This opinion will be unpublished and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,
Fu Joseph Heu,
Filed June 4, 2002
Dakota County District Court
File No. KX002643
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
James C. Backstrom, Dakota County Attorney, Debra E. Schmidt, Lawrence F. Clark, Assistant County Attorneys, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)
Kyle D. White, 101 East Fifth Street, Suite 2314, St. Paul, MN 55101-1813 (for appellant)
Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Poritsky, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Fu Joseph Heu was convicted of second-degree intentional murder, Minn. Stat. § 609.19, subd.1(1) (2000), for murdering his estranged wife. Appellant (1) challenges several of the trial court’s evidentiary rulings and (2) claims ineffective assistance of counsel and prejudicial misconduct by the prosecutor. We affirm.
Appellant Fu Joseph Heu was indicted on two counts of first-degree murder and one count of second-degree intentional murder in the August 22, 2000, death of his estranged wife, Marie Heu. The indictment alleged that appellant committed first-degree premeditated murder, first-degree domestic abuse murder, and second-degree intentional murder.
The body of Marie Heu was discovered in her Eagan home in the early morning hours of August 22, 2000. Several members of appellant’s family had driven there from their Cottage Grove home after Tcheng Heu, appellant’s nephew, alerted them that there was a problem at the Eagan house. When the door to Marie Heu’s bedroom was opened and she was found lying dead on the floor, Tcheng Heu called police. When police arrived, Marie Heu’s car was missing from its parking place behind the house. The car was later discovered in Kansas City, where appellant had driven it. Appellant returned to Minnesota and turned himself in to police two days after the death of his wife.
The state presented evidence concerning two prior incidents involving appellant and the victim that, the state argued, constituted a pattern of domestic abuse: (1) an April 18, 1998, incident at the Duckwood Apartments in Eagan, where the family was then living; and (2) a June 18, 2000, incident at the family residence at 3811 Alder Lane in Eagan, on the basis of which Marie Heu obtained an order for protection (OFP) excluding appellant from the house and prohibiting him from having any contact, direct or indirect, with her.
In his testimony, appellant admitted that late in the evening on August 21, he met his nephew Tcheng at the Eagan Wal-Mart, where appellant bought a bicycle for one of his daughters. Inspite of the OFP, appellant had Tcheng drive him back to the Alder Lane residence. Appellant testified that he followed Tcheng up the stairs after they left the bicycle in the basement and that Tcheng then knocked on Marie Hue’s door. Appellant testified that Marie became upset when she saw him standing behind Tcheng. But after awhile, appellant testified, his wife began to calm down, and they talked in the living room about the arrearages on the mortgage payments, about her upcoming vacation, and about the divorce papers that she wanted him to sign. When appellant asked her why she had lied in her OFP affidavit, however, Marie left the room and went to her bedroom to get her glasses. When she returned, appellant testified, she had a handgun and told appellant to get out of the house. Appellant testified that he began walking out, with Marie following. Marie Heu then said to him, “Do you know that you’re not as good of a f--- as your nephew Tcheng Nchij?” Appellant testified that he then turned around and grabbed for the gun, and in the course of struggling for it with his wife, it discharged. Appellant testified that he carried Marie Heu’s body to the bedroom, laid her on the floor, and retrieved the gun, intending to commit suicide. However, he testified, after thinking about his children, and about his wife’s statement about his nephew Tcheng, he put the gun to Marie’s chest and fired a single shot.
Tcheng testified that after Marie Heu saw appellant and became angry, appellant then told him, in a quiet voice, to take the bicycle back to the extended family’s home in Cottage Grove. Tcheng went downstairs, where he listened for awhile, hearing Marie Heu yelling and screaming, before going to a nearby gas station for gas. When he returned, Tcheng testified, he heard appellant talking softly in the living room upstairs, apologizing to his wife. But Tcheng testified he then heard Marie Heu tell appellant very loudly that he couldn’t be there, after which Tcheng heard her calling his (Tcheng’s) name. Tcheng testified that Marie sounded frightened, and that he then heard a gun shot and then something fall to the floor, followed by gasps of air. Tcheng then heard appellant saying softly “Why did you betray me? We’re going to die together.” Tcheng testified that he left at that point, and drove to the Cottage Grove house to get help from the Heu family.
