This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1470

 

 

State of Minnesota,

Respondent,

 

vs.

 

Edward Nuku Tarr,

Appellant.

 

 

Filed October 11, 2005

Affirmed

Lansing, Judge

 

 

Hennepin County District Court

File No. 03069738

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

John Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

 

            Considered and decided by Dietzen, Presiding Judge; Lansing, Judge; and Klaphake, Judge.


U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            On appeal from convictions for attempted second-degree murder, first-degree burglary, and second-degree assault, Edward Tarr argues that the district court abused its discretion by removing for cause a prospective juror and admitting into evidence a redacted transcript of a codefendant’s guilty plea.  In a pro se supplemental brief, Tarr challenges the sufficiency of the evidence on the element of identity and the district court’s rulings on the admissibility of evidence of a prior offense.  Because the district court acted within its discretion in removing the juror and admitting the transcript, and because Tarr’s pro se arguments lack a legal or factual basis for reversal, we affirm.

F A C T S

The facts underlying Edward Tarr’s conviction stem from an incident in September 2003, when Rodney George and another man forced their way into Verdell Caples’s apartment.  Caples knew the other man as “E.”  After gaining entry into the apartment, George confronted Caples about an altercation between the two of them several weeks earlier.  The discussion escalated, “E” gave George a knife, and George stabbed Caples.  Caples identified Tarr as “E” in a photo lineup, and Brooklyn Park police officers arrested him.  The Hennepin County Attorney charged George and Tarr with first-degree burglary, second-degree assault, and first- and second-degree attempted murder.  George pleaded guilty to first-degree burglary.

N.Y., a Hmong man, was among the prospective jurors for Tarr’s trial.  During voir dire, N.Y. stated that he could be an impartial juror, but he later asked to meet privately with the court and to see pictures of the police officers involved in the case.  N.Y. explained that he had several negative experiences with the Brooklyn Park Police Department in the past.  He reported that police officers had stopped his car “for dumb reasons” that he attributed to his race, that his father had complained to the department about improper conduct directed at his father, and that Minneapolispolice officers had forcefully executed an arrest warrant for N.Y.’s brother.  After a series of questions by the court and both attorneys, the court removed N.Y. from the jury panel for cause.  

George testified at trial, in contradiction to statements at his plea hearing, that Tarr was not with him when he forced his way into Caples’s apartment.  He initially stated that he did not recall previously testifying at his plea hearing that Tarr had been with him at Caples’s apartment.  In response to further questioning, he suggested that he had only been answering the leading questions of his attorney and that Tarr was not with him.  In questioning George about his earlier statements, the prosecutor relied on a transcript of his plea hearing.  The court admittedinto evidence a redacted transcript of the plea hearing and allowed the jury to take it into the jury room.  The redacted transcript excluded the offense to which George pleaded and the sentence he received.

The jury found Tarr guilty of first-degree burglary, second-degree assault, and second-degree attempted murder.  Tarr raises five issues onappeal:  (1) the court erred in removing N.Y. for cause; (2) the court erred in admitting the transcript; (3) the court erred in allowing the jury to take the transcript into the jury room; (4) the evidence was insufficient on the element of identity to support the jury’s verdict; and (5) the court improperly ruled that evidence of a prior conviction would be admissible if Tarr testified.           

D E C I S I O N

I

A defendant has a right to an impartial jury.  U.S. Const. amend. VI; Minn. Const. art. I, § 6.  A prospective juror may be removed for cause based on “[t]he existence of a state of mind on the part of the juror . . . which satisfies the court that the juror cannot try the case impartially.”  Minn. R. Crim. P. 26.02, subd. 5(1).  The court should excuse a juror exhibiting this state of mind unless the juror is rehabilitated and unequivocally states that he or she can be impartial.  State v. Logan, 535 N.W.2d 320, 323 (Minn. 1995).  Thedistrict courtis in the best position to judge whether a juror is impartial.  State v. Drieman, 457 N.W.2d 703, 708-09 (Minn. 1990); State v. Courtney, 682 N.W.2d 185, 205 (Minn. App. 2004) (noting court “has the absolute right to determine from a juror’s answers that a challenge for cause is justified”), rev’d on other grounds, 696 N.W.2d 73 (Minn. 2005).  Thedistrict court’s decision on a juror’s impartiality is entitled to special deference because it is essentially a determination of credibility and of demeanor.  Logan, 535 N.W.2d at 323.

