author: VOGEL, J.

text:
    STATE of Iowa, Appellee, v. Frank John NUCARO, Appellant.
    No. 99-0255.
    Court of Appeals of Iowa.
    April 28, 2000.

      Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, John P. Sarcone, County Attorney, and John Courier, Assistant County Attorney, for appellee.
    Heard by SACKETT, C.J., and VOGEL and HECHT, JJ.
   VOGEL, J.

On appeal following his convictions for conspiracy to manufacture a controlled substance, manufacturing a controlled substance, and failure to possess a tax stamp, Frank John Nuearo contends his trial counsel was ineffective for failing to challenge the search of the car in which Nuca-ro was a passenger and failing to challenge the search as the fruit of an illegal arrest. We find no violation of Nucaro’s Fourth Amendment right to privacy in a car in which he was a passenger. We further find that when he was handcuffed he was not “arrested” but detained to allow the officer to make a cursory weapons check of the car. For these reasons, Nucaro’s trial counsel was not ineffective in failing to file a motion to suppress the seized evidence.

Background facts. On July 4,1998, Officer Dickel stopped a car for erratic driving and having an excessively loud muffler. As he approached the car, he noticed a very strong odor, which from his narcotics training he suspected to be ether. He stopped at the rear of the car and asked the driver to step out to speak with him. For safety reasons, he asked the passenger, Nuearo, to place and keep his hands on the dash. During his contact with the driver, Officer Dickel observed Nuearo reach into the back seat and pull a blanket over something. He handcuffed the driver, placed him in the patrol car and approached Nuearo. Physically affected by the strong odor, Officer Dickel asked Nu-caro to get out of the car. He performed an exterior pat-down for weapons, handcuffed Nuearo, and seated him on a curb. Having seen Nuearo spread a blanket over something in the back seat, and suspicious that Nuearo may have been reaching for a weapon, Officer Dickel looked into the vehicle. He observed the back seat entirely covered with a blanket and an open zipper bag on the front passenger floor holding a container of clear liquid. He detected the strong ether odor emanating from the container and asked Nuearo what was in.the bag. Nuearo responded that he did not know because he did not own the car or anything in it. Officer Dickel then lifted the open flap approximately two inches, allowing him to confirm that the container did hold ether, a strong indicator of methamphetamine manufacturing. He immediately backed out of the car and called the Narcotics Control Unit. The unit searched the entire vehicle, revealing a rolling meth lab. Officer Dickel placed the driver and Nuearo under arrest. Prior to trial, Nuca-ro’s counsel conceded that Nuearo had no standing to challenge the search of the vehicle and did not lodge a challenge regarding the legality of the arrest. On appeal," Nuearo argues the evidence from the search of the car should have been suppressed both under the Fourth Amendment and as the fruit of an illegal arrest. He raises these arguments in the context of ineffective assistance of trial counsel.

Scope of review. Our review of an allegation of ineffective assistance of counsel is de novo. State v. Howes, 525 N.W.2d 874, 876 (Iowa App.1994). A defendant has the burden of proving by a preponderance of the evidence that his attorney did not perform an essential duty and, as a result, he was prejudiced. Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674, 699-700 (1984). To demonstrate prejudice, a defendant must prove there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. State v. Tracy, 482 N.W.2d 675, 680 (Iowa 1992). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. In alleging ineffective assistance, a defendant must overcome the strong presumption counsel was competent. State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994).

Ineffective assistance of counsel:

A. Legality of the search. Having already conceded Nucaro was without standing, Nuearo’s attorney did not move at trial to suppress the seized evidence, agreeing with the prosecutor that Nucaro did not have standing to object to the search of a car in which he was merely a passenger. On appeal, Nucaro articulates the dilemma that denying possessory interest in the car and seized items resulted in foreclosing any privacy interest he may have claimed under the Fourth Amendment. Without a reasonable expectation of privacy, the car could be searched and items seized without his consent, leaving him no avenue to protest the constitutionality of the search. While Nucaro views this position as impossible, it correctly summarizes the current status of the law: “defendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated.” U.S. v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 2549, 65 L.Ed.2d 619, 623 (1980). Having already denied ownership of the car and the items in it, Nucaro cannot claim a legitimate expectation of privacy in the invaded place. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Because Nu-caro lacked a privacy interest in the vehi-ele and its contents, we find his attorney breached no duty by conceding Nucaro’s lack of standing to protest the search of the vehicle.

B. Legality of arrest. Nucaro next claims he was placed in custodial arrest at the moment he was handcuffed. Without probable cause to arrest,' he argues, all evidence seized following the handcuffing should have been suppressed as fruit of an illegal arrest. Before we reach the issue of probable cause, we must first determine if ⅛4’handcuffing amounted to an arrest.

An “arrest” is defined in Iowa Code sections 804.5 and 804.14 (1997). State v. Rains, 574 N.W.2d 904, 910 (Iowa 1998). An arrest requires “an assertion of authority and purpose to arrest followed by submission of the arrestee.” State v. Delockroy, 559 N.W.2d 43, 45 (Iowa App. 1996). An arrest has not necessarily occurred’ because a reasonable person in the same or similar circumstances would not believe he or she was free’ to leave; State v. Johnson-Hugi, 484 N.W.2d 599, 601 (Iowa 1992). It is well established that an officer may make a reasonable seizure of a person during an investigatory stop without" it rising to the level of an arrest. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The question of when a seizure becomes an arrest is one which is heavily driven by the facts in each case. We have previously stated, “[t]he question of whether a defendant was ‘arrested’ is determined on a case-by-case basis. There is no bright-line rule or test.” State v. Dennison, 571 N.W.2d 492, 495 (Iowa 1997). The State admits that Nucaro was seized when Officer Dickel placed the handcuffs on him, but asserts the seizure did not rise to the level of an arrest.

