Opinion
No. C9-01-366.
Filed December 26, 2001.
Appeal from the District Court, Hennepin County, File No. 44370.
Mike Hatch, Attorney General and Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender (for appellant)
Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Cassadine NMN Hazley appeals from his conviction and sentence for first-degree assault that resulted following a jury trial. Hazley contends that the evidence was insufficient to prove the injuries required for first-degree assault, that the trial court abused its discretion by excluding evidence that the complainant had made prior reports of carjackings, that the prosecutor's comments in closing argument denied him a fair trial, and that the trial court abused its discretion by failing to depart from the presumptive sentence.
Because we have determined that the injuries complainant suffered were sufficient to meet the definition of "substantial bodily harm," that the trial court did not abuse its discretion with either the evidentiary ruling or the sentence imposed, and that the prosecutor's comments, when viewed in the context of the closing argument as a whole, were not so prejudicial as to have denied Hazely a fair trial, we affirm.
FACTS
On May 6, 2001, as complainant P.M. was leaving a bar on Broadway Avenue in Minneapolis, she agreed to give a male friend of an acquaintance a ride. P.M. did not know the man and did not get his name, but she later identified him as Hazley. After they began driving, Hazley told P.M. he wanted to go to Plymouth. P.M. did not want to drive that far and pulled off the highway at Penn Avenue. Hazely then began beating P.M. with his fists and slammed her face into the emergency brake handle located in between the driver and passenger seats. Two females at a home nearby heard P.M.'s screams. One ran to assist P.M., who was exiting the vehicle, while the other called the police. Hazley then took the car and drove away.
The police took P.M. to the hospital where she was treated for a variety of injuries. According to P.M.'s treating physician, she sustained a "complex" laceration and an "orbital blow-out fracture" — broken bones in her nose and cheek. Each of these injuries required surgery, and additional surgeries were pending at the time of trial. P.M. testified that as of the time of trial, five months after the incident, she was still experiencing double vision and difficulty breathing as a result of the injuries inflicted.
On the evening of May 7, the day after the incident, Hazley was arrested while driving P.M.'s vehicle. The shorts he was wearing had a small bloodstain that was identified through DNA testing as belonging to P.M. Hazley claimed that an acquaintance of his uncle had driven the car over to Hazley's house and offered to let Hazley drive it.
Sergeant Myron Taylor of the Minneapolis Police Department interviewed P.M. on May 8 at the hospital. P.M. had initially told police and some hospital personnel that she had been car-jacked by a stranger, who jumped into the car when she was stopped at a red light. P.M. provided a description of her assailant. Taylor showed P.M. a photographic line-up that included Hazley's picture. P.M. identified Hazley as her attacker and later told police that she had agreed to give him a ride on the night in question after running into Hazley and his friend outside of a Minneapolis bar. P.M. testified that she made up the story about the stranger entering her car at a red light because she did not want her boyfriend, with whom she has an infant, to know that she had agreed to give a man she did not know a ride.
Prior to trial, the defense referenced allegations regarding P.M.'s prostitution and drug activities, as well as her prior reports of car-jackings, as possible impeachment or "exculpatory" evidence. The trial court reserved its ruling at that time, indicating that the parties and the court should research case law on this issue, and they could address it again prior to opening statements. In a later exchange, the prosecution informed the court that the attorneys had discussed the matter and determined that it was not "going to come to fruition," and the parties agreed to take it up again later, outside the presence of the jury, "if that does become ripe again." Defense counsel then informed the court that the defense did not have its witness to offer this evidence. The court told the parties that should the issue become ripe again, "let me know and we'll take it up. Meanwhile, don't allude to it."
Nothing more was discussed on the issue until defense counsel inquired while cross-examining P.M. about some "prior incidents" and was interrupted with an objection. Defense counsel stated that she was under the impression the earlier discussion was about P.M.'s alleged drug use and prostitution and did not relate to the allegations regarding the prior car-jacking claims. The trial court then ruled that the prior claims were inadmissible because, among other considerations, the issue did not relate to the guilt or innocence of the defendant. Accordingly, the trial court determined the proffered evidence was irrelevant and excluded it.
