State v. Stanifer

A trial refusal supreme court’s to award fees will personal injury case which the liability, new trial not be absent an abuse of court ordered a on reversed discre damages Recruiters, intact from the left award tion. National Inc. v. first trial in 1981. This court disallowed Co., (Minn.Ct.App. Toro 343 N.W.2d 704 prejudgment interest on 1981 verdict 1984). supports The record liability the tortfeasors’ was because not position court’s conclusion that Medical’s ascertainable. frivolous, interposed was not for pur mere of poses delay or devoid of merit.

A recent amendment to Minn.Stat. 549.09, prejudg allows subd. § DECISION ment in most interest cases. See 399, 1, (effective July Minn.Laws ch. § properly give The trial court refused to 1984). University contends the is Medical estoppel prior adjudi- collateral to a effect prejudgment interest be not entitled scope patent. Raster cation of the pending this cause action rulings evidentiary The trial court’s were date the statute. before effective not erroneous. argument is Minnesota law This meritless. finding supports The evidence always prejudgment interest has allowed royalty provision total sales does not damages final when the judgment on a however, misuse; patent amount to find- or, unliquidated, liquidated claim ings must be made to whether the as- damages readily “where the ascer patent signment the Huffstutler sub- by computation reference to tаinable or stantially extends claims Raster generally recognized standards such as agreement patent. The license terminates not where the amount of market value and patent expires. on the date Raster upon contingencies or damages depended (as denying per for The court erred in the Uni- upon jury in actions trial discretion injury reputation).” versity prejudgment period for the interest injury sonal 1, 1984, through Court, from November Inc. v. Octobеr Northern States Summit 30, Co., 13, (Minn.1984) 354 N.W.2d Power Inc.,

(quoting Propeller, v. Hartzell Potter The denial of the Universi- trial court’s 499, Minn. ty’s attorney’s for fees was well motion (1971)). Thus, the trial court’s award of within its discretion. up period interest for the prejudgment part, part, Affirmed in reversed July 1984 is affirmed. remanded. 1, 1984, period July As to the from returned, date to the the verdict

University entitled to interest under 1(c). Spe Medical See L.P.

cialists, County, Louis Ltd. v. St. The (Minn.App.1985). tri prejudgment interest al court’s denial Minnesota, Resрondent, STATE of through November from October 30, 1984, is reversed. STANIFER, Dwayne Appellant. Keith V CX-85-1207, Nos. CX-85-1286. ‍​​​‌‌‌​‌‌​‌‌​​‌‌‌‌​​​​​​​‌‌‌‌​‌​​​​​‌​‌​‌‌‌‌‌‌‌‌‍University appeals trial Appeals of Minnesota. Court attorney’s its denial of motion court’s 549.21 authorizes an fees. Minn. Stat. § Feb. attorney’s fees where unsuc award faith, party acted bad vexatious cessful oppressive reasons. Nelson v.

ly, or (Minn.Ct.App.1984).

Engen, III, Gen., Humphrey, Atty.

Hubert H. St. Paul, Johnson, Hennepin Thomas L. Co. Atty., Richardson, Atty., Michael Asst. Co. Minneapolis, respondent. Jones, Defender,

C. Paul Public Laura S. Underkuffler, Defender, Asst. Public Min- neapolis, appellant. POPOVICH,

Considered and decided C.J., FOLEY, JJ., and PARKER and with argument oral waived.

OPINION PARKER, Judge.

