State of Minnesota, Respondent, vs. Michael Lo, Appellant.

State of Minnesota, Respondent, vs. Michael Lo, Appellant. A05-1338, Court of Appeals Unpublished, September 12, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1338

 

 

State of Minnesota,

Respondent,

 

vs.

 

Michael Lo,

Appellant.

 

 

Filed September 12, 2006

Affirmed
Forsberg, Judge*

 

Ramsey County District Court

File No. K2-04-1112

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Susan Gaertner, Ramsey County Attorney, Patrick J. Swift, Mark N. Lystig, Assistant County Attorneys, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102-1657 (for respondent)

 

Stephen V. Grigsby, 2915 South Wayzata Boulevard, Suite 101, Minneapolis, MN 55405 (for appellant)

 

            Considered and decided by Willis, Presiding Judge, Ross, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

            Appellant challenges his conviction of aiding and abetting second-degree murder, arguing that the district court abused its discretion by (1) limiting cross-examination of a co-defendant, (2) excluding testimony about appellant's remorse, (3) excusing a jury panel member based on the panel member's inability to comprehend English, and (4) denying his motion for a Schwartz hearing.  We affirm. 

FACTS

In March 2004 appellant Michael Lo was charged with aiding and abetting second-degree murder in violation of Minn. Stat. §§ 609.19, .05 (2002), after appellant and friends allegedly stabbed a victim more than 20 times in a convenience store parking lot.  The victim died three days after the attack. 

Unlike his co-defendants who entered guilty pleas, appellant pleaded not guilty, and the matter proceeded to trial.  During voir dire, over appellant's objection, a juror was excused because he had difficulty comprehending English.  Early in the trial, respondent reported to the court and appellant's counsel that a juror may have been sleeping during presentation of its case.  The district court monitored the juror, twice asking if the juror was paying attention.  Both times, the juror responded affirmatively, stating that he was merely looking down at his notes. 

At trial, the parties disputed the scope of cross-examination as to the co-defendants' plea agreements.  The district court, over appellant's objection, prohibited appellant from eliciting testimony regarding the exact number of months a co-defendant's sentence would be reduced as a result of the plea, but permitted testimony regarding the percentage of reduction of the sentence, the original charged offense, and the reduced charge to which a co-defendant pleaded guilty.  Appellant also sought to subpoena his co-defendants' attorneys to testify about the contents of the plea petitions and conversations with their clients regarding discovery.  The co-defendants asserted the attorney-client privilege, and the district court denied appellant's request on that basis. 

During direct examination of Kao Vang, the only testifying co-defendant, Vang testified that he had struck a deal with the state in exchange for a reduced charge that would decrease his sentence by 78%.  Appellant's cross-examination reiterated that Vang had negotiated a deal with respondent in exchange for a lesser charged offense and included the following exchange:

[Defense]:      You knew they were trying to convict [appellant] of the charge of murder when you made the deal, correct?

[Witness]:      That's correct.

[Defense]:      And that was the same charge that you had originally faced; isn't that correct?

[Witness]:      That's correct.

                        . . . .

[Defense]:      As you sit here and testify today, are you facing a murder charge? 

[Witness]:      No, I'm not.

[Defense]:      You're not because, as part of your agreement, the State agreed to get rid of that murder charge, correct?

[Witness]:      That's correct.

[Defense]:      And allow you to plead to a lesser charge, correct?

[Witness]:      That's correct. 

 

Appellant's cross-examination also elicited the information that Vang would not be sentenced until after he testified truthfully for the prosecution.  Appellant then asked, "And if for any reason you don't perform your end of the plea bargain here, you don't get rid of that murder charge, correct?"  The district court sustained respondent's objection on the grounds that the question misstated the plea agreement and instructed the jury to disregard the answer. 

            During appellant's testimony, defense counsel asked appellant how he felt about the victim's death as a result of the attack.  Respondent objected, and appellant's counsel argued that the question went to his intent during the attack.  The district court sustained the objection on relevance grounds. 

