State of Minnesota, Respondent, vs. Willie Lee Harvey Jr., Appellant.

  This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

  STATE OF MINNESOTA

IN COURT OF APPEALS

C4-03-22

 

State of Minnesota,
Respondent,
 
vs.
 
Willie Lee Harvey Jr.,
Appellant.

 

Filed December 16, 2003 Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. 02047408

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Randall, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from convictions of first-degree assault, second-degree assault, and possession of a firearm by a felon, appellant Willie Lee Harvey, Jr., argues that (1) his statements to police were involuntary, and, therefore, the district court erred in ruling that they were admissible for impeachment purposes; (2) the district court erred in ruling that evidence of four of Harvey's prior felony convictions was admissible for impeachment purposes; and (3) the district court erred by admitting, for purposes of corroborating the victim's testimony, evidence that Harvey possessed a simulated controlled substance when he was arrested.  We affirm.

FACTS

            At about 2:00 a.m. on June 14, 2002, Minneapolis Police Officer Adam Grobove and his partner were dispatched to the scene of a shooting.  When the officers arrived at the scene, a woman directed them to the side door of the house.  In the living-room area, the officers saw Harvey standing over the victim and talking to her.  A second woman was also in the living-room area.  When Harvey did not obey Grobove's instruction to move away from the victim, Grobove pulled Harvey away from the victim and handcuffed him.  Grobove saw a blood spot on the victim's clothing and what appeared to be a bullet hole.

            After calling an ambulance, the officers secured the scene, placed Harvey in the back of the squad car, and searched the house and yard.  Grobove found a .22-caliber shell casing near the back steps, and another officer found a Ruger .22-caliber semi-automatic pistol in the backyard.  The pistol had one live round in the chamber and three live rounds in its magazine.  In the house, behind a sofa in a bedroom, an officer found a .22-caliber cartridge casing.  The pistol, the magazine, the bullets, and the cartridge casings were checked for fingerprints but did not provide sufficient details for identification.

            In the ambulance, the victim stated to a police officer that she was shot during a drive-by shooting while walking along Lowry.  Later, while still in the hospital, the victim called police and reported that Harvey had shot her.

            The doctor who operated on the victim testified that the single bullet that he removed from her abdomen caused three life-threatening injuries to the victim:  it split the left side of her liver in two; it perforated the front and back walls of her stomach; and it traveled through the lower part of her spleen.  A toxicology screen performed on the victim before surgery showed her alcohol concentration was .048.

            Police collected Harvey's clothing and shoes at the police station.  Several weeks later, after receiving a tip from the victim, police searched Harvey's shoes and found three small bindles containing a substance that looked like crack cocaine, but chemical analysis showed that it was not a controlled substance.  At trial, the victim testified that Harvey kept crack cocaine in a slit cut into the tongue of his tennis shoe.

            The victim was a 43-year-old crack-cocaine addict who had previously engaged in episodes of self-mutilation.  She had been Harvey's on-and-off girlfriend for about four years.  The victim testified that she and Harvey used crack cocaine regularly and that they sometimes got together to smoke crack cocaine with W.K., A.A., and C.C.  The victim testified that on June 13, 2002, Harvey bought a gun from A.A.  At Harvey's request, the victim bought bullets for the gun and gave them to him.

            On June 14, 2002, the victim, Harvey, and A.A. were at C.C.'s house.  The victim testified that Harvey loaded the gun and fired a round in C.C.'s house, causing the victim to become very frightened.  Harvey and the victim left together in the victim's car and went to W.K's house.  When they got there, the victim hitchhiked to a bar, where she borrowed $40 from a friend.  The victim took a cab back to W.K.'s house and gave the money to Harvey to buy crack.  The victim testified that she and Harvey went in the car to buy crack and also picked up C.C.