Appellant Dwayne Stanifer was convict- jury simple robbery ed after a trial of clarify in order to had been arrested of Minn. violation fifth-degree assault (1984). played had the incident. The ap- On role each and 609.224 609.24 Stat. §§ (1) investigator that he did not follow the evidence was testified peal he contends insufficient; regular procedures bе- identification evidence identification suggestive impermissibly previously identified his product of cause Pieri (3) scene, they the trial court erred rul- and procedures; at the al- assailants prior was admissible ing that a arrest. Pieri testified that ready under testified; (4) if he a refer- impeach question they him were the there was “no prior prosecution witness to his by recognized ence a guys” that he had their and trial; him of a fair and deprived record investigаtor asked pictures before vacating the erred in not the trial court to describe questions. Pieri was able what as a lesser included of- assault conviction wearing night had been be- each man part and robbery. We affirm fense of fore. part. reverse in hearing Stanifer contend- At the omnibus showing photographs Pieri ed FACTS suggestive impermissibly constituted an Craig at 1:00 a.m. February On and that Pieri’s identifications procedure victim, Pieri, Moby left Dick’s bar on The trial court suppressed. should be stopped He outside to Hennepin Avenue. had observed Stanifer at found that Pieri police officers he briefly with two talk crime, that he was arrest- the scene of patrolling outside bar. knew who were presence, photo- and ed in Pieri’s Street, walking down Seventh As Pieri was graphs were shown to Pieri in order to pushed him up behind and three men came defendant did which.” “establish which men start- doorway. The three him into a Piеri’s identifica- The court concluded that Pieri; joined man then punch a fourth ed to “independent origin” in his had an tions was hit in the fought Pieri back and in. of Stanifer and were admissi- observations grab his tried to face twice. The men ble. “flash,” wallet; a felt “cold steel” he saw sought to admit prosecution The throat, appellant Dwayne saw on his impeach Stanifer he testi- convictions to wallet. with his Stanifer simple been convicted of Stanifer had fied. haрpened onto then police Two officers robbery in aggravated robbery in 1980 and another man be- scene. Stanifer considering numerous cases 1981. After away rapidly as the officers gan walking counsel, the court ruled that cited both yelled they had his approached. Pieri robbery involves a false —is the crime of them, wallet; and the one officer followed and, hence, dishonesty that involves one stop fight. stayed officer second admissible. would be turned around walked then States, the other man be- Pieri while v. United back toward Gordon court cited The denied, first Street. The cert. gan (D.C.Cir.1967) to run down Seventh F.2d 936 fleeing man and caught up to the officer 20 L.Ed.2d 287 88 S.Ct. 390 U.S. wallet, the officer Pieri’s ruling allowed support recovered of this away. seen him throw only with the rob impeachment bery conviction. him grabbed and accused Pieri said Pieri stealing arresting wallet. Stanifer one of the questioning In his liar; ensued and one man officers, inquired a scuffle prosecutor into then returned escaped. The first officer Pieri had relationship with the victim. captured, and Stanifer arresting man he had offi- with the known the claimed to have arrested. ‍​​​‌‌‌​‌‌​‌‌​​‌‌‌‌​​​​​​​‌‌‌‌​‌​​​​​‌​‌​‌‌‌‌‌‌‌‌‍other men were is a years and two his father cers for 15 because police officer. retired by police investi- interviewed Pieri was testimony your And investigator PROSECUTOR: following day. gator the Pieri, Mr. the victim? you knew was that of the three men who рictures him showed 1286) WITNESS: Yes. July were consolidated order of 23, 1985. point At the when PROSECUTOR: this happened, you regarded have him ISSUES close, personal as a friend? sup- 1. Was the evidence sufficient to No, I

