This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-81

 

 

State of Minnesota,

Respondent,

 

vs.

 

Umer Mohammed Masood,

Appellant.

 

 

Filed February 10, 2004

Affirmed

Halbrooks, Judge

 

 

Winona County District Court

File No. K9-02-268

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Charles E. MacLean, Winona County Attorney, Winona County Courthouse, 171 West 3rd Street, Winona, MN 55987 (for respondent)

 

Melissa Sheridan, Assistant State Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)

 

 

 

            Considered and decided by Halbrooks, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges his convictions of first-degree witness tampering and second-degree assault under Minn. Stat. §§ 609.498, subd. 1b(a)(6), .222, subd. 1 (2002), arguing that (1) the state presented insufficient evidence to corroborate the testimony of appellant’s accomplice, (2) the district court abused its discretion in ruling that appellant could not impeach a witness with prior assault and criminal-sexual-conduct convictions, (3) the district court erred by permitting the jury to replay during its deliberations the recordings of appellant’s phone conversations from jail, and (4) the appellant is entitled to relief because of certain comments President Bush made in his 2002 presidential address.  We affirm.

FACTS

            On January 22, 2002, Roy Lawson, a police informant, participated in a controlled cocaine buy from Shawn Wilbright that resulted in drug charges against Wilbright.  Wilbright believed that the informant involved was Lawson.  In retaliation, Wilbright called appellant Umer Masood and picked him up around 7:00 p.m. one night.  Wilbright testified that appellant brought a pickaxe with him that appellant wanted to use to kill Lawson.  Wilbright stated that his plan was to talk to Lawson to scare him or beat him up, but not to kill him.  Wilbright said that he thought he had talked appellant out of his plans to kill Lawson.

            Sarah Bach, Wilbright’s girlfriend, drove Wilbright and appellant to Greg Johnson’s residence.  After determining that Lawson was there, Wilbright and appellant knocked on Johnson’s door, and Johnson answered.  Lawson recognized one of the men at the door as Wilbright.  Johnson described the men at the door as dressed all in black, and both Johnson and Lawson stated that one of the men was wearing a ski mask.  When Johnson reached over and pulled the ski mask up on the second man, he recognized the man as Umer Masood.[1]  The two men stayed at Johnson’s home for a while and then asked Lawson for a ride to Brad Ruff’s residence.  Lawson, appellant, and Wilbright then left in Lawson’s van.

            When they arrived at Ruff’s home, Lawson, Wilbright, and appellant walked toward the front of the building.  While he was walking, Lawson was struck in the head with a pickaxe.  Wilbright claims that he saw the blow and then saw appellant hit Lawson two or three more times after Lawson had fallen to the ground.  Wilbright thought that Lawson was dead and ran to Paul Kapustik’s residence, with appellant following about ten minutes later.  Wilbright told Kapustik, “We did it.”  Thereafter, Bach picked up Wilbright and appellant.  Bach claims that while in the car, appellant said something “about pulling a grim reaper” and that he wanted to pick up the pickaxe and make a monument in his basement.

            When Lawson regained consciousness, he stumbled into Ruff’s residence and the police were called.  Upon arrival, the officers found Lawson and Ruff standing outside.  Ruff appeared to be intoxicated and was not making “a whole lot of sense.”  But Ruff testified that before the assault, he looked outside and saw a dark-skinned man wearing a hooded, dark coat holding an object that had something shiny at the end.  The officers observed that Lawson had an open cut on the back of his head and blood on the front of his shirt.  Lawson told an officer that Wilbright had hit him and also mentioned the name “Umer.” 

            Appellant’s neighbor subsequently alerted the police that a pickaxe had been missing from his garage since before the Lawson incident.  The report matched the description of the pickaxe used in the assault on Lawson.  Law enforcement also learned that appellant’s family members had broken the pickaxe handle after the assault and thrown the remains into Gilmore Valley.  An axe head matching the description of the weapon used in the Lawson incident was later found in the valley.

