This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Anthony Donte Collier,
Filed February 4, 2013
Clay County District Court
File No. 14-CR-11-1144
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Brian J. Melton, Clay County Attorney, Heidi M. Fisher Davies, Assistant County
Attorney, Moorhead, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Melissa V. Sheridan, Assistant
Public Defender, Eagan, Minnesota (for appellant)
Considered and decided by Stoneburner, Presiding Judge; Hudson, Judge; and
Appellant challenges his conviction of aiding and abetting first-degree aggravated
robbery, arguing that prosecutorial misconduct and the district court’s failure to instruct
on the proper use of prior-crimes evidence entitle him to a new trial. We affirm.
In February 2011, appellant Anthony Collier, his brother Antoine Collier, and
James Taylor robbed a Stop-N-Go convenience store in Moorhead. Taylor held the store
clerk, Chris Bauck, at gunpoint and forced him to retrieve money from the safe. Collier’s
defense was that Bauck had orchestrated the theft of money from the store, which is
owned by Bauck’s father, by staging a fake armed robbery, such that Collier was guilty
of theft but not first-degree aggravated robbery.
At trial, Juan Flores, Jr., who knew Bauck well, testified for the defense that about
a year before the robbery, Bauck told Flores when the best time to rob the store would be
and where some of the money was kept. Flores, on cross-examination about why he had
not previously revealed this information, testified that although he was represented by the
same defense counsel as Collier, he had not thought that the information from Bauck was
important and did not disclose it to defense counsel until he met Collier for the first time
outside a courtroom shortly before Collier’s trial.
The jury was instructed on aiding robbery and conspiracy to commit robbery, as
well as on the lesser-included offenses of theft, aiding theft, and conspiracy to commit
theft. The jury found Collier guilty of aiding first-degree aggravated robbery and
conspiracy to commit first-degree aggravated robbery. The district court sentenced
Collier to the presumptive executed prison term of 68 months in prison and ordered
restitution. This appeal followed.
A conviction will be reversed for prosecutorial misconduct only if, “when
considered in light of the whole trial, [the misconduct] impaired the defendant’s right to a
fair trial.” State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003). A prosecutor engages in
prejudicial misconduct if the prosecutor’s acts have the effect of materially undermining
the fairness of a trial. State v. Fields, 730 N.W.2d 777, 782 (Minn. 2007). A prosecutor
also engages in prejudicial misconduct if the prosecutor violates “clear or established
standards of conduct, e.g., rules, laws, orders by a district court, or clear commands in
this state’s case law.” Id.
A. Belittling defense; disparaging defense counsel
Collier argues that the prosecutor belittled his defense and disparaged defense
counsel by implying that defense counsel conspired with Flores to fabricate Collier’s
defense. Although prosecutors are allowed to argue that there is no merit to the specific
defense raised by the defendant, they may not belittle a particular defense in the abstract.
State v. Matthews, 779 N.W.2d 543, 552 (Minn. 2010). Disparaging defense counsel and
questioning his or her personal credibility constitutes misconduct. State v. McDaniel,
777 N.W.2d 739, 751-52 (Minn. 2010) (finding closing argument improper when
prosecutor argued that defense counsel misrepresented the truth).
Viewing the record as a whole, there is no merit to Collier’s argument that the
prosecutor attacked the personal integrity of defense counsel by implying that defense
counsel conspired with Flores to fabricate a defense. Rather, the record shows that the
prosecutor was implying that Collier conspired with Flores to fabricate a defense. The
point of the prosecutor’s line of questioning was to show that, in addition to failing to
report this information to the authorities who were investigating the robbery, Flores,
despite being represented by the same defense attorney for two months prior to Collier’s
trial, failed to mention Bauck’s conversation suggesting staging a robbery at the
Stop-N-Go until the day he met Collier at the courthouse, just six days before trial.
Nothing in the prosecutor’s questioning of Flores implies that defense counsel had a role
in fabricating evidence. The prosecutor’s questions challenged the veracity of Flores’s
testimony and did not attack the personal integrity of defense counsel.