During the course of the trial, the parties agreed to submit the lesser-included offense of third-degree assault to the jury, apparently at defense counsel's request. Following trial, the jury found Hazley guilty on the charges of first-degree assault, first-degree aggravated robbery, and motor vehicle theft. The trial court denied Hazley's motion for a departure from the presumptive sentence for the first-degree assault charge, and Hazley was sentenced to eighty-one months.
DECISION
1. Hazley alleges that the evidence was insufficient, as a matter of law, to support the jury's guilty verdict for first-degree assault, requiring "great bodily harm." The term "great bodily harm" is defined as "bodily injury 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 (2000). When reviewing a claim of insufficient evidence, the appellate court examines the record to determine whether, when taken in a light most favorable to the conviction, the jury's verdict is reasonably supported. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).
P.M.'s testimony, corroborated by her treating physician, established that her injuries required multiple surgeries to repair, and at least some of the damage remained in force at the time of trial. P.M.'s vision and breathing was not normal several months after the incident; the evidence indicated that these injuries could very well be protracted or permanent and the jury was allowed to conclude as such.
2. Hazley also argues that he should have been allowed to introduce evidence regarding P.M.'s prior allegations of car-jacking incidents. The trial court's decision to exclude evidence as irrelevant will not be overturned unless there is an abuse of discretion. State v. Woelfel, 621 N.W.2d 767, 773 (Minn.App. 2001), review denied (Minn. Mar. 27, 2001). The trial court is obligated to weigh the potential prejudice against the probative value for each item of proffered evidence. State v. Crims, 540 N.W.2d 860, 866 (Minn.App. 1995), review denied (Minn. Jan. 23, 1996); Minn.R.Evid. 403. The trial court noted that this evidence had little or nothing to do with the guilt or innocence of Hazley. In this case, the issue for the jury did not surround whether or not the attack occurred, but rather the identity of the perpetrator. As such, the proffered evidence would not have been helpful to the jury.
Also, counsel conceded prior to trial that the witness the defense had intended to call to testify regarding this allegation would not be produced, leaving only an unsubstantiated reference upon cross-examination of P.M. The danger that this evidence would confuse or mislead the jury was present, and its probative value was limited. The trial court did not abuse its discretion by excluding this evidence.
3. Hazley additionally contends that the prosecution made several improper comments in closing argument that effectively denied him a fair trial. When reviewing claims of prosecutorial misconduct, we must consider the closing argument as a whole, instead of focusing only on the specific comments at issue outside their context. State v. Johnson, 616 N.W.2d 720, 728 (Minn. 2000). The decision as to whether a new trial is warranted because of the alleged misconduct rests initially with the trial judge, who is in the best position to determine the effect of the conduct or comments at issue. State v. Scruggs, 421 N.W.2d 707, 716 (Minn. 1988). The trial court's decision not to grant a new trial should be reversed on appeal only when the conduct at issue, viewed in light of the whole record, appears inexcusable, serious and so prejudicial that the defendant did not receive a fair trial. Id.
We have reviewed the entirety of the closing arguments, as well as the remainder of the trial transcript, and we do not believe the comments at issue rise to a level wherein Hazley was denied a fair trial. As the trial court noted, both defense counsel and the prosecution seemed preoccupied with the conduct of the other, and each made comments in closing that focused on seemingly irrelevant issues. While we would direct counsel to refrain from personal attacks and references to irrelevant information, we do not find that this argument as a whole rises to a level wherein Hazley was denied a fair trial.
4. Hazley also contends that the trial court should have departed from the presumptive sentence for first-degree assault, imposing a lesser sentence. A trial court is to impose the presumptive sentence unless substantial and compelling circumstances exist within the particular case. State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999). When such circumstances are present, the trial court may depart from the presumptive sentence, but the trial court is not required to do so, and the reviewing court generally will not interfere with the sentence imposed. State v. Back, 341 N.W.2d 273, 275 (Minn. 1983). The supreme court has stated that "it would be the rare case which would warrant reversal of the refusal to depart." State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). The trial court must have abused its discretion before the appellate courts will reverse the sentence. Spain, 590 N.W.2d at 88.
Here, the trial court referenced the fact that he had received and reviewed Hazley's motion and considered the arguments presented and stated that he believed imposing the presumptive sentence was "the fairest thing to do." Accordingly, we do not agree with Hazley's assertion that the trial judge mistakenly believed that he was required to impose the presumptive sentence. Instead, the record indicates that this is what he decided to do, and the decision was not an abuse of discretion.