This opinion will be unpublished and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

A03-928

 

State of Minnesota,
Respondent,

vs.

Kennedy Nyangweso,
Appellant.

 

Filed August 3, 2004

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. 02019530

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge; Peterson, Judge; and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from a conviction of second-degree intentional murder, appellant argues that (1) the admission of testimony by the victim’s co-workers that she was afraid of appellant was prejudicial error; (2) the prosecutor committed prejudicial misconduct by failing to instruct a prosecution witness that he could not testify about past physical abuse of the victim by appellant; and (3) the district court abused its discretion by declining to instruct the jury on the lesser-included offense of first-degree heat-of-passion manslaughter.  We affirm.

FACTS

            Appellant Kennedy Mogaka Nyangweso and the victim were involved in a romantic relationship and lived together, beginning during the summer of 2001.  While still living with appellant, the victim began dating A.M.  In February 2002, A.M. and the victim began living together.

            A.M. testified that at a party he attended with the victim in January 2002, he met appellant for the first time.  A.M. testified that appellant said that the victim was appellant’s wife and shouted at A.M. and threatened to kill him.  A.M. also testified that the victim said that appellant had threatened to kill himself or her if she left him.

            One of the victim’s co-workers testified that about a month before the victim died, the victim said that when appellant found out about A.M., he threatened to kill the victim.  Another co-worker testified that the victim was nice to appellant because she was afraid of him.

            After breaking up with appellant, the victim stayed in contact with him and sometimes gave him rides to work.  On March 4, 2002, appellant left two messages on the victim’s answering machine, saying that he was having a problem with his car and needed a ride to work.  The third time appellant called, the victim spoke to him and agreed to give him a ride.  The victim left her apartment at about 3:00 p.m., promising to return in an hour to give A.M. a ride to school.  The victim did not return, so A.M. drove his other car to school.

            A friend of appellant’s phoned appellant between 5:30 and 6:00 p.m. on March 4, 2002.  The friend overheard the victim’s voice in the background, telling appellant that she had made him something to eat.

            The victim and A.M. were both scheduled to work at 10:30 p.m. that night.  The victim did not show up for work.  At about 12:30 a.m., A.M. left work and drove to appellant’s apartment.  When A.M. got to the apartment complex, he saw the victim’s car and then saw blood on the door to appellant’s apartment unit.  Thinking that something must be wrong, A.M. knocked on a neighboring door but got no answer.  He then drove around looking for a gas station where he could use a telephone but did not find one.  At about 1:00 a.m., he found an open restaurant and called police from there.

            A.M. told police that he became concerned when his girlfriend did not show up for work after going to meet her ex-boyfriend, so he went to appellant’s apartment, where he saw the victim’s car and blood on the door to appellant’s unit.  Police instructed A.M. to meet them near appellant’s apartment complex.  Officers Cook, Ducett, and Ogren went to appellant’s unit.  Sergeant Fitzhenry waited outside with A.M.

            At appellant’s unit, Cook saw what appeared to be blood splattered on the doorknob and the lower half of the door.  There were no footprints or blood on the carpet leading out of the apartment.  The door was not locked, but something was blocking it from opening all the way.  The officers opened the door and saw a large amount of blood pooled on the floor and the victim’s hand holding a set of keys.  The victim’s body was blocking the door.  There was a cut on her neck about two to three inches long and very deep, her body was stiff, and it appeared that rigor mortis had set in.

            Ducett walked down the hallway of appellant’s unit and found appellant in a bedroom.  Appellant had a very large gash on his neck that was bleeding profusely, and there was a knife on the bed.  Appellant was barely conscious but coherent.  When asked by Cook, appellant claimed that A.M. had stabbed him.

            Members of the Hennepin County sheriff’s crime-lab unit came to process the crime scene.  In the bedroom where appellant was found, on a desk about six to eight feet away from the bed, they found a note and a pen.  The note alleged that A.M. had stabbed appellant and the victim.  Appellant’s fingerprints were identified on the note.  There was no blood on the note or the pen or between the desk and the bed.

            Dr. Kathryn Berg performed an autopsy on the victim.  Berg testified that the victim sustained a deep V-shaped wound to her neck with an exit wound near the top of her shoulder.  The shape of the wound was consistent with movement during the assault by either the victim or the person holding the weapon.  Berg could not estimate an exact time of death but opined that the victim died closer to 6:00 p.m. than to the time her body was discovered by the officers.

            Berg estimated that appellant’s injury occurred between 30 minutes and one hour before police arrived.  Berg testified that at 2:43 a.m., appellant’s alcohol concentration was .197 and that the cut to appellant’s neck was consistent with either a self-inflicted wound or a wound inflicted by another person.

The jury found appellant guilty of second-degree intentional murder in violation of Minn. Stat. § 609.19, subd. 1(1) (2000).  The district court sentenced appellant to 313 months in prison, within the presumptive range for a level-ten offense committed by a person with a criminal history score of zero.  Minn. Sent. Guidelines IV-V.  This direct appeal challenging the conviction followed.