            The district court acted within its discretion in removing N.Y. for cause.  N.Y.’s responses support the determination that he could not have been an impartial juror.  He repeatedly stated that it would be difficult for him to be a juror and also made several broad present-tense statements about the Brooklyn Park Police Department, including “[pulling drivers over based on their race] is what they like doing in Brooklyn Park,” “every time they approach you they’re always in a bad attitude,” and “[this isn’t a case I’d like to sit on] because of the way they treat people and stuff.”  Although Tarr argues that N.Y.’s negative impressions of the police are common to many persons of color, N.Y. was not making vague or generalized statements about his view of police officers; he was recounting specific experiences involving the same police department that had responded to the initial call and investigated the case.  N.Y. made limited responses to questions about his ability to evaluate the evidence fairly without regard to his experiences—saying only “Yeah” or “Uh-huh.”  The district court could reasonably take into account the type of response as well as its substance in deciding whether N.Y. could be an impartial juror.  See Logan, 535 N.W.2d at 324 (noting district court is “free to believe those statements that were the most fully articulated or that appeared to have been least influenced by leading questions”) (quotation omitted).

Tarr argues that N.Y. was successfully rehabilitated because N.Y. did not unequivocally state that he was biased.  Buttheabsence of such a statement does not mean the presence of unequivocal impartiality, which is required to be a juror.  See Logan, 535 N.W.2d at 323 (requiring juror to assert impartiality to establish rehabilitation).  An indication of partiality, as observed by the district court, is sufficient to remove a juror for cause under Minn. R. Crim. P. 26.02, subd. 5(1).  See State v. Bowers, 482 N.W.2d 774, 776-77 (Minn. 1992) (finding juror who remained “tentative and unconvinced” was “slightly,” but insufficiently, rehabilitated).  The district court was in the best position to evaluate N.Y.’s credibility and demeanor, and the court acted within its discretion in removing N.Y. from the jury panel for cause.

II

“Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos,658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).

A prior inconsistent statement is admissible as nonhearsay when it is “inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.”  Minn. R. Evid.  801(d)(1)(A).  Extrinsic evidence of a prior inconsistent statement is admissible if the declarant has an opportunity to address the inconsistency.  Id. 613(b).  A court may exclude otherwise relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”  Id. 403. 

The district court determined that the transcript of George’s guilty-plea hearing was admissible as a prior inconsistent statement because George’s testimony contradicted statements made under oath at his plea hearing, and he had an opportunity to explain the inconsistency at Tarr’s trial.  Tarr argues, however, that the transcript was cumulative and created a risk of prejudice because it emphasized Tarr’s identity.  We disagree.

            The district court did not abuse its discretion in admitting the transcript.  George initially testified that he did not “recall” saying Tarr was with him and, upon seeing the transcript, he commented “[t]hat’s what it says.”  The transcript provided context and was not unnecessarily cumulative nor does the record suggest that admission of the transcript created an unfair risk of prejudice.

            Tarr asserts that the transcript was inadmissible because it also contained unhelpful prior consistent statements.  See id. 801(d)(1)(B) (conditioning admissibility of prior consistent statements on whether they are helpful in evaluating declarant’s credibility).  Although Tarr couches his argument in terms of the admissibility of prior consistent statements, its essence is that the transcript was insufficiently redacted and should have included only the statements inconsistent with George’s testimony.  Tarr did not make this objection at trial, and it is therefore waived on appeal.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (holding failure to raise issue before district court generally precludes its litigation on appeal).