            Michelle Wilbright, Shawn Wilbright’s sister, testified that appellant called her from jail after he was arrested, asking her to tell Wilbright that appellant would say that he was with Wilbright as long as Wilbright said he knew nothing about the axe.  In addition, Leah Pohjaski, appellant’s girlfriend, testified that appellant told her that he had been at Kapustik’s house from 8:15 until 9:15 p.m. on the night of the incident and asked her to call Kapustik to make sure that he remembered when appellant was there.

            Appellant was charged with attempted first-degree premeditated murder, aggravated first-degree witness tampering, and second-degree assault, both as a principal and as an aider and abettor.  Wilbright accepted a plea bargain whereby the state agreed not to charge him with attempted murder and dismissed his assault and drug charges in exchange for a guilty plea to aiding and abetting aggravated first-degree witness tampering and an agreement that Wilbright would testify at appellant’s trial that appellant hit Lawson in the head with an axe.

            Appellant attempted to impeach Lawson at trial with his ten-year-old third-degree assault conviction and a fourth-degree criminal-sexual-conduct conviction from 1996.  The district court ruled that the convictions were inadmissible because the potential for prejudicial effect was not outweighed by “any legitimate probative value.”  Excerpts from a number of recorded phone calls between appellant and others were received in evidence and played in court for the jury.  Over appellant counsel’s objection, the district court allowed the recordings to go into the jury room. 

            After a four-day trial, the jury acquitted appellant of attempted first-degree murder, but convicted him of aggravated first-degree witness tampering and second-degree assault.  The district court sentenced appellant to an executed prison term of 144 months and ordered him to pay a fine and restitution.  This appeal follows.

D E C I S I O N

I.          Sufficiency of the Evidence

            Appellant argues the state’s evidence against him was not factually sufficient to establish his guilt beyond a reasonable doubt because the evidence was presented through an accomplice and others who received benefits for their testimony.  In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the verdict, is sufficient to allow the fact-finder to reach the conclusion that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  It is within the province of the jury to assess the credibility of conflicting testimony, and the reviewing court will assume that “the jury believed the state’s witnesses and disbelieved any contradictory evidence.”  State v. Pippitt, 645 N.W.2d 87, 92 (Minn. 2002).  Similarly, when the verdict is based on corroborative evidence, that evidence will be viewed “in the light most favorable to the verdict,” and any inconsistencies will be “resolved in favor of the state.”  Id. at 93.

            Minnesota law provides that

[a] conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. 

 

Minn. Stat. § 634.04 (2000).  Accomplice testimony “may not be corroborated solely by the testimony of another accomplice.”  State v. Harris, 405 N.W.2d 224, 227 (Minn. 1987).  A witness is deemed an accomplice for purposes of this provision only if that witness could have been indicted or charged for the crime with which the defendant has been charged.  State v. Henderson, 620 N.W.2d 688, 701 (Minn. 2001).  An accessory only after the fact is not an accomplice.  In re D.M.K., 343 N.W.2d 863, 867 (Minn. 1984).

            Corroborating evidence may be direct or circumstantial and must link or connect the defendant to the crime, but it need not establish a prima facie case of the defendant’s guilt.  State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980).  The amount of corroboration required to support accomplice testimony is sufficient if it restores confidence in the accomplice’s testimony, confirming its truth and pointing to the defendant’s guilt in some substantial degree.  State v. Scruggs, 421 N.W.2d 707, 713 (Minn. 1988).  If a defendant’s “connection to the crime may be fairly inferred from the circumstances, the corroboration is sufficient.”  Adams, 295 N.W.2d at 533. 

            Facts that may corroborate accomplice testimony include “the defendant’s association with those involved in the crime in such a way as to suggest joint participation, as well as from the defendant’s opportunity and motive to commit the crime and his proximity to the place where the crime was committed.”  Id.  Suspicious conduct of the defendant before and after the offense, as well as possession of an instrument used to commit the crime, may corroborate accomplice testimony.  State v. Sorg, 275 Minn. 1, 5, 144 N.W.2d 783, 786 (1966). 