D E C I S I O N

I.

            Over appellant’s objection, the district court admitted evidence regarding the victim’s fear of appellant.  A co-worker of the victim’s testified:

            Q.        And what did she tell you, if anything, regarding her relationship with [appellant]?

 

            A.        …[S]he said she was scared.  She said that she was threatened and I told her to move out . . .  And that’s when she told me she had already did that.

 

            Q.        That she had already moved out?

 

            A.        (Nods head.)

 

            Q.        Did she say anything about – about going back to that apartment?

 

            A.        She had things there she had to get back but I mean I’m not clear she was going back.  …

 

            Q.        Did she indicate that – When she said she was afraid, did she say she was afraid to go back to the apartment?

 

            A.        Yeah.

 

            A second co-worker testified:

            Q.        OK.  Now, did [the victim] keep in contact with [appellant] after she moved out of the apartment?

 

            A.        She did.

 

            Q.        What kinds of things did she do with or for him?

 

            A.        She’d give him rides to work or she was – I don’t know – nice to him.  I don’t know why but she’d give him rides to work here and there.

 

            Q.        Did she tell you why she was being nice?

 

            A.        She was afraid of him.

 

            The state concedes that admission of the evidence was error under State v. Bauer, 598 N.W.2d 352, 367 (Minn. 1999) (holding that for evidence of a homicide victim’s state of mind regarding the defendant to be admissible, “(1) the victim’s state of mind must be relevant, as when the defendant raises the defenses of accident, suicide, or self defense;  (2) the probative value of the evidence must not be outweighed by its risk for unfair prejudice; and (3) a proper limiting instruction must be given to the jury”).

            Appellant, however, is not entitled to reversal based on the error if it was harmless beyond a reasonable doubt.  Id.  “When the admission of objected to evidence, although error, is harmless beyond a reasonable doubt, reversal is not required.  An error is harmless, and reversal not required, if the verdict actually rendered was surely unattributable to the error.”  Id. (citations and quotation omitted).

We conclude that the error in admitting the evidence that the victim feared appellant was harmless beyond a reasonable doubt.  There were only two brief references to the victim’s fear of appellant.  There was other evidence that appellant was very angry about the victim breaking up with him and having a relationship with A.M. and that appellant had made specific threats to kill A.M. and the victim, which indicates that the victim had a reason to fear appellant.  There was also very strong evidence of appellant’s guilt.  The victim was found in appellant’s apartment, and the physical evidence was consistent with appellant having stabbed her.  Appellant’s claim that A.M. stabbed him and the victim was inconsistent with the evidence that the victim died several hours before appellant was stabbed.  Also, there was no physical evidence connecting A.M. to the crime, and appellant’s fingerprints were on the note accusing A.M. of stabbing appellant and the victim, but there was no blood on the note or between the desk where the note was found and the bed, which indicates that the note was written before appellant was stabbed.  In light of all of this evidence, the verdict was surely unattributable to the co-workers’ testimony regarding the victim’s fear of appellant.  See id. (concluding that admission of evidence regarding the victim’s fear of her ex-husband was harmless beyond a reasonable doubt).

Appellant argues that the prosecutor compounded the error and caused further prejudice when the prosecutor stated in closing argument,

Two months before her death [the victim] was complaining to her friends that she was afraid of – of [appellant], she was afraid to go back to the apartment and she was afraid to break up the relationship with him because she was afraid of what he might do.  Did she have reason to be afraid?

 

The prosecutor then described the specific threats appellant had made against the victim and A.M.  The argument did not emphasize the victim’s fear, and any potential prejudice was minimized by the description of specific threats immediately following the reference to the victim’s fear.

            Appellant is not entitled to reversal of his conviction based on the testimony regarding the victim’s fear of him and the prosecutor’s brief reference to that testimony during closing argument.

II.

Appellant argues that the prosecutor committed misconduct by failing to instruct A.M. not to refer to physical abuse of the victim by appellant.

This court reviews claims of prosecutorial misconduct only to determine whether “the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.”  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).  In cases in which the misconduct was serious, the standard is whether the misconduct is harmless beyond a reasonable doubt.  Id. Where the misconduct is less serious, the standard is “whether the misconduct likely played a substantial part in influencing the jury to convict.”  Id.

The state declined to offer evidence that the victim’s co-workers had seen bruises on the victim because it could not prove that appellant had caused the bruises.  At the end of the discussion about the admissibility of evidence regarding physical abuse of the victim by appellant, the district court agreed to defense counsel’s request that the prosecutors be advised to talk to those witnesses and advise them not to address that issue.

On direct examination, A.M. testified:

Q.        Did [the victim] tell you anything about [appellant] and her relationship after the two of you moved in together in February, 2002?

