This opinion will be unpublished and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,
Jeffrey Phillip Salas,
Filed January 8, 2002
Ramsey County District Court
File No. K7-00-27
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Salas)
Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Hanson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction of and sentence for three counts of attempted first-degree murder. Appellant argues that (1) the evidence is insufficient to support the convictions, (2) the district court erred in allowing the state to call a witness for the sole purpose of impeaching her, (3) the jury’s acquittal on attempted second-degree murder was legally inconsistent with its verdict of guilty of attempted first-degree murder, (4) the court erred in answering the jury’s questions outside appellant’s presence, and (5) the three consecutive sentences exaggerate the criminality of appellant’s conduct because none of the victims was seriously wounded. We affirm.
On New Years Eve, 2000, police were dispatched to a disturbance at the Brown Derby bar in St. Paul where Danny, Santino and Roberto Franco were involved in a physical altercation with the sisters of appellant Jeffrey Phillip Salas. Salas’ brother, Javier, was at the bar but Salas was not.
Approximately one hour after the Brown Derby bar closed, Salas went to a party at the home of Peter and Veronica Estrada, carrying a loaded .22 revolver. According to testimony, Salas walked in uninvited and shot Danny Franco near the first floor bathroom, and then proceeded to the basement, where he shot both Santino and Roberto Franco. At some point, Peter Estrada retrieved his wife’s .45 semi-automatic pistol and, from the top of the stairs, he shot Salas.
Of all the shooting victims, Salas was the most severely injured, having been shot in his abdomen, requiring multiple surgeries to repair his liver and stomach and to remove his spleen and a kidney. Salas also suffered cuts to his hand, abrasions on his forearm and a large cut on his cheek, consistent with being assaulted.
There was conflicting evidence as to the precise sequence of events during the melee. Salas was found to have suffered retrograde amnesia and had no memory of the events. While the accounts of other eyewitnesses varied, there was no evidence that anyone other than Salas shot Danny, Santino and Roberto Franco. There was testimony that Roberto, the last victim, was shot when he wrestled with Salas for control of the gun. Salas’ theory at trial was self-defense.
Salas was found guilty of three counts of attempted first-degree murder and not guilty of three counts of attempted second-degree murder. He was sentenced to three consecutive prison terms. Salas appeals.
Salas argues that there is insufficient evidence to prove beyond a reasonable doubt that he intended to murder Danny, Roberto and Santino Franco. Salas claims that the evidence convicting him is of dubious veracity because 1) the state’s eyewitnesses were either family members or close friends of the Francos, whose loyalty induced them to lie to protect the Francos and each other; and 2) much of their testimony was inconsistent and was contradicted by statements they had previously given to the police.
When considering a claim of insufficient evidence, an appellate court’s review is limited to a thorough analysis of the record to determine whether the evidence, viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101,108 (Minn. 1989). The weight and credibility of the witnesses’ testimony is for the trier of fact to determine. Id. The jury may infer the requisite state of mind from the defendant’s conduct and all of the circumstances of the case. State v. McCullum, 289 N.W.2d 89, 91 (Minn. 1979).
While it is true that all of the eyewitnesses were connected to the Francos, this is the natural consequence of Salas entering, uninvited, a party of their friends. Some of the testimony was contradicted by the witness’ initial statements to the police, but Salas’ counsel extensively cross-examined each of the witnesses concerning their inconsistent statements. The jury had ample opportunity to evaluate the credibility of these witnesses based on their interest and prior inconsistent statements. We conclude that the bias of the witnesses, and the conflicts in the testimony, were not so severe as to preclude the jury from finding that Salas was guilty of the offenses charged.
Salas argues that the district court erred when it admitted, as impeachment evidence, a previously taped conversation between Salas’ girlfriend, Rebecca Machgan, and police officer Richard Munoz. Salas contends that the state’s sole purpose in calling Machgan to testify was to create an occasion for impeachment, thus securing the admission of evidence that would not otherwise be admissible. Appellate courts defer to the district court’s evidentiary rulings, and will not overturn them absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).
The state first called Machgan to testify about events that occurred prior to the shoot-out at the Estrada home. On direct examination, Machgan testified that Salas had a phone conversation with someone she could not identify; that Salas left shortly thereafter; that he did not have a gun; and that she did not know with whom he left.
The state then called officer Munoz to testify to inconsistent statements Machgan had made to him in a taped interview. Over Salas’ objection, the district court ruled that officer Munoz could testify, but for impeachment purposes only. Prior to his testimony, the district court gave a cautionary instruction to the jury regarding the proper use of impeachment evidence. In the tape recording, Machgan stated that she believed that Salas’ brother, Javier, provided Salas with a gun and drove him to the Estrada’s home. Police officer Munoz also said that Machgan told him, in discussing why the shootings took place, “This is deep, you know, rooted feelings. He cares about his family and his sisters.”