The coroner testified that Marie Heu was shot first in the abdomen, with the bullet passing through a large vein, causing substantial loss of blood. The coroner estimated the gun was about eight to ten inches away from Marie Heu’s body when this shot was fired, and that the victim could have lived “a matter of minutes” following the first shot. The second shot caused a contact wound to Marie Heu’s body, indicating the gun was less than a half-inch from the victim’s body when it was fired. The coroner testified it was possible the victim was dead before the second shot was fired.
Appellant denied intentionally killing his wife but admitted deliberately firing the second shot, after he thought his wife was dead.
The jury returned not guilty verdicts on both of the counts of first-degree murder, as well as two counts of manslaughter. The jury found appellant guilty of second-degree intentional murder. The trial court sentenced appellant to 384 months, an upward departure from the presumptive sentence of 306 months.
Appellant argues that the trial court abused its discretion in ruling that the defense could not introduce evidence that Marie Heu had an abortion in April 1998, five days after the “Duckwood incident.” The trial court has broad discretion in evidentiary rulings, and will be reversed only for an abuse of that discretion. State v. Nunn, 561 N.W.2d 902, 906-07 (Minn. 1997).
Appellant argues on appeal that his recall of the abortion was the “central provoking fact” that caused him to fire the second shot. But, as the state points out, the defense at trial claimed provocations more serious than the memory of the abortion, beginning with the victim’s alleged statement, just before she was shot, that she had had sex with appellant’s nephew. The victim’s recent allegations of assault, which resulted in appellant’s exclusion from the home and threatened to result in his deportation, were a greater source of provocation than the abortion two years earlier.
The trial court has discretion to exclude evidence whose probative value is substantially outweighed by its potential for unfair prejudice. Minn. R. Evid. 403. Appellant does not claim that the victim mentioned the abortion before her death. As a past event, it had less potential to provide the provocation required for heat-of-passion manslaughter. See State v. Hanson, 286 Minn. 317, 327, 176 N.W.2d 607, 614 (1970) (holding that past infidelity does not justify homicide). Thus, evidence of the abortion had only very limited probative value. Moreover, the defense failed to disclose the abortion issue until after the jury selection had begun. This prevented the prosecution from questioning prospective jurors about their attitudes toward abortion. As the state points out, many people have strongly held ideas on the issue of abortion. Because the state did not have the opportunity to voir dire on this issue, some of those people may well have been on the jury. Thus, any evidence of the victim obtaining an abortion had a strong potential to inflame (and perhaps divide) the jury. In any event, mention of the abortion would have had the potential to confuse the issues and distract the jury, thus unfairly prejudicing the state’s case. Finally, evidence of the 1998 abortion would have been cumulative to other evidence from which the defense argued provocation. The district court was clearly within its discretion in applying rule 403 and finding that the limited probative value of the evidence was substantially outweighed by the danger of unfair prejudice and confusion of the issues.
Appellant argues that the trial court erred in instructing the jury to disregard some of his sister Pa Heu’s testimony, during her reading of her diary, and in admonishing appellant, on cross-examination, to give yes-or-no answers to questions that called for a yes-or-no response.
The prosecutor objected when Pa Heu’s reading of her diary entries continued beyond her summaries of what Marie told her and began to summarize Pa Heu’s own feelings or reactions. The diary entries had been ruled admissible only to impeach Marie Heu’s OFP affidavit, not as opinion evidence from Pa Heu. The third time that readings of these entries extended beyond the proper scope of their admissibility, the trial court gave a curative instruction telling the jury to disregard Pa Heu’s reactions to what Marie Heu had told her. The court gave this curative instruction twice, each time limiting the scope of testimony the jury could consider but not commenting on Pa Heu’s credibility. The curative instruction was both proper and carefully phrased, and a reasonable jury could not have understood it as casting doubt on Pa Heu’s credibility.