Officer Dickel stated, both at the time of the incident and on the witness stand at trial, that his action of handcuffing Nucaro was not to arrest him but to preserve the safety of both Nucaro and himself, as well as any other people that were present in the area. By putting handcuffs on Nucaro, Officer Dickel was able to afford himself an opportunity to safely complete a cursory weapons search of the area under Nucaro’s immediate control. Handcuffing, for this limited purpose, is not without authority. See State v. Smith, 552 N.W.2d 163, 164 (Iowa App.1996) (determining Smith was not arrested for purposes of speedy trial when officers handcuffed him in order to safely serve and execute a search warrant on his residence).

Nucaro claims the physical touching and placing of handcuffs on his person by Officer Dickel crossed the line and constituted an arrest. “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the % vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443, 455 (1989) (citations omitted). There are five factors to consider when attempting to determine whether an arrest or a reasonable seizure was made. U.S. v. Raino, 980 F.2d 1148, 1149-50 (8th Cir.1992). These factors include:

(1) the number of officers and police cars involved; (2) the nature of the crime and whether there is reason to believe the suspect might be armed; (3) the strength of the officers’ articulable, objective suspicions; (4) the erratic behavior of or suspicious movements by the persons under observation; and (5) the need for immediate action by the officers and lack of opportunity for them to have made the stop in less threatening circumstances.

Id. If an officer’s actions are reasonable during an investigatory stop under the circumstances present, use of force will not elevate the stop to the level of an arrest. See id. (holding officer’s actions of partially blocking a vehicle and drawing a gun were reasonable under the circumstances for an investigatory stop).

Accordingly, we review Officer Dickel’s actions under the Raino analysis. First, he was the only officer present during this traffic stop involving two people in a car just off. a busy street. Next, Officer Dickel articulated that his suspicions were immediately aroused by several factors, including the erratic driving and the nauseating and overpowering odor of ether coming from the car. Third, although he had instructed Nucaro to keep his hands on the dash, Nucaro turned around in his seat and was seen covering something in the back seat. Fourth, from Nucaro’s movements, Officer Dickel suspected Nu-caro may have had a weapon within his reach. Finally, Nucaro became increasingly uncooperative, belligerent and aggressive, during the stop.

Officer safety is an important underlying element in this analysis. “[E]ven in the case of an investigatory stop, an officer may take such steps as are ‘reasonably necessary to protect [his] personal safety and to maintain the status quo’ so that the limited purposes of the stop may be achieved.” Raino, 980 F.2d at 1149-50. Officers are entitled to protect themselves, even to the reasonable use of a weapon as a protective measure, during an investigatory stop without an escalation to the level of an arrest. State v. Scott, 518 N.W.2d 347, 350 (Iowa 1994) (deciding officer’s removal of defendant from vehicle with gun drawn and aimed at defendant was a reasonable use of force under the circumstances in this investigatory stop).

We find handcuffing Nucaro was a seizure but did not rise to the level of an arrest and was reasonable under the specific circumstances. The seizing and detaining was undertaken to afford Officer Dickel an opportunity to safely complete a cursory weapons search of the area under Nucaro’s immediate control and did not rise to the level of an arrest. 'As no arrest occurred at this point, we need not reach the probable cause issues raised by Nuca-ro.

We conclude Nucaro’s trial counsel did not breach an essential duty in failing to move to suppress the seized evidence. We affirm his convictions and sentences on the charges of conspiracy to' manufacture a controlled substance, manufacturing a controlled substance, and failure to possess a tax stamp.

AFFIRMED.

      . "Arrest is the taking of a person into custody when and in the manner authorized by law, including restraint of the person or the person’s submission to custody.” Iowa Code § 804.5 (1997).

      . "The person making the arrest must inform the person to be arrested of the intention to arrest the person, the reason for the arrest, and that the person making the arrest is a peace officer, if such be the case, and require the person being arrested to submit to the person’s custody....” Iowa Code § 804.14 (1997).


source: Caselaw Access Project

author: PAGE, Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Moises Vidal ROBLEDO-KINNEY, Appellant.
    No. C2-99-806.
    Supreme Court of Minnesota.
    July 13, 2000.

      John M. Stuart, Minn. State Public Defender, Melissa Sheridan, Asst. State Public Defender, St. Paul, for appellant.
    Mike Hatch, Atty. Gen., Susan Gaertner, Ramsey County Atty., Mark Nathan Lys-tig, Asst. Ramsey County Atty., St. Paul, for respondent.
   OPINION

PAGE, Justice.

Following a jury trial in Ramsey County District Court, appellant, Moisés Vidal Robledo-Kinney, was convicted of one count of murder in the first degree in violation of Minn.Stat. § 609.185(3) (1998), two counts of murder in the second degree in violation of Minn.Stat. § 609.19, subds. 1(1) and 2(1) (1998), and- one count of kidnapping in violation of Minn.Stat. § 609.25, subds. 1(3) and 2(2) (1998), for the kidnapping and murder of Joshua James Christenson. -The court sentenced Kinney to life in prison without the possibility of release. On appeal, Kinney alleges that (1) the district court erred in allowing the state to use his June 1, 1998 statement to the police in connection with failed plea negotiations; (2) he was entitled to specific performance of the plea agreement reached as a result of those negotiations; (3) the indictment and trial were tainted by the improper use of his June 1, 1998 statement to the police; (4) the trial court erred in not instructing the jury on third-degree assault and in not naming his accomplices in the jury instructions; and (5) the prosecutor engaged in misconduct during closing argument. We affirm.

