Opinion
No. C9-96-2005.
Filed June 10, 1997.
Appeal from the District Court, Chippewa County, File No. K4-96-111.
Michael F. Cromett, Assistant State Public Defender, (for Appellant)
Hubert H. Humphrey, III, Attorney General, Thomas R. Ragatz, Assistant Attorney General, (for Respondent)
David M. Gilbertson, Chippewa County Attorney, (for Respondent)
Considered and decided by Davies, Presiding Judge, Toussaint, Chief Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant Carl Bennett challenges his conviction of aiding and abetting second-degree burglary, arguing that (1) denial of his motion to change venue deprived him of a fair and impartial jury, (2) procedural errors necessitated a new trial, and (3) the evidence was insufficient to support the conviction. We affirm.
FACTS
In the early morning hours of March 29, 1996, local law enforcement responded to a silent alarm triggered at Monte Firestone, a tire store in Montevideo. Sheriff deputies found a U-Haul truck backed into one of the tire store's large overhead doors; the truck's impact had caused the door to buckle and had created a three-foot gap between the ground and the bottom of the door. The truck's cargo hold contained six tires removed from the store; no person was found in the immediate vicinity.
A short time later, deputies observed a blue pickup truck pull over and briefly stop at the side of the road near the tire store. Deputies stopped the pickup and found three people in the cab. Deputies also found three individuals, including appellant, lying face down in the pickup's uncovered bed. These individuals were dressed in dark clothing and were partially covered in fresh mud; they had mud on their shoes, lower pants legs, and rear of their pants and mud was splattered on their backs. Deputies searched the pickup and discovered, among other items, a large bolt cutter, U-Haul blankets, several tire irons and wrecking bars, and three pairs of muddy gloves.
On further investigation at the tire store, deputies discovered footprints leading from the store, across a wet muddy field, and then to the edge of the highway. One of the footprints in the muddy field resembled a footprint found inside the tire store, and matched the tennis shoes of Marvin McKinnis, one of the individuals found with appellant in the bed of the pickup.
At trial, Jamain Ware testified against appellant as part of a plea bargain. Ware, who was arrested with appellant, testified that six people, including appellant and himself, planned to break into the tire store, steal truck tires, and later sell the tires. Ware stated that appellant drove the U-Haul truck to the tire store, while the pickup followed. After backing the truck into the store's overhead door, McKinnis slid underneath the door and passed tires out to appellant who loaded them into the truck. The jury found appellant guilty as charged.
DECISION
1. Appellant argues that he was deprived of his right to a fair and impartial jury because the district court denied his motion for a change of venue. Appellant contends that the prospective jurors were biased against him because some of the prospective jurors (1) knew several of the witnesses, (2) had been exposed to pretrial publicity, (3) had participated in the jury selection process in his accomplices' trial, and (4) knew that two of his accomplices had already been found guilty. Consequently, he maintains that the district court abused its discretion when it denied his motion for a change of venue.
The district court has broad discretion in determining whether to grant a motion for change of venue; we will not reverse the district court's determination unless there has been a clear abuse of discretion. State v. Drieman , 457 N.W.2d 703, 708 (Minn. 1990); State v. Kinsky , 348 N.W.2d 319, 323 (Minn. 1984).
In an appeal based on juror bias, an appellant must show that the challenged juror was subject to challenge for cause, that actual prejudice resulted from the failure to dismiss, and that appropriate objection was made by appellant.
State v. Stufflebean , 329 N.W.2d 314, 317 (Minn. 1983) (citations omitted). To determine if bias exists, the relevant inquiry is whether a prospective juror can set aside his or her impressions or opinions and render an impartial verdict. Kinsky , 348 N.W.2d at 323. The district court is in the best position to determine juror impartiality because it hears the prospective jurors' testimony and observes their individual demeanor. Drieman , 457 N.W.2d at 708-09. Therefore, if a juror indicates an intention to set aside any preconceived notions and demonstrates to the satisfaction of the district court an ability to do so, we will not lightly substitute our own judgment for that of the district court. State v. Howard , 324 N.W.2d 216, 220 (Minn. 1982).
During voir dire, appellant had the opportunity to question all the prospective jurors regarding bias and request that any of them be excused for cause. Appellant challenged a limited number of prospective jurors for cause, all of whom were excused by the district court. Appellant made no other objections. Consequently, appellant failed to show actual prejudice arising from juror bias. See Stufflebean , 329 N.W.2d at 317 (requiring appellant show "actual prejudice resulted from failure to dismiss" juror and make "appropriate objection").
Moreover, appellant did not introduce into evidence any of the allegedly prejudicial news articles to establish actual prejudice by pretrial publicity. See State v. Beier , 263 N.W.2d 622, 626 (Minn. 1978) (defendant must do more than elicit admission from prospective jurors that they have been exposed to pretrial publicity); Kinsky , 348 N.W.2d at 323 (citations omitted) ("Prospective jurors cannot be presumed partial solely on the ground of exposure to pretrial publicity."). Finally, the district court gave the prospective jurors preliminary instructions that (1) they would have to decide this case based solely on the evidence presented in the courtroom and (2) they must disregard what happened in the prior trial of appellant's accomplices. During voir dire all of the prospective jurors eventually impaneled agreed that they could be impartial and base their decision solely on the evidence presented. On this record we cannot say that the district court abused its discretion by denying appellant's motion for a change of venue.
