State of Minnesota, Respondent, vs. Duante Lashun White, Appellant.

State of Minnesota, Respondent, vs. Duante Lashun White, Appellant. A06-1362, Court of Appeals Unpublished Decision, December 31, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1362

 

 

State of Minnesota,
Respondent,
 
vs.
 
 
Duante Lashun White,
Appellant.

 

 

Filed December 31, 2007

Affirmed

Klaphake, Judge

 

 Hennepin County District Court

File No. 06003147

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Michael O. Freeman, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 S. 6th Street, Minneapolis, MN  55487 (for respondent) 

 

John M. Stuart, State Public Defender, Paul J. Maravigli, Marie L. Wolf, Assistant State Public Defenders, 540 Fairview Avenue North, Suite 300, St. Paul, MN  55104 (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Worke, Judge. 

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Duante Lashun White was charged with one count of second-degree assault and one count of felon in possession of a firearm following an altercation with another that occurred on January 14, 2006.  Appellant challenges his conviction as a felon in possession of a firearm under Minn. Stat. § 624.713, subd. 1(b) (2006), arguing that (1) the trial court abused its discretion in denying his motion for a mistrial after the court, in disregard of a pretrial stipulation, stated to the jury venire that appellant had a prior conviction for a crime of violence, and (2) the court erred by allowing the prosecution to impeach its own witness by playing the entire tape of the witness's prior inconsistent statement for the jury.  Because we observe no abuse of discretion in the trial court's denial of appellant's mistrial motion and because we conclude that the court did not plainly err in admitting the witness's statement, we affirm.

D E C I S I O N

            1.         Trial Court Reference to Appellant's Criminal Record

            The district court has the authority to supervise, direct, and control trial proceedings, including exercising its discretion to determine whether a new trial is warranted because of improprieties or errors that occur at trial.  State v. Manthey, 711 N.W.2d 498, 506 (Minn. 2006); State v. Graham, 371 N.W.2d 204, 207 (Minn. 1985).  "A mistrial should not be granted unless there is a reasonable probability that the outcome of the trial would be different if the event that prompted the motion had not occurred."  Manthey, 711 N.W.2d at 506(quotation omitted).  We review a denial of a motion for a mistrial for abuse of the district court's discretion.  Id.

            Appellant claims that the court's revealing to the jury venire during a reading of the criminal complaint that appellant had committed a prior crime of violence[1] was improper because appellant had stipulated to having committed a prior offense and being ineligible to carry a handgun.  See State v. Davidson, 351 N.W.2d 8, 12 (Minn. 1984) (noting that defendant's stipulation to offense underlying the charge of felon in possession of a firearm "should direct [the jury] to the issue of whether or not the state had established beyond a reasonable doubt that [the defendant] possessed the pistol").  "[I]nforming the jury that a defendant is a convicted felon may prejudice that defendant."  State v. Marchbanks, 632 N.W.2d 725, 729 (Minn. App. 2001).  Because appellant stipulated to having committed a prior crime of violence, the trial court erred by reading the criminal complaint to the jury venire without altering the reference to this prior conviction. 

            This error, however, was not so prejudicial that it would require reversal on appeal.   See State v. Levie, 695 N.W.2d 619, 628 (Minn. App. 2005) ("The complaint is simply the charging document and, as a matter of fact, the standard jury instructions will tell the jury that the complaint itself is not evidence.").  Further, the district court twice offered to give a curative instruction to the jury, and corrected any possible misapprehension on the part of the jury about appellant's prior offense by reading to the jury the stipulation that "the defendant has been convicted of Controlled Substance Crime in the Fifth Degree, thereby making him ineligible to possess a firearm[.]"  The court also instructed the jury that its guilty verdict could be based only on evidence heard at trial. See State v. Ferguson, 581 N.W.2d 824, 833 (Minn. 1998) (stating that appellate courts assume that juries follow trial courts' instructions).  Under these circumstances and in light of the strong evidence supporting appellant's guilt, including eyewitness testimony identifying appellant as the person holding a gun and a gun matching that description found at the scene, we conclude that the trial court did not abuse its discretion by denying appellant's mistrial motion.  See Manthey, 711 N.W.2d at 506 (requiring denial of mistrial motion unless reasonable probability exists that trial outcome would be different had event leading to motion not occurred).

            2.         Impeachment Evidence

            Appellant further argues that the trial court plainly erred by admitting as impeachment evidence a recorded statement that Terome Realford gave to police.  Realford was present when appellant brandished a gun at the victim.   The court excluded this evidence on substantive grounds but admitted it for impeachment purposes after examining Realford about his claim that he did not remember much about the incident.  Because defense counsel did not clearly object to admission of this evidence for impeachment purposes, our review is limited to correcting any plain error that affects appellant's substantial rights.  See State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).

