A. Blackstone, a/k/a Lermon Dayonne Russell, petitioner, Appellant, v. State of Minnesota, Respondent. C1-99-876, Court of Appeals Unpublished, November 2, 1999.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C1-99-876

A. Blackstone,
a/k/a Lermon Dayonne Russell, petitioner,
Appellant,

State of Minnesota,
Respondent.

Filed November 2, 1999
Affirmed
Short, Judge

Sherburne County District Court
File No. K595986

Mark D. Nyvold, 1030 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)

Mike Hatch, Attorney General, 525 Park Street, St. Paul, MN 55103; and

Walter M. Kaminsky, Sherburne County Attorney, Thomas C. McNinch, Assistant County Attorney, Sherburne County Government Center, 13880 Highway 10, Elk River, MN 55330 (for respondent)

Considered and decided by Crippen, Presiding Judge, Short, Judge, and Forsberg, Judge.[*]

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

SHORT, Judge

A jury convicted A. Blackstone of first-, fourth-, and fifth-degree assault and disorderly conduct in violation of Minn. Stat. § 609.221, .2231, subd. 3, .224, subd. 1(2), and .72, subd. 1(1) (1994). The trial court sentenced Blackstone to 127 months for the first-degree assault, a consecutive one year and one day for the fourth-degree assault, and a concurrent 90 days for the disorderly conduct. On appeal from the denial of his postconviction petition, Blackstone argues the postconviction court abused its discretion in refusing to set aside his convictions and grant a new trial based on the exclusion of testimony by a witness who invoked the Fifth Amendment privilege against self-incrimination. In the alternative, Blackstone argues the postconviction court abused its discretion in declining to resentence him on his first-degree assault conviction. We affirm.

D E C I S I O N

When resolving a conflict between a defendant's Sixth Amendment right to effective cross-examination and a witness's Fifth Amendment right to refuse to answer potentially incriminating questions, courts must determine whether the witness may properly invoke the privilege, and if so, whether the witness's testimony may nevertheless go to the jury. State v. Spencer, 311 Minn. 222, 228, 248 N.W.2d 915, 919 (1976). A valid Fifth Amendment privilege claim takes precedence over the Sixth Amendment right to compulsory process. State v. Moose, 266 N.W.2d 521, 525 (Minn. 1978).

At trial, Blackstone called a fellow inmate to testify concerning a disruption at Minnesota Correctional Facility--St. Cloud. That witness exercised his privilege against self-incrimination during direct examination regarding the victim of the first-degree assault, Correctional Officer Todd Mayer. After the state's motion, the trial court struck all of the witness's testimony pertaining to his actions toward the victim.

Blackstone argues the witness waived the privilege and thus improperly invoked it. See Rogers v. United States, 340 U.S. 367, 372-73, 71 S. Ct. 438, 442 (1951) (holding disclosure must pose real danger of legal detriment and disclosure of fact waives privilege as to details). Because this issue was not raised before the trial court, we will not review it. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). Blackstone also argues the trial court erred in striking all of the witness's testimony regarding the victim. We disagree. The witness refused to answer a question directly connected to the offense for which Blackstone was being tried, the assault on Officer Mayer. Because the trial court determined the witness properly invoked his Fifth Amendment privilege against self-incrimination, permitting his earlier testimony regarding Officer Mayer to stand without further examination by either the defense or the prosecution posed a "danger of prejudice." See Spencer, 311 Minn. at 228, 248 N.W.2d at 919 (holding trial court must determine if questions witness refuses to answer address collateral matters, such as credibility, which pose "little danger of prejudice," or matters "directly connected" to incidents for which defendant is being tried). Under these circumstances, we conclude the postconviction court acted within its discretion in affirming the trial court's decision to strike the witness's testimony.

Blackstone also argues the postconviction court abused its discretion in refusing to resentence him on his first-degree assault conviction. See State v. Spaeth, 552 N.W.2d 187, 196 (Minn. 1996) (noting "substantial and compelling circumstances" must exist for sentencing court to depart from presumptive sentence); State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985) (defining "substantial and compelling circumstances" as those making facts of case different from the typical case). But an independent review of the record shows Blackstone continued to attack Officer Mayer after he fell to the ground and lost consciousness. See Minn. Sent. Guidelines II.D.2.b.(1) (recognizing departure may be based on victim's particular vulnerability "due to age, infirmity, or reduced physical or mental capacity, which was known or should have been known to the offender"); Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996) (noting victim vulnerability is valid basis for departure if substantial factor in crime's accomplishment). Under these circumstances, the postconviction court did not abuse its discretion in denying Blackstone's petition for resentencing.

In his pro se supplemental brief, Blackstone appeals issues not raised before the trial court, and therefore we will not review them. Roby, 547 N.W.2d at 357.

Affirmed.

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