A04-1381

State of Minnesota,

Respondent,

vs.

Pacifique Gahamanyi,

Appellant.

Filed February 28, 2006

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

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

The 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 appellant. Id. at 234-35. After the appellant denied having both conversations on cross-examination, the prosecutor asked whether the witnesses were telling the truth. Id. at 235. During closing argument, the prosecutor highlighted the appellant’s responses to argue that the jury would have to believe that the witnesses were mistaken in order to believe the appellant. Id.

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 (Minn. 1999). Id. In Pilot, the supreme court held that as a general rule, “were they lying” questions are improper because they have no probative value and do not assist the jury in assessing witness credibility and in determining guilt or innocence. Pilot, 595 N.W.2dat 518. But the court also concluded that “‘were they lying’ questions may have a probative value in clarifying a particular line of testimony, in evaluating the credibility of a witness claiming that everyone but the witness lied or, [when] the witness ‘flatly denies the occurrence of events.’” Id. In Pilot, the appellant claimed that the state’s witnesses were lying and that the evidence against him was fabricated as part of a conspiracy to convict him of a crime he did not commit. Id. The court concluded that the use of “were they lying” questions during cross-examination did not constitute error because these questions “could well have assisted the jury in weighing Pilot’s own veracity and in evaluating his conspiracy theory.” Id. Although the use of “were they lying” questions was permissible in Pilot, in a situation when the defendant “[holds] the issue of the credibility of the state’s witnesses in central focus[,]” Id., it was not proper for the prosecutor to ask that type of question of the defendant in Morton, because “he did not state or insinuate that [the state’s witnesses] were deliberately falsifying any of [their testimony].” Morton, 701 N.W.2d at 235. The court concluded, however, that the error was not prejudicial because there was not a reasonable likelihood that the absence of the misconduct would have had a significant effect on the outcome. Id.

Here, in 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. (Minn. Oct. 18, 2005). The circumstances here are not like those in Morton. Following the state’s case-in-chief, and prior to appellant deciding whether he wanted to testify, the prosecutor moved the court to be permitted to impeach appellant with statements he had made to a police officer regarding appellant’s characterization of the state’s witnesses being untruthful because they are Muslim. The district court reserved making a final determination in the event appellant testified, but balanced the relevancy and materiality of the line of inquiry against its potential for prejudicing appellant. The district court ultimately determined that the evidence would be relevant and probative depending on how appellant testified.

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.

Affirmed.