            Harvey and the victim dropped C.C. off and then returned to W.K.'s house.  A.A. came there later.  The victim testified:  when she was sitting next to A.A. on a couch, Harvey told the victim to put the gun in her mouth; when the victim refused, Harvey accused her of embarrassing him in front of A.A.; the victim opened her mouth and Harvey put the gun in it and pulled the trigger; the gun clicked but did not fire; when Harvey pulled the gun out of her mouth, it badly chipped her two front teeth; after pulling the gun out of the victim's mouth, Harvey shot her in the chest; somehow, the victim ended up on the floor; she was having a very difficult time breathing; Harvey stood over her, apologized for shooting her, said he loved her, and told her to tell the police that it was a drive-by shooting.  On cross-examination, the victim admitted that in an earlier statement to police, she reported that Harvey told her to put the gun in her mouth, and she put the gun into her mouth and pulled the trigger.

            The victim identified the gun found outside of W.K.'s house as the gun used by Harvey to shoot her.  The victim testified that she initially reported the shooting as a drive-by because she loved Harvey and did not want anything to happen to him.  The victim also testified that she was afraid that if she told the truth, someone, not necessarily Harvey, would kill her.

            A dentist who treated the victim testified that he repaired only one of her front teeth.  The dentist testified that the injury to the tooth was consistent with a gun being removed from the victim's mouth.

            The victim testified about a previous assault that Harvey committed against her in October 2001.  Following an argument, Harvey hit her in the eye, causing it to swell.  The victim did not report that incident to police.  The victim also testified that during her trial testimony, Harvey made a gang sign at her in an effort to intimidate her and frighten her into not testifying.

A jury found Harvey guilty of possession of a firearm by an ineligible person in violation of Minn. Stat. § 624.713, subd. 1(b) (2000); first-degree assault in violation of Minn. Stat. § 609.221, subd. 1 (2000); and second-degree assault with a dangerous weapon in violation of Minn. Stat. § 609.222, subd. 1 (2000).  The district court sentenced Harvey to concurrent terms of 158 months in prison for the first-degree-assault conviction and 60 months in prison for the possession-of-a-firearm-by-an-ineligible-person conviction. 

D E C I S I O N

1.         In the district court, Harvey sought suppression of his statements to police because of a violation of the Scales recording requirement and because there was no showing that his statements were voluntary.  On appeal, Harvey argues that the district court erred by ruling that the statements could be used for impeachment purposes without ruling on his claim that the statements were involuntary. 

            Harvey was arrested early in the morning on June 14, 2002.  Beginning at about 5:45 a.m., Minneapolis Police Sergeant Andrew Smith conducted a videotaped interview of Harvey, which lasted 45 minutes or less.  Smith read Harvey his Miranda rights.  Harvey waived his Miranda rights and agreed to make a statement.  Initially, Harvey said that the victim was injured in a drive-by shooting, that he had nothing to do with it, and that he did not know whether the victim was the intended target.  Smith confronted him with facts that were inconsistent with Harvey's statement, including that a gun was found in the backyard; that two witnesses had stated that Harvey had the gun and had done the shooting; and that when the officers arrived, they saw Harvey bent over the victim, whispering in her ear, appearing to be coaching her.  Harvey then admitted shooting the victim but claimed it was accidental, alleging that the gun went off when the victim tried to grab it away from him.

At about 6:30 a.m., Smith conducted a question-and-answer session with Harvey that was audiotaped and lasted about ten minutes.  Harvey continued to maintain that the shooting was accidental.

Smith gave the videotape and audiotape to Minneapolis Police Sergeant Mike Green, who in turn gave them to the county attorney.  Both tapes were misplaced and could not be located.  The audiotaped interview, however, had been transcribed, and a copy of the transcript was available.

A statement taken in violation of Miranda or a defendant's Sixth Amendment right to counsel "may not be used in the prosecution's case-in-chief, but may be used to impeach the defendant's conflicting trial testimony."  State v. Coleman, 560 N.W.2d 717, 720-21 (Minn. App. 1997) (citing Harris v. New York, 401 U.S. 222, 224-26, 91 S. Ct. 643, 645-46 (1971) (Miranda); Michigan v. Harvey, 494 U.S. 344, 350-51, 110 S. Ct. 1176, 1180-81 (1990) (right to counsel)).  The same rule applies to a statement taken in violation of the Scales recording requirement.  Id. at 721.  However, such a statement may be used for impeachment purposes only if it is voluntary.  State v. Slowinski, 450 N.W.2d 107, 111 (Minn. 1990).

