State of Minnesota, Respondent, vs. Ivory Williams, 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This opinion will be unpublished and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

A03-1018

 

State of Minnesota,
Respondent,
 
vs.
 
Ivory Williams,
Appellant.

 

Filed September 14, 2004

Affirmed

Minge, Judge

 

Hennepin County District Court

File No. 02098269

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Minge, Judge; and Forsberg, Judge.*

 

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

Appellant challenges his conviction of and sentence for aiding and abetting first-degree aggravated robbery, arguing that the district court abused its discretion in excluding evidence that the victim had motive to fabricate the robbery and erred in failing to redact "Were they lying?" questions posed in his statement to police.  Appellant also argues that the court erred in refusing to grant a downward dispositional departure in sentencing.  We affirm.

FACTS

Appellant Ivory Williams was charged with aiding and abetting first-degree aggravated robbery at a Minneapolis bus stop in violation of Minn. Stat. § 609.245, subd. 1, .11, .05, subd. 3 (2002).  At trial, the evidence showed that appellant walked with Tad Benford, Rudy Carlson, and Kenneth Clausen from the school (where Clausen was a custodian and the others were students) to the bus stop.  Clausen testified that when they reached the bus stop, he briefly talked with Benford, that Benford placed a gun to Clausen's chest and demanded his money, that Benford then told appellant to check Clausen's pockets, and that as the bus approached, appellant went through Clausen's pockets and removed approximately $145, a cell phone, cigarettes, and a lighter.  Benford, Carlson, and appellant then boarded a bus.  Clausen returned to the school and called 911 to report the incident. 

Police officers testified that they were alerted to the incident, that they were aware that three suspects were on a bus, and that because of the assistance of the bus driver, they knew where the three departed from the bus and the identity of the individuals.  Appellant denied any involvement in the incident and accused Clausen of lying.  A passenger on the bus testified that she saw the incident at the bus stop by the school in which two men had a third man cornered and that they appeared to be going through his pockets. 

Before the trial, the district court granted the state's motion in limine to exclude evidence regarding a dispute between Benford and Clausen over a moped resulting in an earlier search of Clausen's property.  In addition, the court denied appellant's motion to redact certain questions in appellant's statement to law enforcement in which appellant was asked whether all other witnesses were lying.  Appellant rejected a plea offer by the state, the matter proceeded to a jury trial, and the jury found appellant guilty as charged.  After receiving a pre-sentence investigation report, the district court sentenced appellant to an executed sentence of 44 months, which is at the low end of the presumptive sentence under the sentencing guidelines.  Appellant challenges his conviction and sentence.

D E C I S I O N I.

 

The first issue is whether appellant was denied his right to effective cross-examination of a witness by the district court's prohibiting a line of inquiry that appellant alleges would have shown the victim's motive to fabricate the claim that a robbery had occurred.  The Sixth Amendment to the United States Constitution 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).  Generally speaking, however, the Confrontation Clause only guarantees "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish."  Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294 (1985).  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).  Such cross-examination, however, is subject to the district court's right to reasonably limit questioning.  State v. Pride, 528 N.W.2d 862, 865 (Minn. 1995).

When a defendant's attempted cross-examination aimed at showing bias or motive 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."  Lanz-Terry, 535 N.W.2d at 641 (quotation omitted).  The district court "may exclude evidence of extraneous issues 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."  Id.  Furthermore, impeachment evidence that is attenuated and unconvincing may be prejudicial and excluded.  Id. at 640.  This court reviews such determinations under an abuse-of-discretion standard.  See id. at 641.

Here, appellant attempted to expose a motive for Clausen to fabricate the story of a robbery.  To accomplish this, appellant sought to cross-examine Clausen, to present additional witnesses, and to introduce other evidence to show: (1) that Clausen had sold a stolen moped to appellant's co-conspirator, Benford, for $50; (2) that Benford was apprehended by police as he was riding the stolen moped, and the moped was seized; (3) that Benford believed Clausen had an obligation to repay him $50 for having sold him stolen property; (4) that the police had executed a search of Clausen's home based on the information provided by Benford incident to the stolen moped; (5) that Clausen was bitter towards Benford because he believed Benford caused the search; (6) that there was no robbery or gun at the bus stop; (7) that Benford was simply trying to convince Clausen to give him back the $50 that he owed; (8) that Clausen fabricated the report of the robbery in retaliation for the search of his house by the police and to distract the police from recognizing his $50 debt to Benford as the cause of the incident; and (9) that appellant was simply an unwitting, innocent bystander in this larger dispute between Clausen and Benford.  The district court concluded that any testimony offered regarding the search warrant was factually unsubstantiated.  The district court also excluded the other evidence because there was no clear and convincing evidence in the complex story of criminal activity by Clausen and the evidence did not concern appellant.