            Appellant contends that the only direct evidence that he was the person who attacked Lawson came from Wilbright’s uncorroborated testimony.  The district court found, and appellant’s attorney concurred, that only Wilbright and Bach were considered accomplice witnesses for purposes of Minn. Stat. § 634.04.  Kapustik was granted use immunity, and Lawson received other benefits in exchange for his testimony, but these benefits and their impeachment value were fully disclosed to the jury for its use in assessing credibility.  Johnson and Ruff received no benefit for their testimony.   

            The record reflects that appellant left the scene of the assault shortly after it occurred.  Several witnesses testified that appellant was with Wilbright during the time of the assault.  Ruff, Johnson, and Kapustik all saw appellant, or a person matching appellant’s description, carrying a pickaxe and wearing a ski mask.  The record also reflects that appellant’s family and friends attempted to destroy and discard the pickaxe after the assault.  Finally, appellant himself alluded to his own involvement, evidenced through the threatening of witnesses, creating false alibis, and making the statement, “He’s gonna try to pin it on me?  F--k that – it’s on us!”

            Because respondent presented substantial testimony from non-accomplices and because the testimony suggests appellant’s participation, proximity, and opportunity to commit the crime, when viewing the evidence in a light favorable to the state, the evidence was sufficient to corroborate Wilbright’s testimony and to allow the jury to reach the conclusion that it did.

II.        Impeachment with Prior Crimes

            Appellant argues that the district court abused its discretion by ruling that appellant could not impeach Lawson with his prior assault and criminal-sexual-conduct convictions.  We review evidentiary rulings, such as decisions to preclude cross-examination of a state witness based on the witness’s prior convictions, under an abuse-of-discretion standard.  State v. Lee, 645 N.W.2d 459, 466 (Minn. 2002); State v. Lanz-Terry, 535 N.W.2d 635, 641 (Minn. 1995).  Likewise, determining whether a particular item of evidence’s probative value exceeds the risk of prejudice is left to the district court’s discretion and is overturned only when there has been a clear abuse of that discretion.  State v. Graham, 371 N.W.2d 204, 208-09 (Minn. 1985).

            When using evidence of a prior conviction for purposes of impeachment, Minn. R. Evid. 609(a) directly controls:

(a)  General rule.  For the purposes of attacking the credibility of a witness, evidence that the witness committed a crime shall be admitted only if the crime (1) was punishable by . . . imprisonment in excess of one year . . . and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect[.]

 

A conviction is generally admissible only if less than ten years have elapsed since conviction or release from confinement and the probative value outweighs the prejudicial effect.  Minn. R. Evid. 609(b).  When an individual’s prior conviction does not involve dishonesty or false statement, and cross-examination is based on portraying the individual as a “bad person,” who deserved to be a victim, cross-examination is properly excluded.  Lanz-Terry, 535 N.W.2d at 639-40.

            Here, the district court excluded evidence of Lawson’s third-degree assault conviction that was more than ten years old and his fourth-degree criminal-sexual-conduct conviction that was four years old.  Because there was no evidence presented as to whether there was confinement resulting from the third-degree assault conviction or as to a release date from confinement, the record does not establish that the third-degree assault was more than ten years old for purposes of rule 609.  Therefore, we agree with the district court’s decision to analyze the third-degree assault conviction and the fourth-degree criminal-sexual-conduct conviction under rule 609(a).

Appellant asserts that Lawson’s prior convictions were not any more confusing than Wilbright’s, which were allowed into evidence, and admission would not have prolonged the trial because the evidence presented would have been fairly brief.  Appellant argues that because evidence that Lawson was both a crack addict and a police informant had already been presented, admitting the additional evidence of his prior convictions would not have caused the jury to conclude that Lawson “deserved” to be a victim.  Further, appellant claims the state’s interest in protecting Lawson from embarrassment is slight.

            But a district court’s evidentiary rulings are discretionary.  Here, appellant was already allowed to present evidence to impeach Lawson, and it does not appear that the two prior convictions would have been any more probative of Lawson’s credibility.  Both counsel were given the opportunity to argue the probative value of the convictions versus their prejudicial effect.  Neither conviction relates directly to Lawson’s credibility.  Neither of the prior crimes is a crime of dishonesty or false statement.  There was no evidence presented as to why the convictions would be more probative than prejudicial.  While appellant is correct in asserting a right to impeach Lawson as a witness, appellant is incorrect in asserting that the court should not take into account the nature of the convictions in assessing the impeachment value.  We conclude that the district court acted within its discretion by denying the admission of Lawson’s prior convictions. 