The relevant facts from the record can be summarized as follows. In January 1998, Christenson was enrolled in an inpatient chemical dependency treatment program at Regions Hospital. On January 30, 1998, Christenson left the hospital on a weekend pass. He met a friend,, Alex Tovar, and the two went to a bar where they ran into Lionel Becerra and Kinney. Kinney invited Christenson and Tovar to a birthday party for Daniel Thompson being held in St. Paul at the home where Michael Cleveland lived with his mother. Chris-tenson, Tovar, Kinney and Becerra attended the party along with Thompson, Cleveland, Robert Medina, Luis Lebrón, Octavia Jones and others.

At some point during the party, Kinney and Christenson got into a disagreement that developed into a fight in Cleveland’s backyard. During the fight, Kinney, along with others, wrapped masking tape around Christenson’s head, covering his eyes, nose, and mouth. Christenson was then carried into the house and leaned against a dining room wall where he slid to the floor, as if unconscious. The tape was removed from Christenson’s mouth, allowing him to breathe and he eventually started crying, at which, point Kinney along with others resumed the beating by hitting, kicking, stomping, and jumping on him. At some point, Christenson tumbled down the basement stairs, where the beating continued and where Kinney sodomized him with a mop handle.

Eventually, Christenson was carried outside . and put in the back .seat of his car where he was stabbed by Tovar a number of times with a barbecue fork. Evidently not satisfied with the damage being done by the barbecue fork, Tovar went to the house, retrieved a large kitchen knife, and stabbed Christenson. Kinney then took the knife, stabbed Christenson and said to Tovar, “I want to let you know that I’m with you, with you, with you on this.” With his body still in the back seat, Chris-tenson’s car was abandoned on the corner of Kent and Jessamine Streets in St. Paul, where it was found the next day.

Kinney was arrested for Christenson’s murder in May 1998 and almost immediately attempted to negotiate a plea agreement with the state. Those negotiations began on May 28 and culminated on June 1 with a plea agreement contingent on Kinney not having stabbed or sexually assaulted Christenson. Kinney’s attorney assured the state’s attorney that Kinney had not stabbed Christenson. Shortly after the agreement was reached, Kinney informed his attorney that he had both sexually assaulted and stabbed Christen-son. That same day, without informing the state about what he had learned, Kinney’s attorney allowed Kinney to give the police a statement. As part of that statement, Kinney told the police he had sexually assaulted and stabbed Christenson. Based on that information, the state withdrew its offer of the plea agreement.

Kinney, claiming detrimental reliance, moved the district court for enforcement of the plea agreement. After an extensive hearing, the district court, by order dated November 12, 1998, denied the motion based on the mutual mistake of the state’s attorney and Kinney’s counsel, at the time the agreement was being negotiated, regarding the extent of Kinney’s involvement in Christenson’s death. The district court also concluded that Kinney had not detrimentally relied on the plea agreement. In Conclusion 8 of the November 12, 1998 Order’s Conclusions of Law, the district court, referring to Kinney’s June 1, 1998 statement, indicated: “At best, the information obtained during the interview may be used to impeach Defendant should he testify at trial inconsistently with his June 1, 1998 statement. Defendant does not have the right to offer perjured testimony. Thus, there is no detriment in him being prohibited from doing so.”

The parties and the court revisited Kinney’s June 1, 1998 statement during jury selection on February 10, 1999. The discussion arose in the context of defense efforts to get the state to enter into a stipulation informing the jury that Kinney had given a statement to the police, but that the statement’s contents were inadmissible. Part of the discussion took place off the record. On the record, Kinney’s counsel summarized the off-the-record discussion as follows:

MR. MALONE: Yes, Your Honor. It may be it is not necessary to make the record on this now, but at some point— and it’s brief — I would like to make it, and that is this: I have asked the State to stipulate, as the Court knows, to the fact that the defendant made a statement following his arrest. The way I propose that was that — but that the stipulation would go on to say it is not admissible evidence, and they’ve refused that stipulation.
And then off the record the Court and counsel discussed that, and the Court indicated that it would seem there are only three witnesses, potentially, who could testify to that fact, that Mr. Kinney made a statement-the two interrogators from St. Paul Police Department, Findley and Bohlig, who are precluded under Kastigar from offering that evidence, and Mr. Kinney, should he choose to testify.
And the Court then also indicated that, which I think we’ve all assumed, but I would like to make a record that, should Mr. Kinney choose to testify, the Court indicated that, if that testimony was in any way different from his statement, that he would be impeached with his statement, would open the door. And I just think we ought to memorialize that. That is the state of — it has not happened yet, but that is what we have all assumed, and I think we should memorialize that.

In response, the district court stated:

THE COURT: I think the summary of our off-the-record discussion is accurate. The State had refused the stipulation.
The issue as to Sergeants Bohlig and Findley, they are precluded from testifying about the statement under the Kast-igar issue being raised. So it, would leave open the possibility of Mr. Kinney being the only other competent witness to testify about having done so, it would appear at this point at least.
The discussion that we had then off the record was such that if Mr. Kinney were to testify to that fact [his statement], I indicated that I thought that opened the door to the statement coming in. It — and I’m trying to be careful about this, because what was occurring in my mind was a.little different than what you just stated, Mr. Malone — is that on that particular issue, I think that if Mr. Kinney raises the issue that “I gave a statement,” that there’s an inference to be drawn from that, even under the proposed stipulation, for the juiy. One inference may be helpful to Mr. Kinney, certainly under the * * * defense’s proposed stipulation, it could be argued that it’s helpful to Mr. Kinney because it looks like he’s cooperating, and that we’re hiding the ball from the jury and not letting them know what he said.
I think that that, in effect, would be to mislead the jury. And the point of Kastigar * * * is to treat this as if the statement does not exist at all. And so that I think it’s inappropriate to use it in any fashion.
I think that’s a little different than a broader finding as to whether it’s useful for impeachment purposes or otherwise. And I just want to make it clear that this was my mental process at the time that we had the off-the-record discussion. And the reason that I had indicated that — I think that if you open the door, then the whole statement is fair game. It — in essence, I think it falls under the rule of completeness. You wouldn’t be able to use a portion of the statement without the State, in effect, being able to put in the total statement so that the context would be understood.

