Opinion
No. A05-1542.
Filed August 22, 2006.
Appeal from the District Court, Hennepin County, File No. 04078409.
Mike Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, (for respondent).
Dewey M. Nelson, (for appellant).
Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Minge, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
In this appeal from conviction of second-degree manslaughter, Abdullahi Jama challenges the sufficiency of the evidence to prove that he created an unreasonable and conscious risk of death or great bodily harm and also challenges the district court's denial of his motion for a new trial based on recantation of witness testimony. Because sufficient evidence supports the jury's guilty verdict and the district court did not abuse its discretion by denying the new-trial motion, we affirm.
FACTS
Younis Elmi died from a gunshot wound to his head in November 2004. At the time he was shot, Elmi and four other young men were watching television with Abdi Ahmed in his St. Louis Park apartment. Some of the men were drinking beer, and some were smoking marijuana. The men were sitting on two couches that were perpendicular to each other. Elmi was on the end of one couch, farthest from the intersecting corner of the two couches. Abdullahi Jama, who was holding the gun when it discharged, was at the opposite end of the other couch. Shortly after midnight, Elmi pulled a gun from the waistband of his pants, and Jama asked to see it. The gun discharged shortly after Elmi transferred the gun to Jama. The bullet struck Elmi in the face and severed his brain stem. Elmi was pronounced dead one hour later. The state charged Jama with second-degree manslaughter.
The sequence of events after Jama asked Elmi for the gun is disputed, and two competing accounts emerged at trial. The state presented evidence that Elmi handed the gun to Jama, that Jama handled the gun briefly and racked the slide of the gun, and that the gun then discharged. Jama, however, presented evidence that Elmi tossed him the gun, that he stood slightly to catch it, and that the weapon discharged as he caught it.
Shortly after the shooting, the police separately interviewed the other men who had been at the apartment when the bullet struck Elmi. Abshir Duale told the police that Elmi gave Jama the gun and Jama handled the slide of the gun. Duale said that, as Jama manipulated the gun, someone warned him that he had moved a bullet to the weapon's chamber, and that the gun then discharged. Ilmi Yusuf told the police that Elmi gave Jama the gun, and that Jama "clicked it" by racking the slide on top of the gun. Abdi Ahmed also told the police that Elmi gave Jama the gun. Mohamed Farah told police that he did not witness the shooting because he was outside when the gun discharged.
At trial, two of the witnesses to the shooting provided testimony that either wholly or partially conflicted with their prior statements to the police. Yusuf testified that Jama asked Elmi to hand him the gun and "after that, I don't remember, the gun went off." When confronted with his statement to the police, Yusuf said that he could not remember what happened, but that he thought he had told the police the truth. He then said that he could not remember how Jama obtained the gun and stated, "I don't really exactly remember, but I think [Jama] did something with [the gun]" after he received it. Yusuf also testified that, at the police station after the shooting, Jama instructed him to tell the investigators that Elmi racked the slide of the gun and then tossed it to Jama.
Ahmed testified that he told the police that Elmi handed Jama the gun because "that's what everybody was saying" and that he did not know whether the gun was handed or tossed to Jama. But he also testified that Jama "had the gun and I told him to stop playing and put it down. And then as I was telling him, [the gun] just went off." A police officer who spoke to Ahmed a few weeks after he gave his statement testified that Ahmed confirmed its accuracy. Because parts of Yusuf's and Ahmed's testimony conflicted with their prior statements, the court permitted the state to show the jury parts of the videotaped statements that the witnesses gave to the police on the morning of the shooting.
Duale's testimony remained generally consistent with his statements to police. He testified that Elmi handed the gun to Jama. He first testified that the gun discharged immediately when Jama received it, but then stated that Jama "clicked" the gun and racked its slide. Duale said that the gun discharged as Yusuf was warning Jama that he put a bullet in the chamber. The jury also viewed part of Duale's videotaped statement to the police. Jama testified that Elmi pulled the gun from his waistband and tossed it to him. Jama said he stood slightly to catch it, heard a gunshot, and then realized that the gun had discharged.
The jury found Jama guilty of second-degree manslaughter. Nine days after the verdict, Jama deposed Duale. In the deposition, Duale recanted his trial testimony and stated that Elmi tossed Jama the gun and that the gun discharged when Jama caught it. In April 2005 Jama moved for a new trial or an evidentiary hearing based, in part, on Duale's recantation and on the alleged insufficiency of the evidence to support the verdict. The court denied the motion, including Jama's request for an evidentiary hearing, and sentenced Jama to forty-eight months' imprisonment.
