OPINION
Appellant challenges his conviction of aiding and abetting first-degree aggravated robbery, arguing that (1) the district court erred by joining his and his codefen-dant’s cases; (2) the state violated his right to a speedy trial; (3) the district court erred by allowing the state to present evidence of appellant’s post-arrest, pre-Miranda silence; (4) the district court erred by admitting into evidence photographs of appellant and other arrestees in handcuffs; and (5) the state failed to prove beyond a reasonable doubt that appellant directly participated in or aided and abetted first-degree aggravated robbery. We affirm.
FACTS
Four men robbed B.A. in downtown Minneapolis on February 8, 2010, near bar-closing time. B.A. testified that after leaving a bar, he walked down Second Avenue and turned on Fourth Street, towards First Avenue. As he walked past Pizza Luce, seven men approached him. Johnson and three others surrounded B.A.; punched him twice in the face; and stole his cell phone, wallet, and money. The robbery took less than one minute and left B.A. with cuts above his eye and inside his mouth.
After the robbery, B.A. walked in the opposite direction of his assailants and found an off-duty police officer, Officer Daniel Lysholm, inside a restaurant. B.A. banged on the window of the restaurant and said, “I got jumped by those guys.” Lysholm exited the restaurant, and B.A. pointed toward the men who robbed him. Less than 20 seconds elapsed between the robbery and the time that B.A. pointed out the men to Lysholm. The men were not near any other persons when Lysholm saw them. Lysholm radioed for assistance and provided a description of the men’s jackets. Two police officers in a nearby squad car heard the radio dispatch, saw the men, immediately approached them, and arrested them. B.A. and Lysholm never lost sight of the men from the time B.A. approached Lysholm until the time of the men’s arrest.
Officers identified the men as appellant Kenneth Johnson, codefendant Corey Maull, Giorgio Tyler, and Darail Murphy. During the arrest, an officer noticed a pile of identification cards and credit cards lying on the ground between Johnson and Murphy. B.A. approached and identified the cards as his. Then without prompting by the officers, B.A. said to Johnson and Murphy, who were standing near the rear of a squad car, “Why did you beat me? Why did you take my things?” Neither Johnson nor Murphy responded.
In an amended complaint, the state charged Johnson with aiding and abetting first-degree aggravated robbery in violation of Minn.Stat. § 609.245, subd. 1 (2008), and Minn.Stat. § 609.05 (2008), and later moved the district court to join the cases against Johnson and Maull.
On April 8, Johnson demanded a speedy trial, and the district court set a trial date for June 1 or 2 but later continued the trial to June 3 because the court was presiding over another trial.
A jury found Johnson and Maull guilty. This appeal follows.
ISSUES
I. Did the district court err by joining Johnson’s and codefendant Maull’s cases?
II. Did the state violate Johnson’s right to a speedy trial?
III. Did the district court abuse its discretion by allowing the state to present evidence of Johnson’s post-ai’rest, pre-Mi-randa silence?
IV. Did the district court abuse its discretion by admitting into evidence photographs of Johnson and other arrestees in handcuffs?
V. Did the state prove beyond a reasonable doubt that Johnson participated in or aided or abetted first-degree aggravated robbery?
ANALYSIS
I. Joinder
Johnson challenges the district court’s joinder of his case with codefendant Maull’s.
“When two or more defendants are charged with the same offense, they may be tried separately or jointly at the court’s discretion.” Minn. R.Crim. P. 17.03, subd. 2. The joinder rule “neither favors nor disfavors joinder.” State v. Jackson,
A. Nature of the Offense Charged
The nature of the offense charged favors joinder when “the overwhelming majority of the evidence presented [is] admissible against both [defendants], and substantial evidence [is] presented that [codefendants] worked in close concert with one another.” State v. Martin,
Johnson argues that this factor does not favor joinder because cases in which defendants have been joined were more serious and more complex than his and included evidence that the codefendants each played an important role before and after the crime. But the state charged Johnson and Maull with the same crime — aiding and abetting first-degree aggravated robbery — stemming from the same incident against the same victim. The complaints against the codefendants were identical, and the state alleged that the codefendants worked in concert to commit the crime. The overwhelming majority of evidence was admissible against both codefendants.
