State v. Hernandez, No. A09-486 (Minn. App. 6/8/2010)
| Decision Date | 08 June 2010 |
| Docket Number | No. A09-486.,A09-486. |
| Parties | State of Minnesota, Respondent, v. Alejandro Hernandez, Appellant. |
| Court | Minnesota Court of Appeals |
Appeal from the District Court, Hennepin County, File No. 27-CR-08-23332.
Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, Minneapolis, Minnesota, for respondent.
David W. Merchant, Chief Appellate Public Defender, Lydia Villalva Lijó, Assistant Public Defender, St. Paul, Minnesota, for appellant.
Considered and decided by Johnson, Presiding Judge; Hudson, Judge; and Connolly, Judge.
UNPUBLISHED OPINION
A Hennepin County jury found Alejandro Hernandez guilty of aiding and abetting first-degree assault, second-degree assault, and second-degree riot based on evidence that he committed an assault with a dangerous weapon that inflicted great bodily harm. On appeal, he argues that he should be given a new trial because the prosecutor committed misconduct in examining a witness and in closing argument and because the district court erred in refusing to instruct the jury on the issue of self-defense. We affirm.
On August 26, 2007, Hernandez attended a back-yard party at a duplex apartment in Minneapolis. The party was somewhat loud. The downstairs resident of the duplex, N.H.S., asked his upstairs neighbor, who was hosting the party, to reduce the volume of the music and noise emanating from the party. N.H.S. then was assaulted by approximately eight to ten guests of the party. The state's witnesses testified that N.H.S. was knocked to the ground, kicked, struck by belts with large buckles, clubbed on the head with two-by-four boards, and hit in the face with rocks. His injuries included multiple fractures of his skull and facial bones. He was hospitalized for five days in an intensive care unit, and he later underwent reconstructive surgery on his face.
At trial, the state and the defense presented dramatically different versions of how N.H.S. was injured and Hernandez's role in the melee. The state presented evidence that, after an initial altercation in the back yard, N.H.S. tried to retreat inside the apartment, but some of the attackers, including Hernandez, followed him to the front of the duplex. According to the state's witnesses, a second assault occurred at the entrance to N.H.S.'s apartment when Hernandez struck N.H.S. with a two-by-four board. Both N.H.S.'s girlfriend and his girlfriend's niece witnessed the attack and testified at trial.
According to the defense witnesses, N.H.S. was the aggressor in the incident. Hernandez testified that N.H.S. shoved Hernandez's father to the ground and ripped off his shirt. H.C. testified that N.H.S. hit him in the head with a belt and that Hernandez merely pushed N.H.S. to the ground. Hernandez testified that he shoved N.H.S. to the other side of the yard to separate him from the other people. H.C. also testified that, though he was present during the attack, he never saw Hernandez possess a two-by-four. Hernandez testified that N.H.S. was not bleeding when he left the backyard and that he did not follow N.H.S. to the front of the duplex. Hernandez also stated that he did not strike anyone with a two-by-four and did not observe anyone else hit N.H.S. with a two-by-four.
The state charged Hernandez with one count of aiding and abetting second-degree assault (using a dangerous weapon and inflicting substantial bodily harm), in violation of Minn. Stat. §§ 609.222, subd. 2, .05 (2006); one count of aiding and abetting first-degree assault (inflicting great bodily harm), in violation of Minn. Stat. §§ 609.221, subd. 1, .05 (2006); and one count of aiding and abetting second-degree riot, in violation of Minn. Stat. §§ 609.71, subd. 2, .05 (2006). After a five-day trial, the jury found Hernandez guilty on all counts. The district court imposed a sentence of 74 months of imprisonment. Hernandez appeals.
Hernandez first argues that the prosecutor engaged in prosecutorial misconduct in two ways: first, by stating that Hernandez and another defense witness "tailored" their testimony and, second, by impermissibly interjecting her personal opinion into the case.