2. Appellant argues for the first time on appeal that he is entitled to a new trial because the cumulative effect of procedural errors denied him due process of law. He contends that a new trial is necessary because (1) a probable cause determination was not made within 48 hours after his warrantless arrest, (2) the district court abused its discretion by setting excessive bail, (3) the jury selection process was racially biased, and (4) the prosecutor improperly moved for an upward durational and dispositional departure. Appellant apparently recognizes that any one of these violations standing alone does not entitle him to a new trial; taken together, however, he maintains that the errors "contaminated" the entire criminal proceeding such that a new trial is required.
Generally, appellate courts decline to decide issues that have not been addressed by the district court, but are raised for the first time on appeal, even if the issues involve constitutional questions regarding criminal procedure. State v. Sorenson , 441 N.W.2d 455, 457 (Minn. 1989). Here, we find that appellant has waived claims based on the cumulative effect of the procedural violations because he failed to raise these issues (separately or collectively) in the district court or identify them in his new trial motion.
But even were we to consider appellant's procedural violation claims, we would find them unpersuasive. First, appellant fails to explain how he was prejudiced by an inadvertent 10 hour delay in the 48-hour rule. See State v. Case , 412 N.W.2d 1, 4 (Minn.App. 1987) (concluding defendant was not prejudiced by delay before first appearance because "police obtained no evidence which was used against [defendant] at trial"), review denied (Minn. Oct. 28, 1987). Second, appellant fails to establish the presence of "extraordinary circumstances" to justify our consideration of the bail issue. See State v. Huber , 275 Minn. 475, 478, 148 N.W.2d 137, 140 (1967) ("[I]n the absence of extraordinary circumstances * * * questions concerning the amount of defendant's pretrial bail are moot after conviction."). Third, our review of the record indicates that the district court properly handled minor confusion resulting from the jury questionnaire. On inquiry by the district court, all the prospective jurors stated that they could be open-minded and impartial without regard to race.
Finally, appellant fails to show how he was prejudiced by the prosecutor's motion for dispositional and durational sentencing departure, a motion that the district court denied. Thus, even if considered, appellant's "cumulative procedural violations" argument would not result in a new trial.
3. Appellant contends that the evidence was insufficient to support his conviction because there was no evidence to corroborate Ware's testimony. Appellant maintains that there was no physical evidence linking him to the burglary, and the only other evidence suggesting his involvement was circumstantial and equally consistent with his innocence.
In reviewing a claim of insufficient evidence, we must ascertain whether
given the facts in the record and the legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged.
State v. Merrill , 274 N.W.2d 99, 111 (Minn. 1978). We cannot retry the facts, but must view the evidence in a light most favorable to the state "and must assume that the jury believed the state's witnesses and disbelieved any contradictory evidence." Id. (citations omitted). "[A]ll inconsistencies in the evidence are also resolved in favor of the state." State v. Bergeron , 452 N.W.2d 918, 924 (Minn. 1990) (citing State v. Adams , 295 N.W.2d 527, 533 (Minn. 1980)). The jury's verdict must be upheld if, giving due regard to the presumption of innocence and to the state's burden of proof beyond a reasonable doubt, the jury reasonably could have found the defendant guilty. State v. Pierson , 530 N.W.2d 784, 787 (Minn. 1995).
To support a conviction based on the testimony of an accomplice there must be corroborative evidence. Minn. Stat. § 634.04 (1996). Corroborative evidence may be circumstantial or direct, and need not establish a prima facie case of guilt. State v. Norris , 428 N.W.2d 61, 66 (Minn. 1988) (quoting Adams , 295 N.W.2d at 533).
Corroborating evidence may be secured from the defendant's association with those involved in the crime in such a way as to suggest joint participation, as well as from the defendant's opportunity and motive to commit the crime and his proximity to the place where the crime was committed. * * * The defendant's entire conduct may be looked to for corroborating circumstances. If his connection to the crime may be fairly inferred from those circumstances, the corroboration is sufficient.
Adams , 295 N.W.2d at 533 (citations omitted). The corroborative evidence is sufficient if it lends confidence in the accomplice's testimony, confirming its truth and pointing to the defendant's guilt in some substantial way. State v. Houle , 257 N.W.2d 320, 324 (Minn. 1977).
Here, there was ample evidence to corroborate Ware's testimony. Appellant was found at approximately 1:30 a.m., less than two miles from the tire store, and lying face down in the uncovered bed of a pickup truck. He was wearing dark clothing and had fresh mud on his shoes, lower pants legs, and back. The pickup bed held U-Haul blankets, three pairs of wet and muddy gloves, a tire iron, and a flashlight.
Moreover, appellant's alibi — that he was out hitchhiking when the pickup stopped for him — is not supported by the evidence. Deputies recovered from inside the pickup cab a sheet of paper that had the first names of appellant and McKinnis written on it. At trial, a deputy testified that the gravel shoulder of Highway 7 was dry with no mud, yet appellant's shoes and clothes were covered with fresh mud. Finally, one of the three sets of footprints that led from the tire store and across the wet and muddy field matched the footprint of tennis shoes worn by McKinnis; a similar print was found inside the tire store. Based on the evidence, appellant's connection to the crime can be fairly inferred and therefore the evidence sufficiently corroborated Ware's testimony.