Opinion
No. C1-01-1804.
Filed August 13, 2002.
Appeal from the District Court, Anoka County, File No. K001185.
Mike Hatch,; and Robert M.A. Johnson, Anoka County Attorney, Mary K. Doty, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Charles Fredrick Clippert, Assistant State Public Defender, (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Terrance Deon Anderson appeals from his conviction of terroristic threats. He argues that his constitutional rights to confrontation and a unanimous jury verdict were violated. Because the trial court did not abuse its discretion and appellant's constitutional rights were not violated, we affirm.
FACTS
At about 1:40 a.m. on January 6, 2001, Narkeetha Hanyard called 911. She reported that at about 1:30 a.m., a male friend, appellant Terrance Anderson, had appeared in her bedroom where she was sleeping with her two sons and yelled at her to wake up.
Anderson had been at Hanyard's home the afternoon of January 5. At that time, Hanyard saw him put a gun in a grocery bag and take it with him when he left. That day, they argued about Anderson using a cell phone belonging to Tawana Smith, who Anderson referred to as his "girlfriend."
Hanyard testified that Anderson was upset when he ordered her to get out of bed early on January 6. He followed her closely, yelling at her, and calling her names. He threatened her with one of her kitchen knives. At some point, he struck her on the side of the head with something hard, which she thought might have been a gun. He then left the scene, and she called 911.
Police arrived just after 1:40 a.m. Hanyard was lying on the floor with blood on the side of her head, her shirt, and the floor. The knife was also on the floor, closer to the door. While the officers and paramedics were there, the phone rang continuously. One call came in while Hanyard was talking to the 911 operator. Hanyard merged the two calls so that she, the 911 operator, and the caller were all on at the same time. An officer noted that the caller identification indicated it was Tawana Smith, but Hanyard referred to the speaker as "Terrance." The two argued, and the officer recorded the conversation. During the conversation, Anderson made threats including "police officers, you better watch her for 24 hours a day, because I'm going to make it happen. I'm going to get her, and there is nothing you can do about it."
Sometime after Anderson was charged with assault and terroristic threats toward Hanyard, Hanyard took steps to retract her complaint against Anderson. At trial, Hanyard testified that Anderson had pressured her to do so through phone calls. The investigator testified that just after the incident Anderson had placed from 20 to 66 phone calls per day to Hanyard's residence.
Anderson testified at trial (1) he was not at Hanyard's home early on January 6; and (2) that he had spent the evening of January 5 with Smith and ended the evening at Yolanda Spencer's home about 1:00 a.m., January 6. Spencer testified that Anderson came over to her home about 1:00 to 1:15 a.m. on January 6.
On cross-examination, the state asked Anderson about several people, among them, Latonya Stewart. Anderson said that he had seen her twice on the evening of January 5. The court overruled defense counsel's relevance objection. The state then asked Anderson if Stewart would be wrong if she came in and testified that, among other things, Anderson had showed up at her apartment during the early morning hours of January 6. Stewart never testified.
Defense counsel asked for a specific instruction regarding the state's remarks about Latonya Stewart. The parties stated that they were satisfied with the standard instruction on the remarks and questions of counsel accompanied by the specific language: "For example, [the state] asked questions of defendant about if Latonya Stewart testified. [The state's] questions are not evidence." In its closing remarks, the state also reiterated that the jury should not consider anything that he said about Stewart as evidence.
The court also instructed the jury on second-degree assault, terroristic threats, and generally, on jury unanimity. The jury found Anderson guilty of terroristic threats, and he appeals from his conviction.
DECISION I.
Absent a clear abuse of discretion, the trial court's evidentiary rulings will not be overturned. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).
Here, over defense counsel's objection to its relevance, the court allowed the state to ask three hypothetical questions regarding a potential witness, Latonya Stewart. The state first asked questions about Anderson's relationship with Stewart and when he had seen her the night of the incident. The state then asked him whether Stewart would be wrong if she took the stand and testified that on January 6, Anderson was at her apartment, dropped off a bag, left, and woke her up in the morning. Anderson claims that the court abused its discretion by allowing the questions.
As a general rule, asking one witness to comment on another witness's veracity is not probative. State v. Pilot, 595 N.W.2d 511, 518 (Minn. 1999). There are situations, however, where "were they lying" questions may have probative value, for example, when a witness flatly denies the occurrence of events. Id. (discussing and citing People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 (N.Y.App.Div. 1997)).
