Hennepin County District Court

File No. 95082885

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2829 University Avenue S.E. #600, Minneapolis, MN 55414 (for Appellant)

Leon NMN Walls, Box 55 - 185721, Stillwater, MN 55082 (Pro Se Appellant)

Hubert H. Humphrey, III, State Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Considered and decided by Peterson, Presiding Judge, Willis, Judge, and Forsberg, Judge.

Appellant Leon Walls contests a jury conviction for first-degree assault. He challenges the sufficiency of the evidence on the element of great bodily harm and the admissibility of a portion of the audiotape of his interrogation. Appellant's pro se brief challenges the introduction of the entire interrogation tape, the legality of the verdict, the denial of his motions for a mistrial, and the admission of a tape of a 911 call. Because the trial court did not err or abuse its discretion with regard to any of appellant's claims, we affirm.

FACTS

On September 18, 1995, appellant Leon Walls repeatedly stabbed his girlfriend, D.B., at her residence in Minneapolis. A telephone call interrupted the stabbing, and D.B. fled from the apartment. D.B. ran to the apartment complex office, and office management called 911. A security guard applied compresses to D.B.'s injuries to stop the bleeding. D.B. received numerous lacerations and puncture wounds, including a severe laceration to the nose which left the tip dangling. As a result, she has multiple scars on her face, neck, legs, arms, hands, buttocks, and ankles. She has a permanent scar on her nose where doctors reattached the tip. The thumb on D.B.'s right hand suffered sensory nerve damage, and D.B. reported difficulty gripping with that hand.

The police arrested and interrogated appellant. Appellant confessed to stabbing D.B., but told the officer that he acted in self-defense. A jury convicted appellant of first-degree assault and appellant contests that conviction.

D E C I S I O N

1. Great Bodily Harm

When the sufficiency of the evidence supporting a verdict is challenged, the appellate court is limited to a painstaking analysis of the record to determine whether the evidence was sufficient to permit the jurors to reach their verdict. State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994).

Assault in the first degree requires the state to prove that appellant inflicted great bodily harm. Minn. Stat. § 609.221 (1994).

"Great bodily harm" means bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.

Minn. Stat. § 609.02, subd. 8 (1994). Appellant admitted stabbing D.B. with a knife, but argues that the evidence failed to demonstrate that D.B.'s injuries met the statutory definition of great bodily harm.

Respondent argues that D.B.'s scarring injuries alone constituted "permanent disfigurement." In State v. McDaniel, 534 N.W.2d 290, 293 (Minn. App. 1995), review denied (Minn. Sept. 20, 1995), this court held the state had proven serious permanent disfigurement where the victim had two scars, one which was two-thirds of an inch long located on the victim's chest, and one which was six centimeters long and highly visible on the front of the victim's neck. See also State v. Currie, 400 N.W.2d 361, 364, 366 (Minn. App. 1987) (permanent scars left on backs of victims constituted permanent disfigurement), review denied (Minn. Apr. 17, 1987); State v. Anderson, 370 N.W.2d 703, 706 (Minn. App. 1985) (single scar running length of victim's upper body qualified as serious disfigurement), review denied (Minn. Sept. 19, 1985). But see State v. Gerald, 486 N.W.2d 799, 802 (Minn. App. 1992) (while scarring may be disfigurement, two half-inch scars in ear and on back of neck did not constitute serious permanent disfigurement because injuries were relatively small and in unnoticeable areas).

At trial, D.B. showed the jury scars on her face, neck, legs, arms, hands and ankles as a result of the stabbing. She has a permanent scar where the doctors reattached the tip of her nose. This evidence provided a sufficient basis for the jury, which observed the scars, to return a verdict based on permanent disfigurement.

Moreover, the cumulative effect of all of these injuries constitutes "other serious bodily harm" under the statute. In State v. Barner, 510 N.W.2d 202, 202 (Minn. 1993), the supreme court ruled that the state had proven "great bodily harm" where the defendant hit the victim so hard in the head that the victim had difficulty eating for three days, the defendant inflicted multiple stab wounds upon the victim that left multiple scars, and the defendant injured the victim's hand such that the victim, an avid canoeist, could not paddle his canoe in his usual manner. These injuries, considered together, constituted "other serious bodily harm." Id.; see also State v. Jones, 266 N.W.2d 706, 710 (Minn.1978) (victim who was unconscious for one day, hospitalized for a week, and experienced numbness and pain from assault suffered "other serious bodily harm"). In addition to the multiple wounds and scarring, D.B. suffered nerve damage to her hand. These injuries, when considered together, provided a sufficient basis for concluding that appellant caused "other serious bodily harm."

