This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Ramsey County District Court
File No. K102187
John Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Ramsey County Government Center, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)
Considered and decided by Wright, Presiding Judge, Randall, Judge, and Shumaker, Judge.
On appeal from a conviction for possession of a firearm by an ineligible person, appellant Roosevelt Sanders argues that the district court abused its discretion when it limited his cross-examination of a prosecution witness. We affirm.
Kevin Brown and his fiancée, Julie Worrall, hosted a party at 882 Beech Street in St. Paul during the early morning hours of December 22, 2001. During the party, three individuals, later identified as appellant Roosevelt Sanders, Dejuan Powell, and Terrell Holmes, sought admission to the party. Telling them that the party was for friends and family only, Worrall shut the door and summoned Brown from the basement of the home. Brown came upstairs and told the men that he would not admit them to the party because it was private. After the conversation became aggressive, Brown shut the door. Brown then noticed two of his friends approaching the house and observed that his friends “started to have words” with Sanders, Powell, and Holmes. Soon thereafter, Brown heard the sound of gunfire coming from outside the home.
Brown went outside and encountered Joe Black standing on the sidewalk. Black had arrived at the party and parked his vehicle behind the garage. Upon leaving his vehicle, Black observed a fight taking place with an audience of approximately 15 people. After the fight ended, three individuals walked away from the house. But one of them, a man with a black gun in his hand, returned. When the man was approximately five feet away from Black, Black observed the man fire the gun at another individual and then flee. Black, who could see the man’s face clearly, identified Sanders as the man who fired the gun.
Powell also indicated that he saw Sanders fire a handgun at the 882 Beech Street residence on the morning of the incident. But Powell’s version of the events leading up to the offense differs somewhat from other witness accounts. According to Powell, he arrived at the party alone. Sanders and Holmes were already present in the basement of the house. Powell observed a fight involving Holmes in the basement. Powell, Sanders, and Holmes were asked to leave. As they were being escorted out of the house, Powell observed Brown with a gun. Sanders became involved in a fight with Black, and Powell observed both Sanders and Brown fire guns.
St. Paul Police Sergeant Bruce Wynkoop investigated the offense. After viewing a photographic lineup, both Powell and Black independently identified Sanders as the person in the lineup who possessed a gun and fired the shots.
Sanders, who had been convicted of a crime of violence within the previous ten years, was arrested and charged with one count of possession of a firearm by an ineligible person, in violation of Minn. Stat. § 624.713, subds. 1(b), 2 (2000) and Minn. Stat. § 609.11, subd. 5(b) (2000).
At trial, the defense sought to introduce evidence that Powell fired a gun in a separate incident shortly after the shooting at 882 Beech Street. On direct examination, Powell testified that, after the exchange of gunfire, he, Sanders, and Holmes ran to a nearby residence at 619 Mendota Street. During cross-examination of Powell, Sanders’s attorney inquired into the events that took place at 619 Mendota Street. The state objected to this questioning, arguing that it went beyond the scope of direct examination. The district court sustained the objection. Outside the presence of the jury, the district court permitted counsel to make an offer of proof regarding Powell’s anticipated cross-examination testimony. The colloquy proceeded as follows:
THE COURT: I have sustained objections with regard to mention of another incident that took place later that evening on Mendota. And I’ve indicated to you at the bench that I felt that that incident was irrelevant. The issue in this case is whether or not Mr. Sanders had possession of a firearm at the location on Beech on December 22, 2001. The issue of what might have happened later on with regard to some other person is not relevant.
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[COUNSEL]: [T]he defense would if given the opportunity to bring in information regarding that other incident that has been ruled irrelevant want to bring in information which would first of all state that Dejuan Powell, who is one of the people, the two people, [who] would have been eye witnesses here placing the gun during the shooting at 882 Beech in the hands of Mr. Sanders. The defense would bring in information placing the gun in the hands of Dejuan Powell at 619 Mendota. That in fact there is some testimony from a [witness] that he made an identification and did in fact see Dejaun Powell shoot the gun at a car approximately three times at 619 Mendota minutes after this incident at 882 Beach. Similarly there are statements from an officer, that [a witness] gave to an Officer Schwartz similarly stating that in fact Mr. Powell was the one who shot the gun at 619 Mendota minutes later.
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Your Honor, first of all, it’s evidence which would tend to show that Mr. Powell has every reason in the world to be biased about his testimony.
THE COURT: * * * As far as I’m concerned it didn’t matter what happened at Mendota[,] [b]ecause it does not necessarily relate to whether or not he had a gun and he possessed a gun on Beech Street, which is what he’s charged with.