 

A.        Yes, ma’am.

 

Q.        What did she tell you?

 

A.        About the uncomfortable life she was having with [appellant].

 

Q.        OK.

 

A.        She used to say about he used to beat her now and then.

 

Defense counsel objected, and the district court ordered the statement stricken and gave a curative instruction.  The prosecutor admitted that she had not instructed A.M. to not refer to physical abuse but explained that A.M. had not brought up abuse during interviews and had arrived at court just before testifying.  The district court denied appellant’s motion for a mistrial and gave another curative instruction, “Jury I want to reemphasize that any testimony regarding physical assaults by [appellant] against [the victim] has been stricken and should be disregarded by you.  There is no evidence there was any such assault.”

The prosecutor has a duty to avoid eliciting inadmissible testimony from a witness.  State v. Ray, 659 N.W.2d 736, 745 (Minn. 2003).  To the extent that the prosecutor’s failure to instruct A.M. to not refer to physical abuse was misconduct, it was only minor misconduct.  Considering the curative instructions and the strength of the evidence against appellant, we conclude that the single reference to physical abuse did not play a substantial part in influencing the jury to convict.

III.

            Appellant argues that the district court erred by declining to instruct the jury on the lesser-included offense of first-degree heat-of-passion manslaughter.

            “[District] courts are allowed considerable latitude in selection of language in the jury charge.”  State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quotation omitted).  The refusal to give a requested jury instruction lies within the district court’s discretion and will not be reversed absent an abuse of discretion.  State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).  “The determination of what, if any, lesser offense to submit to the jury lies within the sound discretion of the trial court, but where the evidence warrants an instruction, the trial court must give it.”  Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986) (citations omitted).

            An instruction on a lesser-included offense should be submitted to the jury when “(1) the offense in question is an ‘included’ offense; and (2) a rational basis exists for the jury to convict appellant of the lesser offense and acquit him of the greater crime.”  State v. Buntrock, 560 N.W.2d 383, 386 (Minn. 1997).  A person who “causes the death of a human being with intent to effect the death of that person or another, but without premeditation” is guilty of second-degree murder.  Minn. Stat. § 609.19, subd. 1(1) (2000). A person who “intentionally causes the death of another person in the heat of passion provoked by such words or acts of another as would provoke a person of ordinary self-control under like circumstances” is guilty of first-degree manslaughter.  Minn. Stat. § 609.20(1) (2000).

            To support his request for a manslaughter instruction, appellant cited evidence regarding the victim breaking up with him and having a relationship with A.M. and the fact that his alcohol concentration upon being admitted to the hospital was .197, which he argues caused him to have diminished self-control.

In State v. Carney, the supreme court explained the first element of manslaughter as follows:

The first element of the heat-of-passion defense is subjective:  whether the killing was actually committed in the heat of passion.  The defendant’s emotional state at the time of the killing is of primary importance in making this determination.  In determining whether the district court erred in denying the instruction we look for a heat of passion that clouds a defendant’s reason and weakens his willpower.  Anger alone is not enough.  A defendant’s behavior before, during and after the crime is relevant to whether the crime was committed in the heat of passion.

 

649 N.W.2d 455, 461 (Minn. 2002) (citations omitted).

 

            There was no evidence that appellant’s emotional state clouded his judgment and weakened his willpower.  Appellant’s friend spoke to appellant between 5:30 and 6:00 p.m. and did not recall anything remarkable about the conversation.  Appellant’s behavior in attempting to frame A.M. following the murder suggests a calculated offense.  See Stewart, 624 N.W.2d at 591 (stating appellant’s conduct in disposing of murder weapon following offense showed “a rational, calculating and controlled emotional state of mind”).  Also, to support his claim of an emotional state warranting a manslaughter instruction, appellant relies on events occurring during approximately two months preceding the murder.  But the heat of passion contemplated by manslaughter is one arising in a matter of minutes rather than months.  See State v. Shannon, 514 N.W.2d 790, 793 (Minn. 1994) (evidence supported submission of manslaughter instruction when the defendant and the victim began arguing just prior to the killing and the dispute escalated to a physical altercation between the victim and the defendant); see also Carney, 649 N.W.2d at 461-62 (upholding district court’s determination that evidence did not justify a manslaughter instruction when appellant was aware and suspicious of wife’s close relationship with another man for months, appellant expressed feelings of jealousy and anger to friends and co-workers about the other man and physically confronted the other man on two occasions; noting that in Shannon, the “progression of events leading to the crime were measured in moments rather than hours”).

There is also no evidence of any provocation, the second element of manslaughter, by any other person’s words or acts at any time close to when the victim was murdered.  Contrary to appellant’s contention, no evidence in the record supports an inference that the victim had gone to appellant’s apartment to make their break-up final.  Furthermore, making a final ending to a relationship is not the type of conduct that would provoke a person of ordinary self-control to murder.

The district court did not err in denying appellant’s request for a manslaughter instruction.

Affirmed.