State of Minnesota, Respondent, vs. Jeremiah Robert Hedberg, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-599

 

State of Minnesota,
Respondent,
 
vs.
 
Jeremiah Robert Hedberg,
Appellant.

 

Filed April 27, 2004

Affirmed

Minge, Judge

 

St. Louis County District Court

File No. K4-01-601113

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Alan Mitchell, St. Louis County Attorney, Leslie E. Beiers, Assistant County Attorney, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802-1298 (for respondent)

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Shumaker, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Appellant challenges the admission at trial of his prior conviction and testimony regarding other participants' guilty pleas, and raises an ineffective assistance of counsel claim premised on his counsel's failure to object to the admission of such testimony.  Because the district court did not abuse its discretion in admitting the prior conviction for impeachment purposes and because the admission of the testimony was not plain error, we affirm.  Because the record lacks sufficient evidence to determine whether the performance of appellant's counsel fell below an objective standard of reasonableness, we decline to address appellant's ineffective assistance of counsel claim.

FACTS

 

            On July 2, 2001, an altercation occurred in Duluth.  The victim, Duane Larson, received serious injuries to the head, back, and limbs after several men hit him with baseball bats and other objects.  Appellant Jeremiah Hedberg admitted to hitting Larson with a bat during the altercation but claimed that he acted in self-defense.  He was charged with and convicted of second-degree assault. 

            At appellant's trial, the participants and witnesses testified to different accounts of how the fight began.  Appellant and the other participants testified that Larson was acting drunk and making threats and approached appellant in an aggressive karate stance.  They testified that appellant only hit Larson once in the arm to deflect Larson's blow.  Appellant further testified that he felt threatened and in immediate danger.  Larson, his wife, and two witnesses, however, testified that Larson did not make any threats or aggressive movements and that appellant hit Larson in the head with a baseball bat.  The treating physician also testified that while Larson appeared to have been drinking that evening, he was not "markedly impaired."

            Appellant objected to the admission of his 1997 assault conviction, arguing that because the conviction was similar to the current charge, it was more prejudicial than probative.  The district court, however, found that because "credibility [was] very crucial in this case," the state could use the conviction to impeach appellant.  On cross-examination, two of the other participants in the fight testified that they had previously admitted their voluntary participation to the court.   Neither appellant nor his counsel objected to the line of questioning or the participants' responses.

D E C I S I O N

 

I.

 

            A district court's ruling on the admission of prior convictions for impeachment purposes will not be reversed absent a clear abuse of discretion.  State v. Ihnot, 575 N.W.2d 581, 586 (Minn. 1998).  Minn. R. Evid. 609 allows the admission of prior convictions to attack a witness's credibility if the underlying offense is less than ten years old and punishable by imprisonment in excess of one year and the court determines "that the probative value of admitting [the] evidence outweighs its prejudicial effect."  To determine whether the probative value outweighs its prejudicial effect, the court should consider

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant's testimony, and (5) the centrality of the credibility issue.

 

Ihnot, 575 N.W.2d at 586.  Whether the probative value of the prior conviction outweighs its prejudicial effect is within the district court's discretion.  State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985).

Impeachment Value

            The impeachment of a criminal defendant by his past conviction allows the jury to "see the whole person and thus to judge better the truth of his testimony."  State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979) (quotation omitted).  Appellant claimed that he hit Larson in self-defense.  Therefore, while the impeachment value of his prior assault conviction is not significant, it allowed the jury to better assess his credibility. 

Date of Conviction

            We examine the date of the conviction and the defendant's subsequent history to determine whether the prior offense has lost its relevance over the passage of time.  State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980).  Here, there is no evidence that appellant's five-year old conviction is stale.  Five years is within the time limits provided in Minn. R. Evid. 609 and this court has previously allowed a 14-year old conviction to be used for impeachment purposes.  See State v. Vanhouse, 634 N.W.2d 715, 719-20 (Minn. App. 2001). 