Appellant also argues that the court erred in admonishing him, out of the presence of the jury, not to respond with explanations or qualifications to the prosecutor’s questions calling for a yes-or-no answer. The court found that the questions could fairly be answered with either “yes” or “no.” The trial court has discretion to control the presentation of evidence. Minn. R. Evid. 611(a). The prosecution had a right to require appellant to give yes-or-no answers to questions about his claim to a four-year college degree. Moreover, Appellant’s failure to give such answers had already wasted considerable time and threatened to waste even more time. Rule 611(a) recognizes that the court’s intervention may be necessary to avoid the needless consumption of time. Id. The trial court was well within its discretion in admonishing appellant. Moreover, this admonition occurred outside the presence of the jury.
Appellant next contends that the prosecutor committed prejudicial misconduct in his final argument by (1) arguing that appellant lied when he testified, (2) suggesting that appellant had a burden of proof in connection with the testimony of Pa Heu, and (3) bolstering the credibility of state’s witness Tcheng Heu and vouching for the credibility of the victim in her affidavit in support of an OFP against appellant.
If prosecutorial misconduct occurs, the general standard applied to determine whether the misconduct warrants a new trial is whether the misconduct, viewed in light of the whole trial record, appears to be “inexcusable and so serious and prejudicial that defendant’s right to a fair trial was denied.” State v. Booker, 348 N.W.2d 753, 755 (Minn. 1984) (citation omitted). We note that appellant failed to object to any of the comments he now claims were improper. See State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997) (holding that defense counsel’s failure to object implies the prosecutor’s comments were not prejudicial).
Appellant sets out a number of excerpts from the prosecutor’s final argument in which the prosecutor said that the defendant lied in his testimony. Appellant contends that it was misconduct for the prosecutor to make such arguments.
In order to convict appellant of either first-degree premeditated murder or second-degree intentional murder, the prosecutor would have to convince the jury that appellant intended to kill the victim. Appellant testified that, although the gun discharged while he and the victim were struggling for it, he did not intend to kill her. Thus, to convict the appellant of either of the intentional offenses, the prosecutor would necessarily have to convince the jury that appellant lied. That appellant lied is the inference the prosecutor was attempting to draw. There was evidence in the record from which the prosecutor could fairly draw that inference, including the fact that appellant deliberately went to the victim’s home, in violation of the OFP; Tcheng’s testimony that the victim sounded frightened just before she was shot and that after she was shot appellant said, “Why did you betray me?”; the fact that appellant didn’t seek medical aid after she was shot, as might be expected if the shooting were accidental; and appellant’s prior acts of domestic abuse committed against the victim, from which the jury was free to infer appellant’s intent, plan, or lack of mistake or accident. Cf. Minn. R. Evid. 404(b).
In our opinion, appellant’s argument on this score is without merit. It is not misconduct for the prosecutor to argue that the defendant is lying if the argument is a carefully drawn inference from the evidence. It is only improper for the prosecutor to inject his or her personal opinion of the defendant’s credibility. State v. Stewart, 514 N.W.2d 559, 564 (Minn. 1994); see State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984) (citing ABA Standards for Criminal Justice, Standard 3-5.8(b) (2nd ed. 1980)). The prosecutor may argue that the facts in evidence, or the reasonable inferences from those facts, make the defendant’s testimony incredible. See generally State v. DeWald, 463 N.W.2d 741, 744-45 (Minn. 1990). The statements appellant complains of, taken in context, are arguments from the evidence, not assertions of personal opinion.