(Emphasis added.)

At trial, the defense theory was that although Kinney took" part in beating Christenson, he was not involved in the acts that resulted in Christenson’s death. Kinney waived his right to testify at trial based on his claimed understanding that if he took the stand to testify, the court would allow his June 1, 1998 statement to be admitted into evidence.

I.

Kinney raises three issues relating to the statement he gave to the police and the 'plea 'agreement he reached with the state on June 1, 1998. The first issue is whether Kinney was denied the right to testify in his own defense when the district court indicated in Conclusion 3 of the November 12, 1998 Order that the statement “[a]t best * * * may be used to impeach [Kinney] should he testify at trial inconsistently” with the statement. A district court’s evidentiary rulings are subject to an abuse of discretion standard. See State v. Gassler, 505 N.W.2d 62, 70 (Minn.1993). Rule 410 of the Minnesota Rules of Evidence provides that evidence of a guilty plea, or an offer to plead guilty to the crime charged, or any statements made in connection with such a plea or offer, is inadmissible in any proceeding, whether offered for or against the person who made the plea or offer. See Minn.R.Evid. 410; see also Minn.R.Crim.P. 15.06. Such evidence is “a nullity ab initio and to allow evidence of it is inconsistent with its legal obliteration.” State v. Jackson, 325 N.W.2d 819, 822 (Minn.1982). There is no impeachment exception to the general rule that statements made in connection with plea negotiations are inadmissible. See id. at 823.

Kinney argues that the district court’s statement, in Conclusion 3 from the November 12, 1998 Order, prevented him from testifying in his own defense. We disagree. It is true that statements made in connection with an offer to plead guilty are not admissible for any purpose whether offered by the state or the defendant. See Minn.R.Evid. 410; Jackson, 325 N.W.2d at 821-22. It is also true that Kinney’s June 1, 1998 statement to the police was a statement made in connection with an offer to plead guilty. Therefore, Kinney is correct that it would have been error for the district court to allow the state to impeach him with his June 1, 1998 statement. But that is not what happened in this case.

The only issue before the district court at the hearing that resulted in the November 12, 1998 Order was Kinney’s motion seeking to have the June 1, 1998 plea agreement enforced. In support of that motion, Kinney argued, among other things, that he gave the statement in reliance on the plea agreement. He further argued that this reliance was to his detriment. In response, the state argued that there was no detrimental reliance on Kinney’s part. At no time did the state seek permission to use the statement at trial. In fact, the prosecutor made it clear that the state could not use and would not use Kinney’s June 1, 1998 statement. While the prosecutor went on to state that it would attempt to use Kinney’s June 1, 1998 statement for impeachment purposes if Kinney got on the witness stand and offered testimony inconsistent with the statement, it is clear from the record that the prosecutor did so in the context of explaining why Kinney had not detrimentally relied on the plea agreement.

In reading Conclusion 3 from the November 12, 1998 Order, it appears from the language used that the district court simply adopted language similar to that used by the prosecutor in explaining why there was no detrimental reliance. Even if we read Conclusion 3 as being more than an explanation of why there was no detrimental reliance, we cannot interpret it as anything more than an indication of what the district court might do if in fact Kinney took the stand and testified inconsistent with the June 1, 1998 statement. Because the court qualified Conclusion 3 by using the words “at best” and “may,” there is no basis to read that conclusion as a definitive statement of what the district court would actually do. Thus, based on our reading of the November 12, 1998 Order, in conjunction with our review of the transcript of the hearing leading to that Order, we conclude that the Order did not make a final determination as to how, or even if, Kinney’s statement could be used at trial. Rather, the Order, in addition to concluding that Kinney was not entitled to specific performance of the plea agreement because there had been no meeting of the minds between the state and Kinney, explained why there was no basis for Kinney’s detrimental reliance claim.

To the extent that Kinney was confused by Conclusion 3 from the November 12, 1998 Order, any such confusion should have been eliminated on February 10, 1999, when use of the June 1, 1998 statement was revisited. On that date, the district court ruled that if Kinney took the stand and testified that he had given a statement to the police, the state would be allowed to put the entire statement into evidence. At that same time, the district court, in no uncertain terms, made it clear that the June 1, 1998 statement was to be treated “as if the statement does not exist at all” and that it would be inappropriate for the statement to be used in any fashion. Based on the discussions that took place on February 10, 1999, Kinney should have understood that the district court was not going to allow the June 1, 1998 statement to be used for impeachment or any other purpose unless Kinney himself sought to use it to mislead the jury.

As discussed, Rule 410 prohibited the use of Kinney’s June 1, 1998 statement by either party. Therefore, Kinney certainly did not have a right to use his June 1,1998 statement to mislead the jury. Had he been permitted to do so, it would have resulted in unfairness to the state. Rule 106 of the Minnesota Rules of Evidence provides that “When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.” Accordingly, under this rule of completeness, the district court did not err when it held that if Kinney brought up the June 1, 1998 statement, it would allow the state to put the entire statement into evidence.

Kinney’s argument, that the statements he made when he waived his right to testify confirm that he was prevented from testifying, also fails. When he waived his right to testify, Kinney indicated that he would not testify because if he did, his June 1, 1998 statement would be brought up. The problem with this argument and the statements he made when waiving his right to testify, is that there is nothing in the record to support Kinney’s bald assertion, at the time of the waiver, that if he testified his June 1, 1998 statement would be admitted. While the district court suggested in Conclusion 3 of the November 12, 1998 Order that the June 1, 1998 statement might be admitted for impeachment purposes, the district court never categorically ruled that it would be admitted for that purpose. Moreover, our review of the record satisfies us that the district court did not say anything or make any ruling on February 10,1999, or at any other time, that would have led Kinney to believe that by merely taking the stand, the June 1, 1998 statement would be admitted. Nor has Kinney directed our attention to any such statements or rulings in the record. Thus, Kinney’s comments at the time he waived his right to testify do not support his assertion that he was prevented from testifying. Because we conclude that the district court did not prevent Kinney from testifying at his trial, we decline to reverse his conviction and grant him a new trial on that basis.

