This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2460

 

State of Minnesota,

Respondent,

 

vs.

 

Lewis B. Dickson,

Appellant.

 

Filed ­­­January 23, 2007

Affirmed

Dietzen, Judge

 

Stearns County District Court

File No. K3-05-1820

 

Janelle Prokopec Kendall, Stearns County Attorney, Room 448, Administration Center, 705 Courthouse Square, St. Cloud, MN 56303; and

 

Lori Swanson, Attorney General, Binh T. Tuong, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

 

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

 

            Considered and decided by Dietzen, Presiding Judge; Lansing, Judge; and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

Appellant challenges his convictions of attempted first- and second-degree aggravated robbery arguing that the district court erred by (1) failing to suppress the results of a photographic lineup, (2) giving the no-adverse-inference jury instruction without obtaining appellant’s consent, and (3) allowing prosecutorial misconduct during the trial.  We affirm.

FACTS

            On an evening in April 2005, A.H. was walking home from work near the civic center in downtown St. Cloud.  Without warning, she was grabbed from behind by a man who squeezed the base of her neck with such force that she fell to her knees.  The man then leaned around her, slapped her face several times, and told her to give him money or he would kill her.  When a car came around the corner, the man released A.H. and ran away.  A.H. picked herself up, walked home, and called the police. 

Officer Lucas Dingmann responded, and A.H. gave him her account of the attack.  Dingmann observed that A.H. appeared to be shaken, upset, and in shock.  Dingmann also saw three marks on one side of A.H.’s neck and a single mark on the other, which were consistent with her account that she had been grabbed by the neck.  A.H. described her assailant as a young, black male, who was 6 feet 2 inches tall and weighed approximately 180 pounds.  A.H. also stated that her assailant wore his hair in long, black dreadlocks and had a “scruffy beard.” 

Officer Dingmann believed that appellant Lewis Dickson matched the description A.H. provided and prepared a photographic lineup of six black men with dreadlocks, including appellant.  Since appellant’s picture had a different background than the others, Dingmann decided to print all the photos in black and white so that appellant’s picture would not stand out.  Before showing A.H. the photographic lineup, Dingmann had her read and sign a photographic lineup instruction form.  A.H. quickly identified appellant as her assailant stating that she was “100 percent certain” and then became very upset and started to cry.

            Appellant was charged with attempted first- and second-degree aggravated robbery.  Before trial, appellant moved to suppress A.H.’s identification of him from the photographic lineup.  The district court denied the motion.   

At trial, A.H. testified regarding the attack, her injuries, and her identification of appellant from the photographic lineup.  She admitted that she gave inconsistent descriptions of her assailant’s age.  Dingmann testified regarding the results of the photographic lineup.  Appellant’s girlfriend testified that appellant was at her apartment on the day of the attempted robbery, but she admitted that she was napping from approximately 6 p.m. to 9 p.m. and could not verify his whereabouts during that time.

            The district court asked appellant’s attorney if he wanted the jury to be given the no-adverse-inference instruction regarding appellant’s right not to testify, and appellant’s attorney, in appellant’s presence, answered affirmatively.  After the instructions were given to the jury, both attorneys declined the court’s invitation to make any corrections or additions to the instructions. 

Shortly before the jury verdict, appellant’s attorney objected to comments made by the prosecutor during closing argument and moved for a mistrial.  The district court denied the motion, and the jury returned guilty verdicts on both counts.  This appeal follows.

D E C I S I O N

I.

Appellant argues that the district court erred in denying his motion to suppress the results of the photographic lineup.  In general, “[e]videntiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted). 

Identification evidence must be excluded if the procedure used is so impermissibly suggestive that it gives rise to a substantial likelihood of irreparable misidentification.  Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971 (1968); State v. Bellcourt, 312 Minn. 263, 264, 251 N.W.2d 631, 633 (1977).  Minnesota courts analyze identification evidence under a two-step analysis.  State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995).  First, a court must determine whether the procedure used to gather identification evidence was unnecessarily suggestive.  Id. (citation omitted).  If the procedure is found to be unnecessarily suggestive, a court must then determine whether the identification was reliable under the totality of the circumstances.  Id. 

The determination of whether an identification procedure was unnecessarily suggestive “turns on whether the defendant was unfairly singled out for identification.”  Id.  A photographic lineup is “sufficient if all the people in the display bear a reasonable physical similarity to the accused.”  State v. Yang, 627 N.W.2d 666, 674 (Minn. App. 2001), review denied (Minn. July 24, 2001); see also Simberg v. State, 288 Minn. 175, 180, 179 N.W.2d 141, 145 (1970) (stating that people in a lineup should bear a reasonable physical similarity to the accused). 

