was unsure how he ended up with the victim’s wallet and keys.  His statement was somewhat inconsistent, but essentially Olson claimed that the already-bleeding victim came up and hugged him in a drunken stupor, perhaps in an effort to make sexual advances, and that the hug resulted in Olson getting the victim’s blood on his arm and clothing.  Olson also claimed that he may have pick-pocketed the victim during the hug or that he may have taken the victim’s keys and wallet during an alcoholic blackout.  At one point during his statement, Olson seemed to suggest that Edward Davis and Constance Murray, with whom he had been drinking that day, may have been involved in the attack.  

The state charged Olson with second-degree attempted murder, first-degree assault, and first-degree aggravated robbery.  Olson waived an omnibus hearing and pleaded not guilty, and his case was submitted to a jury.  Murray, a witness for the prosecution, testified that she spent that afternoon drinking with the victim, Olson, and Davis on the boardwalk; that the victim and Olson were arguing and pushing each other when she and Davis left to buy beer; that when she and Davis returned, Olson was stomping on the victim’s head, saying, “Die motherf***er, die”; that once she and Davis intervened, Olson “took off”; and that she and Davis went to call for help, but she could not remember if they ever made the call.  Davis, a witness for the defense, also testified that he spent that afternoon drinking with the victim, Olson, and Murray on the boardwalk; that he and Murray left to buy liquor; that he later intervened when he saw Olson attacking the victim; and that he and Murray went to call 911 but that someone else had already called.

During Davis’s testimony, the district court asked him if he had consulted with counsel before testifying.  Davis said that he had but that he did not understand what counsel had said to him.  The district court then announced a break so that counsel could again advise Davis and excused the jury.  A public defender then advised Davis on the record regarding his Fifth Amendment rights.  The district court brought the jury back into the courtroom and instructed it “not to put any weight” on what had just occurred and that it was just a precaution to ensure that Davis understood his rights.  Davis went on to testify that the victim and Olson had been arguing and that when he and Murray returned from the liquor store, he saw Olson stomping on the victim’s head.

On cross-examination, the prosecutor elicited testimony from Davis about the nature of his consultation with the public defender after the jury had been temporarily excused.  Olson did not object.

Prosecutor:    When we took a break here a little while ago, you had a chance to talk to . . . the Chief Public Defender . . . right?

 

Davis:             Yes, sir.

 

Prosecutor:    And [the public defender] told you about your rights, didn’t he?

 

Davis:             Yes, sir.

 

Prosecutor:    He told you that if you had anything to hide you didn’t have to testify, right?

 

Davis:             Yes.

 

Prosecutor:    And after you talked to [the public defender], you agreed to testify here; is that right?

 

Davis:             Yes.

 

Prosecutor:    I’m sure that [the public defender] just told you to tell the truth; is that right?

 

Davis:             Yes, he did.

 

Prosecutor:    And you’ve told us the truth?

 

Davis:             Yes, sir.

 

In his closing argument, the prosecutor again made reference to Davis’s consultation with the public defender: 

[The public defender] talked to Mr. Davis, told Mr. Davis, ‘look, if you’ve got anything to hide, you know, you don’t have to go up there and testify.  You’ve got a right not to testify.  But if you’re gonna, tell the truth.’

 

And knowing that, did Mr. Davis say, ‘no, I’m not gonna testify?’  Uh-uh.  ‘I’m not going to incriminate myself?’  He didn’t say that, because he wanted to come and tell you the truth, and folks, that’s what he was doing.  [Davis and Murray] are not responsible for this crime.  [Olson] is responsible.

 

In his rebuttal, the prosecutor argued, “Remember Mr. Davis talked to an attorney . . . halfway through his testimony.  [The attorney] says ‘tell the truth.’  That’s what [Davis] is doing, and what does he say?  ‘I was there, I saw him.’”  Once again, Olson did not object.

After the three-day trial, the jury returned a verdict of guilty on all counts, and the district court sentenced Olson to 163 months in prison on the conviction of second-degree attempted murder.  This appeal follows. 

D E C I S I O N

 

I.

