State of Minnesota, Respondent, vs. Devin Rayshawn Jones, Appellant.

State of Minnesota, Respondent, vs. Devin Rayshawn Jones, Appellant. A04-1284, Court of Appeals Unpublished, August 9, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1284

 

State of Minnesota,

Respondent,

 

vs.

 

Devin Rayshawn Jones,

Appellant.

 

Filed August 9, 2005

Affirmed Randall, Judge

 

Ramsey County District Court

File No. K0-03-1809

 

 

Mike Hatch, Minnesota Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

 

John Stuart, State Public Defender, Sara L. Martin, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

Devin Rayshawn Jones, OID #195814, MCF Stillwater, 970 Pickett Street North, Bayport, MN 55003-1490 (pro se appellant)

 

            Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Worke, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

RANDALL, Judge

            Appellant, Devin Jones, challenges his conviction and sentence for second-degree murder, attempted second-degree murder, second-degree assault, and possession of a firearm by an ineligible person.  Appellant argues that (1) the trial court violated his right to confrontation by admitting a murder victim's identification of him as the shooter when the victim was unable to testify at trial; (2) the murder victim's statement was not admissible as a dying declaration; (3) the prosecutor committed prejudicial misconduct by eliciting improper character evidence, denigrating the defense, and misstating evidence; (4) the trial court committed plain error in failing to instruct the jury on accomplice testimony because the state's main witness, who was promised immunity, could have been charged as an accomplice; (5) the other evidence was insufficient to corroborate the accomplice testimony; (6) he was denied the effective assistance of counsel by his attorney's failure to object to character evidence, his elicitation of inadmissible evidence and his failure to request an accomplice-testimony instruction or object to the prosecutor's improper closing argument; and (7) his consecutive sentences, based on a judicial finding that appellant's crimes were "crimes against persons," violated his right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004).

FACTS

            Before appellant's trial, the district court conducted a Rasmussen hearing on a number of issues, including whether Anthony Washington's statement that "Eastwood" (appellant's nickname) shot him could be admitted under the dying declaration exception to the rule against hearsay.

            The state argued that Washington had been shot in the abdomen, could not breathe, and was begging for help.  Thus, the state argued, Washington's statement that "Eastwood" shot him should be admitted as a dying declaration.  The state also noted that the report of Officer Longbehn (Longbehn did not testify in person), one of the officers who first arrived on the scene, indicates that Washington "kept saying, quote, ‘Help me, I'm shot, and I can't breathe.  Help me.'"  The officer's report also states that "[w]hile waiting for the medics to come upstairs I asked the [victim] who had shot him.  He replied, quote, ‘Eastwood.'" 

            Appellant's counsel directed the district court's attention to Washington's medical records from Regions Hospital, which indicate that Washington arrived at the hospital approximately 8 hours before he died.  Washington's medical records also state that "[h]e is denying any difficulty breathing and his breath sounds are symmetric;" and "[h]is speech is fluent but he is only answering some questions appropriately."  And a nurse's note states, "[a]t 8:15 a.m. patient brought in to emergency room per paramedics.  Patient awake, talking upon arrival.  Patient uncooperative during work up."  Finally, appellant pointed to a report from a Dr. McGonigal, which stated "[p]atient was a 39-year-old male who sustained a gun shot wound to the abdomen . . . .  He was talking and combative upon arrival to the emergency department."  Thus, appellant's counsel argued, "there is not any indication that [Washington] believed his death was imminent.  There is some indication that possibly he was in physical pain, maybe his emotions were clouded, but none of the classic deathbed confessions were present."

            Immediately after hearing arguments on this issue, the district court determined Washington's statement was admissible under the dying declaration exception to the rule against hearsay, and stated the following:

I am going to allow the statements of [the victim] pursuant to Rule 804(b)(2) as a dying declaration.  Based on what I've heard here it's not clear that at the time that was made that any assessments had been made by health professionals as to [the victim's] medical condition at that time, but it would certainly be reasonable that [the victim] believed that he was in imminent or that death was imminent or impending.  So I am going to allow that as a dying declaration.

 

The district court then set the date for appellant's trial. 

            Appellant's jury trial began on February 4, 2004, and ended on February 17, 2004.  The Hennepin County Medical Examiner (M.E.) testified first and confirmed that Washington died as a result of a gun-shot wound.  The M.E. testified, based on the size of the entrance wound to Washington's abdomen and the size of the actual bullet recovered from his body, that Washington was shot by a .22 or .25 caliber gun.