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I just think that because of the possible bias here I think the probative, any probative value which again in my opinion is minimal with regard to the incident on Mendota, is outweighed by the possible prejudice.
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[COUNSEL]: I want to continue with my offer of proof, Your Honor, if I may[,] [w]hich is to show that further Mr. Powell in regards to the 619 Mendota shooting told the investigating officer that in fact it was Terrell Holmes who shot the gun at that site when in fact other eye witness identification puts the gun in [Mr. Powell’s] hands. He lied to the investigating officers about what happened at Mendota. That’s the defense’ theory. That he’s identified as the shooter on Mendota. He said that at Mendota it was Terrell Holmes shooting, whereas at Beech he states it was in fact Mr. Sanders shooting. So in other words he’s lying [now] to cover his butt at 619 Mendota.
Wynkoop also testified that Powell was arrested in connection with events that occurred that evening. When the defense questioned Wynkoop regarding whether he had information that Powell had shot a gun at 619 Mendota Street, the prosecution objected and the district court sustained the objection.
The jury returned a guilty verdict. Sanders now appeals his conviction.
Sanders argues that his constitutional right to confront Powell was denied when the district court prohibited cross-examination regarding the events that occurred at 619 Mendota Street. We 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). The accused has a right to confront witnesses. U.S. Const. amends. VI, XIV; Minn. Const. art. 1, § 6; see also Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 1068 (1965); State v. Greer, 635 N.W.2d 82, 89 (Minn. 2001). “The essence of confrontation is the opportunity to cross-examine opposing witnesses.” Greer, 635 N.W.2d at 89 (citing Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 1110 (1974)) (other citations omitted). Trial courts have broad discretion to control the scope of cross-examination. Greer, 635 N.W.2d at 89; State v. Lanz‑Terry, 535 N.W.2d 635, 640 (Minn. 1995).
A criminal defendant establishes a violation of the Confrontation Clause
by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.
Lanz‑Terry, 535 N.W.2d at 640 (quotation and citations omitted). Specifically, Sanders argues that, because Powell identified Sanders as the shooter in the 882 Beech Street incident, Sanders was entitled to present evidence of Powell’s bias and motive to testify falsely in order to protect himself after being arrested in connection with the shooting later that evening on Mendota Street. Sanders asserts that it was a constitutional violation to preclude him from exposing Powell’s bias through cross-examination about his false statements to police regarding the shooting on Mendota Street. According to Sanders, Powell falsely accused Holmes of the Mendota Street shooting, contradicting eyewitnesses who identified Powell as the shooter. Sanders contends that, from this evidence, the jury could have concluded that Powell, in a similar effort to protect himself from prosecution, falsely identified Sanders as the person who possessed the gun at 882 Beech Street. In sum, Sanders argues that he should have been permitted to expose Powell’s bias.
“Bias is a catchall term describing attitudes, feelings, or emotions of a witness that might affect [the witness’s] testimony, leading [the witness] to be more or less favorable to the position of a party for reasons other than the merits.” Lanz‑Terry, 535 N.W.2d at 640 (quotation and citation omitted). The Minnesota Supreme Court has explained that “not everything tends to show bias, and courts may exclude evidence that is only marginally useful for this purpose.” Id. Evidence that is so attenuated as to be unconvincing is prejudicial and inadmissible through impeachment to show bias. Id. When assessing whether the district court’s restriction of cross-examination violates the defendant’s right to confront witnesses, we must distinguish “general credibility attacks and attacks on a witness’s testimony designed to reveal bias.” Id. Thus, our examination of whether the district court abused its discretion in restricting a defendant’s attempted cross-examination to show bias “turns on whether the jury has sufficient other information to make a ‘discriminating appraisal’ of the witness’s bias or motive to fabricate.” Id. at 641.
The question before us is whether Sanders’s assertion that Powell had a specific reason to lie—to protect himself from criminal liability—is sufficient to be admissible as evidence of his bias. To inform our analysis, we look to the United States Supreme Court’s decision in Davis, where the accused was arrested for the theft of a later-recovered safe. 415 U.S. at 310, 94 S. Ct. at 1107. Green, a prosecution witness, testified that he had spoken to Davis near the location where the safe was found. Id. Green was on probation for a juvenile adjudication of delinquency for burglarizing two cabins. Id. At trial, the district court precluded cross-examination of Green to show that he was motivated to assist police “out of fear or concern of possible jeopardy to his probation.” Id. at 312, 94 S. Ct. at 1108. “[D]efense counsel sought to show the existence of possible bias and prejudice of Green, causing him to make a faulty initial identification of petitioner, which in turn could have affected his later in-court identification of [Davis].” Id. at 317, 94 S. Ct. at 1111. The Davis Court held that “jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on Green’s testimony which provided ‘a crucial link in the proof . . . of petitioner’s act.’” Id. (citation omitted).