            The voluntariness of a statement is reviewed "de novo as a question of law based on all factual findings that are not clearly erroneous."  State v. Ritt, 599 N.W.2d 802, 808 (Minn. 1999) (quotation omitted).  The voluntariness of a statement depends on the totality of the circumstances, which is a subjective, factual inquiry.  Slowinski, 450 N.W.2d at 111.  For a statement to be involuntary, the officer's actions must be "so coercive, so manipulative, so overpowering that [the defendant] was deprived of his ability to make an unconstrained and wholly autonomous decision to speak as he did." State v. Pilcher, 472 N.W.2d 327, 333 (Minn. 1991).  Relevant factors to consider include "the defendant's age, maturity, intelligence, education, experience, and ability to comprehend; the lack or adequacy of warnings; the length and legality of the detention; the nature of the interrogation; and whether the defendant was deprived of physical needs or denied access to friends."  Id.  The state must show the voluntariness of a statement by a preponderance of the evidence.  Id. 

Harvey contends that Smith used lies and deception and implied promises of leniency to obtain a statement.  If police use deception in an interrogation and it "is the kind that would make an innocent person confess," the confession is involuntary and must be suppressed.  State v. Jones, 566 N.W.2d 317, 326 (Minn. 1997).  Whether police promises have been made and the substance of the promises are to be considered among the factors in determining whether the resulting confession was voluntary.  State v. Anderson, 396 N.W.2d 564, 565 (Minn. 1986).

Harvey argues that Smith lied about the evidence, suggesting that police had found Harvey's fingerprints on the gun, and lied about the possible charges against Harvey, stating that charges could range from possession of a firearm by a felon to murder.  Smith denied telling Harvey that his fingerprints were found on the gun but testified that he routinely asks suspects, "Is there any reason your prints will be found on the gun?"  Regarding the possible charges, Smith checked with the hospital and learned that the hospital was uncertain whether the victim would survive.  Smith told Harvey that the victim might not live and if she did not, the case could become a homicide.  This statement to Harvey was not dishonest.  Harvey also argues that Smith's statement that he would tell the county attorney about Harvey's cooperation implied that Smith could influence the charging decision.

Even if Smith's conduct was improper, it was not egregious enough to render Harvey's statements involuntary.  See State v. Barner, 486 N.W.2d 1, 2 (Minn. App. 1992) (holding that statement was admissible despite police officer's false representation that defendant's fingerprints had been found on gun), review denied (Minn. June 30, 1992); Slowinski, 450 N.W.2d at 112 (concluding it was not improper for officer to explain various murder charges to defendant); State v. Beckman, 354 N.W.2d 432, 437 (Minn. 1984) (the fact that defendant was told that any cooperation would be brought to trial court's attention did not render confession involuntary).

Other factors indicate that Harvey's statements were voluntary.  He was 32 years old and had a lengthy criminal record, including five felony convictions.  The transcribed statement indicates that he had the ability and intelligence to voluntarily make a statement.  The interrogation lasted less than an hour, and nothing in the record indicates that Harvey was deprived of physical needs or access to family and friends.  Significantly, Harvey did not confess to committing a crime but rather claimed that the shooting was accidental.  See State v. Mills, 562 N.W.2d 276, 284 (Minn. 1997) (stating that when defendant did not confess "it cannot be said that her will was overborne by the detectives' questioning").  We conclude that the district court did not err in determining that Harvey's statements were admissible for impeachment purposes.

2.         Harvey next argues that the district court erred in ruling that evidence of Harvey's prior felony convictions was admissible for impeachment purposes.

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.

 

Minn. R. Evid. 609(a).

