State of Minnesota, Respondent, vs. Dennis Lee Mack, Appellant.

State of Minnesota, Respondent, vs. Dennis Lee Mack, Appellant. A04-2013, Court of Appeals Unpublished, January 17, 2006.

This opinion will be unpublished and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

A04-2013

 

State of Minnesota,

Respondent,

 

vs.

 

Dennis Lee Mack,

Appellant.

 

Filed January 17, 2006

Affirmed

Shumaker, Judge

 

Hennepin County District Court

File No.02000201

 

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.

 

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

Appellant claims that he was denied effective assistance of counsel when his attorney conceded guilt to a lesser degree of the crime charged and that the district court erred in admitting secondary evidence of a lost surveillance videotape.  Because the record is insufficient for the determination of appellant's first claim, we decline to review it on direct appeal.  Because the district court did not err in its evidentiary ruling, we affirm.

FACTS

This case arises out of a robbery of a convenience store in 2002.  Appellant Dennis Lee Mack originally pleaded guilty to first-degree aggravated robbery of the store, a charge that requires proof that he was armed with a dangerous weapon.  He was later allowed to withdraw his plea when the district court determined that there was no factual basis for concluding that Mack was armed with a dangerous weapon.  Mack then went to trial on the charge of first-degree aggravated robbery.  In his final argument, Mack's attorney conceded that Mack was guilty of second-degree aggravated robbery but urged that he was not guilty of the more serious charge.  The jury found Mack guilty of first-degree aggravated robbery, and on direct appeal Mack contends that his attorney was ineffective in defending him and that the district court erred in admitting secondary evidence of a surveillance videotape that was not available for viewing during the trial.

The evidence adduced at trial showed that, at about 4:30 a.m. on January 2, 2002, the manager of a convenience store prepared to open for business when she noticed a dark-colored sport utility vehicle (SUV) parked in the store's lot.  The manager left the store and drove around the area to survey gasoline prices at other gas stations.  When she returned, she noticed that the SU V was driving away.

As the manager parked her car, the SUV returned.  Two black males got out and one opened the hood.  The taller of the two approached the manager and said that he needed transmission fluid.  The manager replied that the store did not open until 5:30 a.m.  The man repeated his request for transmission fluid and then returned to the SUV and drove away.  The manager then wrote down the SUV's license plate number, gathered her belongings, and walked toward the store entrance.

Just as the manager was about to enter the store, a masked man with a silver gun came around the corner and told the manager to go inside and turn the alarm off.  This man was wearing the same jacket as the man who had asked for transmission fluid, and the manager recognized his voice as being the same as well.  He also was wearing a headband and a tasseled hat. 

Inside the store, the man told the manager to open the safe.  She indicated that the safe was on a timer and there would be a ten-minute delay.  The man instructed her to lie down.  Then, holding the gun at her back, he told her to crawl on her stomach to the back room.  A second man came into the back room.  He was short and stocky and had a nylon stocking pulled over his head and a blue towel under his nose.

The men left the back room.  When they returned, the man with the gun told the shorter man about the delayed timer on the safe.  The shorter man suggested that the manager was lying about the timer and told the other to "pop her."  The manager then heard the gun cock. The man did not shoot but instead instructed the manager to crawl to the cash registers.  The men emptied the cash registers.  When the safe opened, they took everything from the safe, told the manager to return to the back room, and left.

The manager called the police.  When the police arrived at the store, they viewed a surveillance videotape and preserved some footprints.  The manager also gave them the license number of the SUV.

The officers traced the license number to Mack and went to his address.  About 20 minutes later, Mack arrived in the SUV.  The officers arrested him and searched him and the SUV.  They found checks made payable to the convenience store, money, postage stamps, gloves, a headband, and a tasseled hat. They did not find a gun.

Later, the police found that Mack's shoe tread matched the footprints left in the store, and the manager selected from a photographic display Mack's picture and stated she was 100% certain that he was the robber with the gun.

By the time of Mack's trial, two and one-half years after the withdrawal of his original plea of guilty, the surveillance videotape could not be found.  Mack moved in limine to preclude any testimony about the content of the tape.  Determining that the videotape's disappearance was nobody's fault and that it would be unfair to disallow testimony about what the tape showed, the district court denied the motion, ruled that the officers who viewed the tape could testify about its content, and gave a preliminary cautionary instruction to the jury.  The officers testified that the videotape showed that one of the robbers had a gun in his hand.

In his final argument, Mack's attorney conceded Mack's guilt of second-degree aggravated robbery:

            Members of the jury, I am asking you to find my client guilty.   . . . I don't oftentimes make that argument when I do jury trials, but I'm asking you to find my client guilty of Second Degree Aggravated Robbery.  That's robbery where a person implies that they have a gun, not where they actually have a gun, but an article, a thing, an object shaped like one and used like one, it's where they pretend or they give the impression that they have a gun.

 

            Why do I ask you to find my client guilty?  Because that's what he did.  That's what the evidence proved.  I would not insult your intelligence and stand before you and say, "Well, my client didn't do the robbery," because obviously he did the robbery.

 

            You heard the prosecutor talk about these footprints that you saw at the store.  Well, it was him.  The clerk identified him.  The clerk identified his voice. The clerk got scared, but she got the license plate of his truck that he was later arrested in just moments later, with all the stuff from the robbery in it.  He did it.  He was there.

