This opinion will be unpublished and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

A04-1381

 

State of Minnesota,

Respondent,

 

vs.

 

Pacifique Gahamanyi,

Appellant.

 

Filed July 26, 2005

Affirmed

Worke, Judge

 

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)

 

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            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

WORKE, Judge

            In this appeal from a second-degree-assault conviction, appellant argues that the prosecutor committed prosecutorial misconduct by asking “were they lying” questions on cross-examination.  Because the prosecutor did not commit prejudicial misconduct, we affirm.  

FACTS

 

Appellant Pacifique Gahamanyi immigrated to the United States in 1999.    After arriving in Minnesota in November 2002, appellant stayed with a friend, Salum Habimana.  When appellant moved out, he left some luggage with Habimana.  Appellant attempted several times to contact Habimana regarding his luggage, but was unsuccessful.  Appellant next attempted to reach Habimana through a mutual friend, Saido Ntakagero, but those attempts also proved futile. 

On November 27, 2003, appellant called for police assistance in getting his luggage through Ntakagero, but Ntakagero was not at home.  On November 30, 2003, appellant again called for police assistance in recovering his luggage through Ntakagero.  As officers were en route to appellant’s call, they received another call to the same building regarding a knife being held to someone’s throat. 

Ntakagero’s wife, K.U., testified that on November 30, 2003, she returned home with her friend, S.B., to find appellant at the front door of her apartment building.  K.U. testified that they all went into her apartment, where appellant asked where to find Habimana. Because appellant appeared very angry, K.U. called her husband. While K.U. was calling her husband, appellant held a knife very close to K.U.’s face and said, “I can hurt somebody.”  Ntakagero testified that he received a phone call from his wife who sounded “scared” and told him that appellant was in their apartment and had a knife.  Ntakagero then spoke on the telephone with appellant, and appellant told Ntakagero that he would kill somebody if he did not find his luggage.  Ntakagero asked appellant to leave and when he refused, Ntakagero called the police.  This was the second call that officers received en route to the apartment building. 

S.B. testified that after appellant approached the women outside, they all went into K.U.’s apartment and S.B. went into the bedroom.  S.B. testified that K.U. came into the bedroom and told her that appellant showed her a knife.  The women then emerged from the bedroom together.  Appellant questioned S.B. regarding Habimana’s whereabouts and his luggage.  After S.B. told appellant that she did not know where Habimana lived, appellant told her that he could hurt her and “even the police won’t know that [appellant] touched [her], so [she] just better watch out.” 

On direct examination, appellant provided drastically different testimony.  Appellant testified that he approached K.U. and S.B. in the parking lot and asked K.U. about her husband.  K.U. told appellant that Ntakagero was at work.  Appellant called Ntakagero, who refused to cooperate and challenged appellant to call the police.   Appellant testified that after the phone call ended badly, he went back to his car and called the police.  Contrary to the state’s witnesses’ testimony, appellant testified that he never entered the apartment, never threatened anyone with a knife, and never threatened to hurt anybody.  The state cross-examined appellant, and the following exchange occurred:

Q:        --says that you pulled out your knife and held it in front of her face and yelled at her.

 

A:        I understood that.

Q:        Do you know whether she’s lying or telling the truth?

 . . . .

Q:        So, Mr. Gahamanyi, was she telling the truth or was she not telling the truth?

 

A:        It’s not the reality of things.

 . . . .

Q:        And you heard Saido Ntakagero testify about the threats that he heard you made [sic] over the phone, do you remember that?

 

A:        He testified.  That’s what he testified.  That doesn’t interest me at all.

 

Q:        Was he telling the truth or was he not telling the truth?

 . . . .

A:        That’s not the truth.

Q:        And you also heard testimony from [S.B.] that you threatened to hurt her very badly in a way the police wouldn’t recognize her?

 

A:        Not really.

Q:        I’m sorry, are you saying that you didn’t hear her testify that way?

 

A:        No, I heard the testimony.

Q:        Okay.  Was she telling the truth or was she not telling the truth?

 

A:        It wasn’t the truth.

Q:        Mr. Gahamanyi, why would all these people be making all these things up about you?

 

A:        Me, too.  Personally it still goes over my head until this time.

On April 5, 2004, a jury convicted appellant of second-degree assault, in violation of Minn. Stat. § 609.222, subd. 1 (2002), for his acts against K.U. and terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1 (2002), for his acts against S.B.  The district court sentenced appellant to 21 months in prison. 