The prosecutor pointed out defense counsel’s failure to elicit certain evidence from Pa Heu, which may have suggested that the defense had a burden to present evidence. This was improper. See generally State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993) (holding that the prosecutor may not comment on defense failure to call witnesses). But defense counsel chose to respond, rather than object, to this misstatement. See State v. Morgan, 477 N.W.2d 527, 531 (Minn. App. 1991) (noting defense counsel’s tactical decision to rebut improper argument rather than object prevented appellate relief), review denied (Minn. Jan. 17, 1992). Moreover, as the defense did present several witnesses, and questioned Pa Heu extensively on other subjects, this was not a highly prejudicial misstatement warranting a new trial.
Prosecutor’s comments bolstering the credibility of Tcheng Heu, and vouching for the credibility of the victim in her affidavit in support of an OFP against appellant.
Taken in context, the instances appellant cites as examples of the prosecutor bolstering the credibility of Tcheng Heu are arguments from the evidence, particularly the physical evidence and other testimony that corroborated Tcheng’s testimony. Similarly, the comments the prosecutor made concerning the victim’s credibility in her affidavit are arguments from the evidence.
Finally, we note the prosecutor did not engage in that disparagement of the defense in the abstract of which the supreme court has disapproved. See State v. Griese, 565 N.W.2d 419, 427 (Minn. 1997). Except for the prosecutor’s comments about the defense’s failure to question Pa Heu, we find no misconduct.
Appellant argues that he was denied his constitutional right to the effective assistance of counsel because his attorney waived his challenge to the composition of the jury pool, failed to present evidence, and admitted appellant committed domestic assault on June 18, 2000, a fact that appellant had denied and that his attorney was not authorized to concede.
In order to prevail on a claim of ineffective assistance, a defendant must show both that his counsel’s representation “fell below an objective standard of reasonableness” and that there is a “reasonable probability that, but for counsel’s unprofessional errors,” the outcome would have been different. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).
The defense challenge to the composition of the jury pool, although waived at one point, was ultimately presented to the court following a full hearing. The evidence presented at that hearing provided little support for the challenge, and appellant cannot show that his attorney’s “indecisiveness” regarding the motion was unprofessional error or that it caused any prejudice.
Appellant also argues that he was denied the effective assistance of counsel because his attorney failed to present gunpowder residue testing of the victim’s hands or expert testimony establishing that the victim had died before the second shot was fired. Appellant also argues that his attorney admitted his error in failing to question Pa Heu about appellant’s account of the shooting when appellant talked to her in Oklahoma City the day after it occurred and that this error was prejudicial.
A defendant claiming his trial attorney was ineffective because he did not present certain testimony, including expert testimony, must show how the missing evidence would have had an impact on the outcome. State v. Lahue, 585 N.W.2d 785, 790 (Minn. 1998); State v. Lonergan, 505 N.W.2d 349, 356 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993). Appellant does not show that expert testimony would have established that Marie Heu died before the second shot, and therefore would have tended to exonerate him. See Lahue, 585 N.W.2d at 790 (noting defendant did not explain how the evidence trial counsel failed to obtain would have exonerated him). The coroner conceded that was a possibility. This court cannot assume that a defense expert would have said anything more favorable to the defense than the coroner’s own concession.
The record shows that defense counsel moved the court for an order that the victim’s body be preserved and made available to the defense for gun residue testing prior to burial. When the request was made, however, Marie Heu’s body had already been buried in France. But even assuming the brief delay in making this request was unprofessional error, the coroner testified that gunpowder residue could have been on the victim’s hands merely because her hand was in proximity to the gun, even if she was not holding it. Thus, appellant cannot show that defense expert testing, if obtained, would have been exculpatory.
Appellant also claims that trial counsel was ineffective for failing to question Pa Heu about appellant’s initial account of the shooting. But as the state points out, when Pa Heu testified, appellant’s accounts of the shooting would have been inadmissible hearsay, as appellant had not yet testified. In any event, appellant later testified that he told his sister that the shooting was accidental. Appellant has not shown that, if Pa Heu had been asked, her testimony concerning appellant’s account of the shooting would have been more favorable to the defense, since its probative value – like appellant’s later testimony – ultimately depended on appellant’s credibility.