2. Self-Defense Statements in the Interrogation Tape

Appellant contends the trial court committed reversible error by admitting into evidence a portion of his taped interrogation that related to self-defense and included the following exchange:

IRVINE: [E]ven though you may be justified in being angry, you may even be justified in taking the knife and defending yourself, you weren't justified in continuing it once you had the knife away from her.

WALLS: Yeah, that's true.

Respondent contends appellant waived any objection to the contested portion of the tape because he failed to make a timely objection. See State v. Abraham, 338 N.W.2d 264, 266 (Minn. 1983) (objection to prosecutor's questions made at conclusion of line of questioning was not timely); McDaniel, 534 N.W.2d at 294 (objection after entire series of questions had been asked and answered was untimely and, therefore, waived). Indeed, prior to the admission of the interrogation tape, the parties discussed the recording several times. Defense counsel requested, and the court made, several redactions to the tape. At the time of admission, counsel stated that he had no objections.

While admitting he failed to make a timely objection, appellant now contends the trial court committed reversible error by failing to exclude the evidence on its own initiative. See Minn. R. Crim. P. 31.02 (plain errors affecting defendant's substantial rights may be considered by appellate court, even if not brought to attention of district court); see also State v. Stufflebean, 329 N.W.2d 314, 318 (Minn. 1983) (where pro se defendant failed to object at trial, but claimed prosecutorial misconduct on appeal, court reviewed to determine "whether it was so serious that the trial court should have intervened sua sponte to keep the argument within permissible bounds") (italics omitted).

Respondent contends appellant has mischaracterized the evidence because the statement in question is an adoptive admission, not a "lay opinion" on self-defense. See State v. Goodridge, 352 N.W.2d 384, 388 (Minn. 1984) (defendant made adoptive admission to officers during interrogation by agreeing to statements made by others). Indeed, the portion of the tape in question was offered as part of the confession given by appellant. Because appellant has failed to show plain error as a result of the admission of this uncontested evidence, we will not reverse the conviction on this issue.

3. Alleged Scales Violation

Appellant argues in his pro se brief that his entire confession should have been suppressed because the police violated the recording requirement of State v. Scales, 518 N.W.2d 587 (Minn. 1994). Whether there has been a "substantial violation" of Scales is a legal question that the appellate court reviews de novo. State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996).

All questioning of a defendant by law enforcement must be recorded when questioning occurs at a place of detention. Scales, 518 N.W.2d at 592. Suppression is required of any statements obtained if a violation is deemed "substantial." Id. A court makes this determination after considering all relevant circumstances, including willfulness of the violation, the extent of the deviation from lawful conduct, the extent to which the violation was likely to lead to a misunderstanding of legal rights, and the extent to which suppressing the statement would "'tend to prevent [other] violations.'" Id. at 592 & n.5 (quoting Model Code of Pre-Arraignment Procedure § 150.3(2), (3) (1975)).

In Critt, the defendant argued that the failure to tape a four-minute section of his interrogation constituted a substantial violation. 554 N.W.2d at 95. This court ruled that the underlying purpose of Scales was satisfied despite the gap in the tape. Id. The violation was unintentional because the officer had good reason to turn off the tape recorder when Critt declined to give a good statement and because the officer reactivated the recorder promptly upon learning that he had decided to talk. Id. at 95-96. Further, the resumed taping caught part of the intermediate discussion which indicated that the officer did not turn the tape recorder off as a means of tricking the defendant. Id. at 96. Suppressing Critt's confession would not have served the purposes of the rule because the violation would not tend to prevent other Scales violations, and the gap did not significantly deprive the trial court of the accurate record needed to decide the substantive issue. Id.