First, appellant argues that the district court erred in treating his proffered evidence as reverse-Spreigl evidence and in applying a clear and convincing standard.  Reverse-Spreigl evidence is evidence of a crime, wrong, or act committed by someone other than the defendant and offered to show that the other person committed the crime of which the defendant is accused.  State v. Johnson, 568 N.W.2d 426, 433 (Minn. 1997).  Traditionally, reverse-Spreigl has been limited to cases in which the defendant can present clear and convincing evidence that a particular person committed the Spreigl offense.  State v. Valentine, 630 N.W.2d 429, 432 (Minn. App. 2001).

At the outset, we note that this evidence is not reverse-Spreigl evidence.  The evidence that appellant sought to introduce was not for the purpose of showing that another person committed the robbery.  Rather, appellant sought to introduce the extrinsic evidence to show the victim's motive to lie and that no robbery ever occurred.  Accordingly, the district court's application of a clear and convincing standard that is required for the admission of reverse-Spreigl evidencewas in error.  But, even though the district court may have erred in excluding appellant's evidence based on its conclusion that appellant failed to meet a clear and convincing standard, the question we face is whether the exclusion of this evidence was an abuse of discretion.

            Appellant's extrinsic evidence to show the witness's alleged crime and possible motive to lie about the robbery was peripheral to the case and potentially confusing to the jury.  The dispute regarding the moped did not directly involve appellant.  Further, although appellant was going to introduce witnesses to testify that Clausen fabricated the robbery in retaliation for his home being searched, the state produced police reports and search warrants showing that Clausen's house was not actually the subject of any search, rather it was the garage of a friend of Clausen's that was searched.  Finally, the district court did allow appellant's counsel to cross-examine Clausen regarding the moped dispute to the extent that the questions were limited to the discussions between the parties on the date of the incident in question.  Appellant chose not to ask any questions regarding the moped, the subject of the discussion between the parties at the bus stop, or to otherwise try to impeach Clausen or to show his motivation to fabricate his testimony. 

Although it may not necessarily have been error for the district court to allow the admission of this moped/debt-collection evidence, we defer to its judgment.  See Lanz-Terry, 535 N.W.2d at 641.  Because the evidence at issue was tangential to the case and presented a high risk of confusing the jury, we conclude that the district court did not abuse its discretion in excluding it.

II.

 

            The second issue is whether the district court erred in admitting portions of appellant's statement that included so-called "Were they lying?" questions.  "Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion."  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  Generally, the concern regarding "Were they lying?" questions is that they ask one witness to express an opinion as to the veracity of another witness.  State v. Pilot, 595 N.W.2d 511, 516 (Minn. 1999).  Such questions "call[] for improper comment on another witness' testimony . . . [when] it is the province of the jury to determine the credibility of witnesses."  Id.  Further, "Were they lying?" questions are perceived as "unfairly giving the jury the impression[] that in order to acquit, they must determine that witnesses whose testimony is at odds with the testimony of the defendant are lying."  Id.

We note that it is not always improper to ask "Were they lying?" questions.  Minnesota has not adopted a blanket rule prohibiting these questions.  Id. at 518.  Moreover, in situations where the witness "flatly denies the occurrence of events" testified to by other witnesses, such questions have probative value.  Id. (quotation omitted).  Further, such questions may also have probative value when evaluating the credibility of a witness who claims that everyone else lied.  Id. 

Here, the "Were they lying?" questions did not occur on direct examination, but were part of a taped interview of appellant by law enforcement that was played for the jury.  On the recording, the appellant told the officer that he did not know anyone by Clausen's name and indicated that he would be lying if he said otherwise.  Further, appellant stated, "I ain't going to lie to you for no reason.  I ain't got no reason to lie for you."  Appellant later admitted to walking to the bus station with Clausen, but denied that any robbery occurred and alleged that Clausen was "lying on me."  In response, the officer asked, "Why would somebody lie about this?  Why would they make it up?"  As appellant continually denied involvement in the incident throughout the interview, the officer asked why someone would make up the robbery story.

We do not find the inclusion of these statements to be an abuse of discretion.  First, the officer only asked appellant why Clausen and other participants would lie in response to appellant's accusation that they were, in fact, lying.   Furthermore, at trial, appellant continued to deny the occurrence of events as related by the state's witnesses.  The questions that appeared in the police statement were merely responsive and limited to the context of the questioning.  We conclude that because it was unlikely that the introduction of such statements had any effect on the verdict, there is not persuasive evidence that appellant was prejudiced by their admission, and the district court did not abuse its discretion.

 

III.

 

The final issue is whether the district court erred by not departing from the presumptive guidelines sentence.  Appellant claims that the record clearly justifies a downward departure and that the only reasons the district court did not depart were appellant's exercise of his constitutional right to trial and his refusal to take responsibility for the offense.  The district court has broad discretion in determining whether to depart from the sentencing guidelines and "it would be a rare case which would warrant reversal of the refusal to depart."  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

The sentences provided in the [Minnesota] Sentencing Guidelines Grid are presumed to be appropriate for every case. The judge shall utilize the presumptive sentence provided in the sentencing guidelines unless the individual case involves substantial and compelling circumstances. When such circumstances are present, the judge may depart from the presumptive sentence and stay or impose any sentence authorized by law.