WITNESS: didn’t know him as port jury’s guilty? verdicts of well I knew I Stanifer. know Stanifer better than know Pieri. Were victim’s identifications appellant by impermissibly sugges- tainted immediately objected; counsel Defense procedures? tive the court ordered the stricken answer aggravated rоbbery Is jury disregard, in- instructed the it. Coun- volving dishonesty under sel then on moved a mistrial the basis 609(a)(2)? jury could conclude that Stanifer previous police. had had with the contacts appellant 4. Was denied a fair trial prosecutor stated that she had fol- police when a officer testified that he knew lowed the court’s directions and instructed him? her previous witnesses not to their mention fifth-degree Is in- assault a lesser contacts Stanifer. with The court found no simрle robbery? cluded offense of prosecutor misconduct and noted that de- represented open- fense counsel had in his DISCUSSION ing testify that would statement Stanifer jury eventually find out about his conviction. The court ruled It is well-settled that that the statement was not sufficient to reviewing a claim insufficiency [i]n warrant a mistrial and the denied motion. evidence, the we are limited to ascertain- whether, ing given facts in the record Stanifer did not take the stand. The lеgitimate and the inferences that be can presented defense several witnesses who facts, drawn from jury those could they testified that saw him earlier that reasonably conclude that defendant evening at two bars. downtown One wit- guilty charged. of the offense ness arranged testified that she had meet Stanifer at his Merrill, (Minn. home at 1:30 a.m. that State v. 274 N.W.2d morning. 1978). The evidence must be viewed in the light prosecution, most favorable The jury guilty found Stanifer of both necessary and it is jury to assume that the simple robbery fifth-degree assault. believed the State’s witnesses and disbe He adjudicated guilty of both crimes any contradictory lieved evidence. only robbery. but sentenced for the (Minn. Wahlberg, 296 N.W.2d sentencing brought At Stanifer a motion 1980). to vacate the assault conviction as a lesser Stanifer contends evidence was simple robbery. offense of Coun- jury insufficient for the to conclude he issue, sel briefed the and the court took the However, was one assailants. By matter under advisement. order of victim identified Stanifer twice at the scene July 1985, the motion was denied. The crime, of the recognized picture his incorporated trial court a memorandum in day, next described he had what been wear its order noted ing, and identified him in court. Stanifer a robbery could be effectuated without police was arrested two officers who inflicting either attempting to inflict part saw of the incident and identified harm, bodily intending without Further, Stanifer in court. Stanifer's own fear another of harm. placed witnesses him near scene min appeals from the convictions utes before the incident. We find (# CX-85-1207) (# and the order CX-85- evidence jury was sufficient for the reason- 609(a)(2) as a involved ably that Stanifer was crime that dishon- to conclude 609(a) robbery. esty. provides: Rule assault and purpose attacking For the the credibil- also contends that “factual witness, ity of a evidence that he has the credibility contradictions” undermined crime been convicted of a shall be admit- witnesses. This State’s is not * * * * * * (2) ted the crime involved review; proper appellate weigh issue for statement, dishonesty regardless or false ing credibility of witnesses the exclu punishment. State v. jury. sive function of Supreme Pieschke, (Minn.1980). Id The Minnesota Court has held that a misdemeanor theft conviction shoplifting involving is not a crime dis II honesty or false statement. See State v. right next contends Darveaux, (Minn.1982) process police due was violated when (admission of theft conviction not reversi photograph to the showed his victim the error). ble No Minnesota case has deter day after the incident. aggravated robbery mined whether is a Biggers, Neil Under U.S. involving dishonesty. L.Ed.2d 401 the test S.Ct. 609(a)(2) is identical to the determining in- admissibility rule, adopted federal has been testimony allegedly sug- tainted substantially See Fed.R. states. all other gestive procedures identification 609(a)(2). may Evid. look We therefore to whether, totality of under the circum- the jurisdictions adopted other that have and stances, created procedures the a “sub- interpreted this rule. irreparable stantial likelihood misiden- tifieation.” ruling prior aggravated In Stanifer’s rob Oksanen, v. 553, 553, State admissible, 311 Minn. 249 bery conviction the court relied 464, (1977). States, v. 465 on Gordon United 383 F.2d denied, (D.C.Cir.1967), 1029, cert. 390 U.S. court agree We with the trial that the 1421, 88 S.Ct. L.Ed.2d 287 which photographs were not shown to the victim stated: in “identify” order to Stanifer. The court photographs experience found In common acts shown human deceit, fraud, clarify cheating, stealing, played the victim in order to role example, universally regarded each The victim assailant. knew are of his man’s photographs were assailants before conduct which reflects on a hones- investigator any questions; ty integrity. him asked and dеscribe he was then able to what each (footnote omitted). However, Id. at 940 wearing. assailant had been States, applied Luck v. United Gordon (D.C.Cir.1965), F.2d 763 was procedure Nor create likeli- decided did this adoption before of Fed.R.Evid. 609. The hood of misidentification. Id The victim Luck-Gordon analysis positively identified was modified already Stanifer as when promulgated; federal his rule was in- the man who had taken wallet. Two entirely police quiry under Rule 609 is differеnt. officers were close while the Smith, United States v. occurring 551 F.2d and arrested 356- Stanifer (D.C.Cir.1976). presence The trial of the victim. Under these court’s Gordon was therefore mis- circumstances, on the victim’s reliance identifications placed. of Stanifer were admissible. Federal the issue courts are divided on