II.

In his pro se brief, Kinney argues that he is entitled to specific enforcement of the plea agreement because he detrimentally relied on that agreement when he gave the June 1, 1998 statement to the police. This claim has no merit. “What the parties agreed to involves an issue of fact to be resolved by the district court.” See State v. Brown, 606 N.W.2d 670, 674 (Minn.2000). A district court’s findings of fact shall not be set aside unless clearly erroneous. See Blanche v.1995 Pontiac Grand Prix, 599 N.W.2d 161, 164 (Minn.1999). “Issues involving the interpretation and enforcement of plea agreements, however, are issues of law that we review de novo.” Brown, 606 N.W.2d at 674. Kinney’s June 1, 1998 statement was made in connection with the plea agreement that his lawyer negotiated with the state. The district court found that the agreement was contingent on Kinney not being one of the people who either stabbed or sexually assaulted Christenson. When Kinney indicated to the police that he in fact had stabbed and sexually assaulted Christenson, the state withdrew its offer of the plea agreement. The district court concluded, based on Kinney’s June 1, 1998 statement, that there was a mutual mistake of fact regarding Kinney’s involvement in Christenson’s death and that Kinney did not detrimentally rely on the plea agreement. Our review of the record leads us to conclude that the district court’s factual findings with respect to the plea agreement are not clearly erroneous, and that the district court did not err in its application of the law to those facts. Consequently, Kinney is not entitled to specific performance.

III.

Kinney also argues in his pro se brief that both his grand jury indictment and trial were tainted by the state’s improper use of his June 1, 1998 statement. Specifically, he claims that the state discovered and presented to the grand jury and at trial witnesses and evidence obtained as a direct result of the information he provided in that statement. This claim also fails. In its November 12, 1998 Order, the district court found that the state had not used the information obtained from or as a result of Kinney’s June 1, 1998 statement (1) to make its charging decisions; (2) in the probable cause section of the complaint; (8) at the grand jury hearing; or (4) to obtain derivative evidence. In the November 12, 1998 Order, the court also found that the state had proven that it came upon the witnesses Kinney challenged independent of his statement. When we review a pretrial order seeking to have evidence suppressed, we “independently review the facts and determine, as a matter of law, whether the district court erred in * * * not suppressing [ ] the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn.1999). Our independent review of the facts leads us to conclude that the district court did not err when it refused to suppress the challenged evidence.

The district court’s November 12, 1998 Order notwithstanding, on January 29, 1999, the state agreed not to call a number of the challenged witnesses at trial and that any evidence involving those withdrawn witnesses that was presented to the grand jury should be withdrawn from the grand jury proceedings. The district court subsequently found in a February 18, 1999 Order, that there was sufficient evidence to indict Kinney without the evidence from the withdrawn witnesses.

“[A] presumption of regularity attaches to [an] indictment, and it is a rare case where an indictment will be invalidated.” State v. Scruggs, 421 N.W.2d 707, 717 (Minn.1988). Because of this presumption of regularity, a criminal defendant bears a heavy burden when seeking to overturn an indictment. See id. “This is especially true where * the challenge is brought after appellant has been found guilty beyond a reasonable doubt following a fair trial.” Id. In its February 18, 1999 Order upholding the indictment, the district court relied on the following facts: (1) the search warrants involved in the case were issued before the June 1, 1998 statement; (2) Octavia Jones, Michael Cleveland, and Daniel Thompson were not made aware of the contents of Kinney’s June 1, 1998 statement; (3) the knife and the tape were found as a result of Thompson’s interview and not Kinney’s statement; (4) the attorney who presented the case to the grand jury had no knowledge of the substance of Kinney’s statement nor did he use any information derived from the statement; (5) before Kinney gave his statement, the state had evidence to indicate that there were two possible stabbers and that Christenson had been sexually assaulted; and (6) Kinney was arrested on May 28, 1998 for probable cause murder based on information from Octavia Jones. A thorough reading of the record here establishes that the district court’s factual findings are not clearly erroneous and that based on those findings, there was probable cause to support Kinney’s indictment.

IV.

Kinney next argues that the district court erred both when it denied his request for a jury instruction on the lesser but not included offense of third-degree assault and when it failed to specifically name his accomplices in the jury instructions. In State v. Gisege, we held that “the trial court had no discretion to grant the defendant’s request for a jury instruction regarding a lesser but nonincluded offense * * 561 N.W.2d 152, 157 (Minn.1997). Therefore, the district court’s refusal to include a jury instruction for third-degree assault was not error.

With respect to naming accomplices in jury instructions, we have said that “[u]nless the facts are undisputed or compel but a single inference, whether a witness is an accomplice is a question for jury resolution.” State v. Hanley, 363 N.W.2d 735, 741 (Minn.1985) (citing Tucker v. State, 309 Minn. 482, 485, 245 N.W.2d 199, 201 (1976)). Following that standard, our review of the record leads us to conclude that the identity of the accomplices in this case was a question for jury resolution. Thus, the district court did not err by not specifically identifying Kinney’s accomplices in its accomplice jury instruction.

V.

Finally, Kinney contends that the prosecutor deprived him of a fair trial by committing misconduct during closing argument. We have carefully reviewed the record and can only conclude that the prosecutor did not engage in any misconduct during closing argument.

Affirmed.

      . Kinney's attorney was not present when Kinney gave the statement.