Similarity of Conviction

            The danger in allowing impeachment by prior conviction of a similar crime is that the jury could "convict the defendant based on the prior conviction regardless of the weight of the evidence in the pending offense."  Id.   Despite this danger, however, Minnesota courts have allowed impeachment by prior conviction of similar crimes.  See Ihnot, 575 N.W.2d at 588 (admitting a third-degree criminal-sexual-conduct conviction for impeachment in first-degree criminal-sexual-conduct trial); State v. Frank, 364 N.W.2d 398, 399 (Minn. 1985) (affirming the defendant's impeachment by two prior rape convictions in a trial for first-degree criminal-sexual conduct). 

            Prejudice caused from the use of similar convictions is minimized when the facts underlying the conviction are not put into evidence, the certified copy of the conviction is not admitted, and the district court gives cautionary instructions.  Vanhouse,634 N.W.2d at 720.  In this case, there was no testimony on the prior conviction.  The prosecutor simply asked, "Is it true that you were convicted in 1997 of Second Degree Assault?" to which appellant responded "Yes, Ma'am."  Further, the district court instructed the jury that they were not to consider any prior convictions as evidence of appellant's guilt.  Therefore, the district court minimized any prejudice.

Importance of Defendant's Testimony

            The district court can exclude even a relevant prior conviction if it finds that admitting it for impeachment purposes will prevent defendant from testifying and where hearing the defendant's version of the case is more important.  Bettin, 295 N.W.2d at 546.  In Bettin, the court found that even though the defendant did not testify, the district court did not abuse its discretion because the defendant's version of the events was presented to the jury through his transcribed statement.  Id.  Here, because appellant claimed that he hit Larson in self-defense, his testimony on his perceptions of the events is important.  But, he did not state at any time that he was hesitant about testifying if the conviction was admitted, and he ultimately did testify.  Further, his witnesses' testimony supported his claim of self-defense.  See State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (finding no abuse of discretion when the defendant did not testify but his version was presented to the jury through other witnesses' testimony).

Centrality of Credibility Issue

            Admitting a prior conviction as impeachment evidence is more appropriate when credibility is a central issue; in fact, "if the issue for the jury narrows to a choice between defendant's credibility and that of one other personthen a greater case can be made for admitting the impeachment evidence, because the need for the evidence is greater."  Bettin, 295 N.W.2d at 546.  Appellant argues that credibility was not at issue because individuals testified to both sides of the story and the jury did not have to choose between appellant's and Larson's testimony to resolve the factual disputes.  But, we find that appellant's refutation of Larson's corroborated testimony places credibility as a central issue.

            In this case we affirm: (1) if the district court did not abuse its discretion in admitting appellant's prior conviction; or (2) if the admission was error, it was harmless.   An error is harmless when there is no reasonable probability that the wrongfully admitted evidence significantly affected the verdict.  Vanhouse, 634 N.W.2d at 721.  When examining whether an error in admitting a prior conviction is harmless, courts look to the strength of the evidence admitted against the defendant, whether the district court restricted the scope of the evidence, and whether cautionary jury instructions were given.  See id. 

            Here, the state presented other evidence of guilt, including testimony from the victim, his wife, and two disinterested witnesses, all claiming that Larson did not provoke the attack.  The court gave a cautionary instruction minimizing the likelihood that the evidence was used improperly.  Further, appellant's conviction was only briefly touched upon and did not prevent him from testifying.  See also State v. Leecy, 294 N.W.2d 280, 282 (Minn. 1980) (finding error in admitting stale prior conviction was harmless when evidence of guilt was strong and defendant's testimony differed from that of numerous witnesses).  In sum, the district court did not abuse its discretion in admitting the prior conviction and, even if the district court had abused its discretion, the error was harmless. 

II. 

