This opinion will be unpublished and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
State of Minnesota,
Filed September 12, 2006
Ramsey County District Court
File No. K2-04-1112
Mike Hatch, Attorney General, 1800
Stephen V. Grigsby,
Considered and decided by Willis, Presiding Judge, Ross, Judge, and Forsberg, Judge.
Appellant challenges his conviction of aiding and abetting second-degree murder, arguing that the district court abused its discretion by (1) limiting cross-examination of a co-defendant, (2) excluding testimony about appellant’s remorse, (3) excusing a jury panel member based on the panel member’s inability to comprehend English, and (4) denying his motion for a Schwartz hearing. We affirm.
In March 2004 appellant Michael Lo was charged with aiding and abetting second-degree murder in violation of Minn. Stat. §§ 609.19, .05 (2002), after appellant and friends allegedly stabbed a victim more than 20 times in a convenience store parking lot. The victim died three days after the attack.
Unlike his co-defendants who entered guilty pleas, appellant pleaded not guilty, and the matter proceeded to trial. During voir dire, over appellant’s objection, a juror was excused because he had difficulty comprehending English. Early in the trial, respondent reported to the court and appellant’s counsel that a juror may have been sleeping during presentation of its case. The district court monitored the juror, twice asking if the juror was paying attention. Both times, the juror responded affirmatively, stating that he was merely looking down at his notes.
At trial, the parties disputed the scope of cross-examination as to the co-defendants’ plea agreements. The district court, over appellant’s objection, prohibited appellant from eliciting testimony regarding the exact number of months a co-defendant’s sentence would be reduced as a result of the plea, but permitted testimony regarding the percentage of reduction of the sentence, the original charged offense, and the reduced charge to which a co-defendant pleaded guilty. Appellant also sought to subpoena his co-defendants’ attorneys to testify about the contents of the plea petitions and conversations with their clients regarding discovery. The co-defendants asserted the attorney-client privilege, and the district court denied appellant’s request on that basis.
During direct examination of Kao Vang, the only testifying co-defendant, Vang testified that he had struck a deal with the state in exchange for a reduced charge that would decrease his sentence by 78%. Appellant’s cross-examination reiterated that Vang had negotiated a deal with respondent in exchange for a lesser charged offense and included the following exchange:
[Defense]: You knew they were trying to convict [appellant] of the charge of murder when you made the deal, correct?
[Witness]: That’s correct.
[Defense]: And that was the same charge that you had originally faced; isn’t that correct?
[Witness]: That’s correct.
. . . .
[Defense]: As you sit here and testify today, are you facing a murder charge?
[Witness]: No, I’m not.
[Defense]: You’re not because, as part of your agreement, the State agreed to get rid of that murder charge, correct?
[Witness]: That’s correct.
[Defense]: And allow you to plead to a lesser charge, correct?
[Witness]: That’s correct.
Appellant’s cross-examination also elicited the information that Vang would not be sentenced until after he testified truthfully for the prosecution. Appellant then asked, “And if for any reason you don’t perform your end of the plea bargain here, you don’t get rid of that murder charge, correct?” The district court sustained respondent’s objection on the grounds that the question misstated the plea agreement and instructed the jury to disregard the answer.
During appellant’s testimony, defense counsel asked appellant how he felt about the victim’s death as a result of the attack. Respondent objected, and appellant’s counsel argued that the question went to his intent during the attack. The district court sustained the objection on relevance grounds.
The jury found appellant guilty of aiding and abetting second-degree murder. Appellant moved for a new trial and a Schwartz hearing based on information from a courtroom deputy that a juror slept during appellant’s testimony and closing argument. A summary hearing was held on the motion, and the deputy testified to her observations of the allegedly sleeping juror, including the fact that the juror sat with his eyes closed nearly every day, that his head would drop in a manner indicating sleep, and that other jurors kicked the juror’s chair and elbowed him, presumably to awaken him. The district court noted that appellant’s counsel was aware of the issue and failed to take action until after the verdict. The district court denied the motion for a Schwartz hearing on the grounds that it had monitored the juror throughout the trial and had received alert responses from the juror when the juror was admonished. The district court concluded, “I do not believe there is sufficient evidence to warrant bringing back jurors now seven weeks later to have any further inquiry and I’m denying your motion.” This appeal followed.
argues that the district court abused its discretion in two evidentiary rulings,
and, therefore, he is entitled to reversal of his conviction and a new
trial. Rulings on evidentiary matters
rest within the sound discretion of the court.