      . See Kastigar v. United States, 406 U.S. 441, 453, 460, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) (holding that the parties cannot offer immunized testimony or evidence derived from the immunized testimony and that the prosecution has the burden of proving that all evidence offered is derived from a legitimate source wholly independent of the immunized testimony).

      . As part of the state’s argument that there was no detrimental reliance, the prosecutor stated, "Now, the question becomes, was there detrimental reliance? Where is the detriment? The State has agreed that it cannot use, and will not use, Kinney's statement. It’s inadmissible pursuant to the Rules of Evidence and the Rules of Criminal Procedure at his trial and the trials of all the other code-fendants. There is no rule that would allow us to do that, as it was a result of a plea negotiation.”

      . After stating that there was no rule that would allow the state to use Kinney’s statement resulting from the plea negotiations, the prosecutor stated, "At best, the State will attempt to use the statement if Kinney should take the stand and lie and testify differently than he testified in that statement. Well, Mr. Kinney doesn't have the right to get on the stand and lie. So it was — there is no detriment. He's not losing something that he’s entitled to.” (Emphasis added.)

      . The United States Supreme Court interpreted Federal Rule of Evidence 410, with provisions similar to Minn.R.Evid. 410, and concluded that the rulé was meant to protect defendants and that, as such, defendants could agree to waive the exclusion and admit statements they made in the course of plea negotiations. See United States v. Mezzanatto, 513 U.S. 196, 200-01, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995).


author: K.A. Blatz Chief Justice

text:
    Gloria CARREON, Relator, v. Debra J. HEISICK, Respondent, v. Swift & Company, Self-Insured/Conagra, Employer, and MN Department of Labor & Industry, U.S. Benefit & Risk Management, Intervenors.
    No. CX-00-723.
    Supreme Court of Minnesota.
    July 25, 2000.
    Catherine R. Caitlin, Minneapolis, for relator.

      Debra J. Heisick, Minneapolis, for respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed April 7, 2000, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01, subd. 1(b).

BY THE COURT:

K.A. Blatz Chief Justice


author: PAUL H. ANDERSON, Justice.

text:
    Daniel J. SCHEIBEL, petitioner, Appellant, v. ILLINOIS FARMERS INSURANCE COMPANY, an Illinois corporation, Respondent.
    No. C1-98-2097.
    Supreme Court of Minnesota.
    July 27, 2000.
   OPINION

PAUL H. ANDERSON, Justice.

Daniel Scheibel suffered injuries that were causally related to two separate motor vehicle accidents, both occurring when he was insured under a no-fault automobile insurance policy with Illinois Farmers Insurance Company. Illinois Farmers paid Scheibel his policy maximum for medical benefits for the second accident, but not the first. Because Scheibel was not fully reimbursed for the total amount of the loss he incurred as a result of both accidents, he brought this action in district court to recover his additional medical expense loss and income loss benefits. The district court entered summary judgment in favor of Illinois Farmers-, concluding that medical expense benefits may not be apportioned between multiple accidents under the Minnesota No-Fault Automobile Insurance Act (no-fault act). The district court also concluded that Scheibel was limited to only $250 in weekly income loss benefits. The Minnesota Court of Appeals affirmed. We affirm in part, reverse in part, and remand.

On the morning of March 19, 1996, appellant Daniel Scheibel was driving his Ford pickup truck and, while waiting at a stop sign, was rear-ended by another vehicle. The impact from the collision caused Scheibel’s head to jerk back and hit the truck’s rear window. Scheibel did not immediately consult a physician, but as a result of muscle spasms and ensuing pain in his right shoulder, arm, and neck, he visited a physician on April 8, 1996. The physician treated Scheibel’s injuries. Scheibel submitted a claim to respondent Illinois Farmers for his medical expenses and it appears that Illinois Farmers made some payment on this claim. Under his no-fault automobile insurance policy with Illinois Farmers, Scheibel was covered for medical expenses up to a limit of $20,000.

Nearly two months after his first accident, on May 12, 1996, Scheibel was again rear-ended while driving his pickup truck. Three days after this second accident, Scheibel again visited his physician, who noted that Scheibel’s symptoms were significantly worse than at his first visit. The physician ordered an MRI scan of Scheibel’s cervical spine. The scan identified various problems, including broad posterior disc bulging, peridiscal end plate spurring, and a mild degenerative disc. Following subsequent medical tests, a neurological specialist diagnosed Scheibel with cervical osteoarthritis that was exacerbated by the second accident.

Scheibel underwent back surgery on November 25, 1996, involving anterior cervical decompression and anterior cervical fusion. After the surgery, Scheibel was unable to return to work until January 26, 1997. During the time that Scheibel was unable to work, Illinois Farmers paid him weekly income loss benefits of $250, which is the maximum weekly amount provided in the policy and stated in the no-fault act. Illinois Farmers ultimately paid Scheibel $2,250 for nine weeks of income loss. Illinois Farmers also paid Scheibel $23,558 for medical expenses related to both accidents, ultimately attributing $3,558 of the medical expense benefits to the first accident and $20,000 in medical expense benefits to the second accident. The benefits that Illinois Farmers paid Scheibel did not fully reimburse him for the total amount of medical expenses he incurred as a result of both accidents.

Scheibel sought recovery of benefits under his no-fault policy to cover his unreim-bursed medical expenses, but Illinois Farmers denied the claim. The parties then arbitrated the factual issues of the case as related to causation. On June 30, 1997, the no-fault arbitrator found that Scheibel’s “medical and disability and income” losses were causally related to both accidents, with 35 percent attributable to the first accident and 65 percent attributable to the second. Scheibel then commenced this action in Sherburne County District Court seeking (1) confirmation of the arbitrator’s determination that his losses were caused by both accidents, and (2) a judgment against Illinois Farmers for additional benefits plus interest.

