State v. Kelly

668 N.W.2d 39, 2003 Minn. App. LEXIS 1075, 2003 WL 22039477
CourtCourt of Appeals of Minnesota
DecidedSeptember 2, 2003
DocketC1-02-1912
StatusPublished
Cited by1 cases

This text of 668 N.W.2d 39 (State v. Kelly) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kelly, 668 N.W.2d 39, 2003 Minn. App. LEXIS 1075, 2003 WL 22039477 (Mich. Ct. App. 2003).

Opinion

OPINION

STONEBURNER, Judge.

Appellant Tony Terral Kelly challenges his conviction of first-degree aggravated robbery. Appellant argues (1) that the prosecutor committed misconduct constituting plain error by making prejudicial insinuations not supported by evidence, and (2) that the district court should have suppressed the victim’s identification of appellant because the identification procedure was impermissibly suggestive and unreliable. Because the identification procedure was not impermissibly suggestive, the identification evidence was properly admitted. But because the prosecutor’s unfounded insinuations constitute plain error that deprived appellant of a fair trial, we reverse and remand for a new trial.

FACTS

In February 2002, Jamal Ahmed Hussein was beaten and robbed at an apartment building where he had been helping a friend move. Immediately after the incident, Hussein and his friends called the police, who arrived at the apartment building shortly afterward. Police interviewed Hussein, who described his attackers as three African-American males, one who was tall and had a muscular build, one who had “Rastafarian”-type hair, and one who had short hair. Hussein told the police that he had seen the men near apartment 321 before the attack. The police took Hussein to apartment 321 and knocked on the door. Appellant Tony Terral Kelly was sitting inside the apartment. The police asked him to step out into the hallway and asked Hussein if appellant was involved in the incident. Hussein indicated that he was. Appellant was arrested and charged with aggravated robbery.

At trial, Hussein testified that he had seen two of his attackers earlier in the evening and that they had asked if they could buy the gold necklace that he was wearing. Hussein said, “No.” One of the men had “Rastafarian” hair and the other was a tall, muscular African-American man. Later, when Hussein went back into the building because he had forgotten *42 something, he saw these two men standing in front of apartment 321. After yelling at Hussein, the men attacked him. Hussein managed to get up and began to run down the hallway. A third man, later identified by Hussein at the scene as appellant, appeared in front of him and forced Hussein down to the ground. Hussein was punched several more times and one of the three men took his necklace. Hussein was able to escape, although an unknown number of his attackers followed. In court, Hussein identified appellant as the third man who had appeared in front of him and forced him to the ground during the attack.

The state’s case was based primarily on Hussein’s identification of appellant as one of his assailants. There were no other witnesses to the attack. Hussein’s necklace was never found.

Appellant testified at trial and denied participating in the assault and robbery. On cross-examination, the prosecutor, without objection, asked appellant:

Q. Do you recall on I believe it was Tuesday a group of spectators came in and had a seat in the back of this courtroom? Did you happen to see several African-American men come in and have a seat back here?
A. Yes.
Q. Would you describe one of them as having braids, as you described [when defining Rastafarian hair]?
A. Yes.
Q. Would you describe the other one as being a tall, muscular African-American male?
A. Yes.
Q. Did you know those men?
A. Yes.
Q. Now, Mr. Kelly, would you describe yourself as a — as black male with short, black hair?
A. Yes.

The prosecutor presented no evidence related to the two spectators. Appellant was found guilty of one count of aggravated robbery. This appeal followed.

ISSUES

I. Did the prosecution’s series of questions regarding men in the audience constitute plain error?

II. Did the district court err by failing to suppress Hussein’s identification of appellant as the third assailant?

ANALYSIS

I.

Generally, a defendant is deemed to have forfeited his right to have an error reviewed on appeal if he fails to object to the error at trial. State v. Quick, 659 N.W.2d 701, 717 (Minn.2003). But this court has discretion to review a previously unraised issue if it is plain error. Id. The elements of plain error are (1) that there has been error; (2) that this error is plain; and (3) that the error affected substantial rights of the appellant. State v. Chiller, 583 N.W.2d 736, 740 (Minn.1998); see also Minn. R.Crim. P. 31.02. Appellant argues that the prosecutor’s cross-examination implying that two spectators in the courtroom with whom he is acquainted were his unapprehended accomplices in the crime constitutes plain error. We agree.

[W]e have held that the state cannot be permitted to deprive a defendant of a fair trial by means of insinuations and innuendoes which plant in the minds of the jury a prejudicial belief in the existence of evidence which is otherwise inadmissible.

State v. Strommen, 648 N.W.2d 681, 688 (Minn.2002) (quotation omitted). “[I]t is unprofessional conduct to ask a question *43 which implies a factual predicate which the examiner cannot support by; evidence, ... or intentionally to mislead the jury in argument as to inferences it may draw.” State v. White, 295 Minn. 217, 223, 203 N.W.2d 852, 857 (1973). And it is improper for prosecutors “to ask questions that are calculated to elicit or insinuate an inadmissible and highly prejudicial answer.” State v. Henderson, 620 N.W.2d 688, 702 (Minn.2001).

The state brashly argues that the questioning may have been calculated to test appellant’s ability to “identify a person based on a brief view of the pérson in the courtroom.” But the prosecutor’s cross-examination of appellant regarding the spectators was clearly constructed to imply a connection between appellant and Hussein’s unidentified assailants. The prosecutor not only asked appellant if his acquaintances matched Hussein’s descriptions of the other two attackers, but also asked appellant in the same sequence of questions, if he himself matched the victim’s description of the third attacker. Given the questions asked, it is disingenuous to suggest that the questions were merely designed to test appellant’s recall of people he had only briefly seen. The prosecutor’s cross-examination insinuated facts that were not supported by evidence and that were highly prejudicial.

Error is plain if the error is “clear” or “obvious.” Strommen, 648 N.W.2d at 688 (citations omitted).

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Bluebook (online)
668 N.W.2d 39, 2003 Minn. App. LEXIS 1075, 2003 WL 22039477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kelly-minnctapp-2003.