State v. Kelly, 435 N.W.2d
807, 813 (
Limiting Cross-examination of Co-defendant
Appellant contends that the district court abused its discretion by precluding him from cross-examining a co-defendant about the exact number of months the co-defendant’s sentence would be reduced as a result of the plea bargain and the fact that the
on concerns about such things as harassment, decision making on an improper
basis, confusion of the issues, and cross-examination that is repetitive or
only marginally relevant, the [district] court possesses wide latitude to
impose reasonable limits on cross-examination of a prosecution witness.” State
v. Tran, 712 N.W.2d 540, 550 (
criminal cases, the Confrontation Clause contemplates a cross-examination in
which the defendant has the opportunity to reveal “a prototypical form of bias”
on the part of the witness. State v. Lanz-Terry, 535 N.W.2d 635, 640
Here, appellant was permitted to cross-examine his co-defendant about the co-defendant’s original charge of second-degree murder, the reduced charge of aiding and abetting to which the co-defendant pleaded guilty, and the percentage of reduction of the co-defendant’s sentence under the plea bargain. Appellant’s cross-examination of the co-defendant also elicited that only prosecutors are able to offer lesser sentences for testimony, that the co-defendant would not receive the lesser sentence until after he testified on behalf of respondent, and that the co-defendant’s only opportunity to testify was in appellant’s trial because the other co-defendants had pleaded guilty. This cross-examination provided sufficient information to allow the jury to examine the co-defendant’s potential bias or motive to fabricate and is consistent with the limitations deemed proper under DeVerney and Greenleaf.
nonetheless, argues that DeVerney and
Greenleaf are not controlling, and
that this court should instead follow the Eighth Circuit Court of Appeal’s
decision in United States v. Roan Eagle,
867 F.2d 436 (8th Cir. 1989). But DeVerney and Greenleaf are Minnesota Supreme Court decisions decided after Roan Eagle that directly address the
issue of limitations on cross-examination as to a co-defendant’s plea
agreement; thus, the cases are controlling and binding, and this court does not
have authority to decline to follow them.
See Tereault v. Palmer, 413
N.W.2d 283, 286 (
it is not apparent that Roan Eagle conflicts
with DeVerney and Greenleaf. In Roan
Eagle, the appellant was barred from inquiring into the specific lesser
charge to which her co-defendant pleaded and the sentence that she might
receive, and was permitted to cross-examine the co-defendant only as to the
original charge in the indictment, the fact that the co-defendant cooperated
with the prosecution, and the fact that the co-defendant was allowed to plead
guilty to a lesser charge. 867 F.2d at
440. In dictum, the Eighth Circuit found
that these limitations constituted error, concluding that effective
cross-examination “includes not only the specific crime to which the co-actor
is pleading guilty, but the range of punishment to which the one pleading
guilty is exposed to in contrast to what that person knows—or ought to know—is
the potential sentence for a conviction following a plea of not guilty.”
In accord with Roan Eagle, DeVerney and Greenleaf do not limit a defendant’s right to cross-examine only regarding the specific charges to which a co-defendant is pleading guilty, and the decisions allow for a “range of punishment” to be elicited through inquiries about the percentage of reduction of the sentence as a result of the plea agreement, and only prohibit inquiries about the precise number of months the sentence could be reduced. See DeVerney, 591 N.W.2d at 845 (noting that district court, while prohibiting defendant from inquiring as to the exact number of months the co-defendant’s sentence could be reduced, did not prohibit defendant from cross-examining co-defendant about “every other aspect of the plea agreement, including the percentages by which [co-defendant’s] sentenced could be reduced”); see also Greenleaf, 591 N.W.2d at 488 (prohibition only cross-examination about exact number of months co-defendant’s sentence could be reduced). Consequently, Roan Eagle and the Minnesota decisions do not reach contradictory conclusions.
Because the minimal limitation placed on appellant’s cross-examination of his co-defendant did not prevent the jury from being exposed to any possible bias or motive to fabricate and was consistent with controlling precedent, the district court did not abuse its discretion in excluding questions regarding the exact number of months the co-defendant’s sentence would be reduced.
