State of Minnesota, Respondent, vs.Herbert Allen Baker,Jr., Appellant.

State of Minnesota,Respondent,vs.Herbert Allen Baker,Jr., Appellant, Court of Appeals Unpublished Decision, October 9, 2007. A06-937

This opinion will be unpublished and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
A06-937
 

State of Minnesota,
Respondent,
vs.
Herbert Allen Baker,Jr.,
Appellant.

Filed October 9, 2007

Affirmed

Klaphake, Judge

 

Ramsey County District Court

File No. K2-05-956

 

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

 

Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

 

            Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Klaphake, Judge.

 

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Herbert Allen Baker, Jr., appeals from his conviction for first-degree burglary and second-degree assault, arguing that the district court abused its discretion when it permitted the state to play a recording of an emotional 911 call several times during trial, and that the state's failure to redact a transcript of appellant's statement, in conjunction with repeated use of the 911 call, had the cumulative effect of depriving him of his right to a fair trial.

            Because the district court did not abuse its discretion by permitting the state to play the recording several times and because the inadequate redaction, although error, was harmless beyond a reasonable doubt, we affirm.

D E C I S I O N

            We review the district court's evidentiary rulings for an abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  The appellate court must look at the record as a whole to determine whether the district court, in light of the record evidence, acted "arbitrarily, capriciously, or contrary to legal usage."  In re Welfare of D.D.R., 713 N.W.2d 891, 904 (Minn. App. 2006) (quotation omitted).  Appellant has the burden of establishing that the district court abused its discretion and that appellant was prejudiced by the abuse of discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).

            911 Tape

            Otherwise admissible evidence can be excluded if its probative value is outweighed by its prejudicial effect.  Minn. R. Evid. 403; State v. Jackson, 714 N.W.2d 681, 691 (Minn. 2006); State v. Schulz, 691 N.W.2d 474, 478 (Minn. 2005).  "Unfair prejudice under rule 403 is not merely damaging evidence, even severely damaging evidence; rather, unfair prejudice is evidence that persuades by illegitimate means, giving one party an unfair advantage."  Id.  An appellate court reviews the district court's decision on the cumulative effect of evidence for an abuse of discretion.  Id. at 479.

            Appellant argues that he was prejudiced by the court's permitting the state to play the 911 tape several times, thereby placing undue emphasis on this evidence.  In Schulz, the defendant objected to use of both a voicemail tape in which he referred to himself as "Killer," and a picture of his stomach tattoo, "Kill," as prejudicially cumulative.  Id.  The supreme court noted that the two pieces of evidence were "probative of material facts in ways distinct and unique from the other evidence in the case" and concluded that the district court did not abuse its discretion by admitting this evidence because even if cumulative,  it "was only marginally repetitive and it was highly probative."  Id. at 479-80.

            Here, the taped 911 call is a record of events as they occurred.  The tape provided a soundtrack of the confrontation between appellant and victims Robyn Bennett and Thomas Pierson, which rebutted appellant's claims that the incident had not been confrontational and that he had not been the aggressor.  The evidence, therefore, was very probative.

            The state first played the tape in its entirety before Bennett's testimony, and then played it line by line during Bennett's testimony so that she could identify the voices and their locations.  The tape was played a third time before the testimony of the 911 operator, who gave a different analysis of events.  The use of the 911 tape in this manner is no different than the use of any exhibit referred to repeatedly at trial. 

            The state also played a portion of the tape in closing arguments.  Generally, once evidence is properly admitted, an attorney may comment on and use evidence during closing argument.  State v. Carroll, 639 N.W.2d 623, 629 (Minn. App. 2002), review denied (Minn. May 15, 2002).  In State v. Kendell, 723 N.W.2d 597, 613 (Minn. 2006), the supreme court upheld admission of a 911 tape and replaying of the tape during closing arguments, concluding that the evidence was not unduly cumulative or unfairly prejudicial.       

            Appellant further contends that permitting the jury to listen to the entire tape during deliberations was an abuse of discretion.  The district court has broad discretion in determining whether to permit a jury to review trial evidence.  State v. Ross, 451 N.W.2d 231, 237 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990).  Minn. R. Crim. P. 26.03, subd. 19(2), states:

            1.         If the jury, after retiring for deliberation, requests a review of certain testimony or other evidence, the jurors shall be conducted to the courtroom.  The court, after notice to the prosecutor and defense counsel, may have the requested parts of the testimony read to the jury and permit the jury to re-examine the requested materials admitted into evidence.

            2.         The court need not submit evidence to the jury for review beyond that specifically requested by the jury, but in its discretion the court may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested.

 

The district court complied with this procedure; the jury listened to the tape in the courtroom and retired to deliberate without transcripts of the tape. 

            Under the circumstances of this case, the district court did not abuse its discretion by permitting the state to play the 911 tape several times.

            Cumulative Effect

            Appellant argues nevertheless that the cumulative effect of the multiple uses of the 911 tape, together with the state's failure to properly redact his statement, deprived him of his right to a fair trial.  The district court ordered the state to redact from appellant's statement to police all mention of a knife carried by appellant's companion, Willie Brent Hammond, because it was immaterial to the charges against appellant.  When a transcript of appellant's statement was presented to the jury, appellant discovered that the state had failed to redact two statements that alluded to Hammond's knife.  There is no question that the state improperly failed to redact these references.

            But if the verdict "actually rendered was surely unattributable to the error, the error is harmless beyond a reasonable doubt."  State v. Litzau, 650 N.W.2d 177, 184 (Minn. 2002) (quotation omitted).  When determining whether error is harmless, we look at the entire trial court record and consider a number of factors, including the strength of the evidence, whether the state used the erroneous evidence in argument, and whether the district court gave an appropriate cautionary instruction.  State v. Bolte, 530 N.W.2d 191, 198-99 (Minn. 1995). 

            Here, the trial was conducted over five days; there were two short references to Hammond's knife, one of which was not clearly about Hammond.  The district court immediately instructed the jury to ignore the first, clearer reference, and the state did not refer to this testimony during the trial or in closing.  These limited and cryptic references to Hammond's knife are harmless error.

            Appellant further argues that while the error alone might be harmless, the cumulative effect of this error with the jury repeatedly hearing the 911 tape was prejudicial and deprived him of a fair trial.   We have already concluded that the district court did not abuse its discretion by permitting the 911 tape to be played several times.  Generally, a reversal is based on the cumulative effect of several instances of otherwise harmless error, and is not based on properly admitted evidence and a single instance of harmless error.  See, e.g. Litzau, 650 N.W.2d at 187; State v. Keeton, 589 N.W.2d 85, 91 (Minn. 1998); State v. Post, 512 N.W.2d 99, 104 (Minn. 1994); D.D.R., 713 N.W.2d at 905.

            Affirmed.