Any party, including the party calling the witness, may impeach a witness’ credibility. Minn. R. Evid. 607. However,
[A] problem arises when a prosecutor calls a witness who has given a prior statement implicating the defendant, but that witness has since retracted the statement and signified an intent to testify in defendant’s favor if called by the prosecutor. If the prosecutor is permitted to call this witness and use the prior statement for impeachment purposes, there is a large risk that the jury, even if properly instructed, will consider the prior statement as substantive evidence.
Oliver v. State, 502 N.W.2d 775, 777-78 (Minn. 1993) (quoting State v. Ortlepp, 363 N.W.2d 39, 42-43 (Minn. 1985). Further, a party may not misuse Rule 607 to introduce hearsay, which is otherwise inadmissible, in the guise of impeachment. State v. Dexter, 269 N.W.2d 721, 721-22 (Minn. 1978).
The so-called “Dexter problem” can be overcome if it is determined that the statement used to impeach was also admissible substantively. Ortlepp, 363 N.W.2d at 43. But Machgan’s statements were not admissible substantively. They did not satisfy the criteria of any exception to the hearsay rule. Moreover, even if Machgan’s statements had been within an exception to the hearsay rule, they would still be inadmissible because there was no showing that Machgan had personal knowledge of the subjects discussed in the tape-recorded conversation. See Minn. R. Evid. 602 (stating that a witness may not testify to a matter unless the witness has personal knowledge of the matter).
The state, in its closing arguments, compounded the problem by emphasizing the information provided by officer Munoz. Under the guise of explaining to the jury what impeachment of testimony was, the state reiterated the tape’s contents. We conclude that the primary reason the state called Machgan as a witness was to obtain admission of otherwise inadmissible prior statements and it was error for the district court to admit them.
With respect to evidentiary errors raised on appeal, the state bears the burden of showing the error was harmless beyond a reasonable doubt. State v. Schoen, 598 N.W.2d 370, 377 n.2 (Minn. 1999). For an error to be harmless beyond a reasonable doubt, the guilty verdict actually rendered must be “surely unattributable” to the error. Id., at 377 (quoting State v. Juarez, 572 N.W.2d 286, 291 (Minn. 1997).
Salas argues that because the evidence against him is not overwhelming, and because the state emphasized the impeachment evidence in its closing arguments, the error was prejudicial. The state maintains that the impeachment testimony did not incriminate Salas and, if anything, tended only to incriminate Salas’ brother. The state also argues that to the extent the testimony revealed Salas’ motive for the crime, the motive was both legally irrelevant and fully corroborated by other evidence.
Because the state presented substantial evidence of Salas’ guilt, and the impeachment evidence was either immaterial or was corroborated by other evidence, we conclude that the jury’s verdict of guilty was not attributable to the impeachment testimony.
Salas argues that the jury’s guilty and not guilty verdicts were legally inconsistent, entitling him to a new trial. Salas was acquitted of three counts of attempted second-degree murder and convicted of three counts of attempted first-degree murder. But it is a well-established rule
that a defendant who is found guilty of one count * * * is not entitled to a new trial * * * simply because the jury found him not guilty of [an]other count, even if the guilty and not guilty verdicts may be said to be logically inconsistent.
State v. Juelfs, 270 N.W.2d 873, 874 (Minn. 1978) (emphasis added). This is because Minnesota recognizes that a jury has the power of leniency in criminal cases; that is, the power to find a defendant not guilty despite the law and the facts. See State v. Perkins, 353 N.W.2d 557, 561 (Minn. 1984) (explaining Juelfs as an instance where a jury may believe a defendant is guilty of both offenses, but, in the exercise of its power of lenity, could find defendant guilty of only one of the two counts).
Since the inconsistent findings implied in the guilty and not guilty verdicts (intent to kill is implied by the guilty verdict, whereas the absence of intent to kill is implied by the not guilty verdict) can be explained by jury leniency, there is no legal inconsistency and Salas is not entitled to a new trial.
Salas argues that the district court committed prejudicial error when it communicated with the jury outside his presence. The jury submitted two questions to the court during their deliberations. One question asked about the assault charges against Salas, which had been dismissed; the other was a request for a tape recorder. After conferring with counsel, the judge sent a written response to the jurors, using language that counsel had agreed upon. The record does not contain a contemporaneous record of the communications, only an after-the-fact summary of what took place. Moreover, the record does not reflect that Salas was apprised of the jurors’ questions.