B. Prior convictions
Collier argues that the prosecutor also committed prejudicial misconduct by using
his prior convictions to prove that he has a propensity to commit crimes. Collier does not
contest the admission of his prior convictions—defense counsel admitted them during
Collier’s direct testimony—but asserts that the prosecutor subsequently used that
Because Collier did not object to the alleged misconduct, the modified plain-error
test applies. The plain-error doctrine requires that, before an appellate court reviews
unobjected-to trial error, there must be (1) error, (2) that is plain, and (3) that affects
substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). In the context of
prosecutorial misconduct, when the defendant demonstrates that the prosecutor’s conduct
constitutes an error that is plain, the burden shifts to the state to demonstrate that there is
no reasonable likelihood that the absence of the misconduct would have had a significant
effect on the verdict. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).
“[P]ast-crimes evidence is only relevant to attack a witness’s credibility or
character for truthfulness and may be used only to impeach a witness.” State v. Swaney,
787 N.W.2d 541, 562 (Minn. 2010) (citing Minn. R. Evid. 609(a)). Past-crimes evidence
may not be used to prove that a witness has a propensity to commit crimes. Id.
Defense counsel admitted Collier’s prior convictions into evidence after Collier
testified that the robbery was staged, and that he was concerned about getting caught
because he had been “in trouble” before. During cross-examination, Collier stated that
his brother tried to lure him into committing the crime, which prompted the prosecutor to
reference the fact that Collier had previously been “in trouble.”
Who is trying to lure you in?
Like, my brother was saying it, [Taylor] was saying it.
I heard [Bauck] mention it.
Your brother Antoine, right?
He doesn’t get in much trouble, does he?
In fact, he doesn’t even have any felonies, does he?
So why would he be egging you on?
Because I’m new -- I don’t know [Bauck], I [don’t]
have any knowledge of how much money is in the
store. And, I mean --
But, Mr. Collier, you’ve been in trouble before; isn’t it
more likely that you were trying to get your brother in
We conclude that the prosecutor’s use of Collier’s past “trouble,” viewed in
context, was an attempt to impeach Collier’s statement that his brother lured him into
committing the crime. Because it is not clear that the prosecutor used past-crimes
evidence as an impermissible attack on Collier’s character, any error was not “plain.”
See Ramey, 721 N.W.2d at 302 (an error is plain if it is clear or obvious). And even if the
prosecutor’s question is plainly misconduct, we conclude that there is no reasonable
likelihood that the absence of this questioning would have had a significant effect on the
verdict. See id. Throughout the trial, Collier admitted that he was a participant in a
crime: he waived his right to a jury determination on the element of identity and he
testified to the jury that he accepted the fact that he was admitting his participation in a
crime and that he was guilty of a crime. Because Collier already admitted to committing
a crime, the jury could not have used Collier’s propensity to commit crimes to conclude
that Collier must have committed robbery rather than the theft he admitted to. That
determination turned on whether the state proved beyond a reasonable doubt that Bauck
was a victim. Collier’s propensity to commit crimes has no bearing on that question.
Additionally, the prosecutor’s comment comprised a small portion of the entire crossexamination and the prosecutor did not further mention Collier’s past crimes. There is no
reasonable possibility that the prosecutor’s question, asking whether it was “more likely”
that Collier lured his brother into committing the crime, had a significant effect on the
verdict in this case.
Cautionary jury instruction
Collier argues that the district court erred by not sua sponte instructing the jury
regarding the proper use of his prior felony convictions. He argues that, without the
limiting instruction, the jury was allowed to infer that, because he committed crimes in
the past, he “was likely to have committed the charged crimes.” Because Collier did not
request, or object to the lack of, a cautionary instruction, this issue is reviewed using the
plain-error standard. State v. Word, 755 N.W.2d 776, 785 (Minn. App. 2008).
A district court generally should give a limiting instruction at the time it admits
evidence of a defendant’s prior convictions for impeachment purposes as well as in its
final instructions to the jury. State v. Bissell, 368 N.W.2d 281, 283 (Minn. 1985). The
complete absence of a cautionary instruction is plain error. See State v. Barnslater, 786
N.W.2d 646, 654 (Minn. App. 2010), review denied (Minn. Oct. 27, 2010).
The district court did not give the jury a cautionary instruction at any time
regarding the proper use of Collier’s prior convictions. This constitutes plain error. See
id. But the lack of a cautionary instruction could not have affected Collier’s substantial
rights because the jury did not need to use Collier’s prior convictions to infer that he
committed a crime—Collier admitted that he participated in a crime. The only question
was whether Collier was guilty of theft or robbery, which depended solely on the jury’s
determination of whether Bauck was a participant in the crime or a victim. Collier’s
propensity to commit crimes had no bearing on that determination. The district court’s
failure to give a cautionary jury instruction did not affect the outcome of this case. See
State v. Kuhlmann, 806 N.W.2d 844, 853 (Minn. 2011) (“[Plain] error affects substantial
rights if the error was prejudicial and affected the outcome of the case.”).