III robbery whether theft offenses are See Unit- dishonesty. also contends crimes that involve Papia, ed v. admitting prior n. States aggrava erred 560 F.2d (7th Cir.1977). Paрia upheld robbery ted conviction under Minn.R.Evid. admission of a against prejudicial effect, theft conviction where the defendant value trial charged had originally forgery been with have justified court still would been pled but charge reduced admitting presumably evidence Smith, Id. see 848; theft. 551 F.2d so. cir- have done Under these (armed robbery at 361-65 not a crime in- cumstances, we sustain the admission of volving dishonesty). affirm con- evidence and defendant’s viction, strong was bаsed evi- which on A number of state courts that have guilt. dence of 609(a)(2) adopted Rule have held that mis theft, robbery, demeanor and armed rob (citations omitted); Id. at 101 also see bery dishonesty. are crimes involve Johnson, State v. (Minn. 294 N.W.2d 855 Papia, 13; People See 560 F.2d at 846 n. 1980) opinion (summary upholding prosecu Spates, 77 Ill.2d 32 Ill.Dec. tion’s use of impeach convictions for (1979) (theft); State v. John ment). N.E.2d 563 son, App.3d 10 Ohio 460 N.E.2d 625 (1983) (theft); Eugene, IV (N.D.1983) (surveying cases from Stanifer claims he was fair denied a states). agree several with We those cases police trial when a officer said he knew holding robbery involving is a crime than he better knew the victim. dishonesty and conclude that the trial court disagree. We pass This remark was of a properly aggravated Stanifer’s admitted ing did necessarily imply nature and not under conviction ‍​​​‌‌‌​‌‌​‌‌​​‌‌‌‌​​​​​​​‌‌‌‌​‌​​​​​‌​‌​‌‌‌‌‌‌‌‌‍Further, Stanifer was criminal. 609(a)(2). guilt evidence of strong might We note that the trial court also possibility prejudice slight. have admitted Stanifer’s rob- Haglund, Statе v. (Minn. bery conviction under Minn.R.Evid. 1978) (prosecution’s unintentional reference 609(a)(1), provides prior felony that a prior sojourn defendant’s at St. Cloud may impeach be admitted not reversible error when reference was witness if the finds probative court that its passing nature and evidence of defend value outweighs prejudicial its effect. v. guilt ant’s overwhelming); was State Jones, see State v. 609(a)(1); Hjerstrom, 625, (Minn. 287 N.W.2d 627 534, (Minn.1978) (set- 271 N.W.2d 537-38 1979) (reference prior error ting applied forth balancing factors to be guilt but not when reversible evidence of

probative against possible prejudice). value overwhelming). was Minnesota courts been have liberal in ad- mitting prior impeachment convictions for