            "A defendant claiming error in the district court's admission of evidence bears the burden of showing that the district court erred and that prejudice resulted."  Marchbanks, 632 N.W.2d at 730.  "A witness's prior inconsistent statement is admissible for impeachment purposes, but it is generally not admissible as substantive evidence."  State v. McDonough, 631 N.W.2d 373, 388 (Minn. 2001); see State v. Thames, 599 N.W.2d 122, 125 (Minn. 1999) (noting that rules of evidence allow for admission of prior inconsistent statement as substantive evidence if the statement was made under oath or under like circumstances, but otherwise allow such evidence to be admitted only for impeachment purposes).  A trial court will typically instruct the jury that a prior inconsistent statement is to be used only for impeachment purposes and not as evidence to support a conviction.  See Thames, 599 N.W.2d at 126.  Further, the state may not "expose the jury to hearsay under the guise of impeachment when the sole purpose in calling the witness is to introduce the witness' prior statement."  Id. at 125. 

            Appellant claims that Realford's recorded statement should not have been admitted at trial because it was highly prejudicial and offered by the prosecution when it knew that Realford intended to recant his police statement.  State appellate courts have consistently upheld the admission of prior inconsistent statements for impeachment purposes under similar facts.  See State v. Moua, 678 NW.2d 29, 38 (Minn. 2004) (affirming admission, for impeachment purposes, of prior inconsistent statements of a murder eyewitness and other witnesses that were made to police and to a grand jury, noting that even though the evidence was "extensive," it was not prejudicial "when the evidence is a result of witnesses' own actions in repeatedly changing their stories or versions of the facts"); McDonough, 631 N.W.2d at 388 (affirming admission as impeachment evidence of a prior inconsistent statement of defendant's roommate after the roommate stated to police that she saw the defendant with a gun two weeks prior to the offense but stated at trial that she saw the gun about a year before the offense); Thames, 599 N.W.2d at 125-26 (affirming admission as impeachment evidence of a murder defendant's girlfriend's statement about details the defendant told her about a murder, where the state incorrectly assumed that the girlfriend would testify in a manner consistent with her police statement).  In Moua, 678 N.W.2d at 38, the supreme court noted that admission of such prior inconsistent statements "allowed the jury to determine witnesses' credibility against a backdrop of what they actually said throughout the proceedings and not just on the day of the trial."

            Here, appellant's objection to admission of the evidence is that the state knew that Realford intended to recant and that by allowing his impeachment with the prior inconsistent statement, the court effectively allowed the jury to consider the statement as substantive evidence.  The record does not support appellant's characterization of Realford's initial testimony as an attempt to recant.  On direct, Realford admitted to making a statement to police within a few hours after the offense, but he claimed that he did not remember saying that he saw appellant with a gun and also that he was "under the influence."  When asked about his memory of the incident, Realford stated:

I told you [the prosecutor] that I was going to be honest and I was not going to lie about it, and I told you that before I got up here, and we had a discussion.  I told you that there's [sic] bits and pieces that I did remember, but if I didn't remember it, I was going to say I didn't remember it.

 

This language does not demonstrate that Realford clearly intended to recant his prior statement to police, and his other testimony indicates that he did ratify some of his statements to police.  Thus, appellant has not shown that the prosecution intended to introduce the evidence to "expose the jury to hearsay under the guise of impeachment."  Thames, 599 N.W.2d at 125.

            Appellant further contends that the trial court improperly allowed the state to impeach Realford's testimony by unnecessarily playing the whole recording of his police statement.  The court stated, however, that it did not view Realford's statement as "intrinsically reliable" because his story changed "so many times" and that it could not be admitted substantively.  As Realford's trial testimony was evasive and included memory lapses regarding key evidence that he would have been unlikely to forget, his police statement, which was not forthcoming, provided further evidence of his lack of credibility.  See Moua, 678 N.W.2d at 38 (noting that excluding impeachment evidence that resulted from witnesses' changing versions of the facts would "reward less-than-truthful witnesses and pervert the truth-seeking process" and admitting it would allow a fully-informed determination of witness credibility).  To the extent that Realford's statement to police was prejudicial, if at all, any prejudice was ameliorated by the court's instructions to the jury, both before the statement was played to the jury and before the case was submitted to the jury.  For these reasons, the court did not plainly err in

allowing the jury to hear all of Realford's statement for impeachment purposes.  See State v. Reed, 737 N.W.2d 572, 583-84 (Minn. 2007) (setting forth plain error rule).   

            Affirmed. 

 

[1]A prior conviction for a "crime of violence" is an element of the felon in possession of a handgun offense.  Minn. Stat. § 624.713, subd. 1(b) (2006).  While appellant's prior conviction was a controlled substance offense, this conviction is defined as a crime of violence under Minn. Stat. § 624.712, subd. 5 (2006).  Because appellant was charged with an assault offense, as well as the handgun offense, this increased the prejudice that may have resulted from the court's reference to a "crime of violence."