III.       Sending Recordings to the Jury Room

            Appellant argues the district court deprived him of a fair trial by allowing the recordings of appellant’s phone conversations from jail to go to the jury room during deliberations.  Minn. R. Crim. P. 26.03, subd. 19(1), grants a district court broad discretion in deciding what evidence a jury may review.  State v. Kraushaar, 470 N.W.2d 509, 514 (Minn. 1991).  We review the district court’s decision under an abuse-of discretion test.  Id. at 515.

            The materials that may go to the jury room are laid out in the rule as follows:

(1)  Materials to Jury Room.  The court shall permit the jury, upon retiring for deliberation, to take to the jury room exhibits which have been received in evidence, or copies thereof, except depositions and may permit a copy of the instructions to be taken to the jury room.

 

Minn. R. Crim. P. 26.03, subd. 19(1).  Audio and videotapes are not considered depositions.  Kraushaar, 470 N.W.2d at 515.

            Here, the district court allowed the jury access to the recordings of appellant’s telephone calls from jail during jury deliberations by stating, “Having been offered and received without limitation, they will be part of the exhibits going into the jury room together with a player that will be made available so that those exhibits are made useful to the extent that the jury chooses to review them.”  Appellant asserts that (1) the recordings would not have helped the jury determine an issue in the case, (2) the recordings were unduly prejudicial because they contained many vulgarities, obscenities, and threats that negatively portrayed appellant, and (3) allowing jurors unfettered access to the recordings during their deliberation allowed them to place undue emphasis and unfair speculation on certain parts.

            While the Minnesota Supreme Court has stated that it is the “preferable” practice to have juries review tapes in the courtroom, it is not a mandatory requirement.  Id. at 516.  In Kraushaar, the court held that allowing the jury to review videotape in the jury room was not prejudicial error because

(i) the videotape viewed in the jury room was no different from the videotape that the jury would have seen in the courtroom, (ii) at worst, the replaying of the tape allowed the jury to rehear what it had already heard, (iii) the testimony of the victim was positive and consistent and was corroborated by other evidence, and (iv) it is extremely unlikely that replaying of the tape by the jury affected the verdict as by prompting the jury to convict where it otherwise would not have done so.

 

Id.

            Assuming that the jury listened to the recordings in the jury room, they were no different from those played for the jury in the courtroom during trial.  Further, the recordings were not the only evidence of the conversations.  The contents of the recordings were admitted only after the other party to each phone call with the appellant testified consistently with the contents of the recordings and testified that the recordings were accurate.[2]  Also, because the jury had already heard the tapes in court, it is unlikely that replaying them would have caused the jury to reach a different verdict.  Because the recordings were received in evidence, and because Minn. R. Crim P. 26.03, subd. 19(1), allows a court to send such exhibits to the jury room during deliberations, the district court did not abuse its discretion by its decision.

IV.       President Bush’s Alleged Comments

            Appellant, in his pro se brief, argues that he is entitled to relief because of President Bush’s alleged comments regarding appellant made in his 2002 presidential address.  This argument appears to have no merit.  But we need not reach the merits because “[a] reviewing court must generally only consider those issues that the record shows were presented and considered by the trial court in deciding the matter before it.”  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  This procedural bar applies even in cases where constitutional issues of criminal procedure are raised.  See Ferguson v. State, 645 N.W.2d 437, 448 (Minn. 2002).  Appellant’s issue is waived because it is being raised for the first time on appeal.

            Affirmed.



[1] Wilbright claims that appellant was wearing the mask to hide his face because he wanted to kill Lawson, whereas Wilbright did not wear a mask because he was only intending to scare him.  Both Lawson and Johnson picked Wilbright and appellant out of photo displays as the men who were at Johnson’s.

[2] Exhibit 35 was the one exception, but it was still authenticated by an officer who listened to the recordings.