Jama appeals from his conviction and the denial of his posttrial motion. He argues that the evidence is insufficient to support his conviction and that the district court erred by denying his motion for a new trial or an evidentiary hearing based on Duale's recantation.
DECISION I
A person is guilty of second-degree manslaughter if he causes the death of another through culpable negligence that created an unreasonable and conscious risk of causing death or great bodily harm to another. Minn. Stat. § 609.205(1) (2004). Jama concedes that, if Elmi handed him the gun and he handled it as the state argues, the elements of second-degree manslaughter are satisfied. He challenges, however, the sufficiency of the evidence presented at trial to support the state's theory of the case.
On a claim of insufficient evidence, we carefully review the record to determine whether the evidence, when viewed in the light most favorable to the jury verdict, is sufficient to support the verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We assume that the jury believed the state's witnesses and disbelieved contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). When resolution of a contested issue depends on conflicting testimony, this assumption is particularly applicable. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).
The men who directly witnessed the shooting provided the primary evidence on the issue of whether Jama was culpably negligent by creating an unreasonable risk of death or great bodily harm to Elmi. Yusuf, Ahmed, and Duale all told police within hours of the shooting that Elmi had handed the gun to Jama. Yusuf testified that, during an extended stay at his apartment, Elmi and Jama had frequently handled the gun in a similar fashion and that they would "move it, rack it, and slide it." Yusuf said that, on the night of the shooting, Jama "did something" to the gun. And Ahmed testified that, although he did not know how Elmi passed the gun to Jama, he told Jama "to stop playing and put [the gun] down." This testimony supports the conclusion that Jama had control of the gun and handled it before it discharged, contrary to Jama's testimony that the weapon fired as he was catching it.
The witnesses' videotaped statements to police provide strong support for the state's theory that Elmi handed the gun to Jama. In the videotape, Duale demonstrated what Jama did when he had the gun. He acted out Elmi handing the gun to Jama and then stated that "[a]s soon as [Elmi] give it to [Jama], [Jama] just clicked the gun." While stating this, Duale imitated Jama holding the gun and gestured to indicate Jama performing some action to the top of the gun. Ahmed also demonstrated how Elmi handed Jama the gun. Although Yusuf's back was to the camera, the videotape shows him making a gesture as he stated that Jama "took [the gun] like this and clicked it." In response, the officer asked, "He racked the slide?" and Yusuf responded, "Yeah."
Although Yusuf and Ahmed's trial testimony departed from their earlier statements to the police, the jury may "accept as the truth the earlier statements in preference to those made upon the stand." Di Carlo v. United States, 6 F.2d 364, 368 (2d Cir. 1925); State v. Ortlepp, 363 N.W.2d 39, 44 n. 1 (Minn. 1985). "If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court." Di Carlo, 6 F.2d at 368. The jury could rely on the videotaped statements in reaching their verdict.
The witnesses' other testimony tended to support the jury verdict by revealing inconsistencies in Jama's stated version of events that undermined his theory of the case. For example, Ahmed testified that, after the shooting, Jama stood up and started shaking. This testimony contradicted Jama's testimony that he stood before the gun discharged. Jama acknowledged that he had lied to investigators, and, in earlier testimony, about many facts, including his relationship with Elmi and others at the apartment, how long he had been in Minnesota, whether he had seen Elmi with a gun before the night of the shooting, and whether he had handled a gun before.
Physical evidence also supports the jury's verdict. A police detective testified to the impact that an accidental discharge would have on the hand of the person holding the gun. He testified that the slide on the gun operates whenever the weapon is discharged. If the person holding the gun manually moves the slide, his hands will not be injured when the gun fires because the hands are properly positioned. If the gun discharges when the shooter is not manually moving the slide or holding the gun by its handle, however, the slide will inflict bruises or cuts on the hand holding the gun. Jama's hands had no indications of injury. Jama contends that physical evidence from the autopsy supported his defense because the trajectory of the bullet in Elmi's body demonstrated that Jama did not shoot Elmi from a seated position. But the doctor who performed Elmi's autopsy testified that it was impossible to know the position of the shooter without knowing the precise angle of Elmi's head when the gun discharged.
Viewing the evidence in the light most favorable to the jury verdict, the evidence is sufficient to support the jury's conclusion that Jama racked the slide of the gun after he received it, thereby creating an unreasonable and conscious risk of death or bodily harm.