            The jury found appellant guilty of aiding and abetting second-degree murder.  Appellant moved for a new trial and a Schwartz hearing based on information from a courtroom deputy that a juror slept during appellant's testimony and closing argument.  A summary hearing was held on the motion, and the deputy testified to her observations of the allegedly sleeping juror, including the fact that the juror sat with his eyes closed nearly every day, that his head would drop in a manner indicating sleep, and that other jurors kicked the juror's chair and elbowed him, presumably to awaken him.  The district court noted that appellant's counsel was aware of the issue and failed to take action until after the verdict.  The district court denied the motion for a Schwartz hearing on the grounds that it had monitored the juror throughout the trial and had received alert responses from the juror when the juror was admonished.  The district court concluded, "I do not believe there is sufficient evidence to warrant bringing back jurors now seven weeks later to have any further inquiry and I'm denying your motion."  This appeal followed.

D E C I S I O N

I.

            Appellant argues that the district court abused its discretion in two evidentiary rulings, and, therefore, he is entitled to reversal of his conviction and a new trial.  Rulings on evidentiary matters rest within the sound discretion of the court.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  This court will not reverse a court's evidentiary ruling absent a clear abuse of discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). 

            Limiting Cross-examination of Co-defendant

 

Appellant contends that the district court abused its discretion by precluding him from cross-examining a co-defendant about the exact number of months the co-defendant's sentence would be reduced as a result of the plea bargain and the fact that the

co-defendant would not be sentenced until after testifying against appellant,[1] arguing that these limitations violated his rights under the Confrontation Clause.[2] 

            "Based on concerns about such things as harassment, decision making on an improper basis, confusion of the issues, and cross-examination that is repetitive or only marginally relevant, the [district] court possesses wide latitude to impose reasonable limits on cross-examination of a prosecution witness."  State v. Tran, 712 N.W.2d 540, 550 (Minn. 2006) (quotation omitted).  The district court's discretion to control the scope of cross-examination is limited by the Confrontation Clause of the Sixth Amendment, which guarantees a criminal defendant the right to confront and cross-examine witnesses.  Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 1110 (1974); Tran, 712 N.W.2d at 550-51.  But "[t]he Confrontation Clause guarantees only ‘an opportunity for cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'"  State v. DeVerney, 592 N.W.2d 837, 845 (Minn. 1999) (quoting Kentucky v. Stincer, 482 U.S. 730, 739, 107 S. Ct. 2658, 2664 (1987)). 

            In criminal cases, the Confrontation Clause contemplates a cross-examination in which the defendant has the opportunity to reveal "a prototypical form of bias" on the part of the witness.  State v. Lanz-Terry, 535 N.W.2d 635, 640 (Minn. 1995).  When a defendant's attempted cross-examination aimed at showing bias has been restricted, the issue to be determined is whether "the jury has sufficient other information to make a discriminating appraisal of the witness's bias or motive to fabricate."  Id. at 641 (quotation omitted).  For example, in DeVerney, 592 N.W.2d at 845and State v. Greenleaf, 591 N.W.2d 488, 502 (Minn. 2002), the Minnesota Supreme Court held that it was not a violation of a defendant's Sixth Amendment rights for the district court to allow the defendant to closely question a co-defendant witness regarding how the co-defendant's sentence would be reduced in exchange for his testimony, while forbidding the defendants from inquiring about the precise number of months by which the sentence would be reduced.   

            Here, appellant was permitted to cross-examine his co-defendant about the co-defendant's original charge of second-degree murder, the reduced charge of aiding and abetting to which the co-defendant pleaded guilty, and the percentage of reduction of the co-defendant's sentence under the plea bargain.  Appellant's cross-examination of the co-defendant also elicited that only prosecutors are able to offer lesser sentences for testimony, that the co-defendant would not receive the lesser sentence until after he testified on behalf of respondent, and that the co-defendant's only opportunity to testify was in appellant's trial because the other co-defendants had pleaded guilty.  This cross-examination provided sufficient information to allow the jury to examine the co-defendant's potential bias or motive to fabricate and is consistent with the limitations deemed proper under DeVerney and Greenleaf. 

            Appellant, nonetheless, argues that DeVerney and Greenleaf are not controlling, and that this court should instead follow the Eighth Circuit Court of Appeal's decision in United States v. Roan Eagle, 867 F.2d 436 (8th Cir. 1989).  But DeVerney and Greenleaf are Minnesota Supreme Court decisions decided after Roan Eagle that directly address the issue of limitations on cross-examination as to a co-defendant's plea agreement; thus, the cases are controlling and binding, and this court does not have authority to decline to follow them.  See Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) (The "task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court."), review denied (Minn. Dec. 18, 1987).