"Due process guarantees in our state and federal constitutions include the right to a fair trial." Spann v. State, 704 N.W.2d 486, 493 (Minn. 2005). A defendant's right to a fair trial may be violated by the existence of prosecutorial misconduct. State v. Ferguson, 729 N.W.2d 604, 616 (Minn. App. 2007), review denied (Minn. June 19, 2007). The standard of review that we apply depends on whether a proper objection was made. State v. Yang, 774 N.W.2d 539, 559 (Minn. 2009). State v. Wren, 738 N.W.2d 378, 389 (Minn. 2007) (citation omitted).
At trial, Hernandez did not object to the prosecutor's comments on the grounds that he now urges on appeal, with one exception. Thus, except as noted below, we apply a "modified plain error test." Id.; see also State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Under the modified plain-error test, "the defendant must establish both that misconduct constitutes error and that the error was plain." Wren, 738 N.W.2d at 393. An error is "plain" if it "`contravenes case law, a rule, or a standard of conduct.'" Id. (quoting Ramey, 721 N.W.2d at 302). If an appellant can establish that a plain error occurred, "[t]he burden then shifts to the state to demonstrate that the error did not affect the defendant's substantial rights." Id. "If the state fails to demonstrate that substantial rights were not affected, `the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings.'" State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007) (quoting State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)).
A. Accusation of "Tailoring"
Hernandez contends that the prosecutor committed misconduct by accusing him — once during cross-examination and once in her closing argument — of tailoring his testimony to the state's evidence.
A prosecutor's accusation of "tailoring" typically consists of a statement, more or less explicit, that a testifying defendant was present throughout the trial and therefore had an opportunity to fashion his or her testimony in a way that is both inculpatory and in conformance with the state's evidence. See, e.g., State v. Leutschaft, 759 N.W.2d 414, 419 (Minn. App. 2009) (). Such an accusation implicates a defendant's constitutional right to be present at trial, which is derived from the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment. State v. Swanson, 707 N.W.2d 645, 657 (Minn. 2006). As a general rule, a prosecutor may not accuse a defendant of tailoring his or her testimony solely because the defendant was present at trial "because a defendant's mere presence in the courtroom says nothing probative about his or her guilt." State v. Van Keuren, 759 N.W.2d 36, 42 (Minn. 2008). Therefore, "the prosecution cannot use a defendant's exercise of his right of confrontation to impeach the credibility of his testimony, at least in the absence of evidence that the defendant has tailored his testimony to fit the state's case." Swanson, 707 N.W.2d at 657-58.
In this case, Hernandez contends that the prosecutor made an improper accusation of tailoring on two occasions. The first occasion was a portion of her cross-examination of Hernandez:
Q. Well, you heard the testimony of your childhood friend, [H.C.], this morning stating that when [N.H.S.] first got out of his vehicle and saw all of you standing there, that he immediately removed his shirt and got into some kind of a fighting stance. Do you remember that testimony?
A. Of course I did.
Q. Now, would you also agree that during the trial you have had the opportunity to hear everyone's testimony?
A. Yes.
Q. Unlike all the other witnesses who were sequestered from hearing anyone else's testimony?
A. Uh-huh.
Q. So you've had plenty of time to think about that testimony and tailor your testimony to fit to benefit yourself, isn't that true?
The second occasion was during closing argument, when the prosecutor referred to the previously quoted portion of her cross-examination of Hernandez The facts in this case are bad for the defendant. He has every reason to fabricate his testimony. He sat through the entire trial. He heard the testimony and saw all of the physical evidence, even the photos of the bloody weapons. He sat there with counsel reviewing while I waited right back here. He couldn't even admit to that. He had plenty of time to tailor his testimony to his own benefit, not to tell you the truth.
Hernandez contends that these accusations of tailoring are improper because there is no evidence of "actual tailoring" in the record. In its responsive brief, the state does not directly address the statements quoted above but, rather, focuses on other statements or on portions of the statements Hernandez has identified.
This case presents a relatively straightforward example of an improper accusation of tailoring. The prosecutor explicitly stated that Hernandez "tailored" his testimony. In most cases, an accusation or suggestion of tailoring is more subtle. See, e.g., Leutschaft, 759 N.W.2d at 419 (). Here, however, the prosecutor actually used the word "tailor" in both her cross-examination of Hernandez and...
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