The parties brought cross motions for summary judgment. After briefing and oral argument, the district court ordered summary judgment for Illinois Farmers, citing this court’s decision in Great West Cas. Co. v. Northland Ins. Co., 548 N.W.2d 279, 281 (Minn.1996). The district court interpreted Great West as holding that only one accident can be the cause of an injury for the purposes of the no-fault act. The court further stated that apportionment of an insured’s medical expense benefits between multiple accidents based on attribution of causation is not favored under Great West.. Therefore, the implication of the court’s finding is that, following the second accident, the $20,000 limit for that accident would apply and Scheibel could not apportion his loss between the two accidents to take advantage of a $20,000 policy limit for each accident.

The court of appeals affirmed the district court, stating that, in Great West, our court expressed its-apparent aversion to apportioning benefits when applying the no-fault act. See Scheibel v. Illinois Fanners Ins. Co., No. Cl-98-2097, 1999 WL 391910, at *3 (Minn.App. June 15, 1999). On appeal to this court, Scheibel argues that he is entitled to recover no-fault benefits for both .his first and second accidents. More specifically, he seeks reimbursement for medical expenses up to his policy limits for each accident. He also argues that because two accidents caused his injuries, he is entitled to twice the $250 maximum weekly income loss benefits provided for by both his policy and the no-fault act.

I.

A district court shall grant summary judgment when the court determines that “there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. When reviewing a grant of summary judgment, an appellate court must consider (1) whether there are any genuine issues of material fact, and (2) whether the lower court erred in its application of the law. See Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988). When, as in this case, the material facts are not in dispute, we review de novo the lower court’s application of the law. See Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn.1989).

Scheibel’s no-fault automobile insurance policy with Illinois Farmers provides basic coverage under the no-fault act. See Minn.Stat. §§ 65B.41 to 65B.71 (1998). The no-fault act is intended to (1) relieve uncompensated victims from the economic stress caused by automobile accidents, (2) prevent overcompensation of automobile accident victims, (3) ensure, by the guarantee of prompt payment, that victims seek and receive appropriate medical treatment, (4) speed the administration of justice, ease the burden of litigation on state courts, and create an efficient arbitration system, and (5) prevent automobile accident victims from receiving duplicate recovery. See Minn.Stat. § 65B.42.

Under the no-fault act, Scheibel is entitled to basic economic loss benefits which provide “reimbursement for all loss suffered through injury arising out of the maintenance or use of a motor vehicle ⅜ * MinmStat. § 65B.44, subd. 1 (emphasis added). The act defines “loss” as “economic detriment resulting from the accident causing the injury ⅜ * Minn. Stat. § 65B.43, subd. 7. Under the act, Minnesota insurance policies must, at a minimum, provide for up to $20,000 for medical expense loss and $20,000 for income loss. See Minn.Stat. § 65B.44, subd. 1(a) - (b). The act also provides that income loss benefits shall not exceed $250 a week. See Minn.Stat. § 65B.44, subd. 3. Under his Illinois Farmers policy, Scheibel did not elect to purchase benefits beyond these basic statutory mandates.

It is undisputed that Scheibel’s policy with Illinois Farmers was in place at the time of both accidents. Nor does Illinois Farmers dispute the arbitrator’s determination that both accidents caused Schei-bel’s injuries. The crux of this dispute lies in the fact that Scheibel was in two accidents, both of which contributed to his injuries, but he has not been fully reimbursed for his losses because Illinois Farmers has attributed his injuries totally to the second accident and applied the per accident policy limit to cap his recovery.

Scheibel argues that, for each accident that is causally related to his injuries, he is entitled to recover up to his policy maximum of $20,000 in medical expense benefits and the policy maximum amount of weekly income loss benefits. In contrast, Illinois Farmers relies on Great West to argue that Scheibel is entitled only to the maximum no-fault benefits available for the second accident because all of the un-reimbursed expenses for which Scheibel seeks compensation were incurred after that accident. Specifically, Illinois Farmers cites our decision in Great West for the proposition that “only one accident can be deemed to be the cause of an injury for the purposes of subrogation under section 65B.47.” 548 N.W.2d at 281. Further, Illinois Farmers relies on a footnote in Great West in which we stated that we disagree with apportioning personal injury protection no-fault benefits and consider benefits “payable by the insurer when the insured incurs a compensable loss.” Id. at 281 n. 4.

Illinois Farmers errs in relying on Great West to argue that injuries caused by two accidents must be deemed to arise entirely from the second accident in determining the amount of benefits payable. Great West is distinguishable from this case in two important respects. First, our holding in Great West only addressed whether an insurer has a right of subrogation under the no-fault act. Second, the insured in Great West was fully compensated for his cumulative injuries caused by the aeei-dents. Our holding in Great West relates to which insurance company is responsible for reimbursing the insured; that is, who pays. In contrast, the focus of this case is what no-fault insurance coverage will be available to the insured to achieve full reparation for his loss.

In addressing the specific issue before us, we first look to the no-fault act for guidance. When interpreting a statute, we must determine whether its language is clear or ambiguous. See generally Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999). Unfortunately, the no-fault act is silent about what happens when multiple accidents cumulatively cause injuries to an insured. Because the statute does not expressly address this issue, we must ascertain the intent of the, legislature by other means. See id. at 385-86; see also Minn.Stat. § 645.16 (1998). In doing so, we will consider the stated purpose of the act. See Minn.Stat. § 645.16(4). Therefore, in order to determine what no-fault insurance coverage will be available to Scheibel, we seek guidance in the stated purposes of the no-fault act.

