This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Lorenzo NMN Murrell,
Filed July 31, 2001
Hennepin County District Court
File No. 99099557
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Harten, Judge, and Willis, Judge.
Appellant challenges his convictions of second-degree murder and attempted first-degree murder, arguing that the district court abused its discretion in ruling that his prior convictions of aggravated robbery and simple robbery were admissible for impeachment purposes, causing him not to testify. Appellant also argues that the district court erred in admitting, as a prior consistent statement, a witness’s statement to the police that was only generally consistent with his trial testimony and added a detail that tended to support the state’s theory of premeditation. Because we see no abuse of discretion, and because, even if the district court erred in admitting the witness’s prior statement, any such error was harmless, we affirm.
On the evening of July 28, 1999, a crowd gathered in front of the duplex at 3034 Chicago Avenue South in Minneapolis. Linda Bryant, who lived in the upper unit of the duplex with her son, Michael Bryant, asked the crowd to leave, explaining that the landlord did not permit loitering on his property. The crowd, however, did not disperse. Michael Bryant; his cousin, DeAngelo Bryant-Irons; and Bryant-Irons’s cousin, Bryston Hill-Turnipseed; left the upper unit of the duplex and walked out the front door. A fight soon began.
Tony Scarver, Linda Bryant’s neighbor, heard gunshots and called 911. When police officers arrived, they found Hill-Turnipseed on a nearby porch with gunshot wounds in his back. Hill-Turnipseed was taken to Hennepin County Medical Center (HCMC) where he underwent surgery for gunshot wounds. Linda and Michael Bryant discovered that Bryant-Irons also had been shot. Bryant-Irons was taken to HCMC where he died after surgery.
A grand jury indicted appellant Lorenzo Murrell for second-degree murder in violation of Minn. Stat. § 609.19, subd. 1(1) (1998), and attempted first-degree murder in violation of Minn. Stat. §§ 609.17, .185(1) (1998). Prior to trial, respondent State of Minnesota moved to impeach appellant with evidence of his prior felony convictions of simple robbery and aggravated robbery. Appellant opposed the motion. After a hearing, the district court ruled that evidence of appellant’s prior convictions was admissible for impeachment purposes.
Barry Hakim was at the scene of the shootings. Two weeks after the shootings, Hakim gave a formal statement to the police regarding the incident. Ten months later, on June 19, 2000, Hakim testified at appellant’s trial. At trial, the state moved for admission of Hakim’s prior statement as substantive evidence pursuant to Minn. R. Evid. 801(d)(1)(B). After reviewing Hakim’s trial testimony and hearing the arguments of counsel, the district court granted the motion.
The jury found appellant guilty of second-degree murder for the shooting death of Bryant-Irons and attempted first-degree murder for the shooting of Hill-Turnipseed. The district court sentenced appellant to 386 months for second-degree murder and a consecutive term of 180 months for attempted first-degree murder. This appeal followed.
Appellate courts largely defer to the district court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).
1. Prior Convictions Admissible for Impeachment Purposes
A district court’s ruling on the impeachment of a witness by prior conviction is reviewed, as are other evidentiary rulings, under a clear abuse of discretion standard. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). Whether the probative value of the prior convictions outweighs their prejudicial effect is a matter within the discretion of the district court. State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985). The district court’s decision will not be reversed absent a clear abuse of discretion. Id. at 209.
Appellant argues that the district court abused its discretion in ruling that his prior convictions were admissible as impeachment evidence. Appellant contends that his prior convictions had very little impeachment value and were extremely prejudicial. Minn. R. Evid. 609(a)(1) requires two things in order for prior convictions to be admitted for impeachment: first, the earlier crime must be punishable by more than a year of incarceration and second, the probative value of the evidence must outweigh its prejudicial effect.
To determine whether the probative value of a prior conviction outweighs its prejudicial effect, we use the factors set forth in State v. Jones, 271 N.W.2d 534 (Minn. 1978): (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. Id. at 537-38. We have also said that the court should consider whether the admission of the evidence will cause the defendant not to testify. State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980).
State v. Gassler, 505 N.W.2d 62, 66 (Minn. 1993) (citation omitted).
a. Impeachment Value of Prior Convictions
“[T]rial courts have great discretion in determining what prior convictions are admissible under the balancing test of Rule 609(a)(1).” Gassler, 505 N.W.2d at 67 (citations omitted). Respondent argued in the district court, as here, that appellant’s prior convictions have significant impeachment value in that “the convictions would have enabled the trier of fact to see [a]ppellant as a ‘whole person’ and provided information useful in assessing credibility.”