Testimony Regarding Appellant’s Remorse
Appellant also argues that the district court abused its discretion by excluding evidence of his remorse over the victim’s death because this prevented him from demonstrating that he lacked the requisite intent to “knowingly aid in another’s death.” Respondent contends that appellant’s remorse on the date of the victim’s death is irrelevant to intent on the date of the offense and, therefore, was properly excluded.
criminal defendant’s right to present evidence in his defense is limited by the
rules of evidence, and there is no right to present irrelevant evidence.” State
v. Medibus-Helpmobile, Inc., 481 N.W.2d 86, 91 (
appellant sought to introduce testimony regarding how he felt about the
victim’s death. But the victim’s death
did not occur until three days after the date of the attack, and “remorse, or
lack of it, [is] relevant only if it has some relation to [a defendant’s] state
of mind at the time of [the offense].” State v. Martin, 567 N.W.2d 62, 66 (
appellant argues that the district court abused its discretion by excusing a
panel member during voir dire and by denying a Schwartz hearing for jury misconduct. The district court has substantial discretion
in conducting voir dire, and this court will not overturn a district court
absent an abuse of discretion. State v. Greer, 635 N.W.2d 82, 87 (
Excusing Panel Member
Appellant contends that the district court abused its discretion during voir dire by excusing a panel member who had difficulty understanding English, arguing that this was the equivalent of a court-imposed literacy test and constituted impermissible discrimination based on national origin. Respondent argues that an ability to communicate in English is a valid and racially neutral basis for juror disqualification.
citizen shall not be excluded from jury service in this state on account of
race, color, religion, sex, national origin, economic status, or a physical or
appellant did not provide a transcript of the voir dire proceedings; thus, he
waived the issue on appeal. See State
v. Engler, 319 N.W.2d 705, 705 (Minn. 1982) (declining to consider claims
when only trial transcript was furnished on appeal). Regardless, the argument that an English
comprehension requirement has a disparate impact on minority jurors and,
therefore, constitutes illegal discrimination fails. “A disparate impact alone will not violate
the principle of race neutrality[.]” State v. Martin, 614 N.W.2d 214, 223 (
Denial of Schwartz Hearing
also argues that the district court abused its discretion in denying a Schwartz hearing because he presented
sworn testimony of a courtroom deputy that a juror slept through significant
portions of the trial. See Schwartz v. Minneapolis Suburban Bus Co.,
purpose of a Schwartz hearing is to
determine whether a jury verdict is the product of misconduct. Greer,
635 N.W.2d at 93. To obtain a Schwartz hearing, a defendant must
establish a prima facie case of jury misconduct by submitting “sufficient
evidence which, standing alone and unchallenged, would warrant the conclusion
of jury misconduct.” State v. Larson, 281 N.W.2d 481, 484 (
party who learns of misconduct of a juror during trial may not keep silent and
then attempt to take advantage of it in the event of an adverse verdict.” State
v. Durfee, 322 N.W.2d 778, 786 (
Here, appellant’s only evidence of juror misconduct, the testimony of a courtroom deputy that one juror slept throughout the trial, was contradicted by the record, which establishes that the juror was immediately alert and responsive when asked by the district court if he was sleeping. The district court also indicated that it paid close attention to the juror throughout the trial and observed him to be largely attentive. Further, appellant waived the issue by failing to take action until after the adverse verdict, despite the fact that he was apprised of the sleeping juror issue early on and throughout trial. Consequently, denial of a Schwartz hearing was not an abuse of discretion.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Appellant argues that he was not allowed to elicit testimony from co-defendant Vang regarding the fact that Vang would not be sentenced until after testifying against him at trial. But appellant, without objection, engaged in the following exchange with Vang: “[Defense]: Now, you haven’t been sentenced yet in this matter? [Witness]: No, I have not. [Defense]: And that’s not going to happen until after you’ve come in here and given testimony against [appellant], correct? [Witness]: That’s correct.”
 Appellant also raises the issue of the
district court’s refusal to permit him to subpoena the co-defendants’ attorneys
to testify regarding conversations with their clients about discovery,
information about other co-defendants’ versions of events, and plea
negotiations. But appellant never developed
this argument beyond a mere contention, providing no legal citation or
analysis. Thus, this issue is