            Officer Longbehn of the St. Paul Police Department testified next.  Longbehn testified that, at approximately 7:00 a.m. on May 14, 2003, he received a call reporting shots fired at 752 Carroll Street.  When he arrived on the scene, Longbehn observed Albert Lurks stumble out of the house with an obvious injury to his leg.  Officers then entered the home and found Anthony Washington on the second floor.  Longbehn testified that Washington "was clutching his abdomen, [and] he was sweating profusely on the forehead and on the bare chest."  Washington told Longbehn he had been shot and that he was having trouble breathing.  And Longbehn stated, "you could see visibly that his breathing, the pace of his breathing was very different than just a male lying on the floor."  While waiting for the paramedics, Longbehn asked Washington "if he knew who had shot him," to which Washington replied, "Eastwood."[1]

            Longbehn also spotted "a tiny little gold shell casing that was laying on the carpet."  And Longbehn testified that the shell casing "appeared to be a very small caliber casing similar in shape and size to that of a .22 caliber."  Finally, Longbehn stated that, based on his experience and findings, he believed that the gun used to shoot Washington "was a small caliber handgun" and that it was a "semi-automatic pistol."

            Officer Kough, another St. Paul police officer, also testified.  Kough reiterated that, when Washington was asked who shot him, he responded, "Eastwood did it."  Kough also stated that he saw a shell casing in the room where Washington was found and that he "got down on [his] hands and knees and looked at the back of it, and it had the .22 caliber on the back."  And Kough testified that he found three more .22 caliber shell casings in the hallway downstairs.

            Dr. Michael McGonigal, chief trauma surgeon at Regions Hospital, testified that when Washington arrived at the hospital "[h]e was awake.  He was able to communicate a few words at a time but was obviously very critically injured, and we considered him to be in critical condition."  Critical condition, in McGonigal's words, "means that you have a condition or injuries, injuries in this case, that could threaten your life."  During cross-examination, appellant's counsel cited the aforementioned (at the Rasmussen hearing) reports, one of which stated that Washington "was talking and combative upon arrival to the emergency department."  McGonigal did not recall having any conversations with Washington before he went into surgery.

            Before the start of the second day of trial, appellant's counsel informed the district court of his belief that the state's next witness, Gina Cerman, could incriminate herself by virtue of her potential answers during cross-examination.  In response to this concern, the state offered her immunity, and the district court explained to Cerman (on the record, but outside the presence of the jury) her constitutional right against self-incrimination and the effect of the state's grant of immunity.

            The state then called Gina Cerman to the stand.  Cerman identified appellant as "Eastwood" and testified that she met appellant when she bought crack from him.  Cerman stated that, before the sun came up on the morning of May 14, she was "[r]unning the streets" looking for appellant, and she went to the home of "[a] lady called ‘Ma.'"  She also testified that, when she arrived at "Ma's" house, "Juicy" was there sleeping on the floor.  Cerman did not know "Juicy's" real name, but identified her from a picture provided by the state. 

            Because she did not find appellant at "Ma's" house, Cerman went "to the other place" looking for him.  Cerman identified "the other place" from a pair of photographs as 752 Carroll Street.[2]  When she arrived, appellant was there and Cerman testified that she talked to him about "Juicy."  Cerman stated that she told appellant that "Juicy" is "loud and she's going to get somebody in trouble."  In response, appellant told her "[t]hat's already been taken care of."  Cerman then told appellant that "Juicy" was "over at Mom's asleep on the kitchen floor."  After hearing this, appellant "just got quiet," but then asked to borrow Cerman's car.  Appellant left and Cerman proceeded to get high.

            Some time after appellant left, Cerman stated that "one of the girls" she was getting high with told her appellant was "going to be on his way, be ready to go, or something like that."  Cerman then "heard a lot of commotion," and the same girl screamed "[l]et's go."  At that point, Cerman "headed for the door," but she saw Lurks locking the door.  Lurks let her out of the house though, and, as soon as she stepped outside, she saw appellant "running up to the house."  Cerman testified that appellant "had his hood up" and his hands were in his "sweat jacket."  After telling a man in the driver's seat of her car to "get out," Cerman got in.  While she was trying to put on her seatbelt Cerman stated that she heard "[f]irecrackers" or "some popping noise," which could have been gunshots.  After she heard the sounds, appellant "came out of the house . . . and jumped into [her] car." 