Impeachment 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 (citations omitted). See State v. Lloyd, 345 N.W.2d 240, 247 (Minn. 1984) (“Underlying Rule 609 is the principle that impeachment by a prior conviction assists the jury to judge better the credibility of a witness by affording it the opportunity to view that person as a whole.” (citation omitted)).
Appellant asserts that his robbery convictions lack impeachment value because they are not related to dishonesty, citing State v. Sims, 526 N.W.2d 201, 202 (Minn. 1994). Appellant’s reliance on Sims, however, is misplaced. While Sims did hold that crimes of robbery and aggravated robbery do not directly involve dishonesty and false statement, so as to make evidence of such prior offenses automatically admissible for impeachment purposes, Sims also held that the defendant’s prior offenses, while not automatically admissible, were admissible in the district court’s discretion under rule 609(a)(1). Sims, 526 N.W.2d at 202. “Moreover, the fact that a prior conviction did not directly involve truth or falsity does not mean it has no impeachment value.” Gassler, 505 N.W.2d at 67 (citation omitted).
b. Date and Subsequent History
Appellant had one conviction of aggravated robbery in the second-degree and two convictions of simple robbery. All three of these prior convictions were entered on March 10, 1998. Because the three convictions occurred within ten years of the instant prosecution, none of them was “stale” under rule 609(b). See Gassler, 505 N.W.2d at 67.
Appellant argues that his prior convictions are similar to the charged offenses. But the prior convictions and the charged offenses involved distinctly different sorts of acts; there is no indication that the murder or attempted murder involved robbery or a robbery-type motive. Moreover, “Minnesota courts have been liberal in admitting prior convictions for impeachment even when the prior crime is the same as the crime charged.” State v. Stanifer, 382 N.W.2d 213, 218 (Minn. App. 1986) (citations omitted).
d. Importance of Defendant’s Testimony
Appellant contends that the district court’s ruling deterred him from testifying and prevented the jury from hearing his version of the events. The Minnesota Supreme Court considered this issue in Gassler:
Here, appellant was not kept from testifying; he made a decision not to testify based on the evidence that would have been admitted had he taken the stand. Appellant argues that the court’s ruling effectively left him no choice. However, defendants often make decisions not to testify based on the potential damage that prior convictions could inflict on their credibility. The mere fact that a trial court would allow impeachment evidence if a defendant chooses to testify does not necessarily implicate his constitutional right to testify in his own defense. At a minimum, in order to prevail on this argument, appellant would have to show that the trial court abused its discretion in ruling that the probative value of the impeachment evidence outweighed its prejudicial effect; it is only when a trial court has abused its discretion * * * that a defendant’s right to testify may be infringed by the threat of impeachment evidence.
Gassler, 505 N.W.2d at 67-68.
As in Graham, 371 N.W.2d at 209, appellant’s “arguments for exclusion rest[ed] largely on his right to testify rather than on any abuse of discretion by the trial court.” Additionally, appellant here made no offer of proof as to any additional testimony he would have added if he had taken the stand. This failure to make an offer of proof is a factor that favors the district court’s decision to admit the evidence for impeachment purposes. See Gassler, 505 N.W.2d at 67 (citation omitted).
e. Centrality of Credibility Issue
Appellant concedes that his credibility would have been an issue had he testified. When, as here, a defendant’s credibility is central to the case, “a greater case can be made for admitting the impeachment evidence, because the need for the evidence is greater.” State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980).
Applying Minn. R. Evid. 609(a)(1) and the factors in Jones to the instant case, we conclude that the district court properly exercised its discretion in ruling that appellant’s prior convictions were admissible for impeachment purposes.
2. Witness’s Prior Statement
Appellant challenges his conviction of attempted first-degree murder, claiming that the district court’s admission of Barry Hakim’s out-of-court statement was erroneous and prejudicial. Appellant alleges error on the ground that Hakim’s prior statement was not consistent with his trial testimony. Appellant concedes that Hakim’s “statement to [the] police was generally consistent with [his] testimony on direct examination,” but argues that Hakim’s statement “differed from [his] trial testimony in one crucial aspect.” At trial, Hakim testified that he went into the house after appellant shot Bryant-Irons and, through a window, “saw the shooter still shooting at [Hill-Turnipseed] while he was laying on the ground.” In his statement to the police, Hakim said that after he went into the house, he “saw the shooter, he was still shooting, and he ran away a little bit, came back and shot again, and left.” Appellant contends that because Hakim’s trial testimony did not include reference to appellant briefly leaving the scene and then returning, that “it cannot be said that this out-of-court statement was ‘consistent’ with his testimony.”