In State v. Sessions, the district court responded to a jury question in the defendant’s absence and without obtaining the defendant’s waiver. The Minnesota Supreme Court explained that
the Sixth Amendment to the United States Constitution grants a defendant the right to be present at all stages of trial. Responding to a deliberating jury’s question is a stage of trial. Thus, the general rule is that a trial court judge should have no communication with the jury after deliberations begin unless that communication is in open court and in the defendant’s presence.
State v. Sessions, 621 N.W.2d 751 (Minn. 2001) (citing Lewis v. United States, 146 U.S. 370, 374, 13 S. Ct. 136 (1892); Minn. R. Crim. P. 26.03, subd. 1(1) (stating that “[t]he defendant shall be present * * * at every stage of the trial”)). The supreme court found that the district court had violated the defendant’s Sixth Amendment right to be present and Minnesota Rule of Criminal Procedure 26.03, subd. 1(1). Sessions, 621 N.W.2d.
But even if a defendant is wrongfully denied the right to be present,
a new trial is warranted only if the error was not
* * * When considering whether the erroneous exclusion of a defendant from judge-jury communications constitutes harmless error, [appellate courts] consider the strength of the evidence and the substance of the judge’s response.
Id. (citations omitted).
There is no dispute that the district court responded to the jury’s questions in writing, not in open court, and without a waiver from Salas. This was error, but the error was harmless. First, the state’s evidence was strong. Second, the summary record reveals that the court’s answers to the jury’s questions were approved by counsel for both parties and were content neutral, without favoring either the prosecution or the defense. Id., at 756-57 (finding the district court’s responses harmless where its instructions did not favor either the prosecution or the defense). Here, as in Sessions, the district court properly advised the jury to decide the case based on their own recollection of the evidence. See at 757. Id. Under the circumstances, we conclude that the verdict was “surely unattributable” to the error, and the error is harmless beyond a reasonable doubt.
Salas challenges the district court’s decision to order consecutive sentences for the three attempted first-degree murder convictions. Ordinarily, if a person’s conduct constitutes more than one criminal offense, that person may be punished for only one of the offenses if the offenses are committed as part of the same behavioral incident. Minn. Stat. § 609.035 (2000); State v. Montalvo, 324 N.W.2d 650, 652 (Minn. 1982). But, when crimes are committed against different persons in the same incident, the district court has discretion to impose one sentence per victim, provided the multiple sentences do not unfairly exaggerate the criminality of the defendant’s conduct. State v. Lee, 491 N.W. 2d 895, 902 (Minn. 1992) (citing Minn. Stat. § 609.15 (1992); Montalvo, 324 N.W.2d at 652)).
Here, Salas was sentenced to three consecutive sentences of 190 months, 180 months and 180 months, respectively. Consecutive sentences are permissive when there are multiple current felony convictions for crimes against persons, and the presumptive disposition is commitment to the commissioner of corrections. Minn. Sent. Guidelines II. F.4 (2000). A trial court’s decision regarding permissive consecutive sentences will not be disturbed unless the resulting sentence unfairly exaggerates the criminality of the defendant's conduct. State v. Norris, 428 N.W.2d 61, 70 (Minn. 1988). In assessing fairness, appellate courts compare the defendant’s sentence with those of other similar offenders. Id., at 70-71 (citing State v. Williams, 337 N.W.2d 387, 390 (Minn. 1983)).
The supreme court has upheld consecutive sentences where the offender committed burglary against one victim, kidnapped another and murdered a police officer after leaving the scene. State v. Schneider, 402 N.W.2d 779 (Minn. 1987). The supreme court upheld a life sentence for the first-degree murder conviction and two consecutive 180-month sentences for the two attempted first-degree murder convictions where the defendant shot three individuals, one fatally. State v. Sanders, 598 N.W.2d 650 (Minn. 1999). The offenses in these cases are comparable to the offenses for which Salas was convicted.
The district court determined that Salas’ sentence was appropriate, did not unfairly exaggerate Salas’ criminality, was the recommendation of the corrections department, and was not a deviation from the guidelines. Based upon the comparison of Salas’ sentence with those of similar offenders, we conclude that the district court did not abuse its discretion in sentencing Salas to consecutive sentences.
Salas raises several other arguments in his pro se supplemental brief. But these arguments were not raised before the district court. This court will generally not consider matters not argued and considered in the district court and we decline to do so in this case. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).
 We note that the district court failed to make a contemporaneous record of the communications with counsel regarding the jury’s questions. We reiterate the supreme court’s caution to district courts
to make a contemporaneous record of each stage of trial, particularly a stage as delicate as communications with the jury and with counsel during deliberations.
Sessions, 621 N.W.2d at 756.