            Even if the court had erred by admitting portions of the transcript, any error was harmless and does not require a new trial.  The jury heard other evidence that independently identified Tarr, including Caples’s testimony and identification of Tarr in a photo lineup.  The jury also heard George’s testimony on the substance of the transcript statements and the precise plea questions that elicited his responses identifying Tarr.  Tarr points to nothing in the transcript that resulted in reversible error, therefore we conclude that any error was harmless.

III

The rules of criminal procedure state:  “The court shall permit the jury . . . to take to the jury room exhibits which have been received in evidence.”  Minn. R. Crim. P. 26.03, subd. 19(1).  Although the rule uses the word “shall,” the court must “exercise caution and discretion” and consider whether the material will aid the jury, whether the material will unduly prejudice a party, and whether the jury might improperly use the material.  State v. Kraushaar, 470 N.W.2d 509, 515 (Minn. 1991).  Courts have allowed a broad range of materials in the jury room.  See, e.g., id. (allowing jury’s replay of videotape of sexual assault victim talking about defendant); State v. Barbo, 339 N.W.2d 905, 906 (Minn. 1983) (examining propriety of allowing jury to take into jury room audiotape of conversation in which defendant incriminated himself); State v. Gensmer, 235 Minn. 72, 81, 51 N.W.2d 680, 686 (1951)(permitting jury’s use of audiotape of defendant’s confession).

The district court did not abuse its discretion by allowing the jury to take the guilty-plea transcript into the jury room.  The transcript potentially aided the jury in assessing the credibility of George, who was vague and evasive when asked about his plea statements.  The record does not support Tarr’s assertion that the court prejudiced him by emphasizing the transcript.  The court ruled on the transcript’s admissibility after hearing closing arguments and excusing the jury.  The court called the jurors back into the courtroom to give them the transcript, but the court stated only that it was giving the jury another exhibit.  The jury had already received other trial exhibits, and the manner in which the court gave the jury the transcript does not suggest that the court placed a greater emphasis on this particular exhibit.  Neither does the record demonstrate any risk that the jury improperly used the transcript.  The court acted within its discretion by allowing the jury to take the transcript to the jury room.

IV

In a challenge to the sufficiency of the evidence, we review the record in the light most favorable to the jury’s verdict and ask only “whether the jury could reasonably find the defendant guilty given the facts in evidence and the legitimate inferences which could be drawn from those facts.”  State v. Miles, 585 N.W.2d 368, 372 (Minn. 1998); State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We assume the jury believed the witnesses’ testimony that supported the verdict and disbelieved any contradictory evidence.  State v. Henderson, 620 N.W.2d 688, 705 (Minn. 2001).

            Tarr’s claim that the evidence was insufficient on the element of identity is without merit.  He points only to George’s testimony that Tarr was not with him, Caples’s statements to police officers that the man with George had a shaved head, and the evidence that Tarr did not have a shaved head.  But the jury also knew that, at his plea hearing, George said Tarr was with him.  Additionally, the jury heard Caples testify that he used the word “shaved” to mean short hair; Tarr had braids close to his scalp.  Caples also testified that he was familiar with Tarr, whom he knew as “E,” before the attack; he repeatedly told his girlfriend and police officers that “E” was the man with George.  Viewed in the light most favorable to the jury’s verdict, the evidence is sufficient on the element of identity to support Tarr’s conviction.

V

Tarr’s pro se assertion that the court acted improperly to deter him from testifying lacks a factual basis.  The state moved several times to admit Tarr’s prior conviction for aggravated robbery for substantive purposes under Minn. R. Evid. 404(b), and for impeachment purposes if Tarr testified.  The court ruled against admission as substantive evidence each time and never ruled on its use for impeachment.  The record does not support Tarr’s claim that he was subject to any improper threat of the use of his prior conviction when making his decision of whether to testify.

            Affirmed.