Olson first argues that the prosecutor committed prosecutorial misconduct.  On review of a claim of prosecutorial misconduct, we “will reverse 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 (Minn. 2003).  Generally, if at trial the defendant failed to object to the alleged misconduct, the defendant has waived the right to have his claim considered on appeal.  State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999).  Without objection from defense counsel, we will only consider a claim of prosecutorial misconduct “when the error is sufficient to do so.”  Id. (declining to consider claim where “the substantial evidence against appellant ensures that the alleged misconduct was harmless beyond a reasonable doubt”).  In other words, we will consider a claim of prosecutorial misconduct only if “the prosecutor’s comments were unduly prejudicial.”  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997) (stating that a defendant’s failure to object to a prosecutor’s comments at trial implies that the comments were not prejudicial).

Olson argues that “the prosecutor committed serious misconduct when he improperly vouched for a witness’s credibility by speculating to the jury about the alleged content of a privileged conversation between the witness and his attorney.”  But given Olson’s failure to object at trial and the substantial demonstrative and testimonial evidence against him, we are satisfied that the prosecutor’s comments did not significantly affect the verdict, and we therefore conclude that Olson has waived his right to have his claim considered on appeal. 

II.

Olson next challenges the district court’s failure to give an accomplice-testimony jury instruction.  Generally, a defendant waives his right to have a claim of failure to give a jury instruction considered on appeal when he fails “to propose specific jury instructions.”  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).  Nevertheless, we have discretion to consider issues not objected to at trial if there is an error and the error is plain and affects substantial rights of the defendant.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). 

Olson argues that the district court committed plain error “by failing to instruct the jury that if it determined that Davis or Murray were accomplices, then the jury would have to determine if their testimony was properly corroborated.”  Olson did not ask the district court to give the accomplice-testimony instruction at trial, and the district court did not give the instruction.

A defendant may not be convicted solely on an accomplice’s uncorroborated testimony.  State v. Henderson, 620 N.W.2d 688, 700 (Minn. 2001). Consequently, Minnesota’s accomplice-testimony instruction tells jurors that   

[y]ou cannot find the defendant guilty of a crime on the testimony of a person who could be charged with that crime, unless that testimony is corroborated by other evidence that tends to convict the defendant of the same crime.  Such a person who could be charged for the same crime is called an accomplice. 

 

10 Minnesota Practice CRIMJIG 3.18 (1999).  The accomplice-testimony instruction must be given in cases “in which any witness against the defendant might reasonably be considered an accomplice to the crime.”  State v. Shoop, 441 N.W.2d 475, 479 (Minn. 1989).  “To establish the criminal liability of an accomplice, the evidence must demonstrate that the accomplice intentionally aided, advised, hired, counseled or conspired with or otherwise procured the other to commit the crime.”  State v. Russell, 503 N.W.2d 110, 114 (Minn. 1993).

We conclude that Davis and Murray cannot reasonably be considered accomplices in this case.  They have not been charged with any crime relating to the incident on September 1, 2003, and Olson did not propose their liability as a theory of his case at trial.  In his closing, Olson argued that there was sufficient reason to doubt that he committed the crimes, but as to the liability of Davis and Murray, his counsel stated, “I am consistent in what I said earlier at the very beginning.  I don’t know what happened.  We don’t know what happened.  Nobody really knows what happened.”  And even if accomplice liability had been alleged at trial, the record does not demonstrate that either Davis or Murray intentionally aided, advised, hired, counseled, conspired with, or otherwise procured Olson to commit the crimes charged.

Because Davis and Murray cannot reasonably be considered accomplices in this case, we conclude that it was not error—let alone plain error affecting substantial rights—for the district court not to give the accomplice-testimony jury instruction.

III.

Olson also argues that the district court erred by giving the jury a no-adverse-inference instruction.  When a defendant fails to object to an erroneous jury instruction, he generally has waived his right to have his claim considered on appeal.  State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002).  But again, we may review the matter if there is an error and the error is plain and affects substantial rights of the defendant.  Id.; Griller, 583 N.W.2d at 740.  An error affects substantial rights if it was prejudicial and affected the verdict.  Griller, 583 N.W.2d at 741.  The defendant bears a particularly heavy burden of persuasion in showing prejudice.  Id.

Olson argues that the district court committed plain error “by instructing the jury with the adverse inference instruction when appellant did not personally request the instruction.”  Olson did not ask the district court to give the no-adverse-inference instruction at trial, but the district court nonetheless gave the instruction.  Olson did not object. 

