Opinion
No. C8-01-1153.
Filed January 31, 2002.
Appeal from the District Court, Kandiyohi County, File No. KX981379.
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, and
Boyd Beccue, Kandiyohi County Attorney, (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, (for appellant)
Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Laila Dahirr Mohamed appeals from an order denying postconviction relief from her conviction of first-degree assault, arguing that the postconviction court abused its discretion by not granting her petition because (1) the prosecutor committed prejudicial misconduct in her opening statement by referring to the precise nature of the weapon allegedly used in the assault and by failing to correct the victim's testimony that the knife offered for demonstrative evidence was the actual weapon used in the assault; (2) the district court erred by allowing demonstrative evidence to go to the jury room during deliberations; (3) the district court erred by preventing appellant from calling two character witnesses; and (4) the cumulative effect of the errors merits a new trial. Because we conclude that there was no prejudicial error, we affirm.
FACTS
Mohamed, a Somali immigrant, moved to Willmar in 1998 and began working at the Jennie-O meat-processing plant. On November 7, 1998, Mohamed and another Somali woman, Sahro Abdi, were engaged in joint work that required Abdi to use what was referred to at trial as a "ring knife" or a "hook knife." Mohamed and Abdi had an argument, and Abdi was assigned to a different work area. Abdi testified that she did not bring her ring knife to her new work area, and there was conflicting testimony regarding whether a ring knife was missing from the plant that night after the incident.
At the end of their shift, Mohamed and Abdi went home in the same car with three other workers. When they reached Mohamed's home, both she and Abdi got out of the car and a fight ensued. Mohamed attacked Abdi, cutting her face and scalp. Abdi testified that Mohamed used a ring knife in the attack; Mohamed claims that she did not have a knife, and a witness testified that he did not see one.
Abdi was taken to a hospital emergency room with multiple facial and scalp lacerations, which were two to five millimeters deep. An emergency-room nurse testified that the cuts were smooth and appeared to have been made by a knife. Mohamed testified that she wore a sharp ring with "two points" at the time of the incident, but she did not produce the ring at trial and did not testify that the ring actually caused Abdi's injuries.
At the omnibus hearing, defense counsel moved to "suppress any evidence in the nature of a hook knife or ring knife which the state alleges was used as the assault weapon." In its omnibus order, the court denied the motion, but the order provided that the prosecution "must supply a proper foundation before evidence in the form of a ring knife can be introduced." The order also directed the prosecutor not to refer to the ring knife in her opening statement.
But, in her opening statement, the prosecutor stated that Mohamed cut Abdi with "what's called a hook knife." The defense objected; the district court sustained the objection and instructed the jury to "disregard any reference to a particular object as having caused [the] lacerations."
During Abdi's testimony, the prosecutor offered a ring knife as demonstrative evidence. When asked whether the knife shown to her resembled the knife Mohamed used, Abdi stated, through her interpreter, "This is the ring knife." The court allowed the knife into evidence over defense counsel's objection, and it went into the jury room during deliberations.
The district court also did not allow Mohamed to call two character witnesses whom she identified for the first time after the jury was selected but before opening statements. The jury found Mohamed guilty of first-degree assault. Mohamed petitioned for postconviction relief, the postconviction court denied her petition, and this appeal follows.
DECISION
This court will not reverse a postconviction court's decision absent an abuse of discretion and will consider only whether sufficient evidence supports the court's conclusions. Woodruff v. State, 608 N.W.2d 881, 884 (Minn. 2000). A "postconviction proceeding is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside." State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968) (citations omitted).
I.
Mohamed argues that the postconviction court's denial of relief was an abuse of discretion because the prosecutor committed prejudicial misconduct by (1) referring to a "hook knife" in her opening statement in violation of the omnibus order and (2) failing to correct the victim's testimony that the knife that was offered as demonstrative evidence was the actual knife used in the assault.
We note that here the postconviction court and the trial court were the same judge and that the determination of whether a prosecutor committed misconduct and, if so, 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) (citation omitted).
A reviewing court must decide whether the challenged conduct was
(1) in error; and (2) so prejudicial that it constituted a denial of the defendant's right to a fair trial. If the misconduct is unusually serious, it must be harmless beyond a reasonable doubt, to avoid reversal. When the misconduct is deemed less serious, an appellate court must look to whether it had a substantial influence upon the jury's decision to convict the defendant.
Sanderson v. State, 601 N.W.2d 219, 225 (Minn.App. 1999) (quotations and citation omitted), review denied (Minn. Mar. 28, 2000).
1. Opening statement.
The prosecutor violated the omnibus order by referring to a "hook knife" in her opening statement. Mohamed argues that intentional disregard of a court's order may require reversal even in the absence of harm, citing State v. Salitros, 499 N.W.2d 815, 820 (Minn. 1993) (granting a new trial in the interests of justice for intentional and serious misconduct without a showing of prejudice). Nothing in the record suggests that the prosecutor's disregard of the omnibus order was intentional, and the postconviction court did not find intentional misconduct. The district court concluded that the error was harmless because "[t]he type of weapon used is not an element of Assault in the First Degree," and Mohamed offers no support for her argument that the curative instruction given by the district court was inadequate to remedy any harm. We therefore find that it was not an abuse of the postconviction court's discretion to conclude that the prosecutor committed no prejudicial misconduct by making reference to a "hook knife" in her opening statement.