Appellant contends that the photographic lineup was unnecessarily suggestive because appellant was (1) taller, (2) lighter skinned, and (3) 10-to-25 years older than the other five men included in the lineup. But courts have upheld lineups with conditions that are similar to those appellant argues were present here.  See State v. Montjoy, 366 N.W.2d 103, 106 (Minn. 1985) (upholding a photographic lineup where the age of the participants varied by 12 years and the suspect was the only person who had a beard); Seelye v. State, 429 N.W.2d 669, 673 (Minn. App. 1985) (holding that a photographic lineup was not unnecessarily suggestive even though the suspect was Indian and all other people pictured were Caucasian).  Here, all of the men in the lineup were African-American men with dreadlocks and short beards and, thus, bore a reasonable physical similarity to appellant.  Additionally, all of the photographs were in black and white depicting the head and shoulders, making skin tone, height, and age difficult to distinguish.  We conclude that the lineup was not unnecessarily suggestive and that the district court did not abuse its discretion by denying the motion to suppress it.

Appellant next argues that the identification was unreliable under the totality of the circumstances.  The district court concluded that the lineup was not unnecessarily suggestive, and it did not address the second factor.  Because the lineup was not unnecessarily suggestive, we need not reach the second factor and, therefore, we decline to do so.  Ostrem, 535 N.W.2d at 921.

II.

Appellant argues that the district court erred by giving the no-adverse-inference instruction to the jury without first obtaining appellant’s permission on the record.  But appellant failed to make a timely objection to the instruction.  Thus, our review is limited to a plain-error analysis.  State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002) (citing State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)).  Plain-error requires the following: (1) there was error, (2) that was plain, and (3) that affected substantial rights.  Id.

“[F]ailure to testify shall not create any presumption against the defendant, nor shall it be alluded to by the prosecuting attorney or by the court.”  Minn. Stat. § 611.11 (2004).  It is error to give jury instructions on a defendant’s right not to testify without first obtaining the defendant’s permission on the record.  Darris, 648 N.W.2d at 240 (citing Minn. Stat. § 611.11 and State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988)). 

Respondent concedes that the district court erred by giving this “no-adverse-inference” instruction without obtaining appellant’s permission, thus satisfying prongs (1) and (2) of Griller.  But respondent argues that this error did not affect substantial rights.  We agree.

A non-objecting defendant bears a heavy burden of showing that substantial rights have been affected.  Griller, 583 N.W.2d at 741.  This burden “is satisfied if the error was prejudicial and affected the outcome of the case.”  Id.  Our supreme court has held that giving a no-adverse-inference instruction without permission is not prejudicial.  See, e.g., Darris, 648 N.W.2d at 240-41; Thompson, 430 N.W.2d at 153.  Also, failure to object or seek curative instructions about improper comments at trial implies that such comments were not prejudicial.  See State v. Parker, 353 N.W.2d 122, 128 (Minn. 1984) (discussing a prosecutor’s allegedly improper statements that were not objected to at trial).

Here, appellant has not shown how the facts of this case make the error prejudicial or how giving the instruction had a substantial effect on the jury’s verdict.  Appellant had several opportunities to object to the instruction and failed to do so.  We conclude that giving the “no-adverse-inference” instruction was not prejudicial and did not affect substantial rights.

III.

Appellant argues that the prosecutor engaged in misconduct during the trial in two ways, which deprived him of a fair trial.  A conviction will be reversed for prosecutorial misconduct “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) (citing State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000)).  

Recently, the Minnesota Supreme Court concluded that “appellate courts should use the plain error doctrine when examining unobjected-to prosecutorial misconduct.”  State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006).  In Ramey, the supreme court concluded that “the burden should be on the prosecution to show lack of prejudice before we will affirm a conviction.”  Id. at 302.  Thus, the burden continues to be on the non-objecting defendant to demonstrate both that error occurred and that the error is plain.  Once those two elements are satisfied, the burden then shifts to the state to demonstrate lack of prejudice, that is, that the misconduct did not affect substantial rights.  Id.

Appellant first argues that the prosecutor improperly elicited testimony from appellant’s girlfriend that she was afraid of him.  Evidence of a defendant’s character is generally inadmissible.  Minn. R. Evid. 404(a).  Eliciting inadmissible evidence can be misconduct.  Ramey, 721 N.W.2d at 300 (citing State v. Harris, 521 N.W.2d 348, 353-54 (Minn. 1994)).  But eliciting improper character evidence does not necessarily rise to the level of prejudicial misconduct.  See Harris, 521 N.W.2d at 354 n.9 (noting that isolated questions regarding the violent character of a defendant may be excused if “brief, not repeated, and unlikely to have had a substantial effect on jury”); see also Rairdon v. State, 557 N.W.2d 318, 324-25 (Minn. 1996) (holding that numerous acts of misconduct, including asking a witness if she was afraid of the defendant, were not so prejudicial that the defendant was denied a fair trial).