D E C I S I O N

 

Appellant argues that the prosecutor committed misconduct by asking appellant on cross-examination to comment on the truthfulness of the state’s witnesses.  Appellant argues that this error deprived him of a fair trial.  “The determination of whether there was misconduct and whether that misconduct was prejudicial generally lies within the sound discretion of the district court, which is in the best position to measure its effect.”  State v. Voorhees, 596 N.W.2d 241, 253 (Minn. 1999).  Appellate courts reviewing claims of prosecutorial misconduct “will reverse only if 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).  If prosecutorial misconduct is found, and the misconduct is serious, it will be considered harmless beyond a reasonable doubt if the verdict was surely unattributable to the misconduct.  State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).  For less-serious misconduct, the error is harmless if the misconduct did not likely play a substantial part in influencing the jury to convict.  Id.

Appellant alleges that it was misconduct for the prosecutor to question him regarding the truth of the state’s witnesses’ testimony.  “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  Generally, “were they lying” questions are viewed with concern for two main reasons.  First, such questions ask one witness to express an opinion as to the veracity of another witness, which “calls for improper comment on another witness’ testimony and . . . it is the province of the jury to determine the credibility of witnesses.”  State v. Pilot, 595 N.W.2d 511, 516 (Minn. 1999).  Further, “were they lying” questions are perceived as “unfairly giving the jury the impressions that in order to acquit, they must determine that witnesses whose testimony is at odds with the testimony of the defendant are lying.”  Id.at 516-17.  In Pilot, the Minnesota Supreme Court stated, “[a]s a general rule, ‘were they lying’ questions have no probative value and are improper and argumentative because they do nothing to assist the jury in assessing witness credibility in its fact-finding mission and in determining the ultimate issue of guilt or innocence.”   Id.at 518.  There is, however, no bright-line rule prohibiting such questions, and such questions may have probative value in situations when a witness claims that everyone but the witness lied, and when a witness “flatly denies the occurrence of events” testified to by other witnesses.  Id.

Appellant, recognizing that there is no bright-line rule prohibiting such questions, argues that the “were they lying” questions in this matter were improper because they did not have any probative value.  Appellant argues that rather than flatly denying the occurrence of events testified to by other witnesses, the defense here merely pointed out inconsistencies and potential bias of the state’s witnesses. 

The defense, as appellant argues, did point out three main inconsistencies in the state’s witnesses’ testimony.  The defense impeached K.U. and S.B. regarding statements each made to the first officer who arrived, specifically:  if appellant met them at the apartment door or if they let him into the apartment after he knocked; whether they called an adult male friend to come over and attempt to calm appellant down; and how far appellant held the knife from K.U.’s face.   On rebuttal, the prosecutor called a detective who took detailed statements from the women and testified that the women’s statements were consistent with their testimony at trial. 

Appellant asserts that the state’s witnesses made the stories up because they were biased against appellant.  More specifically, appellant contends that Ntakagero was annoyed with appellant for constantly calling him; the state’s witnesses believed that appellant was a “freeloader”; and because, according to appellant, Muslims do not tell the truth.  

It remains clear, however, that appellant’s defense was also based on the theory that none of the events that the state’s witnesses testified to occurred.  A police officer testified that when he initially questioned appellant about the incident, appellant stated that he was not involved in any way with the incident involving the knife, and at no time did he ever put a knife to anyone’s face or throat. Appellant also denied to the officer ever going into the apartment.   Appellant testified on direct examination and again on cross-examination that he never entered the building, that he never threatened anybody, that he never threatened anybody with a knife, and that he never threatened to hurt anybody.  Although the defense did summarize in closing argument the inconsistencies and the potential bias, the defense also emphasized in closing argument that appellant had testified that he did not go into the apartment, that he did not point a knife at anybody, that he did not attempt to terrorize anybody, and that he merely waited in his car after meeting the women in the parking lot.

While “were they lying” questions may constitute prosecutorial misconduct in certain circumstances, that case is not presented here.  Appellant flatly denied the state’s witnesses’ testimony regarding the occurrence of the events, and appellant claimed that he told the truth and the state’s witnesses lied.  See Pilot, 595 N.W.2d at 518.  Although the better practice is to avoid such questions and leave credibility determinations to the jury, the state’s questions had probative value here, and no prosecutorial misconduct occurred.

            Affirmed.