The district court reasoned that this factor weighed in favor of joinder because the codefendants acted “in close concert” with each other. We agree. See Jackson,
B. Impact on Victim
When analyzing the impact on the victim, the supreme court has considered “the impact on both the victim of the crime as well as the trauma to the eyewitnesses who would be compelled to testify at multiple trials.” Blanche,
Johnson argues that “there is no evidence that separate trials would have any impact whatsoever on the complainant.” We do not embrace Johnson’s sweeping and cavalier statement about the lack of any impact on an aggravated-robbery victim of being required to testify in separate trials. We conclude that this factor neither favored nor disfavored joinder.
C. Potential Prejudice to Defendant
“Joinder is not appropriate when there would be substantial prejudice to the defendant, which can be shown by demonstrating that codefendants presented ‘antagonistic defenses.’ ” Martin,
Johnson argues that he was prejudiced by joinder because the joint trial “adversely influenced [Johnson]’s ability to reasonably persuade the jurors that he was the wrong person where [Johnson and Maull] were both trying to present the same theory,” and joinder delayed his trial. The district court noted that when the state moved for joinder, Johnson and Maull did not present antagonistic defenses. And, as in Martin and Jackson, Johnson and Maull regularly adopted the motions and objections of the other. Martin,
D.Interests of Justice
“[T]he length of separate trials is a legitimate factor in deciding to join cases.” Jackson,
Three of the four factors favored join-der; the remaining factor was neutral. We therefore conclude that the district court did not err by joining Johnson’s and codefendant Maull’s cases.
II. Speedy-Trial Right
Johnson alleges that the state violated his constitutional right to a speedy
“A speedy-trial challenge presents a constitutional question subject to de novo review.” Hahn,
A. Length of Delay
Under Minnesota law, a delay of more than 60 days from the date of the speedy-trial demand is presumptively prejudicial, triggering review of the remaining three factors. Id. at 315-16. Johnson was arrested on February 8, 2010, and demanded a speedy trial on April 8, 2010, but the trial did not commence until August 16. Johnson’s formal demand on April 8 triggered the time periods under Minn. R.Crim. P. 11.09(b), but a formal demand is not necessary to put the constitutional right at issue. Id. at 318. “Any material delay is a ‘triggering mechanism’ that requires further review of whether the speedy-trial claim was violated.” State v. Rhoads,
Here, the delay of more than six months creates the presumption that Johnson’s speedy-trial right was violated and triggers further inquiry. But “the length of time does not, as an independent factor, provide strong support for finding a violation.” Id. at 806-07.
B. Reason for Delay
“A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily....” Barker,
Johnson argues that his trial delay is attributable to the state for two reasons. First, his counsel’s scheduling conflict on June 3 only arose because trial did not commence on June 1 or 2, because the assigned judge was presiding over another trial. Second, the state’s motion for join-der, which the district court granted, caused scheduling delays. Johnson’s arguments are unpersuasive. The initial trial date of June 1 or 2, was approximately 54 or 55 days after Johnson’s speedy-trial demand. When the court continued Johnson’s trial to June 3 because of the court’s scheduling conflict, the trial was set to commence 56 days after Johnson’s speedy-trial demand. Only because Johnson’s counsel was unavailable on June 3 was Johnson’s trial further continued. Because of counsel’s scheduling conflict, the court continued the trial to August 16, the earliest date on which the court, the prosecutor, and defense counsel for both defendants were available. The record contains no evidence that the state acted in bad faith to delay the trial. See Hahn,
On this record, we conclude that Johnson bears responsibility for the overall delay in bringing the case to trial. This factor therefore does not weigh in favor of Johnson’s argument that he was denied a speedy trial.
C. Assertion of Speedy-Trial Right
The state essentially concedes that Johnson adequately asserted his speedy-trial right on April 8, 2010. This factor therefore weighs in favor of Johnson’s argument that he was denied a speedy trial.
D. Prejudice
“The Supreme Court has identified three interests that are protected by the right to a speedy trial: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3) preventing the possibility that the defense will be impaired.” Windish,
In weighing the Barker factors, two factors — the length of delay and the demand for speedy trial — weigh in Johnson’s favor, and two factors — the reason for the delay and prejudice — do not weigh in Johnson’s favor. Because Johnson bears responsibility for the overall delay in the commencement of his trial and because he cannot show prejudice, we conclude that Johnson’s right to a speedy trial was not violated.