 

            The jury found Mack guilty of first-degree aggravated robbery, and Mack brought this appeal.

D E C I S I O N

Ineffective Assistance of Counsel Claim

            Mack contends that he at no time consented to or acquiesced in his attorney's concession of guilt and that the concession denied him the effective assistance of counsel.  The state argues that Mack acquiesced in the concession as part of the defense strategy but, alternatively, if the record does not sufficiently show acquiescence, the proper means for asserting ineffective assistance of counsel is a petition for postconviction relief.

            Ordinarily, a claim of ineffective assistance of counsel should be raised in a petition for postconviction relief rather than on direct appeal because on appeal the reviewing court likely will not "have the benefit of all the facts concerning why defense counsel did or did not do . . . " things of which the accused complains.  Roby v. State, 531 N.W.2d 482, 484 n.1 (Minn. 1995) (quoting State v. Zernechel, 304 N.W.2d 365, 367 (Minn. 1981)).  A postconviction hearing will usually provide "the court with ‘additional facts to explain the attorney's decisions' so as to properly consider whether a defense counsel's performance was deficient."  State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000) (quoting Black v. State, 560 N.W.2d 83, 85 n.1 (Minn. 1997)).

            The record on appeal is devoid of facts and information from which we could conclude that Mack either did or did not consent to his attorney's concession of guilt.  Although Mack did not object to his own attorney's final argument, we cannot unequivocally conclude that Mack thereby acquiesced in the concession of his guilt.  It would have been bizarre and procedurally awkward, even perhaps counterproductive, for Mack to object during his own attorney's final argument.  And afterward, he might have believed an objection would be futile because the concession had already been made.  On the other hand, considering the very strong evidence against Mack, he might well have consented to the concession as sound trial strategy whereby he presented himself to the jury as a forthright individual willing to accept blame for what he did but not for what he did not do. We have no record that would enable us to resolve the issue without speculating.  Thus, we decline to review Mack's claim of ineffective assistance of counsel on his direct appeal.

Admissibility of Secondary Evidence of Videotape Content

            Mack argues that the district court should not have allowed the investigating officers to testify to the content of the surveillance videotape because his attorney never had an opportunity to view the tape and, thus, could not effectively cross-examine the officers.

            The evidentiary rulings of a district court lie within its sound judgment and will not be reversed absent an abuse of discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  The appellant has the burden of establishing that the district court abused its discretion and that appellant was thereby prejudiced.  Id.  If the district court has erred in admitting evidence, the reviewing court determines whether there is a reasonable probability that the wrongfully admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).

            Minn. R. Evid. 1002 provides that "[t]o prove the content of a . . . recording . . . , the original . . . recording . . . is required, expect as otherwise provided in these rules . . . ."  This so-called "best evidence rule" states a preference for the introduction of the originals of particular types of documentary evidence.

            However, secondary evidence, such as testimony about the content of a record, is admissible in some instances:

            The original is not required, and other evidence of the contents of a . . . recording . . . is admissible if

 

            (1)       Originals lost or destroyed.  All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith . . . .

 

Minn. R. Evid. 1004; State v. Dienger, 286 Minn. 436, 438-39, 176 N.W.2d 528, 530 (1970) (stating "It is well established that where an original writing is satisfactorily shown to have been lost or destroyed, secondary evidence of its contents is admissible in the absence of any showing that the loss or destruction occurred through the fraud of the party offering the secondary evidence.").

            Apparently, there were several copies of the tape in existence at the time of Mack's plea of guilty.  The police had one, as did the prosecutor and Mack's defense attorneys.  By the time of the trial, all copies either had been lost or recycled.  The district court carefully examined the matter of what happened to the tapes and considered the propriety of allowing secondary evidence in light of the best-evidence rule.  And the court instructed the jury as to the background of the tape and their duty in assessing testimony about the content of the tape:

            There was a surveillance tape in the [convenience] store that covered the back of the counter in the store where this event occurred from the beginning of the encounter until the robbers left.  This case is very old to be coming to trial it happened in January of 2002. No one is to blame for the age of this case; it just happened due to a variety of circumstances.

 

            The tape and all of its copies have been destroyed.  Copies were made available in early 2002 to the [city] police, the Hennepin County Attorney, and the defense attorney's office.  All of these offices have procedures and schedules for returning or destroying evidence. For whatever reason, this case was not flagged for anyone to retain the tape and all copies have been destroyed.  [Defense counsel's] office once had a copy of the tape before she took over Mr. Mack's representation but it was destroyed before she ever saw it.  This court will permit testimony about the contents of the tape by witnesses who say they saw it.  Credibility of the witnesses in describing the tape's contents is up to you, the jury.

 

            Mack does not contend that the videotape was lost through any fault, fraud, or bad faith of the prosecutor.  Rather, he maintains simply that it was error to admit the testimony about the tape's content.  However, it was not error to admit that testimony under rule 1004 and the district court did not abuse its discretion in this evidentiary ruling.

Mack's pro se supplemental brief

            We have also considered Mack's pro se supplement brief related to ineffective assistance of counsel, sufficiency of evidence, sleeping jurors, racial bias in the make-up of the jury, and jury selection.  As indicated above, we decline to review Mack's claim of ineffective assistance of counsel on his direct appeal.  On this record and on applicable law, we find no merit in Mack's other pro se arguments.

            Affirmed.