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State v. Deverney4/15/1999
d by the additional aiding and abetting instruction. See Minn. R. Crim. P. 17.05; Ostrem, 535 N.W.2d at 923; Gerdes, 319 N.W.2d at 712. We have held that the opportunity to prepare a defense in a criminal case is a substantial right. See State v. Dickson, 309 Minn. 463, 467, 244 N.W.2d 738, 741 (1976) (citing Berger v. United States, 295 U.S. 78 (1935)). In this case, subdivision 2 was not specifically cited in the indictment. Including each of the applicable aiding and abetting subdivisions in the indictment is the better practice. However, failing to do so in this case did not cause DeVerney to suffer substantial prejudice.
At the close of the state's case, DeVerney made a motion for judgment of acquittal. In its response, the state indicated that it would seek an instruction on section 609.05, subd. 2. Thus, before DeVerney put on any evidence he had actual notice of the state's intention to rely on subdivision 2. On appeal, DeVerney states that this notice came too late. However, he does not point to any specific way in which his case would have been presented differently had he been informed at the outset of the state's reliance on subdivision 2. DeVerney argues that his trial counsel had relied on the indictment in fashioning his opening statement, cross-examining the state's and co-defendant's witnesses, deciding which defense witnesses to call, and in advising DeVerney himself about whether to testify. Because only the opening statement and cross-examination of the state's witnesses occurred prior to DeVerney being placed on notice that the state intended to seek an instruction based on subdivision 2, we have focused on those portions of the trial. First, DeVerney's opening statement attempted to reference the aiding and abetting instructions. However, the trial court properly instructed the jury in response to an objection that the court, not counsel, would instruct them on the law. In addition, the jury was instructed that arguments by counsel were not evidence, and we presume that the jury was able to follow this instruction. See State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998). Second, DeVerney has not identified any way in which he would have proceeded differently with cross-examination.
Our review of the record in this case reveals that DeVerney's defense was that he was not a participant in the murder. He alleged that the murder was committed by John Steven Martin, possibly aided by Mike Martin and Jamie Aubid. DeVerney argued that he was not the person who drove Antonich's car to the place of the second beating or to the murder site, that he was surprised by the shooting, and that he was not an active participant in the events of the night in question. DeVerney fully developed his defense at trial, and it was rejected by the jury, which had before it evidence of DeVerney being with the co-defendants during the time Antonich received 50 to 100 blows to the head and body -some of which were personally delivered by DeVerney - his wiping fingerprints off Antonich's car, and his participation in the group's attempt to discard the murder weapon by throwing it off the Blatnik Bridge.
Furthermore, Minn. R. Crim. P. 17.02, subd. 3, makes it clear that the language of the indictment, not the actual statutory citations contained in it, should be relied upon. The rule provides that the
"indictment or complaint shall state for each count the citation of the statute, rule, regulation or other provision of law which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal or for reversal of a conviction if the error or omission did not prejudice the defendant." Minn. R. Crim. P. 17.02, subd. 3.
Whil
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