even when prior the crime is the V same as Frank, See State v. the charged. crime Stanifer’s final contention is con- that his 398, (Minn.1985); 364 N.W.2d v. State 399 fifth-degree viction for va- assault must be Bettin, (Minn.1980); 295 542 State N.W.2d 609.04, 1(4) cated under Minn.Stat. subd. § Brouillette, v. (Minn.1979). 286 N.W.2d 702 provides in part: Burrows, In State v. 295 N.W.2d Upon crime, prosecution for a the actor (Minn.1980), supreme upheld the court may be of convicted either the crime conviction, admission of a defendant’s charged offense, or an included not stating: both. An may any included offense be following: of We need not decide whether court rized use statement,” because even if the trial directly involving “dishonesty or false erred in [of a motor concluding vehicle] is a crime unautho- (4) A ^[*] charged crime ^[*] necessarily proved ^[*] proved ^[*] * * ^[*] *. ^[*] court discretionary should made a have argues fifth-degree as- probative sault, determination convicted, and balanced the crime which he of harm, intending bodily and without simple of rob- is a lesser included offense fear in another harm. of bery. argues proof of the “force” In analyzing whether an is a offense robbery necessarily proves element an offense, lesser included the court must The State relies on v. assault. State at statutory look elements of the (Minn.1979), Spann, N.W.2d 406 relevant offenses rather than at facts DeFoe, (Minn.1979), * * * v. State particular If, of a case. after com- proposition fifth-degree for the assault paring offense, the elements of each “a simple is not a lesser included offense of person offense, greater can commit the robbery. defined, legally as committing without However, Spann both and DeFoe dealt offense, defined, the lesser legally aggravated robbery with convictions un- lesser necessarily offense is not aggra- Minn.Stat. der 609.245 § greater within the offense.” assault under vated former Minn.Stat. Coleman, State 373 N.W.2d 780-81 (repealed, ch. 609.225 Minn.Laws § (Minn.1985) (citing Gayles, State 25). In DeFoe the Minnesota Su- § (Minn.1982); N.W.2d v. Kinsky, preme Court observed: (Minn.1984)). robbery requires proof Aggravated of a offense, Simple robbery, greater robbery plus proof that the defendant as: defined “bodily armed that he inflicted or for aggravated Conviсtion as- harm.” Whoever, knowing not he is entitled 609.225, under Minn.St. sault thereto, personal property from the takes proof “great requires of infliction of bod- presence person in the of another or person. ily upon harm” another or imminent use uses threatens the DeFoe, at The definitions any person to against overcome force “bodily “great bodily harm” harm” and to, powers or or of resistance resistance degree injury. in the differ See in, acquiesence taking compel Minn.Stat. subds. § away property carrying * * robbery *. aggra- statutory definitions of That may assault vated (1984) (emphasis Minn.Stat. 609.24 add- bearing no from each other has be distinct ed). assault, Fifth-degree of- lesser Coleman, crimes issue here. on the fense, is defined as: Further, in N.W.2d at 780-81. State v. Alexander, (Minn.1980), N.W.2d 745 following Whoever does com- supreme vacated two convictions guilty mits an and is a misde- assault aggravated assault because statе for meanor: aggravated assault was conceded that act with intent to cause fear Does an a offense of lesser included bodily of immediate harm another posi- Contrary to the robbery. 749. at death; or or dissent, Spann tion taken DeFoe (2) Intentionally attempts or to inflicts resolution of this issue. do not control our bodily upon inflict harm another. by we the trial court’s Nor are convinced Advisory Com- to the Committee reference (1984). Minn.Stat. 609.224 “Bodily § That 609.24. com- ment to Minn.Stat. § harm” ‍​​​‌‌‌​‌‌​‌‌​​‌‌‌‌​​​​​​​‌‌‌‌​‌​​​​​‌​‌​‌‌‌‌‌‌‌‌‍is “physical pain defined as inju- or explains “force” the use the term ment illness, ry, any impairment or of physical providing examples types of the fact 609.02, condition.” Minn.Stat. subd. 7 § simple may constitute rob- situations that (1984). (West 609.24 bery. Minn.Stat.Ann. See § In this court found that case trial Comment, 1984) at Advisory Committee upon decision mayWe not base our robbery a could be effectuated without facts, upon or even inflicting attempting hypothetiсal inflict or arcane either or proven respects, holding facts of this case. fer’s in all Gayles, See 327 N.W.2d at 3. robbery Stanifer’s conviction fifth- degree should assault stand because the previously felony This court held that required simple robbery force does not aggra- theft is lesser offense a necessarily constitute an assault. robbery. Hines, vated See State v. 91 (Minn.Ct.App.1984); N.W.2d State Coleman, 780- Nunn, (Minn.Ct.App.1984). (Minn.1985), directs a trial court to look In we “[a]ggravatеd Nunn observed that statutory at the of the elements relevant theft; robbery requires the commission of a par- offenses rather than at the facts of a if there were no theft the offense would be ticular case to determine whether an of- 19; Coleman, assault.” Id. at see also fense is a lesser-included offense. Rob- bery requires person per- “takes proof We believe that of the “use or property person sonal from the or in thе against threatened imminent of force a use presence or of another and uses threatens person” prosecution simple robbery ain against any per- imminent use of force assault, necessarily proves fifth-degree a powers son to or overcome resistance as statutorily Simple that crime is defined. to, acquiescence in, compel resistance or to robbery basically accomplished a theft tаking carrying away proper- or Nunn, an act. means of assaultive 351 ty.” (1984). Minn.Stat. See 609.24 Fifth- § fifth-degree N.W.2d at 19. We hold that degree requires one assault commit a assault is lesser included offense of sim “an act with intent to fear in cause another 609.04, ple robbery. Minn.Stat. § death;” bodily of immediate harm or or 1(4). The trial court erred in denying “intentionally attempts inflicts or to inflict motion to fifth-degree vacate the bodily upon harm another.” Minn.Stat. conviction; assault that сonviction is ac (1984). 609.224 § cordingly vacated. required robbery