A. Fifth Amendment Right Against Self-Incrimination
The core protections of the Fifth Amendment provide that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V.
The protection against compelled self-incrimination guarantees the right of a defendant to remain silent during his criminal trial by prohibiting the State from forcing a defendant to testify against himself. The Fifth Amendment also prohibits the State from commenting on the silence of a defendant who asserts his right not to testify at his trial.... [Allowing the State to comment on a defendant’s decision not to testify unfairly penalizes the defendant for exercising a constitutional privilege. Once a defendant elects to testify in his defense, however, he casts aside his cloak of silence and may be impeached by evidence that he remained silent before arrest without the impeachment running afoul of the Fifth Amendment.
State v. Borg,
The Supreme Court has addressed the use of a criminal defendant’s silence in a myriad of circumstances. Pre-arrest silence can be used for impeachment purposes. Jenkins v. Anderson,
In Borg, a case of first impression in Minnesota, a police officer testified during the state’s case-in-chief that “[the officer] made an attempt by mail to interview Borg and received ‘no response.’ ” Borg,
In this case, the district court allowed the state, during its case-in-chief, to present evidence of Johnson’s post-arrest, pre-Miranda silence in response to B.A.’s accusatory questions, which police did not prompt. Neither the Supreme Court nor the Minnesota Supreme Court has addressed whether a defendant’s post-arrest, pr e-Miranda silence can be used in the state’s case-in-chief. Johnson argues that the state presented this evidence “for the
We conclude that Borg, filed after Johnson submitted his brief, strongly suggests that the rules of evidence cannot serve as our sole source of guidance in deciding whether the district court erred by allowing the state, during its case-in-chief, to present evidence of Johnson’s post-arrest, pr e-Miranda silence.
The use of post-arrest, pr e-Miranda silence during the state’s case-in-chief is unsettled in the federal courts. Three circuits, including the Eighth Circuit, have held that, in some circumstances, the use of post-arrest, pr e-Miranda silence does not violate a defendant’s Fifth Amendment right. See United States v. Frazier,
Although we are not bound by the Eighth Circuit’s decision in Frazier, we find it persuasive. See State v. McClenton,
In Frazier, the district court allowed the state, during its case-in-chief, to present evidence that when officers told Frazier why he was being arrested, he did not say anything.
Although we have previously held that the receipt of Miranda warnings is determinative of the constitutional issue, the more precise issue is whether [the defendant] was under any compulsion to speak at the time of his silence. He was not. Although [the defendant] was under arrest, there was no governmental action at that point inducing his silence. Thus he was under no government-imposed compulsion to speak. It is not as if [the defendant] refused to answerquestions in the face of interrogation. We are speaking in this case only of the defendant’s silence during and just after his arrest. As noted earlier, an arrest by itself is not governmental action that implicitly induces a defendant to remain silent. Therefore, on these facts, the use of [the defendant’s] silence in the government’s case-in-chief as evidence of guilt did not violate his Fifth Amendment rights. We do not decide today whether compulsion may exist under any other postarrest, pre-Miranda circumstances.
Id. at 1111 (citations and quotation omitted).
In this case, as in Frazier, the state did not compel Johnson “to speak at the time of his silence.” Id. Johnson remained silent in response to B.A.’s questions, questions not posed by the government. Although Johnson had been arrested, he was under no government-imposed compulsion to speak at the time of his silence. We therefore conclude that Johnson’s silence did not implicate the Fifth Amendment.
B. Admissibility Under Rules of Evidence
Johnson also argues his silence was not admissible under Minn. R. Evid. 402 because it was not relevant and, even if relevant, it should have been excluded under rule 403 because the danger of unfair prejudice substantially outweighed its probative value. We disagree.
