This opinion will be unpublished and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

A04-1512

 

State of Minnesota,

Respondent,

 

vs.

 

Michael Lamarr Hill,

Appellant.

 

Filed September 6, 2005

Affirmed
Klaphake, Judge

 

St. Louis County District Court

File No. K3-03-601138

 

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

 

Alan 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, Jodie L. Carlson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Michael Lamarr Hill was charged with one count of aiding and abetting third-degree controlled substance crime (sale of cocaine).  The charge was based on evidence obtained during a controlled buy on October 14, 2003, between a paid police informant, Greg Clater, and Jeff Liddell.  Clater testified that appellant was in the back seat of the vehicle in which Liddell was riding and that appellant handed Liddell the baggie of cocaine.  Following a trial at which Liddell and appellant both testified that appellant was not present during the sale on October 14, a jury found appellant guilty as charged.  Appellant was thereafter sentenced to 28 months in prison, a downward durational departure from the 45-month presumptive sentence, based on the mitigating circumstance that appellant was less culpable than Liddell.

            Because the evidence was sufficient to support the conviction, trial counsel was not ineffective, and Blakely does not apply to the sentence imposed here, we affirm.

D E C I S I O N

I.

            Appellant argues that the evidence is insufficient because Clater’s testimony is uncorroborated.  Clater was a paid police informant, not an accomplice; thus, the rule requiring corroboration of accomplice testimony does not apply here.  See Minn. Stat. § 634.04 (2004); State v. Shoop, 441 N.W.2d 475, 479 (Minn. 1989) (indicating that statutory rule “embodies common law’s long-standing mistrust of the testimony of the accomplice” and recognizes that an “accomplice may testify against another in the hope of or upon a promise of immunity or clemency or to satisfy other self-serving or malicious motives”).  Nor is this a case in which the conviction is based on the “single witness’ identification of a defendant . . . made after only fleeting or limited observation” or a case in which the conviction is based on the questionable testimony of a complainant.  See id., at 478 n.2 (citing State v. Walker, 310 N.W.2d 89, 90 (Minn. 1981) and State v. Ani, 257 N.W.2d 699, 700 (Minn. 1997)).  As an error-correcting appellate court, we decline appellant’s invitation to adopt a requirement that informant testimony be corroborated by independent evidence.

            Even if we were inclined to adopt such a rule, this would not be the case to do so because Clater’s testimony was amply corroborated.  In particular, Officer Jungers followed all of the safeguards that have been developed by law enforcement to insure the credibility of an informant during a controlled buy:  Jungers conducted visual and audio surveillance of the buy; used marked buy money; searched Clater immediately before and after the buys; and arrested Liddell and appellant only after Clater had successfully completed at least two buys.

            In addition, Clater’s testimony is further corroborated by the following evidence and the inferences that can be drawn from that evidence:  (1) when appellant was arrested on October 17, after a second controlled purchase between Clater and Liddell, he had on his person one of the $100 bills used in the October 14 controlled buy; (2) Clater remembered appellant’s nickname shortly after the October 14 buy; (3) the jury could easily reject appellant’s purported alibi and explanation for possession of some of the October 14 buy money because certain details of his testimony did not make sense; (4) the jury could easily reject Liddell’s testimony that appellant was not present on October 14 because details of his testimony were directly contradicted by the testimony of Jungers and Clater; and (5) Spreigl evidence was presented of appellant’s earlier drug sale to a confidential informant.

            Finally, appellant urges this court to adopt a jury instruction requiring independent corroboration of the testimony of a paid police informant.  We decline to do so.  Defense counsel did not request such an instruction, and there is no basis to require such an instruction, particularly when Clater’s testimony was corroborated by other evidence and when the jury was otherwise properly instructed on witness credibility.

            We therefore conclude that the evidence was sufficient to sustain appellant’s conviction for aiding and abetting third-degree controlled substance crime:  the jury could reasonably find that appellant was in the back seat of the vehicle in which Liddell was riding on October 14, that he handed the baggie containing cocaine to Liddell, and that he was involved in the transaction.  See State v. Robinson, 604 N.W.2d 355, 365-66 (Minn. 2000) (stating that this court’s role when reviewing sufficiency of the evidence claim is “limited to ascertaining whether a jury could reasonably find the defendant guilty, given the facts in evidence and the legitimate inferences which could be drawn from those facts”) (quotation omitted)).

II.

            Appellant claims that his trial attorney was ineffective when she (1) failed to object to the use of his prior conviction for impeachment purposes; (2) objected to the use of his prior conviction for Spreigl purposes after not objecting to its use for impeachment; (3) requested that the Spreigl instruction not be repeated; and (4) told the jurors during voir dire that she was from the public defender’s office.

            The matters claimed by appellant to demonstrate ineffective assistance all involve trial strategy and tactics, which we will not review on appeal as long as that trial strategy appears reasonable.  Ives v. State, 655 N.W.2d 633, 636 (Minn. 2003).  For instance, counsel’s decision to not object to the impeachment evidence is similar to a decision about whether to object to Spreigl evidence, which involves trial tactics and strategy.  State v. Vick, 632 N.W.2d 676, 690 (Minn. 2001).  The decision to not object to the impeachment evidence is also comparable to a decision to not file a suppression motion, a decision that “does not constitute per se ineffective assistance of counsel.”  Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 2587 (1986).  Counsel appears to have acted reasonably in raising objections that might have a reasonable likelihood of success, rather than taking a shotgun approach that might have obscured those reasonable objections.  Finally, counsel’s decision to disclose her affiliation with the public defender’s office was likely intended as a matter of trial tactics and strategy.

            In order to establish a claim of ineffective assistance of counsel, a defendant must show that (1) counsel’s performance was so deficient that it fell below an “objective standard of reasonableness,” and (2) the error prejudiced the outcome of the trial.  State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999).  Because counsel’s performance was not so deficient as to fall below an objective standard of reasonableness, we cannot conclude that she was ineffective.[1]

III.

            Appellant argues that his sentence must be reduced or vacated because a jury did not determine whether he had a custody status point, which ultimately increased his criminal history score and presumptive sentence, in violation of Blakely v. Washington, 524 U.S. 296, 124 S. Ct. 2531 (2004).  This court has held, however, that Blakely does not apply to facts relating to a prior conviction, including custody status.  State v. Brooks, 690 N.W.2d 160, 163 (Minn. App. 2004), review granted (Minn. Mar. 15, 2005).

            Even if Blakely should be found to apply to custody status points, the only relief that appellant might conceivably receive would be the elimination of his custody status point.  Given a criminal history score of 4, the presumptive sentence for third-degree cocaine crime, a severity level VI offense, is 45 months; appellant’s sentence of 28 months represents a downward departure based on a mitigating factor.  Elimination of the custody status point would leave appellant with a criminal history score of 3, which would give him a presumptive sentence of 39 months, which is 11 months greater than the sentence that he actually received.  Because the sentence received by appellant is well within the maximum sentence permitted by the jury’s findings alone, he is not entitled to a reduction in his sentence under Blakely.

            Affirmed.