II
Jama alternatively argues that the district court abused its discretion by denying his motion for an evidentiary hearing or a new trial based on Duale's postverdict deposition recanting portions of his trial testimony. Our review of a posttrial witness-recantation claim is limited to whether the evidence is sufficient to support the district court's findings. Opsahl v. State, 710 N.W.2d 776, 782 (Minn. 2006).
Minnesota courts use a three-prong test to evaluate a claim of witness recantation. State v. Caldwell, 322 N.W.2d 574, 584 (Minn. 1982) (applying federal three-part test in Minnesota). First, the court must be reasonably satisfied that the trial testimony of the recanting witness was false. Opsahl, 710 N.W.2d at 782. A statement that merely contradicts earlier testimony is insufficient; the court must be "reasonably certain that the recantation is genuine." Id. (quotation omitted). Second, the moving party must show that the jury might have reached a different conclusion without the witness's testimony. Id. Finally, the moving party must show that it was taken by surprise at trial or unaware of the falsity of the trial testimony until after the trial concluded. Id. The defendant bears the burden of proving by a fair preponderance of the evidence that these criteria are satisfied. Id.
Jama submitted Duale's deposition to the court in support of his new-trial motion. The district court concluded that Duale's recantation was not genuine. It found that his recantation was suspect and that Duale had testified truthfully at trial and consistently with the statements he made to police. The court further found that an evidentiary hearing was unnecessary because Duale's testimony was "non-pivotal" and other critical evidence supported the verdict.
The district court did not abuse its discretion by denying Jama's motion for a new trial or an evidentiary hearing. Duale was interviewed by police officers twice on the day of the shooting, and each time he stated that Elmi handed Jama the gun and that Jama was warned that his actions had moved a bullet to the chamber of the gun. In March 2005, about one week before the trial began, a private investigator hired by defense counsel interviewed Duale. Duale told the investigator that he saw Elmi throw Jama the gun. But the next day he met with prosecutors, reviewed his videotaped police statement, and confirmed its accuracy. At trial, Duale testified that his statements to the police were accurate and that he lied to the private investigator because he was scared and the investigator had come to his workplace.
In addition to Duale's repeatedly changed statements, other statements in his recantation diminish its facial validity. For example, Duale stated that the prosecutor misunderstood him when he said he heard a "click" and that he was referring to a click sound he heard after the shooting when Jama dropped the gun on the coffee table in front of the couch. But Jama did not testify that he dropped the gun; he testified that Yusuf took it from him. Yusuf also testified that after the gun discharged, Jama was screaming and holding the gun. Duale explained in detail his use of the term "click" during his statements to the police and his trial testimony. When he said "clicked" in his police interview, he motioned to the top of the gun. And when asked at trial whether Jama did something to the gun, Duale answered, "Yeah, he click[ed] it." When asked whether he meant that Jama racked the slide, Duale said, "Yes." Later in his testimony Duale stated, "[A]s soon as [Jama got] the gun, he slide it." Duale was asked to clarify his terminology and what "slide" meant. Duale replied, "The slide is the click, right? That's what I call click." Furthermore, the discussion of the "click" at trial focused on what Duale heard after Jama received the gun, but before the gun fired.
In his recantation, Duale stated that he lied at trial and to the police because he was scared and intoxicated after the shooting. But Duale testified that he did not believe he was a suspect when the police interviewed him. Further, the officer who questioned him testified that Duale appeared "very sober," and the videotape of Duale's statement supports his observation. The level of specificity in Duale's statements and testimony compared to his general statements of recantation also support the district court's finding that his recantation was not genuine and Jama was not entitled to a new trial.
When the court finds that the first prong of the test used to evaluate witness-recantation claims is not satisfied, it need not address the other prongs. Parker v. State, 437 N.W.2d 65, 67 (Minn. 1989). But as the district court noted, evidence other than Duale's testimony supports the verdict. The jury heard testimony from other witnesses that Jama handled the gun before it discharged and also viewed the videotaped statements to the police in which the witnesses said that Elmi passed the gun to Jama and Jama briefly handled the gun. And the jury heard testimony that a person holding a gun discharged in the circumstances Jama described would have cut or bruised hands; Jama had no injuries.
When the testimony of a witness who purportedly recants after the trial is not pivotal and the verdict is supported by other testimony and evidence, the district court need not grant an evidentiary hearing. Hooper v. State, 680 N.W.2d 89, 96 (Minn. 2004). The district court therefore did not abuse its discretion by denying Jama's motion for a new trial or an evidentiary hearing.