            Regardless, it is not apparent that Roan Eagle conflicts with DeVerney and Greenleaf.  In Roan Eagle, the appellant was barred from inquiring into the specific lesser charge to which her co-defendant pleaded and the sentence that she might receive, and was permitted to cross-examine the co-defendant only as to the original charge in the indictment, the fact that the co-defendant cooperated with the prosecution, and the fact that the co-defendant was allowed to plead guilty to a lesser charge.  867 F.2d at 440.  In dictum, the Eighth Circuit found that these limitations constituted error, concluding that effective cross-examination "includes not only the specific crime to which the co-actor is pleading guilty, but the range of punishment to which the one pleading guilty is exposed to in contrast to what that person knowsor ought to knowis the potential sentence for a conviction following a plea of not guilty."  Id. at 443. 

In accord with Roan Eagle, DeVerney and Greenleaf do not limit a defendant's right to cross-examine only regarding the specific charges to which a co-defendant is pleading guilty, and the decisions allow for a "range of punishment" to be elicited through inquiries about the percentage of reduction of the sentence as a result of the plea agreement, and only prohibit inquiries about the precise number of months the sentence could be reduced.  See DeVerney, 591 N.W.2d at 845 (noting that district court, while prohibiting defendant from inquiring as to the exact number of months the co-defendant's sentence could be reduced, did not prohibit defendant from cross-examining co-defendant about "every other aspect of the plea agreement, including the percentages by which [co-defendant's] sentenced could be reduced"); see also Greenleaf, 591 N.W.2d at 488 (prohibition only cross-examination about exact number of months co-defendant's sentence could be reduced).  Consequently, Roan Eagle and the Minnesota decisions do not reach contradictory conclusions. 

Because the minimal limitation placed on appellant's cross-examination of his co-defendant did not prevent the jury from being exposed to any possible bias or motive to fabricate and was consistent with controlling precedent, the district court did not abuse its discretion in excluding questions regarding the exact number of months the co-defendant's sentence would be reduced. 

            Testimony Regarding Appellant's Remorse

Appellant also argues that the district court abused its discretion by excluding evidence of his remorse over the victim's death because this prevented him from demonstrating that he lacked the requisite intent to "knowingly aid in another's death."  Respondent contends that appellant's remorse on the date of the victim's death is irrelevant to intent on the date of the offense and, therefore, was properly excluded. 

            "A criminal defendant's right to present evidence in his defense is limited by the rules of evidence, and there is no right to present irrelevant evidence."  State v. Medibus-Helpmobile, Inc., 481 N.W.2d 86, 91 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992); Minn. R. Evid. 402 (only relevant evidence is admissible at trial).  Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."  Minn. R. Evid. 401. 

            Here, appellant sought to introduce testimony regarding how he felt about the victim's death.  But the victim's death did not occur until three days after the date of the attack, and "remorse, or lack of it, [is] relevant only if it has some relation to [a defendant's] state of mind at the time of [the offense]."  State v. Martin, 567 N.W.2d 62, 66 (Minn. App. 1997), review denied (Minn. Sept. 18, 1997).  Appellant's reaction to the victim's death had no relation to his intent three days earlier.  Consequently, the district court did not abuse its discretion by excluding appellant's testimony of remorse as irrelevant. 

II.

 

            Next, appellant argues that the district court abused its discretion by excusing a panel member during voir dire and by denying a Schwartz hearing for jury misconduct.  The district court has substantial discretion in conducting voir dire, and this court will not overturn a district court absent an abuse of discretion.  State v. Greer, 635 N.W.2d 82, 87 (Minn. 2001).  The standard of review for denial of a Schwartz hearing is abuse of discretion.  Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004). 

            Excusing Panel Member

 

            Appellant contends that the district court abused its discretion during voir dire by excusing a panel member who had difficulty understanding English, arguing that this was the equivalent of a court-imposed literacy test and constituted impermissible discrimination based on national origin.  Respondent argues that an ability to communicate in English is a valid and racially neutral basis for juror disqualification. 

