State v. Al-Naseer, No. A03-634.

• Decision Date: 20 January 2005
• Docket Number: No. A03-634.
• Citation: 690 N.W.2d 744
• Parties: STATE of Minnesota, Respondent, v. Mohammed Gazizamil AL-NASEER, Appellant.
• Court: Minnesota Supreme Court

690 N.W.2d 744

STATE of Minnesota, Respondent, v. Mohammed Gazizamil AL-NASEER, Appellant.

No. A03-634.

Supreme Court of Minnesota.

January 20, 2005.

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, Office of the State Public Defender, Minneapolis, MN, for Appellant.

Mike Hatch, Attorney General, Amy V. Kvalseth, Assistant Attorney General, St. Paul, MN, Lisa Borgen, Clay County Attorney, Moorhead, MN, for Respondent.

Heard, considered, and decided by the court en banc.

OPINION

PAGE, Justice.

On June 16, 2002, the car driven by appellant, Mohammed Al-Naseer, struck and killed Kane Thomson while Thomson was changing a flat tire on the side of Highway 10 near Glyndon, Minnesota. As a result of Thomson's death, Al-Naseer was charged with and convicted of two counts of criminal vehicular homicide, one for gross negligence under Minn.Stat. § 609.21, subd. 1(1) (2004), and the other for leaving the scene of an accident under Minn.Stat. § 609.21, subd. 1(7) (2004). Al-Naseer was sentenced to 48 months in prison and ordered to pay restitution. The court of appeals reversed Al-Naseer's conviction for criminal vehicular homicide — leaving the scene of an accident, but affirmed the gross negligence conviction. In affirming, the court of appeals concluded, among other things, that the erroneous admission at trial of a videotaped interview Al-Naseer had given to the police the night of Thomson's death was harmless error and that the trial court's failure to instruct the jury on the lesser-included offense of careless driving was not error. Having granted limited review, we reverse and remand for a new trial.¹

Al-Naseer is an Iraqi immigrant who arrived in the United States in 1994. He does not read or write in his native language and, although he was taking English classes, he has difficulty understanding English. The events culminating in Thomson's death began in the early morning hours of June 16, 2002. At about 2:00 that morning, Al-Naseer left his home in Fargo, North Dakota, and drove to Cass Lake, Minnesota, to do some work. Al-Naseer arrived in Cass Lake around 5:00 a.m., worked most of the day, and left Cass Lake at around 9:00 p.m. to drive back to Fargo. He testified that he had taken a 30- to 40-minute nap sometime during the afternoon.

That evening, Thomson and a friend, Dustin Leingang, met other friends at a speedway near Highway 10 not far from Glyndon, Minnesota. Thomson and Leingang were at the speedway until it closed at 11:00 p.m. As they left the speedway and drove onto Highway 10, both men realized that their car had a flat tire. Thomson, who was driving, pulled over to the shoulder of the road and stopped with the left side of the car approximately three feet from the fog line. The emergency hazard lights were turned on and the two proceeded to change the left rear tire. Thomson, who was 6'3" tall and weighed between 250 and 280 pounds, changed the tire while Leingang held a flashlight for him. According to Leingang, when they were almost finished, he felt something brush his hand from behind. He spun to his right, heard a thump, and turned to see Thomson rolling on the ground in front of their car. He also saw the taillights of another car moving gradually from the fog line back to the active traffic lane. The car neither stopped nor accelerated. It continued heading west at approximately 55 miles per hour. Thomson was killed. Investigators at the scene concluded that the passing car might have encroached at least a foot over the fog line, but did not hit Thomson's car.

At some point, Al-Naseer, driving west of the accident site, realized that his headlights were not working properly. He testified that he stopped at a gas station in Glyndon and was surprised to see that the front right side of his car, including the headlight, was damaged. He decided to continue his drive home using his emergency hazard lights. A Dilworth police officer who had heard a report of the accident involving Thomson sought to pull Al-Naseer's car over when he saw it on Highway 10 moving slowly with its emergency hazard lights flashing and no headlights because he thought that the car might have been involved in the accident. Independent of the officer's action, Al-Naseer pulled over to the shoulder and stopped. Pulling in behind Al-Naseer's car, the officer got out of his car and approached Al-Naseer, who had by then gotten out of his car. Noting what appeared to be fresh damage to Al-Naseer's car, the officer asked Al-Naseer if he had hit something. According to the officer, Al-Naseer initially indicated that he must have hit something, but did not know what. Al-Naseer was arrested and taken to the local law enforcement center where he was interviewed by Trooper Daniel Prischmann. The interview, conducted without an interpreter, was videotaped.