 

Minn. Sent. Guidelines II.D.  Even if grounds exist that may justify a dispositional departure, this court generally will not interfere with the imposition of the presumptive sentence.  State v. Evenson, 554 N.W.2d 409, 412 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).

It is well settled that a defendant cannot be punished for exercising rights that are constitutionally guaranteed.  State v. Pickett, 375 N.W.2d 105, 108 (Minn. App. 1985), review denied (Minn. Dec. 19, 1985).  "[T]he fact that a defendant exercises his constitutional right to trial by jury to determine his guilt or innocence must have no bearing on the sentence imposed."  State v. Mollberg, 310 Minn. 376, 388, 246 N.W.2d 463, 471 (1976) (quotation omitted).  "[T]he record must affirmatively show that the court sentenced the defendant solely upon the facts of his case and his personal history, and not as punishment for his refusal to plead guilty."  Id. (quotation omitted).  The issue is whether the district court imposed a harsher sentence because appellant elected to stand trial.  Id.

Prior to trial, the state offered appellant a 48-month stayed sentence, which was a downward dispositional departure, in exchange for pleading guilty to aiding and abetting first-degree aggravated robbery.  When appellant did not accept the offer, appellant's counsel asked appellant, "And you understand, we've talked about that if you went to trial and you were convicted, that the Guidelines talk about 48 months and the State would be asking that you go to prison for 48 months, do you understand that?"  Appellant said that he did and rejected the State's offer.  After the jury convicted appellant, the district court sentenced appellant to an executed sentence of 44 months.  The guidelines provide for a presumptive sentence in the range of 44-52 months for appellant's crime and criminal-history score. 

During sentencing, the district court stated:

Your attorney has made a very persuasive plea on your behalf . . .  But you, Mr. Williams, have not taken any responsibility.  You are not amenable to probation, which is a primary criteria that I have to have available to me to even consider what your [attorney] has asked me to do.  The laws of Minnesota require that I follow these Guidelines, even though I may think perhaps there is some fundamental fairness issues that could come into play here, I have to have an articulable criteria of reasons that I can set forth to justify a departure, which under the circumstances, you will not owe up to any responsibility, I cannot do.

 

Appellant claims that this statement by the district court shows that the court punished appellant for not pleading guilty.  But we do not find that this statement, or any other statement made by the district court, shows an attempt to punish appellant because he chose to go to trial.  The fact that appellant was offered a shorter sentence at the plea-bargain stage is irrelevant.  The possibility of receiving a longer sentence after a trial is a risk a defendant takes because the evidence presented at trial may be more compelling than the facts stated in the complaint.  State v. Williams, 337 N.W.2d 387, 391 (Minn. 1983).  In addition, in the context of a negotiated plea with a sentencing agreement, the district court has more flexibility to depart from the guidelines than it does after a conviction.  Ultimately, the district court sentenced appellant to the lowest possible presumptive sentence under the guidelines, and the record presents us with no reason to interfere with the imposition of the presumptive sentence.

Appellant also argues that the district court erred in basing its refusal to depart from the guidelines solely on appellant's refusal to admit guilt.  See State v. Hickman, 666 N.W.2d 729, 731-32 (Minn. App. 2003).  In Hickman, this court stated, "A sentencing court may grant a dispositional departure based on a finding of particular amenability to probation despite the defendant's failure to take full responsibility for the offense."  Id. at 730.  Appellant argues that a remand is necessary because the district court was not aware of Hickman at the time of sentencing and refused to depart based on appellant's refusal to admit responsibility.

Here, the pre-sentence investigation report specifically found that appellant was at risk to reoffend and recommended that he be imprisoned.  Given the existence of such evidence in the record, we cannot overturn the imposition of the lowest possible presumptive sentence.  While the district court's comments regarding appellant's failure to accept responsibility may be unfortunate, the record sustains its action and supports its refusal to grant a dispositional departure.  Accordingly, this is not the "rare case which would warrant reversal of the refusal to depart" from the presumptive guidelines.  See Kindem, 313 N.W.2d at 7.[1]

Affirmed. 

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

[1] Appellant points out that Benford, who was the moving force in the robbery, was tried after appellant, that the evidence regarding the moped was presented at Benford's trial, that Benford was acquitted of first-degree aggravated robbery, and that his sentence was stayed.  There is an obvious inequity when a person with a lesser role in a crime is convicted of a more aggravated offense and receives a harsher sentence.  However, when each case is tried independently, the rulings and results in the cases may differ and it is not clear that the results in Benford's trial were correct.  What may be an error in one case does not justify an error in the other.  See State v. Vasquez, 330 N.W.2d 110, 112 (Minn. 1983).  Appellant does not claim that the law requires that the evidentiary rulings and sentences in the two separate proceedings be reconciled.