            "A citizen shall not be excluded from jury service in this state on account of race, color, religion, sex, national origin, economic status, or a physical or sensory disability."  Minn. Stat. § 593.32, subd. 1 (2004); Minn. R. Gen. Pract. 809.  The jury "shall be . . . selected at random from a fair cross-section of the residents of the county who are qualified by law to serve as jurors[.]"  Minn. R. Crim. P. 26.02, subd. 1 (emphasis added).  To be "qualified" to serve as a juror, the prospective juror must satisfy a list of requirements, including the ability to "communicate in the English language."  Minn. R. Gen. Pract. 808(b)(4).  During voir dire, the district court "shall then put to the prospective juror or jurors any questions which the judge thinks necessary touching their qualifications to serve as juror in the case on trial[.]"  Minn. R. Crim. P. 26.02, subd. 4(1).  It is well settled that the district court is authorized, after examination of a prospective juror's knowledge of the English language, "to exclude the juror when it was made properly and sufficiently to appear that he had not such knowledge of the language as to enable him to understand the evidence, the argument of counsel, and the instructions of the court."  State v. Ring, 29 Minn. 78, 81, 11 N.W. 233, 235 (1882). 

            Here, appellant did not provide a transcript of the voir dire proceedings; thus, he waived the issue on appeal.  See State v. Engler, 319 N.W.2d 705, 705 (Minn. 1982) (declining to consider claims when only trial transcript was furnished on appeal).  Regardless, the argument that an English comprehension requirement has a disparate impact on minority jurors and, therefore, constitutes illegal discrimination fails.  "A disparate impact alone will not violate the principle of race neutrality[.]"  State v. Martin, 614 N.W.2d 214, 223 (Minn. 2000).  And the exclusion of jurors based on English proficiency "although likely to have a disproportionate impact on individuals whose first language is not English, and consequently, on non-English-speaking minorities is nevertheless facially valid."  State v. Gaitan, 536 N.W.2d 11, 16 (Minn. 1995). 

            Denial of Schwartz Hearing

 

            Appellant also argues that the district court abused its discretion in denying a Schwartz hearing because he presented sworn testimony of a courtroom deputy that a juror slept through significant portions of the trial.  See Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960) (outlining procedure for addressing alleged jury misconduct after a verdict). 

            The purpose of a Schwartz hearing is to determine whether a jury verdict is the product of misconduct.  Greer, 635 N.W.2d at 93.  To obtain a Schwartz hearing, a defendant must establish a prima facie case of jury misconduct by submitting "sufficient evidence which, standing alone and unchallenged, would warrant the conclusion of jury misconduct."  State v. Larson, 281 N.W.2d 481, 484 (Minn. 1979).  The district court, however, is never obligated to accept the allegations of the party challenging the verdict.  Opsahl, 677 N.W.2d at 422. 

            "A party who learns of misconduct of a juror during trial may not keep silent and then attempt to take advantage of it in the event of an adverse verdict."  State v. Durfee, 322 N.W.2d 778, 786 (Minn. 1982).  In State v. Yant, the appellant was apprised of the fact of sleeping jurors early in trial, but made no requests throughout the trial relative to the jury, such as questioning jurors, requesting that alternates be seated, or moving for a mistrial.  376 N.W.2d 487, 490 (Minn. App. 1985), review denied (Minn. Jan. 17, 1986).  This court held that appellant waived the alleged jury misconduct by waiting for a verdict before claiming error, stating that appellant could not "ignore what the court brought to his attention so that error could be claimed if the outcome of the trial were unfavorable."  Id. at 490. 

            Here, appellant's only evidence of juror misconduct, the testimony of a courtroom deputy that one juror slept throughout the trial, was contradicted by the record, which establishes that the juror was immediately alert and responsive when asked by the district court if he was sleeping.  The district court also indicated that it paid close attention to the juror throughout the trial and observed him to be largely attentive.  Further, appellant waived the issue by failing to take action until after the adverse verdict, despite the fact that he was apprised of the sleeping juror issue early on and throughout trial.  Consequently, denial of a Schwartz hearing was not an abuse of discretion. 

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]  Appellant argues that he was not allowed to elicit testimony from co-defendant Vang regarding the fact that Vang would not be sentenced until after testifying against him at trial.  But appellant, without objection, engaged in the following exchange with Vang:  "[Defense]:  Now, you haven't been sentenced yet in this matter?  [Witness]:  No, I have not.  [Defense]:  And that's not going to happen until after you've come in here and given testimony against [appellant], correct?  [Witness]:  That's correct." 

[2]  Appellant also raises the issue of the district court's refusal to permit him to subpoena the co-defendants' attorneys to testify regarding conversations with their clients about discovery, information about other co-defendants' versions of events, and plea negotiations.  But appellant never developed this argument beyond a mere contention, providing no legal citation or analysis.  Thus, this issue is waived.  See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (assignment of error in brief based on "mere assertion" and not supported by argument or authority is waived).