We conclude that the facts of this case are analogous to those in Davis. In the offer of proof, Sanders asserted that Powell possessed a gun shortly after the incident in the instant case and that Powell lied to police about that possession to shift suspicion from himself to someone else. Similar to Green’s status as a probationer in Davis, Powell’s proffered conduct was probative of his bias and motive to testify falsely. Although the shooting on Mendota Street was a separate incident from the shooting on Beech Street, what is important here is not the relationship between the events at the two addresses. Rather, what is important here is the strength of the potential bias and its impact on the credibility of the witness. Here, Sanders had a sufficient evidentiary basis to attack Powell’s testimony and attempt to show the existence of Powell’s bias—namely, Powell’s subsequent conduct and accompanying motive to protect himself from criminal prosecution by falsely accusing Sanders.
The jury did not have other information that they could use to make a “discriminating appraisal” of Powell’s bias or motive to fabricate. Lanz‑Terry, 535 N.W.2d at 641 (citations omitted). We conclude that the circumstances alleged may have led Powell to testify against Sanders “for reasons other than the merits.” Id. at 640 (quotation omitted). Although evidence of the events on Mendota Street may not have been relevant to prove the facts of what occurred at 882 Beech Street, they nevertheless are crucial to an examination of the witness’s potential bias and credibility. While we are mindful of the potential confusion that could result with jurors, this risk is minimal when compared to the importance of presenting evidence of Powell’s potential bias.
Having concluded that the exclusion of the bias evidence was error, we must next consider whether such error was harmless. “Erroneous exclusion of defense evidence is subject to harmless error analysis.” Greer, 635 N.W.2d at 90 (citing State v. Post, 512 N.W.2d 99, 102 (Minn. 1994)). To find the error harmless, we “must be satisfied beyond a reasonable doubt that an average jury (i.e., a reasonable jury) would have reached the same verdict if the evidence had been admitted and the damaging potential of the evidence fully realized.” Id. (quotation omitted). Even if the jury concluded that Powell’s identification of Sanders as the shooter at 882 Beech Street lacked credibility, other evidence in the record—namely, an independent eyewitness identification of Sanders—is more than sufficient to support the conviction. Black testified that, from five feet away, he clearly saw Sanders’s face when Sanders fired the gun. Wynkoop also testified that Black identified Sanders as the person holding a gun during the Beech Street incident. Because of the strength of other evidence that supports Sanders’s conviction, we are satisfied beyond a reasonable doubt that, even if Powell had been cross-examined regarding the Mendota Street incident, the jury would have reached the same verdict.
GORDON W. SHUMAKER, Judge (concurring specially)
I respectfully concur in the result but would hold that the district court’s limitation of cross-examination was not erroneous. Rather, the court properly exercised its discretion in excluding irrelevant evidence.
Roosevelt Sanders, Dejuan Powell, and Terrell Holmes went to a party at a residence on Beech Street. Someone fired a handgun in the vicinity of the residence. Joe Black and Powell claimed to have witnessed the discharge of the firearm and both identified Sanders as the shooter. The state charged Sanders with illegal possession of a firearm.
At Sanders’ trial, the defense sought to introduce evidence that Powell fired a handgun near a Mendota Street residence shortly after the Beech Street shooting. The district court ruled such evidence irrelevant. The defense contended that the evidence was relevant to a claim that Powell was biased and that he identified Sanders as the shooter to spare himself from being accused of possessing a firearm. There was evidence that Powell lied about who fired a gun on Mendota Street, saying it was Holmes. The defense drew the inference that because Powell lied about the shooter on Mendota Street he probably lied about the shooter on Beech Street.
The district court noted that the probative value of the evidence to support such an inference was minimal. I agree. In State v. Lanz-Terry, 535 N.W.2d 635, 640 (Minn. 1995), the supreme court held that the district court may exclude evidence that is only marginally probative to show bias.
The inference that because Powell lied about who possessed a gun at a later time and a different location, he also lied about Sanders’ possession of a gun and that in fact Powell himself possessed the gun on both occasions is sufficiently attenuated as to fall within the district court’s broad discretion to limit cross-examination. See State v. Greer, 635 N.W.2d 82, 89 (Minn. 2001).