2. Failure to correct Abdi's testimony.
Mohamed also argues that "[t]he prosecutor had an obligation to correct the record by stipulation or otherwise so that the jury would not be under any misunderstanding." In laying foundation for offering a ring knife as demonstrative evidence, the prosecutor asked Abdi if the ring knife shown to her resembled the one used in the assault. Abdi responded, through her interpreter, that it was "the ring knife." It is uncontested that the actual instrument that caused Abdi's injuries was never found. The prosecutor did not correct the record by stipulation or by asking Abdi to clarify her statement.
The postconviction court concluded that "[t]he victim's testimony regarding the ring knife and its connection to the assault was not false." The court stated that "[m]ost of the prosecutor's questions to the victim clearly indicated that the ring knife offered as an exhibit was not the assault weapon" and noted that, although the victim's responses were "slightly confusing," the confusion might be attributable to translation difficulties.
Mohamed further argues that when the prosecution allows a misperception that a weapon in evidence was in fact the weapon used in committing the crime, the error is not harmless. See State v. Paige, 256 N.W.2d 298, 302 (Minn. 1977) (reversing a conviction where district court ordered pistol suppressed at omnibus hearing and prosecutor introduced it at trial in violation of that order). Mohamed's reliance on Paige is misplaced. In that case, the supreme court determined that it was "unquestionable that the prosecution intended the jury to believe that the exhibit was actually Paige's pistol" and noted that the prosecution "made no reference to the pistol being introduced solely for a `limited purpose.'" Id.
Here, there is no evidence that the prosecutor intended for the jury to believe that the ring knife in evidence was the actual weapon used in the assault. The prosecutor repeatedly referred to the exhibit as the "type of" knife that was used, and, in both opening and closing statements, she stated that the instrument used in the assault had not been found. Therefore, it was not an abuse of the postconviction court's discretion to conclude that the prosecutor did not engage in prejudicial misconduct by failing to affirmatively "correct" Abdi's testimony.
II.
Mohamed argues that the postconviction court abused its discretion by denying relief because the district court erred by allowing the ring knife, as "illustrative evidence," into the jury room during deliberations, citing State v. Bauer, 598 N.W.2d 352 (Minn. 1999). In that case, the supreme court held that the district court did not err in admitting into evidence a computer-generated poster comparing the murder defendant's brace hinge to an L-shaped abrasion on the victim's leg, in part, because any prejudicial impact that the poster may have had was alleviated by the court's ruling excluding the poster from the jury room. Id. at 362-63. Bauer does not stand for the proposition that illustrative evidence must not be given to the jury during its deliberations.
Additionally, Mohamed argues that "materials offered for illustrative purposes should not be treated as evidence and should not be given to the jury during deliberations," citing 11A Peter N. Thompson David F. Herr, Minnesota Practice 43 (2000). But the commentators actually state that "[m]aterials offered solely for illustrative purposes and not admitted into evidence should not be treated as evidence and given to the jury during deliberations." Id. (emphasis added). Here, the ring knife was admitted into evidence.
Minn.R.Crim.P. 26.03, subd. 19(1), provides that "[t]he court shall permit the jury, upon retiring for deliberation, to take to the jury room exhibits which have been received in evidence * * * ." Therefore, it was not an abuse of discretion to conclude that no error occurred when the district court allowed the properly admitted ring knife to go to the jury-deliberation room.
III.
Mohamed argues that the postconviction court abused its discretion by denying relief because it was error for the district court to preclude the testimony of two character witnesses. Mohamed identified the witnesses for the first time after the jury was selected but before opening statements, which the district court determined was a violation of discovery rules.
The Minnesota Supreme Court has identified factors that must be considered by the district court in precluding witness testimony as a sanction for the violation of discovery rules, including
(1) the reason why disclosure was not made;
(2) the extent of prejudice to the opposing party;
(3) the feasibility of rectifying that prejudice by a continuance; and
(4) any other relevant factors.
State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979) (citations omitted). "Preclusion of evidence is a severe sanction which should not be lightly invoked." Id. at 374 (citations omitted). Bad faith, however, is not a necessary requirement for preclusion of witness testimony. In re Welfare of M.P.Y., 630 N.W.2d 411, 417 (Minn. 2001); Lindsey, 284 N.W.2d at 373.
The prosecutor argued that the character witnesses should be excluded because allowing the testimony of witnesses who were not timely identified would prejudice the state. The district court also expressed concern that it would be "difficult for the state in this type of situation to prepare any type of rebuttal" and suggested a continuance. This court has stated that a continuance is the "preferred course of procedural conduct" in preventing prejudice. State v. Hatton, 389 N.W.2d 229, 236 (Minn.App. 1986), review denied (Minn. Aug. 13, 1986). Mohamed refused to agree to a continuance and proceeded without the witnesses. She does not argue that the witnesses could not have been identified earlier, and the district court determined that the opposing counsel was prejudiced by the discovery violation. The district court did not err in precluding the character witnesses' testimony. See Lindsey, 284 N.W.2d at 373.
IV.
Finally, Mohamed argues that the postconviction court abused its discretion by denying relief because the cumulative effect of the alleged errors merits a new trial. She alleges that "[t]he `synergy' or `confluence' of these repeated, related errors * * * worked together to undermine any fair consideration of [Mohamed's] theory," citing State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979) (ordering a new trial where the cumulative effect of a number of errors deprived the defendant of a fair trial). But we conclude that no prejudicial error occurred.
Affirmed.