Pro se issues
A. Instructing jury on robbery counts
In a pro se supplemental brief, Collier argues that there must have been reasonable
doubt as to Bauck’s participation in the crime because the district court instructed the jury
on the lesser-included offense of theft.
[W]hen evaluating whether to give a lesser-included offense
instruction, [district] courts must determine whether 1) the
lesser offense is included in the charged offense; 2) the
evidence provides a rational basis for acquitting the defendant
of the offense charged; and 3) the evidence provides a rational
basis for convicting the defendant of the lesser-included
State v. Dahlin, 695 N.W.2d 588, 595 (Minn. 2005). By instructing the jury on a lesserincluded offense, the district court does not determine that reasonable doubt exists as to
the greater offense; rather, the district court merely determines that there is a rational
basis for the jury to acquit the defendant of the greater offense. Id. That rational basis
existed here because the jury could have concluded that the state failed to prove beyond a
reasonable doubt that Bauck was a victim in this crime. But the jury rejected Collier’s
theory of the case and found beyond a reasonable doubt that Collier committed a robbery.
This court defers to the jury’s credibility determination, State v. Buckingham, 772
N.W.2d 64, 71 (Minn. 2009), and based on that finding the evidence supports the jury’s
findings of guilt as to the robbery charges.
B. Ineffective assistance of counsel
Collier argues that he received ineffective assistance of counsel due to defense
counsel’s failure to impeach a state witness’s character with evidence of racial bias. Prior
to trial, it was revealed that following the robbery, state witness E.S., a white female, sent
a text message referring to the suspects that purportedly stated, “we need to keep these
monkeys off the street, ha ha.” Defense counsel sought to use the text message as
evidence of racial bias. The district court reserved ruling on the issue. But when E.S.
testified at trial, defense counsel did not attempt to bring up the text message.
To prevail on a claim of ineffective assistance of counsel, the appellant must
affirmatively prove, first, that his counsel’s representation “fell below an objective
standard of reasonableness” and, second, “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) (quoting Strickland v.
Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). This court
may address these two prongs in any order and may dispose of a claim of ineffective
assistance of counsel if one prong is determinative. Schleicher v. State, 718 N.W.2d 440,
447 (Minn. 2006).
Collier’s argument is meritless for two reasons. First, this court does not review
for competency matters of trial strategy, including cross-examination and impeachment.
State v. Vick, 632 N.W.2d 676, 689 (Minn. 2001). Second, Collier was not prejudiced by
counsel’s failure to offer the text message. E.S.’s testimony consisted of two pages of the
trial transcript in which she testified regarding identity. Specifically, she testified that
Antoine Collier, whom she dated, drove a vehicle identified as being used in the crime,
and she also identified appellant Anthony Collier from a photograph. This testimony
could not have affected the outcome of the case because Collier admitted his involvement
in the crime. E.S.’s testimony had no bearing on the central issue in this case—whether
Bauck was part of the crime—so impeaching her with evidence of racial bias would not
have made a difference in this case.
C. False trial testimony
Collier argues that Detective Voxland falsely testified that he did not think Bauck
was involved in the robbery. At trial, Voxland testified that during an interview with
Bauck on March 14, 2011, he told Bauck that he was going to keep looking into him as a
suspect. After that date, Voxland did not receive any information to remove his
suspicions regarding Bauck’s involvement. Nevertheless, he testified at trial that he did
not believe Bauck was a suspect, even though Bauck was treated like a suspect. Voxland
explained that, in his opinion, Bauck was not involved in the crime “based on his reaction
to questions, types of answers that he was giving, consistency with those answers, as well
as details observed on the video during the robbery.”
Collier has not presented any evidence that Voxland’s opinion regarding Bauck’s
involvement in the crime was “false.” See State v. Caldwell, 322 N.W.2d 574, 584-85
(Minn. 1982) (requiring the court to be “reasonably well satisfied that the testimony
given by a material witness is false” (quotation omitted)). Collier’s argument regarding
“false testimony” is essentially an attack on Voxland’s credibility. Voxland explained
why he did not believe Bauck was a real suspect and he provided reasons for that
conclusion. The jury apparently found Voxland credible, and this court defers to that
determination. Buckingham, 772 N.W.2d at 71.