            At this point, Cerman testified, she "was wondering why [appellant] didn't get in his own car because it was right in front of [hers]."  Appellant told her to "drive" and Cerman stated that she then "assumed someone was shot."  She testified that "[i]f what I thought happened happened, then it was in my best interest to drive."  Cerman also stated that while she was driving she looked back at appellant and "thought that he had a gun, but it wasn't very visible."  When she asked appellant if it was a gun, "[h]e said no, it was not," but Cerman noted that "[a]fter all the sort of things that happened," it was her impression that it was a gun.  Finally, Cerman testified that she remembered telling the police that, when she asked appellant if he had killed "those guys," appellant said "I didn't kill them.  I just didn't want them to think they could ‘punk' me."

            During cross-examination, appellant's counsel questioned Cerman in great detail about her statements to police on May 15, 2003, the day after the shooting.  In an apparent attempt to highlight the fact that Cerman was a crack-user and her memory may have been impaired, appellant's counsel elicited a number of damaging statements from Cerman regarding appellant's drug dealing.

            The state also called Shanaya Walker.  Walker, appellant's former girlfriend, lived at 1637 Bush (where appellant was arrested), and testified that the .22 caliber handgun and the rifle that were found there by police did not belong to her or her family.  Walker stated that when she picked appellant up to bring him to her house he was carrying a black duffel bag that belonged to her, and it appeared that "there was probably something in" the duffel. 

            Officer Whitman of the St. Paul P.D. Crime Laboratory testified next.  Whitman testified that he analyzed the four shell casings found at the crime scene; they were all .22 caliber long-rifle rim-fire shell casings; "[o]ne of them was a Super X or a Western;" "one of them was a Remington;" and the "other two had stamped triangles on the bottom."  Whitman stated that he found no identifiable prints on the guns or ammunition recovered in the search of 1637 Bush.  Whitman also testified that he recovered four rounds from the .22 caliber handgun, one in the chamber and three in the magazine, all of which were "Western/Super X brand."   

            Stephanie Eckerman, an employee at the Minnesota BCA Forensic Science Laboratory, testified next.  Eckerman was asked "to examine four cartridge cases and one bullet [recovered from Washington's body] and to determine if any of those cartridge cases or that bullet were fired from" the .22 Ruger that was recovered at 1637 Bush.  Eckerman stated that the bullet recovered from Washington's body "was a .22 caliber." Of the four shell casings recovered from the scene (752 Carroll), Eckerman "was able to determine that . . . [one] was fired from the pistol.  The other three cartridge cases . . . had similar features, but [they] were insufficient for an identification."  Eckerman testified that the casing that she determined had been fired by the .22 Ruger was "a Super X brand, .22 caliber cartridge case."       

            The final piece of relevant testimony was that of Sergeant Wynkoop of the St. Paul Police Department.  Wynkoop testified, in relevant part, that Gina Cerman made the following statement:

She said that she had been talking to Eastwood and he had mentioned that Juicy had been taken care of.  She wasn't sure what he meant by that, but she said that she had been with Juicy earlier in the evening or, you know, just hours before. . . . Eastwood then asked her if Juicy looked to have been beaten up recently, and she told Eastwood that Juicy looked just fine and did not look beaten up.  She said Eastwood then got angry about that and said that she should have been beaten up. . . . she said that Eastwood told her he had paid two people in fact, the two victims or the two people at the party with him to beat Juicy up and paid $150 to have it done.

 

            After the state rested, appellant's counsel called thirteen police officers to the stand, all of whom were somehow involved in the investigation of appellant.  Appellant's counsel also called a number of other witnesses, all of whom were seemingly intended to buttress the theory that the police failed to follow any other leads and focused their investigation solely on appellant.  In closing, appellant's counsel offered his theory of the case:

The police are cagey enough to know when they can use facts to their favor when they want to get rid of somebody.  Let's look at some of the circumstances in that regard. . . . They get these two men to the hospital.  That's when the Gang Strike Task Force starts working, and they are the police that don't wear uniforms, that aren't out there operating under the surveillance of dispatchers, that don't write reports.

. . .

Another problem the State has, they don't want to look at any of this stuff that doesn't get the Gang Strike Task Force its guy.  Something stinks in this case, something stinks.

. . .

There's problems here, and we're never going to find out because the Gang Strike Task Force is not accountable.  The police can do whatever they want in a case like this, with witnesses like this. . . . None of it makes sense, except that police officers that weren't here know what's going on.