            Appellant next argues that the district court erred in allowing questioning on the other participants' guilty pleas.  Appellant failed to raise this issue at trial, and generally, appellate courts will not review an issue for error where it was not objected to at trial.  State v. Williams, 525 N.W.2d 538, 544 (Minn. 1994).   But, when an appellant fails to object, Minn. R. Crim. P. 31.02 permits this court to consider plain errors that affect substantial rights.  The appellant must show that (1) the district court's ruling was error; (2) the error was plain; and (3) the error affected appellant's substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).   An error is plain if it is clear or obvious.  State v. Strommen, 648 N.W.2d 681, 688 (Minn. 2002).  The third prong is satisfied when the appellant shows that the error was prejudicial and affected the outcome of the case.  Griller, 583 N.W.2d at 741.  If all three prongs are met, the reviewing court must then assess whether it should address the error "to ensure fairness and the integrity of the judicial proceedings."  Id. at 740.

Generally, evidence of a guilty plea of the accused's accomplice is not admissible to prove the guilt of the accused.  State v. Cermak, 365 N.W.2d 243, 247 (Minn. 1985).  "Such evidence is not probative of the accused's guilt and may give rise to the prejudicial inference that, because the accomplice is guilty, so is the accused."  State v. Dillon, 529 N.W.2d 387, 391 (Minn. App. 1995).   However, Cermak and Dillon do not act as an automatic bar to the admission of the participants' testimony regarding their guilt in this case.   The court in Cermak allowed other participants to testify to their guilt when their testimony refuted the defendant's claims and the jury received a cautionary instruction.  Cermak, 365 N.W.2d at 247-48.  Further, the court in State v. Dukes, allowed into evidence a plea transcript of another individual when the participant's guilty plea was offered not to establish the defendant's guilt, but "rather for the value of the first-hand narrative of what happened."  544 N.W.2d 13, 18 (Minn. 1986).

            At trial, conflicting testimony was presented on how the altercation began.  Each participant offered different accounts, which were at times inconsistent with their previous statements.  Therefore, the prosecutor was allowed to ask the participants whether they pleaded guilty in order to impeach their testimony and highlight the discrepancies in their testimony.  This is the danger appellant faced by having the other participants testify to the events of the altercation.  Therefore, the admission, even if error, was not plain.  Regardless of whether the admission of this testimony was plain error, appellant failed to meet his burden in proving that the error affected the outcome of the case.  He offers no argument as to how the guilty-plea testimony affected his case. 

III.

Appellant also claims in a pro se supplemental brief that he was denied effective assistance of counsel because his attorney failed to object to the questioning which elicited testimony on the others' guilty pleas.  To prevail in a claim of ineffective assistance of counsel, a defendant must demonstrate that (1) counsel's representation "fell below an objective standard of reasonableness;" and (2) "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) (citing Strickland v. Washington, 466 U.S. 688, 694, 104 S. Ct. 2052, 2068 (1984)).  "A reasonable probability is a probability sufficient to undermine confidence in the outcome."  Id. (citation omitted).  There is a strong presumption that an attorney's performance falls within a wide range of reasonable assistance.  State v. Quick, 659 N.W.2d 701, 717 (Minn. 2003). 

Generally, it is inappropriate to raise issues of ineffective assistance of counsel on appeal without having sought a postconviction hearing because "we do not have the benefit of all the facts concerning why defense counsel did or did not do certain things."  State v. Zernechel, 304 N.W.2d 365, 367 (Minn. 1981).  But, when an appellant requests this court to consider the claim on direct appeal, and where the record is "sufficient to allow proper review" of the claim, it may be brought directly before this court.  Voorhees v. State, 627 N.W.2d, 642, 649 (Minn. 2001).  Here, the record is insufficient to allow proper review of this claim, as there is nothing that suggests defense counsel's reasons for failing to object.  Under these facts, any conclusion we reached would be mere speculation.  We decline to address the merits of the issue; the issue is preserved should appellant choose to pursue it in a postconviction proceeding.

Affirmed.