The only force must DECISION enough acquire be property another’s person presence, from their or while the The evidence was sufficient support required force in the assault must intend or jury’s Photographs verdicts. appellant immediately bodily were not to the cause another to fear shown victim for purposes identification agree and therefore did harm. with the trial court which nоt create a substantial likelihood of mis- noted in its memorandum: identification under the circumstances of notes that a could be Appellant’s prior aggravated this case. inflicting effectuated without either robbery conviction was admissible under attempting bodily harm, to inflict 609(a)(2) involving Minn.R'.Evid. intending without fear in anoth- dishonesty. Appellant not prejudiced er of harm. The Advisory Com- by police testimony officer’s that he knew mittee comment to Minnesota Statutе appellant. Appellant’s fifth-degree assault Simple Robbery Statute, conviction vacated because that crime is gives explanation as an of “force” the simple robbery. lesser included offense of pushing against of the victim the wall part Affirmed in part. and reversed in taking and the of his In wallet. such a case, force used to overcome the vic- FOLEY, J., part, concurs in in dissents taking prop- tim’s resistance to the part. erty, no is neсessarily harm FOLEY, Judge (concurring part, in dis- intended, inflicted, attempted to be part). senting in Another inflicted. illustration would be taking I part part purse tug-of-war concur a and dissent from with the majority opinion. affirm Stani- victim. case thus similar to State v. De This (Minn.1979),

Foe, where the DeFoe, In less clear.

distinction was Supreme Court held that:

Minnesota robbery requires proof

Aggravated proof that plus defendant “bodily inflicted armed or he aggravated as-

harm.” Conviction

sault under Minn.St. “great

requires proof of infliction bod-

ily upon person. harm” another In other

words, necessarily in- neither crime is other, re- in the and defendant’s

cluded bars convict-

liance on 609.04—which

ing greater and an a defendant both ‍​​​‌‌‌​‌‌​‌‌​​‌‌‌‌​​​​​​​‌‌‌‌​‌​​​​​‌​‌​‌‌‌‌‌‌‌‌‍unjustified. also offense—is at 41.

This court should have examined the ele- offenses, rather than the

ments of the court, here, and affirmed

facts of-

upholding fifth-degree assault.

fense of BARDSLEY, Appellant,

Thomas INC., Defendant,

IPEC,

Miehle-Goss-Dexter, Inc., Respondent, ADVOCATE, Defendant and

UNION Plaintiff, Party

Third PRINTING, INC.,

JOHN CHARLES Party

Third Defendant.

No. C1-85-1192. Appeals of Minnesota.

Court of

Feb.

Case Details

Case Name: State v. Stanifer

Court Name: Court of Appeals of Minnesota

Date Published: Feb 18, 1986

Citation: 382 N.W.2d 213

Docket Number: CX-85-1207, CX-85-1286

Court Abbreviation: Minn. Ct. App.