In this trial, the primary question for the jury was who, if anyone, was telling the truth. Anderson initiated the credibility contest that made probative the prosecutor's "were they lying" questions. Under these circumstances, the state's three leading questions were not prejudicial and might have led to probative evidence.
Anderson also argues that his Sixth Amendment right to confrontation was violated when the state's questions purported to be Spencer's words, but she was never sworn in as a witness. While this argument has some merit, it is clear that the court and the state took steps to cure any error. The trial court may remedy any potential prejudice to a defendant by giving a curative instruction to the jury. State v. Bickham, 485 N.W.2d 923, 925 (Minn. 1992). The court specifically instructed the jury not to treat the state's remarks about Spencer as evidence. The state, in closing, also reiterated the judge's instructions regarding the remarks. Defense counsel agreed to these curative steps. Therefore, the court did not abuse its discretion, and any error was harmless.
II.
Anderson claims that his right to a unanimous jury verdict was violated. The state argues that the issue of unanimity cannot be raised for the first time on appeal. Anderson concedes that he failed to object to the court's jury instructions and the state's argument, but argues that this court can consider plain error that affects his substantial rights.
Generally, a defendant's failure to object to instructions before they are given to the jury constitutes a waiver of the right to raise the issue on appeal. State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998). An appellate court, however, has discretion to consider the issue on appeal if the instructions contain plain error affecting substantial rights or an error of fundamental law. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Appellate review is required only if a trial error existed clearly under applicable law at the time of conviction and the error was so prejudicial to the defendant's right to a fair trial that the defendant's failure to object would not forfeit his right to a remedy. Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996).
The court instructed the jury on the charge of terroristic threats. The instructions tracked the statutory language in Minn. Stat. § 609.713, subd. 1 (2000). There is no claim that the court erred in its instructions; only that, in light of the single count of terroristic threats, the state argued three alternative factual theories.
This court has stated that
Unanimity is required only with respect to the ultimate issue of the defendant's guilt or innocence of the crime charged, and unanimity is not required with respect to the alternative means or ways in which the crime can be committed.
State v. Begbie, 415 N.W.2d 103. 106 (Minn.App. 1987), review denied (Minn. Jan. 20, 1988) (quoting Holland v. State, 91 Wis.2d 134, 143, 280 N.W.2d 288, 292 (1979), cert. denied, 445 U.S. 931, 100 S.Ct. 1320 (1980)). If the statutory language allows for alternative means to establish an element of the crime, the state may introduce facts supporting these alternative means without violating the unanimity requirement. See, e.g., Minn. Stat. § 609.487, subd. 1 (2000) (defining "to flee" as various means to elude a peace officer). If the state presents two different factual scenarios as alternatives for proving a single element of a crime, however, the state must choose one or risk violating the defendant's right to a unanimous verdict. See State v. Stempf, 627N.W.2d 352, 355-56 (Minn.App. 2001) (unanimity requirement violated when one count of possession was charged but two distinct acts of possession in time and place and two distinct defenses were argued to jury).
The crime of terroristic threats applies to "[w]hoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another." Minn. Stat. § 609.713, subd. 1 (2000). The statute does not require that jurors agree on which person was the intended victim of the threats. See Begbie, 415 N.W.2d at 106. The statute also expressly allows for direct or indirect threats to satisfy the element of terroristic threats. Minn. Stat. § 609.713, subd. 1.
Anderson argues that three distinct threats were argued by the state: threatening with a knife, threatening with a gun, and threatening over the phone. The record indicates, however, that the threats were not presented as distinct and separate acts. The threats with the knife and gun were inseparable and part of a continuous attack by Anderson in Hanyard's living room. There, in a short period of time, he followed her closely, yelled at her, intimidated her with a knife, and struck her.
While the threat made by Anderson over the phone to Hanyard shortly after the living-room incident could have served as a distinct act of terroristic threats, the state did not argue that it was a distinct act. In its closing argument, the state argued that the terroristic act was Anderson's behavior in Hanyard's home and that the phone call was simply evidence corroborating Hanyard's testimony about the living-room incident. In rebuttal, the state indicated that the phone call could be evidence of terroristic threats, but only "in the context of everything that happened that night." In short, the phone call was not presented as a discrete alternative factual scenario proving terroristic threats. At most, the state provided alternative means used by Anderson to inflict terroristic threats. Because the threats were thus established through unanimous jury agreement, there is no constitutional violation, and we conclude there was no plain error.