The Minnesota Supreme Court has held that “a defendant’s silence in the face of direct accusation was admissible,” and that ‘“silence under accusation permits an inference that the accused acquiesced in the statement and admitted its truth.’ ” State v. Patterson,
IV. Admissibility of Photograph Depicting Johnson in Handcuffs
Johnson challenges the district court’s ruling to allow photographs of Johnson and the other arrestees in handcuffs into evidence. He argues that the photographs were more prejudicial than probative under Minn. R. Evid. 403. ‘We review the admission of photographic evidence for abuse of discretion.” State v. Hurd,
Johnson compares the photographs to the use of restraints on a defendant in the courtroom and to the use of mug shots as evidence and argues that the photographs were unduly prejudicial. We disagree. The district court informed the jury that Johnson was arrested, and the record is clear that the photographs were taken at the time of arrest. The jury could assume that Johnson would be in handcuffs as part of “standard law enforcement practice.” See State v. Hull,
Y. Sufficiency of the Evidence
Johnson claims the evidence was insufficient to support his conviction of aiding and abetting first-degree aggravated robbery because B.A.’s identification of him was neither credible nor supported by corroborating evidence. Johnson also argues that the state failed to prove accomplice liability.
“When assessing whether the evidence is sufficient to support a conviction, we conduct a painstaking review of the record to determine whether the evidence and reasonable inferences drawn therefrom, viewed in a light most favorable to the verdict, were sufficient to allow the jury to reach its verdict.” State v. Nissalke,
Here, the state charged Johnson with aiding and abetting first-degree aggravated robbery in violation of Minn.Stat. § 609.245, subd. 1, which provides that “[wjhoever, while committing a robbery, is armed with a dangerous weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or inflicts bodily harm upon another, is guilty of aggravated robbery in the first degree.”
A. Credible Testimony
Johnson primarily argues that B.A.’s identification of him was not credible because B.A. had a limited amount of time to view his assailants, he was injured above his eye and adversely affected by the stress of his injuries, and he did not describe the robbers — he only pointed to a group of men and the assisting officer aired a description of their clothing. We disagree.
This court can sustain a conviction based on identification by a single witness. State v. Miles,
B. Corroborative Evidence
Johnson also argues that no corroborative evidence linked Johnson to the robbery. He asserts that he did not possess any of B.A.’s belongings when he was arrested and his behavior of “nonchalantly walking” along the street was incon
Although it is commonly stated that uncorroborated eyewitness identification testimony of a single witness is sufficient to support a guilty verdict ... not all single eyewitness cases are the same and ... when the single witnesses] identification of a defendant is made after only fleeting or limited observation, corroboration is required if the conviction is to be sustained.
State v. Walker,
C. Accomplice Liability
Johnson argues that the state failed to introduce evidence that he knew the robbery was going to occur and intended to further the robbery. A person is liable for a crime committed by another if he “intentionally aids, advises, hires, counsels, or conspires with” another person to commit the crime. Minn.Stat. § 609.05, subd. 1. “To impose liability under the aiding and abetting statute, the state must show that the defendant played a knowing role in the commission of the crime.” State v. Crow,
Here, the state presented evidence from which Johnson’s knowing role in the robbery and criminal intent could be inferred. B.A. testified that a man wearing a black jacket punched him in the eye and took his wallet. A police officer identified Johnson as the man wearing the black jacket. During the arrest, a police officer found B.A.’s cards on the ground between Johnson and another group member. See State v. Jackson,
Based on our careful review of the record, viewed in the light most favorable to the verdict, we conclude that the evidence was sufficient to support Johnson’s conviction. The evidence is not purely circumstantial; it is not based on speculation and conjecture; it is sufficient to allow a jury to find that Johnson aided and abetted first-degree aggravated robbery; and we assume that the jury chose to disbelieve any evidence inconsistent with the verdict.
The district court did not err by joining Johnson’s and Maull’s cases. Johnson’s right to a speedy trial was not violated. The district court did not err by admitting evidence about Johnson’s post-arrest, pre-Miranda silence, and the admission of that evidence did not violate Johnson’s Fifth Amendment right against self-incrimination. The district court did not err by admitting photographic evidence of Johnson in handcuffs at the time of his arrest. The jury could reasonably conclude that Johnson aided or abetted first-degree aggravated robbery.
Affirmed.
Notes
. The record is unclear whether the trial was
. Although Johnson mentions in his brief that article I, section 7, of the Minnesota Constitution protects him from self-incrimination, he bases his arguments on the Fifth Amendment. We therefore only address whether the Fifth Amendment protects post-arrest, pr e-Miranda silence.