Here, the prosecutor asked appellant’s girlfriend the following questions:

Q. [W]hen you were speaking to Officer Dingmann, were you at all concerned that whatever you were going to tell Officer Dingmann might come to the attention of [appellant]?

 

A. Yes, I was.

 

Q. Were you scared of what might happen if that happens?

 

A. Yes, I was.  He promised me he wouldn’t tell.

 

Appellant relies heavily on Harris, 521 N.W.2d 348 and State v. Montgomery, 707 N.W.2d 392 (Minn. App. 2005).[1]  But those cases involved continuous, direct references to multiple witnesses’ fear of a defendant, which resulted in the “cumulative” effect of creating an inference that the defendant had a bad character.  Harris, 521 N.W.2d at 352; Montgomery, 707 N.W.2d at 401.  Here, the prosecutor elicited isolated testimony for the
purpose of impeaching the girlfriend’s credibility.  See State v. Haynes, ___ N.W.2d ___, ___, 2007 WL 14666, at *4 (Minn. Jan. 4, 2007) (citing Harris, 521 N.W.2d at 352, and holding that isolated incidents, which are confined to one question and are not cumulative attacks on a defendant’s character, do not rise to the level of prosecutorial misconduct).  On this record, we conclude that, absent an objection, it was not plain error to admit this line of questioning. 

But even if it was error to admit the girlfriend’s testimony, we conclude that the error was not prejudicial.  Here, the testimony was isolated, and the state provided strong identification evidence of appellant as the perpetrator.  Also, appellant’s case relied in large part on his alibi, i.e., that he was with his girlfriend during the attempted robbery.  But since appellant’s girlfriend could not completely substantiate his alibi, it is unlikely that her testimony affected the outcome of the case.

Secondly, appellant argues that the prosecutor engaged in misconduct during closing argument when he improperly alluded to appellant’s right not to testify.  Because it was unobjected-to misconduct,[2] we review for plain error.  Ramey, 721 N.W.2d at 299.

In general, prosecutors “may not directly or indirectly comment on a defendant’s failure to testify.”  State v. DeRosier, 695 N.W.2d 97, 107 (Minn. 2005).  But references to a defendant’s failure to testify are prohibited only if they manifest a prosecutor’s intent to call attention to a defendant’s failure to testify or if they are such that the jury would understand them as a comment on the defendant’s failure to testify.  Id. 

During closing argument, the prosecutor stated:

Now, [appellant], on the other hand, does have a motive for lying in this case.  Now, he didn’t testify in this case.  He is not required to do so.  And you shouldn’t consider that factor at all in your considerations – whether or not he testified here.  That should not be considered.  And I believe the judge will instruct you about that.

 

Thus, the prosecutor merely paraphrased the no-adverse-inference instruction and argued that appellant had a motive to lie to the police.  Therefore, we conclude that it was not plain error to allow the prosecutor’s comments on appellant’s right not to testify.  But even if it was plain error, it was not prejudicial.  The prosecutor made a single comment regarding appellant’s right not to testify.  This case centered on credibility and, as appellant concedes, his “imperfect alibi.”  The prosecutor’s comments were aimed at showing that appellant had a motive to lie in his statements to the police.  But the prosecutor did not attempt to persuade the jury to infer guilt from appellant’s silence.  On this record, we conclude that the prosecutor’s single comment on appellant’s right not to testify would not have had a significant effect on the jury’s verdict.

Appellant argues that we should reverse his conviction in the interests of justice and argues that DeRosier supports his position.  See 695 N.W.2d at 106 (stating that “[a] reviewing court . . . retains, under its supervisory power, the right to reverse prophylactically or in the interests of justice, without a further finding of prejudice.”).  But in cases involving prosecutorial misconduct, only the supreme court has clearly retained the authority to reverse a conviction under its supervisory powers.  Ramey, 721 N.W.2d at 303.  Therefore, we decline to do so. 

IV.

In a supplemental brief, appellant argues that Officer Dingmann’s investigation was “biased and prejudiced,” and that the state violated due process by failing to disclose Dingmann’s police report.  “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”  Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963).  But Brady disclosure applies only to material evidence, meaning that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”  State v. Hunt, 615 N.W.2d 294, 299 (Minn. 2000).  Here, appellant failed to raise his Brady challenge in the district court, and, therefore, it has not been properly preserved for appeal.

But even if we were to consider appellant’s argument, we conclude that it lacks merit.  Appellant was aware of Dingmann’s investigation and questioned Dingmann extensively at trial about that investigation.  In fact, appellant fails to point to anything in the report that was not brought out at trial.  Appellant’s main argument is that Dingmann’s report reveals a lack of investigation, which appellant brought out during cross-examination.  Therefore, we conclude that there was no Brady violation here.

Affirmed.