            The district court ruled that evidence of four of Harvey's prior convictions was admissible for impeachment purposes:  two felony theft convictions from 1999; one felony theft conviction from 1997; and one fifth-degree controlled-substance possession conviction from 1997.  Harvey argues that the prosecutor misled the district court to believe that the prior theft convictions involved dishonesty and, therefore, were automatically admissible under Minn. R. Evid. 609(a).  But the prosecutor acknowledged that not all theft crimes involved dishonesty and argued that Harvey's prior convictions were admissible under the probative-value-versus-prejudicial-effect balancing test.  State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978).  The following statement by the district court indicates that it applied the Jones balancing test:  "Not having heard the evidence, without changing anything, there's no question that it will be her word against his word, therefore, I believe that it's more probative to show his credibility in this case so that I will allow [the four prior convictions] in."

Harvey also argues that the prejudicial effect of the prior convictions outweighed their probative value.  To determine whether the probative value of a prior conviction outweighs its prejudicial effect, the court considers the following factors:  "(1) the impeachment value of the prior conviction; (2) the date of the conviction and the defendant's subsequent history; (3) the similarity of the past crime with the charged crime; (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue."  State v. Gassler, 505 N.W.2d 62, 66 (Minn. 1993).  "[T]he court should [also] consider whether the admission of the evidence will cause the defendant not to testify."  Id.  "[T]rial courts have great discretion in determining what prior convictions are admissible under the balancing test of Rule 609(a)(1)."  Id. at 67.

Impeachment value

            "[I]mpeachment by prior crime aids the jury by allowing it to see the whole person and thus to judge better the truth of his testimony."  Gassler, 505 N.W.2d at 67 (quotation omitted).  "Lack of trustworthiness may be evinced by [a defendant's] abiding and repeated contempt for laws which he is legally and morally bound to obey."  State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979) (quotation omitted).  Harvey's prior convictions show a repeated contempt for the law.

Date of prior convictions

            The fact that Harvey was convicted of three felony theft charges and a felony narcotics charge within five years of the current offense indicates that the convictions remain relevant despite the passage of time.  State v. Ihnot, 575 N.W.2d 581, 586 (Minn. 1998) (pattern of lawlessness increases probative value of older convictions).

Similarity between prior convictions and current offense

            The prior convictions and current offense were sufficiently different to minimize any potential prejudice.  See id. (stating although prior conviction and current offense were both criminal-sexual-conduct crimes, facts underlying the two offenses were sufficiently different to satisfy third Jones factor).

Importance of defendant's testimony and centrality of credibility issue

            The Ihnot court stated:

            Because Ihnot did not make an offer of proof as to what his testimony would have been had he testified, this court is left to assume that the thrust of his testimony would have been to deny the allegations of criminal sexual conduct.  That being the case, the fourth and fifth Jones factors are also satisfied, in that, had Ihnot chosen to testify, credibility would have been the central issue in this case.  On this point, we have said previously: the general view is that if the defendant's credibility is the central issue in the case[,] that is, if the issue for the jury narrows to a choice between defendant's credibility and that of one other person then a greater case can be made for admitting the impeachment evidence, because the need for the evidence is greater.

 

Id. at 587 (quotation omitted).  Here, as in Ihnot, appellant's guilt turned on the credibility of appellant and one other witness.  The district court did not err in ruling that Harvey's prior convictions were admissible for impeachment purposes.

3.         Harvey argues that the district court erred in admitting evidence about the simulated controlled substance found in his shoe.

            This court reviews the district court's decision to admit evidence under the abuse-of-discretion standard.  State v. Harris, 560 N.W.2d 672, 677 (Minn. 1997).  "‘Relevant evidence' means 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.  Relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice."  Minn. R. Evid. 403.

Here, the evidence was relevant because it corroborated the victim's testimony.  In light of the evidence about how the victim and Harvey used crack cocaine together and with friends, the risk of prejudice about the simulated controlled substance found in Harvey's shoe was not substantial.

Because there was no abuse of discretion in the district court's evidentiary rulings, Harvey's claim that he was unconstitutionally prevented from testifying in his own defense is without merit.  Ihnot, 575 N.W.2d at 587.

            Affirmed.