At trial, over Al-Naseer's objection, a redacted version of his videotaped interview was admitted. Al-Naseer sought to have the lesser-included offense of careless driving submitted to the jury. The trial court declined. The jury convicted Al-Naseer as charged.

Al-Naseer raised a number of issues on appeal to the court of appeals. The court of appeals reversed the criminal vehicular homicide — leaving the scene of an accident conviction, but affirmed the gross negligence conviction. State v. Al-Naseer, 678 N.W.2d 679, 689, 697 (Minn.App.2004). In affirming the gross negligence conviction, the court of appeals concluded that the admission of the videotaped interview was error because Al-Naseer had not knowingly, voluntarily, and intelligently waived his right to counsel or his right to remain silent. Id. at 691. The court went on to conclude, however, that the error was harmless based on Al-Naseer's stipulation that his car was involved in the accident, his testimony that he was tired on the night of the accident, the testimony of the police officers who arrived at the scene, the testimony of Leingang, and the testimony of the accident reconstructionist. Id. at 692. The court of appeals concluded that the contents of the videotaped interview did not contain any additional information except to show Al-Naseer's confusion about what had happened, and thus did not significantly add to the testimony at trial. Id.

Relying on State v. Pelawa, 590 N.W.2d 142, 148-49 (Minn.App.1999), rev. denied (Minn. Apr. 28, 1999), the court of appeals further held that the trial court was not required to give an instruction on careless driving "because Thomson was not just endangered but died as a result of the accident." Al-Naseer, 678 N.W.2d at 696.

As he did in his appeal to the court of appeals, Al-Naseer raised a number of issues in his petition for review to this court. In granting review, we limited the issues to (1) whether the error in admitting the videotaped interview was harmless² and (2) whether the trial court erred in refusing to instruct the jury on the lesser-included offense of careless driving.

I.

A conviction may stand when the trial court erroneously admits at trial a criminal defendant's statement to the police in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), if the error was harmless beyond a reasonable doubt. State v. Juarez, 572 N.W.2d 286, 291 (Minn.1997). An error is harmless beyond a reasonable doubt if the guilty verdict actually rendered in the trial was surely unattributable to the error. Id. at 292.

When determining whether a jury verdict was surely unattributable to an erroneous admission of evidence, the reviewing court considers the manner in which the evidence was presented, whether it was highly persuasive, whether it was used in closing argument, and whether it was effectively countered by the defendant. Townsend v. State, 646 N.W.2d 218, 223 (Minn.2002) (citing State v. Ferguson, 581 N.W.2d 824, 833 (Minn.1998)). "[O]verwhelming evidence of guilt is a factor, often a very important one, in determining whether, beyond a reasonable doubt, the error has no impact on the verdict." Townsend, 646 N.W.2d at 224 (citing Juarez, 572 N.W.2d at 291). But the court cannot focus on the evidence of guilt alone. Townsend, 646 N.W.2d at 224; see also Juarez, 572 N.W.2d at 291 n. 6

(acknowledging that the court had inadvertently misstated the significance of the strength of the evidence of guilt in harmless error analysis in State v. Townsend, 546 N.W.2d 292, 297 (Minn.1996)).

Was the error in admitting Al-Naseer's videotaped interview at trial harmless beyond a reasonable doubt? Al-Naseer argues that the error was not harmless because the state relied heavily on it to obtain the guilty verdicts. He notes that the state's references to the interview in its opening statement, closing argument, and direct and cross-examination of witnesses were used to point out inconsistencies between his statements during the interview and his trial testimony and to attack his credibility. He further notes that the jury heard him ask for an attorney and state that he should not say anything on the videotape. Al-Naseer contends that the jury may have viewed his request for counsel and the invocation of his right to remain silent as a "badge of guilt."

In response, the state argues that independent, overwhelming evidence supported each element of gross negligence and that the showing of the videotaped interview provided no basis for acquittal. Specifically, the state points to evidence indicating that Al-Naseer intended to drive from Cass Lake to Fargo after having been up since 2:00 a.m. on the morning of the accident, that Al-Naseer was tired but decided to drive home anyway, and that the circumstances of the accident were such that, in order for Al-Naseer to have hit Thomson without knowing it, he had to have fallen asleep at the wheel. The state further argues that any attack on Al-Naseer's credibility using the videotaped interview was intended to show that Al-Naseer knew that he had hit...