This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed February 28, 2006
Hennepin County District Court
File No. 03084994
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender,
Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
On remand from the Minnesota Supreme Court, this court was directed to address whether the prosecutor’s act of posing “were they lying” questions to appellant on cross-examination constituted misconduct under State v. Morton, 701 N.W.2d 225 (Minn. 2005). We conclude that the prosecutor’s act of posing “were they lying” questions was proper and did not constitute misconduct. We affirm.
D E C I S I O N
remand asks this court to address whether the prosecutor committed
prosecutorial misconduct under Morton
by asking “were they lying” questions during appellant’s
cross-examination. In Morton, the appellant had been convicted
of first-degree felony murder involving criminal sexual conduct and
second-degree intentional murder of a motel clerk. Morton,
701 N.W.2d at 227-28. Two motel
employees testified regarding conversations they had had with the
The supreme court compared
the use of “were they lying” questions in Morton
to the circumstances in State v.
Pilot, 595 N.W.2d 511 (
this court’s previous opinion, we relied onPilot in concluding that it
was not misconduct for the prosecutor to ask “were they lying” questions because
appellant flatly denied the state’s witnesses’ testimony regarding the
occurrence of events and claimed that the state’s witnesses lied. State
v. Gahamanyi, No. A04-1381, 2005 WL 1734915, at * 3 (Minn. App. July 26,
2005), vacated mem. (
Appellant testified twice on direct examination regarding his Christian upbringing. On cross-examination the prosecutor asked appellant “were they lying” questions regarding three of the state’s witnesses. One witness testified that appellant held a knife in front of her face and yelled at her. The prosecutor asked, “Do you know whether she’s lying or telling the truth?” Appellant responded, “It’s not the reality of things.” A second witness testified that he heard appellant make threats over the phone. The prosecutor asked appellant, “Was he telling the truth or was he not telling the truth?” Appellant replied, “That’s not the truth.” Finally, a third witness testified that appellant had threatened to hurt her in such a way that she would be unrecognizable to the police. The prosecutor asked, “Was she telling the truth or was she not telling the truth?” Appellant responded, “It wasn’t the truth.” The prosecutor asked appellant why all of the witnesses would be making things up about him, and appellant responded that “it still [went] over [his] head until this time.” The prosecutor then asked appellant if he remembered a reason why he told an officer that the witnesses were making things up about him. Appellant responded, “I thought that I told him that they were Muslims because I know that of Muslims [sic] don’t speak the truth.”
Here, unlike Morton, appellant did not merely contradict the witnesses’ testimony, but, rather, insinuated that they were deliberately falsifying their testimony because they are Muslim. See Morton, 701 N.W.2d at 235. This case is like Pilot, when “were they lying” questions are permitted because appellant “held the issue of the credibility of the state’s witnesses in central focus” and when appellant insinuated that the witnesses fabricated their testimony to convict him of a crime that he did not commit. Pilot, 595 N.W.2d at 518. As we stated in our first opinion, it is better practice to avoid such questions. Gahamanyi, 2005 WL 1734915, at *3. But, here, the district court did not abuse its discretion in determining that the prosecutor could use “were the lying” questions.