 

            Appellant was subsequently convicted on all counts and sentenced to consecutive terms of 306 months (second-degree murder), 153 months (attempted second-degree murder), and 39 months (second-degree assault).  Appellant was also sentenced to a concurrent term of 60 months for possession of a firearm by an ineligible person.  This appeal followed.

D E C I S I O N

I.

A.        Did the admission of the victim's statement under the dying declaration exception to the rule against hearsay violate appellant's Sixth Amendment right to confrontation, as defined in Crawford v. Washington?

 

            Appellant first argues that his Sixth Amendment right to confrontation, as defined by the U.S. Supreme Court's recent decision in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), was violated by the admission of Anthony Washington's statement to police that "Eastwood did it," under the dying declaration exception to the rule against hearsay.  The Minnesota Supreme Court addressed this issue in State v. Martin, 695 N.W.2d 578, 585-86 (Minn. 2005).  In Martin, the court concluded "that the Sixth Amendment incorporates an exception for dying declarations" and stated that the U.S. Supreme Court's decision in Crawford "strongly suggests that because dying declarations were a recognized common-law exception at the time of [this country's] founding, there is no inherent conflict in continuing to recognize them today."  Id. at 585 (citing Crawford, 541 U.S. at 54).  We conclude (easily) that Crawford did  not abrogate the dying declaration hearsay exception in Minnesota.

B.        Did the district court err in determining that the victim's statement was admissible as a dying declaration?

 

            Appellant also argues that the district court abused its discretion in admitting Washington's statement to police under the dying declaration exception to the rule against hearsay.  A district court has broad discretion in evidentiary matters, and its rulings on such matters will not be overturned on appeal absent a clear abuse of discretion.  State v. Chambers, 589 N.W.2d 466, 475 (Minn. 1999).  Reversal of an evidentiary ruling is only warranted if there is reasonable doubt as to whether the result would have been different if the evidence had been admitted.  State v. Litzau, 650 N.W.2d 177, 182 (Minn. 2002).

            Under Rule 804(b)(2) of the Minnesota Rules of Evidence, "a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death" is admissible in a homicide prosecution as an exception to the rule against hearsay.  Martin, 695 N.W.2d at 583.  In applying this exception, the Minnesota Supreme Court has stated that "to be admissible, the profferor must show something more than simply that the declarant is aware of the seriousness of his or her injuries and the possibility of death."  Id. (quoting State v. Elias, 205 Minn. 156, 158-59, 285 N.W. 475, 477 (1939)).  Further, "[t]here must be a settled hopeless expectation that death is near at hand, and what is said must have been spoken in the hush of its impending presence."  Id.  Accordingly, the decisive factor in determining whether to allow a dying declaration into evidence is the declarant's state of mind.  State v. Buggs, 581 N.W.2d 329, 335 (Minn. 1998).  And the declarant's state of mind must be shown by competent evidence; it cannot be left to conjecture.  Id.

            The district court, at the January 26, 2004 Rasmussen hearing, decided to admit Washington's statement to police, which incriminated appellant ("Eastwood"), immediately after hearing oral arguments from both sides.  As noted above, the district court explained its reasoning as follows:

Based on what I've heard here it's not clear that at the time [the statement] was made that any assessments had been made by health professionals as to [the victim's] medical condition at that time, but it would certainly be reasonable that [the victim] believed that he was in imminent or that death was imminent or impending.    

 

            The Minnesota Supreme Court has stated that for a dying declaration to be admitted, "[the state] must show something more than simply that the declarant is aware of the seriousness of his or her injuries and the possibility of death."  Martin, 695 N.W.2d at 583 (emphasis added).  Competent evidence, not conjecture, is needed to make this showing.  Buggs, 581 N.W.2d at 335.  Balancing caselaw with trial court discretion, we conclude the district court properly admitted Washington's statement under the dying declaration exception to the rule against hearsay. 

II.

            Appellant next argues that the prosecutor's behavior rose to the level of misconduct on numerous occasions during his trial and, as a result, his right to a fair trial was impaired.  The record indicates that appellant's counsel failed to object to any of the claimed prosecutorial misconduct at trial.  It is only in the extreme case of "unduly prejudicial" prosecutorial misconduct that relief will be granted in the absence of an objection at trial.  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997). 

