Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Bradford Colbert, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant)

Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Foley, Judge.[*]

Appellant William DeMone Walker was charged with first-degree attempted murder, second-degree attempted murder, first-degree assault, second-degree assault, and drive-by shooting. A jury acquitted him of the attempted murder and drive-by shooting charges and convicted him of first-degree assault. The trial court sentenced appellant to 172 months in prison, double the presumptive sentence. He appeals from the conviction and sentence.

Because the testimony of several police officers was admissible nonhearsay, appellant received effective assistance of counsel, and the claims presented in appellant's pro se supplemental brief are without merit, we affirm the conviction. Because a departure from the presumptive sentence is justified, but a double durational departure unfairly exaggerates the criminality of appellant's conduct, the sentence is affirmed as modified.

D.B. then pulled his car over, and he and his companions got out. The Riverside Players also stopped, and appellant stepped out of the front passenger door. According to D.B. and his cousin, appellant aimed a gun at them and fired four or five times. D.B. was hit in the neck. Appellant got back into the car, which was driven away.

D.B.'s companions rushed him to the hospital, where he underwent emergency surgery. D.B.'s cousin remained at the hospital, while the other two Crips members fled. Two officers testified that D.B.'s cousin identified the shooter as "Little Will" and described the vehicle in which he was riding. According to the police gang unit, "Little Will" is appellant's street name.

Within hours, the vehicle was stopped and the driver, M.S., was arrested. M.S. admitted that he had been driving the car, identified appellant as one of the occupants, and told police where appellant was staying. Appellant was arrested later that evening.

In explaining how an investigation focused on a particular defendant, a police officer testifying in a criminal trial may not relate hearsay statements of others. See State v. Williams, 525 N.W.2d 538, 544 (Minn. 1994); see also State v. Hardy, 354 N.W.2d 21, 24-25 (Minn. 1984). Minn. R. Evid. 801(d)(1), however, provides that a statement is not hearsay if it relays a witness's prior, consistent statements of identification. In pertinent part, the rule provides that a statement is not hearsay if

[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is * * * (B) consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness, or (C) one of identification of a person made after perceiving the person, if the court is satisfied that the circumstances of the prior identification demonstrate the reliability of the prior identification * * *.

Id.; see State v. Gatlin, 295 N.W.2d 538, 540 (Minn. 1980) (statements of crime victim to police describing assailant not hearsay when admitted to corroborate victim's in-court identification of defendant); State v. Arndt, 285 N.W.2d 478, 481 (Minn. 1979) (statement may be offered nonsubstantively to corroborate witness's trial testimony if witness available for cross-examination).

The testimony challenged here was given to officers by D.B.'s cousin at the hospital and by M.S. when he was arrested. Both witnesses testified at trial and were subject to cross-examination. Because the officers' testimony provided corroboration for the trial testimony of these witnesses, it was admissible under rule 801(d)(1).

Even if there had been error in admission of this testimony, it was harmless for several reasons. First, the facts underlying the officers' testimony are not in dispute because appellant admitted that he was a member of the Riverside Players and that his street name was "Little Will." See State v. Klosterboer, 529 N.W.2d 705, 710-11 (Minn. App. 1995) (no prejudice where disputed testimony is consistent with defendant's testimony and statements). Second, appellant relied on the officers' testimony to advance his theory of the case by repeatedly emphasizing that he became the focus of the investigation based on the statements of D.B.'s cousin, a rival gang member whom appellant claimed had falsely identified him. Finally, the evidence of appellant's guilt was overwhelming: D.B. and his cousin both identified appellant as the shooter, M.S. corroborated their testimony by stating that appellant was the only person to exit his car just before the shots were fired, and appellant wrote to M.S. while the two were incarcerated and his letter tended to incriminate him. Thus, appellant can show no prejudice by the admission of the officers' testimony.

By making a record of appellant's knowledge and rejection of the proposed plea agreement and of appellant's disagreements with him, defense counsel acted reasonably and consistently with professional standards. See Standards for Criminal Justice Standards 4-5.2(c) & 4-6.2 (3d ed. 1993). In addition, the manner in which the record was made was reasonable and adequately protected appellant's interests: defense counsel did not make the record at a critical point in the trial and simply recited the facts underlying the dispute. Cf. State v. Eling, 355 N.W.2d 286, 295 (Minn. 1984) (not ineffective assistance of counsel where conversation took place at critical point in trial but upon defendant's request); State v. Moe, 479 N.W.2d 427, 429 (Minn. App. 1992) (error for trial court judge to participate directly in plea agreement negotiations), review denied (Minn. Feb. 10, 1992). Thus, we cannot conclude that defense counsel was ineffective. State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (strong presumption that counsel's performance fell within wide range of "reasonable professional assistance").

Appellant argues that the departure was impermissible because it was based on charges of which he was acquitted. Appellant was charged with one count of second-degree assault involving "four known juvenile males," presumably D.B. and his three companions. For some reason, however, the jury was only instructed on the offense of second-degree assault as it related to D.B. While a sentencing court cannot depart based on facts solely related to a dismissed charge, the court is free to consider "the course of conduct underlying an offense" in assessing its seriousness. State v. Pearson, 479 N.W.2d 401, 406 (Minn. App. 1991), review denied (Minn. Feb. 10, 1992). Thus, the trial court here did not abuse its discretion in departing because appellant's conduct was particularly serious and represented a greater than normal danger to the safety of others.

Nevertheless, the trial court's imposition of a double durational departure unfairly exaggerated the criminality of appellant's conduct because it was longer than the sentence appellant could have received had he been convicted of second-degree assault and sentenced consecutively. See State v. Norris, 428 N.W.2d 61, 71 (Minn. 1988) (trial court may not exaggerate criminality of defendant's conduct by imposing number of consecutive sentences). If appellant had been convicted of first-degree assault involving D.B. and second-degree assault involving D.B. and his companions, the maximum sentence the court could have imposed would have been 86 months for the first-degree assault conviction and three consecutive 21-month sentences for the second-degree assaults. Thus, we affirm the sentence, but reduce it from 172 months to 149 months. Cf. State v. Goulette, 442 N.W.2d 793, 794-95 (Minn. 1989) (conclusion that aggregate sentence unfairly exaggerated criminality of conduct resulted in reduction of sentence from 251 to 214 months).

Finally, appellant has submitted a pro se supplemental brief in which he criticizes defense counsel's decision not to subpoena a particular witness and his efforts to locate other potential witnesses. Appellant also argues that his sentence constitutes cruel and unusual punishment. We have carefully reviewed appellant's claims and find them to be without merit.

Affirmed as modified.

[ ]^* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]¹It is questionable whether appellant may raise this issue on appeal, because he readily admits that defense counsel failed to object to this testimony at trial. Because appellant claims that admission of this testimony constituted plain error, we will address the issue. See State v. Salitros, 499 N.W.2d 815, 820 (Minn. 1993) (citing Minn. R. Evid. 103(d)).

[ ]²While the trial court also noted that it was particularly cruel to shoot someone in the neck, the state appears to concede that this was not an appropriate basis for departure in this case.