A district court has a duty to protect a witness’s privilege against self-incrimination “by preventing cross-examination in areas which could invade his constitutional protection under the Fifth Amendment.”  State v. Spencer, 311 Minn. 222, 227, 248 N.W.2d 915, 919 (1976).  Consequently, Minnesota’s no-adverse-inference instruction informs jurors that  “[t]he defendant has a right not to testify.  This right is guaranteed by the federal and state constitutions.  You should not draw any interest from the fact that the defendant has not testified in this case.”  10 Minnesota Practice CRIMJIG 3.17 (1999). 

The state concedes that giving the instruction without Olson’s permission on the record was error.  But the Minnesota Supreme Court has held that giving the no-adverse-inference instruction without the defendant’s consent to be harmless error when there is a failure to show “that the facts of [his] case make the error prejudicial.”  Darris, 648 N.W.2d at 240 (citing State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988); State v. Rosen, 280 Minn. 550, 550-51, 158 N.W.2d 202, 202 (1968); and State v. Sandve, 279 Minn. 229, 233-34, 156 N.W.2d 230, 233-34 (1968)).  And as the state points out, Olson has not adequately briefed the issue under either the plain-error or harmless-error standards.  Olson merely asserts that the instruction “was overly prejudicial” because it “demeaned the importance of the taped statement in which [Olson] denied committing the offense and unduly highlighted that [Olson] did not testify.”  But an assignment of error in a party’s brief that is based on “mere assertion” and not supported by argument or authority is “waived unless prejudicial error is obvious on mere inspection.”  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (quotation omitted).

Given the substantial physical and testimonial evidence against Olson and because he has not carried his heavy burden of persuasion in showing prejudice, we conclude that the district court’s error in giving the no-adverse-inference instruction without Olson’s consent was not plain error affecting Olson’s substantial rights.

IV.

Olson argues finally that he received ineffective assistance of counsel.  We review claims of ineffective assistance of counsel de novo.  State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).  To support a claim of ineffective assistance of counsel, the appellant must show (1) that his counsel’s representation at trial failed to meet an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for his trial counsel’s errors, the outcome of the proceeding would have been different.  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).  We need not address both elements if the appellant fails to show one of them.  Rhodes, 657 N.W.2d at 842. 

Olson claims that his counsel was ineffective for failing to raise a pre-trial challenge to Officer Ramsay’s search because “as a street person with no home to go to, being questioned by an officer in uniform on patrol late at night, [Olson] was not likely to have believed he could say no without consequences,” rendering his consent involuntary.  Olson merely asserts that “under these circumstances, it was unreasonable for defense counsel not to have challenged the legality of the search,” without showing that the alleged error would have produced a different outcome of the proceeding.  Again, an assignment of error in a party’s brief that is based on “mere assertion” and not supported by argument is waived unless prejudicial error is obvious on mere inspection.  Modern Recycling, 558 N.W.2d at 772.  And an inspection of the record before us, including the police report cited in Olson’s brief, shows that Ramsay simply “asked Olson if he would mind emptying his pockets” and that Olson responded by saying, “Sure, I don’t have anything,” voluntarily throwing everything in his pockets on the ground.

Given the substantial evidence against Olson, including the results of the DNA testing, and because he has not shown that the outcome of the proceeding would have been different had his counsel challenged Ramsay’s search, we conclude that Olson’s claim of ineffective assistance of counsel is without merit.   

Olson also claims that his counsel was ineffective for failing to request a jury instruction on the defense of voluntary intoxication.  But the decision to request jury instructions is a tactical matter, which we leave to the discretion of trial counsel.  State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999).  And as the state points out, Olson’s counsel provided more than adequate assistance throughout his entire case, demanding and arguing for Olson’s right to a speedy trial at pre-trial hearings; opposing the state’s motions in limine regarding Davis’s testimony; setting out his theory of the case in his opening statement; cross-examining the state’s witnesses; eliciting testimony from his own witnesses; and returning to his theory of the case in his closing argument.  Because we defer to trial counsel on tactical matters, we again conclude that Olson’s claim must fail.

Finally, Olson claims that “in the alternative, these issues of ineffective assistance should be deemed preserved for review in a postconviction evidentiary hearing.”  But a postconviction evidentiary hearing is necessary only when the record is not sufficient to allow proper review of a claim of ineffective assistance of counsel.  Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001).  We conclude that the record here is more than sufficient to allow proper review of Olson’s claim. 

Affirmed.