            Appellant argues first that the state improperly asked "questions designed to elicit inadmissible and prejudicial answers."  In support of this argument, appellant cites the fact that the state elicited testimony regarding his dealing crack and "running prostitutes."  But, at trial, appellant's theory of the case revolved around the very fact that appellant was a crack dealer and the police were out to get him.  In fact, his own counsel elicited a number of statements from witnesses regarding his nefarious dealings.  Accordingly, it would be hard to describe the state's eliciting of similar testimony as misconduct.  Further, as the state points out, evidence of appellant's dealings with drugs and prostitutes was relevant to show motive in the assault of Kimberly Edwards and the subsequent shootings of Washington and Lurks.  See Buggs, 581 N.W.2d at 340 (finding no error where the prosecutor believed there was a legitimate evidentiary argument for admission of evidence).

            Appellant also argues that the state's closing argument and rebuttal constituted prosecutorial misconduct.  See State v. Holscher, 417 N.W.2d 698, 702 (Minn. App. 1988) (a prosecutor's closing argument should be considered as a whole, and no single phrase should be taken out of context), review denied (Minn. Mar. 18, 1988).  Appellant points to the state's soliloquy about Anthony Washington's inability to have his day in court, because he was murdered, as evidence of prosecutorial misconduct.  The supreme court has held that "the state may discuss the victim's life if it does not attempt to influence the jury's prejudice or passion."  State v. Bradford, 618 N.W.2d 782, 799 (Minn. 2000).  Again, appellant's counsel did not object at any point during the state's closing.  From this failure to object, we can infer that appellant's trial counsel did not regard the comments as problematic.  See Buggs, 581 N.W.2d at 342.

            Appellant also claims that the state "improperly belittled the defense" when it characterized the defense theory as a "vast right-wing conspiracy" aimed at appellant.  And appellant argues that the state's "most egregious misconduct occurred when he argued that the defense ‘knows how to subpoena cops' and suggested that the defense should have called different police officers" as witnesses.  When looked at in the context of this trial, where appellant's theory of the case was that he had been set up and many of the state's witnesses were lying, it appears that appellant's allegations of prosecutorial misconduct, based on a few isolated incidents, are speculative.

III.

            Appellant also argues, for the first time on appeal, that the district court erred by not submitting to the jury the questions of whether Gina Cerman was appellant's accomplice and, if so, whether her testimony was sufficiently corroborated.  Trial courts have "‘considerable latitude' in the selection of language in the jury charge."  State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990).  If there is error in a trial court's instruction, "it is the duty of counsel to bring the matter to the attention of the court in a timely and proper manner, and if he fails to do so he waives the right to later on object either on a motion for a new trial or on appeal."  State v. Billington, 241 Minn. 418, 427, 63 N.W.2d 387, 392 (1954).

            Appellant concedes that he never requested an accomplice instruction and did not object to the district court's failure to include such an instruction.  He asserts on appeal that, even absent an objection, failing to provide the instruction was plain error.  See State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998) (failure to object will not cause an appeal to fail if the jury instructions contained plain error affecting substantial rights or an error of fundamental law).  Appellant relies on State v. Shoop, 441 N.W.2d 475 (Minn. 1989), for the proposition that "given the long history of the accomplice testimony instruction . . . a trial court should give the accomplice testimony instruction even absent a request."  But Shoop also states that "the trial court should give such an instruction in an appropriate case whether or not one is requested."  Id. at 479 (emphasis added).

            Because the theory that Cerman was appellant's accomplice was completely contrary to appellant's theory of the case at trial (i.e., that the state's entire case was false and was an attempt to frame appellant), this was not an obvious "appropriate case" that required the trial court to sua sponte give an accomplice instruction.  There is no evidence in the record that would support a theory that Cerman aided and abetted appellant in the shooting.[3]  See State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995) (stating that in order for a defendant to be convicted for aiding and abetting under Minn. Stat. § 609.05, the state must show "some knowing role in the commission of the crime by a defendant who takes no steps to thwart its completion").  Inaction, knowledge, or passive acquiescence does not constitute aiding and abetting.  Id.  Because there is no evidence that Cerman aided or abetted appellant in the shooting, she could not have been charged with the shooting.  See State v. Henderson, 620 N.W.2d 688, 701 (Minn. 2001) (stating that the test for whether a witness is an accomplice of a defendant for purposes of section 634.04 is whether he or she could have been indicted and convicted for the same crime with which the accused is charged).  Accordingly, the trial court did not commit plain error by failing to submit an accomplice instruction to the jury.

IV.