Finally, appellant argues that his counsel was ineffective because he admitted appellant’s guilt of the June 18, 2000, domestic assault without appellant’s approval, and contrary to appellant’s own testimony. The June 2000 domestic assault was not charged in the indictment, and was not an element of any offense charged in the indictment; it was only one incident the state offered to prove the pattern of “domestic abuse” that is an element of first-degree domestic abuse homicide. Thus, counsel’s admission was not equivalent to an admission of guilt to the charged offense, or even a lesser-included offense. Cf. State v. Moore, 458 N.W.2d 90, 96 (Minn. 1990) (holding that defense counsel’s admission of guilt to lesser-included offense, without his client’s consent, denied the defendant a fair trial). Moreover, since the jury acquitted appellant of first-degree domestic abuse murder, the admission did not directly prejudice appellant. The most that counsel’s admission could have done was to strengthen the state’s Spreigl evidence on the other charges. We cannot conclude, given the limited relevance of counsel’s admission that appellant’s conduct met the technical elements of assault, that there is a reasonable probability the outcome would otherwise have been different. See generally, Gates, 398 N.W.2d at 561.
Appellant argues that the trial court erred, and violated his due process rights, by failing to notify him that it was contemplating an upward departure and by refusing to grant him a continuance despite the late delivery of the presentence investigation (PSI).
The rules require the court to notify the attorneys if it is considering departing from the sentencing guidelines at sentencing. Minn. R. Crim. P. 27.03, subd. 1(A)(4). The state filed its motion for an upward departure, thus giving the defense notice that the issue would be raised at the sentencing. Moreover, defense counsel did not object to the lack of notice from the court. We conclude that the court’s failure to give notice was not prejudicial. State v. Bock, 490 N.W.2d 116, 122 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992). Although appellant claims in his brief that the state’s motion was not served until three days before sentencing, there is an affidavit in the file stating the motion was served by mail on May 11, seven days before the sentencing hearing.
Appellant also argues that he was denied due process by the delayed delivery of the PSI, and by the court’s denial of a continuance. But, contrary to appellant’s argument, neither the rule nor the statute explicitly mandates that the PSI be delivered at least eight days before sentencing. See Minn. R. Crim. P. 27.03, subd. 1(D) (providing that if PSI is not received within eight days before sentencing, the sentencing motion should be filed “within a reasonable time”); Minn. Stat. § 244.10, subd. 1 (2000) (providing that the PSI is to be forwarded to the parties “[p]rior to the hearing”); see also State v. Pierson, 368 N.W.2d 427, 432 (Minn. App. 1985) (holding that time limits prescribed in rule 27.03, subd. 1 are directory, not “mandatory and inflexible”). Moreover, appellant has not shown any prejudice from delayed delivery of the PSI. The state’s departure motion gave ample notice of the issues to be argued at sentencing, and far more detail about the possible grounds for departure than was provided in the PSI. Appellant’s counsel filed a response to the state’s departure motion on May 15, three days before the sentencing hearing. Appellant presented numerous letters from family and Hmong community members favoring a lenient sentence. There is no indication he lacked adequate time to respond to the state’s request for an upward departure. We further note that the attorneys had agreed to continue the sentencing hearing for a week, which would have given appellant additional time to prepare, but appellant himself objected to the later date. Finally, we note that on appeal he presents no challenge to the sentence itself.
We conclude that appellant was not denied due process, nor was he prejudiced, by any errors in the sentencing proceedings.
* Retired judge of the district court serving, as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 We recognize that sometimes when a witness testifies inaccurately, it may be due to the fact that the witness made a mistake in either perceiving an event or in recalling it. If the witness were merely mistaken, it would be unfair to say the witness is lying. We do not have such a case. At issue here is the appellant’s state of mind. We find it highly unlikely that appellant wouldhave made a mistake in either perceiving or recalling his state of mind when his wife was shot.