Under Minn. R. Evid. 801(d)(1)(B), a witness’s prior statement that is consistent with his trial testimony is admissible as nonhearsay evidence if the statement is helpful to the trier of fact in evaluating the witness’s credibility, and if the witness testifies at trial and is subject to cross-examination about the statement. An 801(d)(1)(B) statement operates as substantive evidence.
State v. Bakken, 604 N.W.2d 106, 108-09 (Minn. App. 2000) (citing Minn. R. Evid. 801(d)(1)(B) 1989 comm. cmt.), review denied (Minn. Feb. 24, 2000).
Minn. R. Evid. 801(d)(1)(B) requires that the prior statement be consistent with the declarant’s testimony. However, “[t]he trial testimony and the prior statement need not be verbatim.” Id. at 109 (citing In re Welfare of K.A.S., 585 N.W.2d 71, 76 (Minn. App. 1998) (videotaped statement that was “reasonably consistent” with witness’s trial testimony admissible under Rule 801(d)(1)(B)) (other citations omitted). At trial, appellant’s counsel did not assert that Hakim’s prior statement and his testimony were inconsistent. Rather, appellant’s counsel argued that the prior statement was “cumulative”—that there was no reason to admit the prior statement because it was repetitious of Hakim’s trial testimony. Respondent contends that, in making this argument, appellant’s counsel conceded that the prior statement and the trial testimony were reasonably consistent and, therefore, appellant should not now be permitted to take a contrary position and argue that the prior statement and the testimony were inconsistent.
“[E]ven if a trial court errs in an evidentiary ruling, we will not reverse unless the error substantially influenced the jury to convict.” Id. at 110 (citing State v. Brown, 455 N.W.2d 65, 69 (Minn. App. 1990), review denied (Minn. July 6, 1990)). In completing a “harmless error impact” analysis, the inquiry is not whether the jury could have convicted the defendant without the error, but rather, what effect the error had on the jury’s verdict, “and more specifically, whether the jury’s verdict is ‘surely unattributable’ to [the error].” State v. King, 622 N.W.2d 800, 811 (Minn. 2001) (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997)).
Appellant alleges prejudice because
[e]vidence that appellant allegedly shot at [Hill-Turnipseed], then left the scene – only to return and resume shooting – would bolster the state’s theory that the shooting of [Hill-Turnipseed] was premeditated.
Respondent contends that this argument is flawed, “given the nature and brevity of the comment and the overwhelming evidence of premeditation in the trial record.”
The portion of the prior statement that appellant takes issue with is very brief; it comprises less than two lines of a four-page statement. Respondent points out that appellant did not request redaction of these two lines from the statement at trial.
Premeditation means “to consider, plan or prepare for, or determine to commit, the act referred to prior to its commission.” Minn. Stat. § 609.18 (2000).
Premeditation is a state of mind generally proved circumstantially by drawing inferences from a defendant’s words and actions in light of the totality of the circumstances. Multiple gunshot wounds and the brutality of the killing may be evidence of premeditation.
State v. Brocks, 587 N.W.2d 37, 42 (Minn. 1998) (citation omitted).
There is overwhelming evidence that appellant acted with premeditation in shooting Hill-Turnipseed. Scarver testified that appellant was in possession of a handgun prior to the shootings. Hakim testified that appellant shot Bryant-Irons before shooting Hill-Turnipseed. Hill-Turnipseed, Michael Bryant, and Hakim testified that Hill-Turnipseed had been knocked down during a fight. Michael Bryant and Hakim testified that, while Hill-Turnipseed was lying face-down on the ground, appellant pointed a gun at Hill-Turnipseed and shot him multiple times.
In view of all the evidence, we conclude that the jury verdict would have been the same even if Hakim’s prior statement had not been admitted. Thus, even if the district court erred in admitting the prior statement, any error was harmless.
 Minn. R. Evid. 609 provides:
(a) General rule. 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.
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
 Minn. R. Evid. 801(d)(1)(B) provides:
(d) Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is * * * (B) consistent with the declarant’s testimony and helpful to the trier of fact in evaluating the declarant’s credibility as a witness * * * .