We have held that the primary purpose of the no-fault act is to promote full but not over-compensation of injured persons. See Pfeffer v. State Auto. & Cas. Underwriters Ins. Co., 292 N.W.2d 743, 747-48 (Minn.1980). We also have held that an insurer’s subrogation interest is subordinate to this legislative policy of the no-fault act of providing full compensation to injured persons. See Westendorf v. Stasson, 330 N.W.2d 699, 703 n. 2 (Minn.1983) (citing Pfeffer, 292 N.W.2d 743 (Minn.1980); Milbank Mut. Ins. Co. v. Kluver, 302 Minn. 310, 313-15, 225 N.W.2d 230, 232-33 (1974)). When considering the issue of how much an insured is entitled to recover as opposed to who pays, it is critical that we keep this over-arching policy of full compensation in mind.

Despite the fact that Great West is distinguishable from the case before us, like Pfeffer and Westendorf, it does enunciate key principles that assist us in discerning the purpose of the no-fault act and how the act should apply here. We noted in Great West that the no-fault act is intended to foster less expensive and less complex litigation and to relieve uncompensated victims from severe economic distress by providing prompt payment. 548 N.W.2d at 281; see also Minn.Stat. § 65B.42. We went on to note that subrogation claims by insurers in .multiple accident cases do not further these goals. See Great West, 548 N.W.2d at 281. Therefore, consistent with the intent of the no-fault act, and because the no-fault act does not articulate a right of subrogation, we held that there is no right of subrogation. See id. Further, although it was not a part of our holding, we did state in a footnote that we disagree with apportioning personal injury protection benefits and that we consider benefits to be payable by the insurer when the insured incurs a compensable loss. See id. at 281 n. 4.

We emphasized in Great West that the no-fault act is intended to promote the efficient administration of justice and provide an insured prompt payment. Id. at 281. Here, as in Great West, we must follow these mandates of the no-fault act, but we must do so in the context of deciding how much the insured is entitled to recover. Under the no-fault act, Scheibel is entitled to “reimbursement for all loss suffered through injury arising out of the maintenance or use of a motor vehicle * * Minn.Stat. § 65B.44, subd. 1 (emphasis added).

Illinois Farmers does not dispute that if Scheibel had been in two accidents and suffered distinct and separable injuries, medical expenses from each injury would have been separately compensable up to the policy maximum of $20,000 for each accident. We see no reason why the same principles should not apply when the second' accident exacerbates an injury sustained in an éarlier accident. It would be an absurd result to cut off recovery for an injury from the first accident merely because an intervening accident aggravates the same injury. As previously noted, the purpose of the no-fault act is to fully compensate the insured to the extent of the mandated insurance.

It is undisputed that Scheibel’s injuries were 35 percent attributable to the first accident and 65 percent attributable to the second. Because both accidents cumulatively caused Scheibel’s injuries and because his medical expenses are not fully reimbursed under the policy limits attributable to the second accident, we hold that Scheibel is entitled to additional reimbursement under his policy with Illinois Farmers for losses attributable to the first accident. Consistent with our language in Great West, Illinois Farmers, as the insurer on the second accident, is obligated to pay the maximum policy limit of $20,000 for Scheibel’s injuries regardless of the extent to which each accident contributed to the injuries. Further, to the extent that, absent the second accident, Scheibel would still have a viable claim under his Illinois Farmers policy for injuries suffered in the first accident, he is entitled to payment for medical expenses attributable to the first accident that remain unreim-bursed after the $20,000 policy limit for the second accident has been paid. However, Scheibel is entitled to recover only that unreimbursed portion of his total medical expenses attributable to the first accident, up to the $20,000 policy limit applicable to the first accident. Conversely, he cannot recover for any loss attributable to the second accident from coverage for the first accident.

II.

We next address Scheibers argument that he is entitled to $500 in weekly income loss benefits — twice the $250 maximum weekly income loss benefits provided by the no-fault act. The no-fault act, under basic economic loss benefits, provides for a maximum of $20,000 for income loss, replacement services loss, funeral expense loss, survivor’s economic loss, and surviv- or’s replacement services loss arising out of the injury to any one person. See Minn. Stat. § 65B.44, subd. 1. The act further requires that “[disability and income loss benefits shall provide compensation for 85 percent of the injured person’s loss of present and future gross income from inability to work proximately caused by the nonfatal injury subject to a maximum of $250 per week” Minn.Stat. § 65B.44, subd. 8 (emphasis added).

In arguing that he is entitled to income loss benefits of twice the maximum of $250 a week, Scheibel fails to recognize the impossibility of being totally out of work twice. There is a distinction between medical expenses and income loss in the multiple accident context. Multiple accidents may exacerbate an injury and result in further medical expenses. However, if one accident causes a total inability to work, then income loss benefits are set. Additional accidents cannot add to the weekly loss of income from not being able to work. Accordingly, the statutory cap on per week wage loss benefit applies regardless of the number of accidents. Therefore, we conclude that although the no-fault act generally seeks to protect accident victims, it also evinces a clear intent to limit the amount of weekly income loss benefits. See Minn.Stat. § 65B.44, subd. 3. We therefore hold that under the no-fault act, Scheibel is entitled to a maximum of $250 per week in income loss benefits.

Affirmed in part, reversed in part, and remanded for further proceedings.

      . It is unclear from the record what is the exact amount of unreimbursed medical expenses at issue, but at the time of the summary judgment proceeding, Scheibel's counsel indicated that there were approximately $6,500 in unpaid surgery-related bills.

      . In reaching our holding in Great West, we placed importance on the singular form of accident in the no-fault act’s definition of "loss.” See Great West, 548 N.W.2d at 281. However, according to statutory direction on how we should construe Minnesota statutes, "[t]he singular includes the plural; and the plural, the singular * * Minn.Stat. § 645.08(2) (1998). '

      . This formula for the amount of no-fault insurance coverage available to Scheibel to achieve full reparation does rely to some extent on apportionment, which is a concept that we rejected in Great West. However, this formula retains the bright line of liability that we articulated in Great West.