            Appellant also argues that his trial counsel was ineffective and, therefore, he should be granted a new trial.  "Generally, an ineffective assistance of counsel claim should be raised in a postconviction petition for relief, rather than on direct appeal."  State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000) (noting that postconviction hearings provide reviewing courts with "additional facts to explain the attorney's decisions," enabling the courts to properly consider whether the attorney's performance was deficient).  But where further development of the record is not required to assess an appellant's ineffective-assistance claim, an appellate court will review such a claim on direct appeal.  State v. Thomas, 590 N.W.2d 755, 759 (Minn. 1999).  Here, the record sufficiently explains the reasons for the decisions made by appellant's counsel at trial.  Appellant's ineffective assistance claims may therefore be properly addressed here.

            Minnesota applies the Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, (1984), two-pronged test to claims of ineffective assistance of counsel.  Dukes v. State, 660 N.W.2d 804, 810 (Minn. 2003).  Ineffective assistance of counsel claims require the defendant to prove that the representation "fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (defendant must show deficient performance and resulting prejudice) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068)).  And scrutiny of defense counsel's performance should be highly deferential.  Dukes, 660 N.W.2d at 811.  Further, "an attorney's decision regarding trial tactics lies within the proper discretion of the attorney and will not be later reviewed for competence."  State v. Quick, 659 N.W.2d 701, 717 (Minn. 2003).   

            Here, appellant argues that his trial counsel (1) elicited evidence that was both inadmissible and prejudicial to his defense, (2) failed to object to the state's elicitation of inadmissible evidence, (3) failed to request an accomplice-testimony instruction, and (4) failed to object during the state's prejudicial closing argument.  Thus, appellant argues, his trial counsel was ineffective.  But, as made plain by the closing argument of appellant's trial counsel, the first three instances in which appellant claims his counsel was deficient are simply related to his overall trial strategy.  Appellant's counsel chose to allow and even elicit testimony that appellant was a crack dealer and employer of prostitutes.  This was meant to provide a motive as to why the police would go to such trouble to frame him.  Not requesting an accomplice-testimony instruction fits within this tactical strategy.  It would have been even more ineffective for appellant's counsel to spend the entire trial claiming appellant was framed, only to later request an instruction telling the jury they cannot rely solely on the testimony of a witness that appellant claims lied throughout the trial because she could be deemed his accomplice in the commission of the crime.  As stated in Quick, tactical decisions will not later be reviewed for competence.  Id. 

            As such, appellant's ineffective assistance of counsel claim relies solely on his assertion that failure to object to an improper closing argument by the state constituted ineffective assistance.  Even if he were able to show that the failure to object to the state's improper comments fell below an "objective standard of reasonableness" (something he has not done), substantial prejudice, on this record, cannot be shown.  See Gates, 398 N.W.2d at 561 (defendant must show deficient performance and resulting prejudice). 

V.

            Finally, appellant argues that the district court violated his Sixth Amendment rights, as defined by the U.S. Supreme Court's recent decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), by sentencing him consecutively.  In State v. Senske, this court declined to extend Blakely to consecutive sentencing.  692 N.W.2d 743, 74849 (Minn. App. 2005), review denied (Minn. May 17, 2005).  Acknowledging that the guidelines commission intended consecutive sentencing to be a more severe punishment, and that the consecutive sentence could not be imposed without a judicial finding of fact, this court concluded "that Blakely does not apply to permissive consecutive sentencing" because "[c]onsecutive sentencing involves separate punishments for discrete crimes."  Id.  Accordingly, the court held that "Blakely does not require the jury to determine the relationship between multiple sentences any more than it would require a jury determination whether multiple sentences are permissible."  Id. at 749.

            Here, appellant was sentenced consecutively for the murder of Anthony Washington, the attempted murder of Albert Lurks, and the assault of Kimberly Edwards.  His sentence reflects separate punishments for three discrete crimes against three separate victims.  Blakely is not involved.

Affirmed.

[1] Appellant's counsel noted his continued objection to the admission of this testimony at the end of the day's proceedings.

[2] The location where Washington and Lurks were later shot.

[3]At most, Cerman may have been considered an accessory after the fact under Minn. Stat. §609.495, subds. 1 and 3 (2002) (providing that a person who harbors, conceals, aids or assists by word or acts another whom the person knows or has reason to know has committed a crime, or aids by destroying or concealing evidence of the crime is subject to criminal penalties).  But an accessory after the fact is not an accomplice to the concealed crime.  See State v. Ray, 659 N.W.2d 736, 748 (Minn. 2003) (holding accomplice instruction not required when witness was eventually charged with crime of accessory after the fact, because witness could not have been tried for the crime itself).