In the instant case, the officer initially attempted to tape the interrogation, but the tape recorder's batteries failed. The officer checked the recorder within minutes into the session, realized it was not working, stopped questioning, obtained new batteries, and resumed the interview. The officer stated that the unrecorded minutes included a Miranda warning and some discussion about the title of a vehicle. When the officer resumed taping, the discussion continued on the topic of the vehicle title. Further, before getting to any incriminating information, the officer renewed the Miranda warning. Thus, even if the officer failed to give an initial Miranda warning during the first few minutes of the interview, the second recorded warning was rehabilitative. See State v. Champion, 533 N.W.2d 40, 44 (Minn. 1995).

While the failure to tape the entire interview may have violated Scales, it was not a substantial violation. The trial court stated that it believed the officer's testimony regarding the battery failure and the topics discussed. The failure to tape the beginning portion of the session appeared unintentional; thus, reversing in this case would not deter other officers' behavior. Further, the failure to tape that portion did not significantly deprive the trial court of an accurate record because the unrecorded portions were not substantively relevant to the case and the trial court could still assess the voluntariness of appellant's statements.

4. Legality of the Verdict

A defendant is not entitled to a new trial merely because a jury found him guilty of one count of a two-count indictment, even if the guilty and not guilty verdicts are logically inconsistent. State v. Czech, 343 N.W.2d 854, 856 (Minn. 1984). Verdicts are legally inconsistent when proof of the elements of one offense negates a necessary element of another offense. State v. Cole, 542 N.W.2d 43, 51 (Minn. 1996).

Appellant claims that because the jury acquitted him of assault with a dangerous weapon, i.e., second-degree assault, he must be acquitted of first-degree assault. Appellant merely argues that, logically, if he had no weapon, he could not have been convicted of slashing D.B. with a knife. The statutory elements of the two counts do not necessarily negate each other. Compare Minn. Stat. § 609.222 (1994) (elements of second-degree assault), with Minn. Stat. § 609.221 (elements of first-degree assault). While the verdict here may arguably be logically inconsistent, it is not legally inconsistent.

5. Denial of Appellant's Motion for a Mistrial

Whether a new trial should be granted because of prosecutorial misconduct lies in the discretion of the trial court and will not be reversed unless the misconduct, viewed in light of the whole record, appears inexcusable and so serious and prejudicial that the defendant's right to a fair trial has been denied. State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980).

Appellant first contends a mistrial should have been granted for prosecutorial misconduct because the state did not follow proper discovery disclosure rules. Appellant claims prejudice because he prepared and questioned witnesses based on receipt of only one report produced by a witness. However, the record indicates that the prosecutor provided evidence demonstrating that her receptionist faxed the reports to appellant's counsel and that she personally left a phone message with appellant's counsel informing him of the faxed reports. Furthermore, the court allowed defense counsel additional opportunities to re-examine the witness. Even if there had been prosecutorial misconduct, appellant has not shown prejudice. Therefore, the trial court did not abuse its discretion.

Second, appellant alleges that the prosecutor improperly marked exhibits after witnesses relied on the documents. Appellant brought a motion for mistrial based on these allegations, without elaboration or any substantiating evidence and during argument on another issue. Because the record does not show an abuse of discretion by the trial court regarding these allegations, we will not reverse the lower court on this issue.

Appellant also contends that the totality of errors in this case requires a new trial. See State v. Schwartz, 266 Minn. 104, 113, 122 N.W.2d 769, 775 (1963) (granting new trial because "combination of incidents which, taken together, might have created prejudice in view of the crime charged"). Because appellant's alleged errors lack merit, we cannot conclude that he suffered any prejudice, or that his due process rights have been denied.

6. Admission of the 911 Tape

The admission of evidence is a matter left to the discretion of the trial court and will not be considered reversible error absent a showing of clear abuse of discretion. Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984). Appellant alleges error in the court's admission of the 911 tape because in some portions of the tape the caller relayed statements from the victim. The supreme court has addressed an almost identical situation and held such statements admissible under the excited utterance exception. See State v. Edwards, 485 N.W.2d 911, 914 (Minn. 1992) (indicating that a mother's recitation to 911 operator of daughter's statements qualified under excited utterance exception). Thus, the court properly admitted the tape under that exception.

Affirmed.

[ ]^* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.