Clay County District Court File No. K1-02-1163
Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge;
and Minge, Judge.
1. Once an accused has expressed his desire to deal with the police only through counsel, he is not subject to further interrogation until counsel has been made available to him. It is error for a district court to admit statements an accused makes to police during such further interrogation unless the accused himself initiates additional communication, exchanges, or conversations with the police. But if the evidence is overwhelming even without the accused's statement and the statement would not have significantly contributed to the jury's verdict, the error is harmless.
2. Minn. Stat. § 611.32 (2000) requires law enforcement officials to provide an interpreter before interrogating or taking a statement from a person handicapped in communication. A person is handicapped in communication if he or she cannot understand legal proceedings because of difficulty speaking or comprehending English.
3. Photographs of a vehicular-homicide victim with his wife and family are not too prejudicial or inflammatory and are admissible "spark-of-life" evidence.
4. The penalty imposed under a statute is a significant consideration in determining whether an intent requirement should be implied as a matter of law. An intent requirement is not necessarily implied for statutes that impose a light penalty such as fines or short jail sentences. But for felony-level offenses, such as a violation of Minn. Stat. § 609.21, subd. 1(7) (2000), leaving the scene of a vehicular homicide, an intent requirement may be implied as a matter of law.
The opinion of the court was delivered by: Gordon W. Shumaker, Judge
Affirmed in part and reversed in part
On this appeal from a conviction for criminal vehicular homicide, appellant argues that (1) admission of a videotaped statement violated his constitutional rights because he invoked his right to remain silent and made unequivocal requests for an attorney; (2) the district court erred in admitting emotional "spark-of-life" evidence and in denying a motion for a mistrial after the prosecutor questioned the victim's widow on her preclusion from attending the rest of the trial because of a sequestration order; (3) the district court erred in responding to jury questions during deliberations by stating appellant did not have to be aware of hitting the victim or have to cause the collision to be found guilty; (4) the district court erred in refusing to instruct the jury on the lesser-included offense of careless driving; (5) he did not receive effective assistance of counsel; and (6) the district court erred when it sentenced him on both counts for a single behavioral incident.
In June 2002, appellant Mohammed Gazizamil Al-Naseer was driving his car home to Fargo, North Dakota from Cass Lake. He swerved onto the side of the road and struck and killed Kane Thomson (Thomson), who was changing a tire. Ten miles down the highway, appellant realized that his headlights were not working properly. Because he was only eight miles from home, he decided to drive slowly with his hazard lights on. But a short time later, he stopped to try to repair the headlights. Two police officers, who had been dispatched to locate a car involved in a hit-and-run accident, stopped when they saw appellant. One of the officers noticed fresh damage to appellant's car and asked appellant if he hit something about ten miles back. Appellant is Iraqi and speaks very little English, but he told the officers that he might have hit something. The officers arrested appellant and took him to the Moorhead Law Enforcement Center, where Sergeant Daniel Prischmann videotaped an interview with him. The relevant portions of the interview are as follows:
DP: [Y]ou have that right to remain silent. If you want an attorney prior to questioning or you have an attorney . . .
MA: Why do I? Why would I need one? I can't say nothing.
DP: I'm just advising you of your rights.
MA: I'm not sure. Even my English is not very good.
DP: I understand that. If you couldn't afford an attorney one would be appointed for you by the courts.
MA: Well, before I say something, why would I need somebody? Before I say something I need to make sure, and I can't say nothing, I need somebody here, because if you say attorney or whatever I say court and I don't know, I mean . . . I stopped behind me and he saw me outside not inside of the car. I am not inside the car. I was outside the car.
DP: I understand that. Do you understand your rights?
MA: I don't know. You say court, whatever, and I don't want to say nothing because I'm not sure. I'm honest with you, I don't know what is going on. Yes I'm tired. I'm not drunk, I never drink in my life . . . I don't know .
DP: Do you have an attorney?
MA: Well I don't know. Put youself my place. This is first time and I don't know. I mean I don't know. I'm kind of at a loss. I am here and I don't know what is happening. My car is gone and I don't know what happened. So I mean I'm not sure. I'm not sure. Take your place my place. I don't know.
DP: I could give you a phone book and you could call one if you want to call one, and let you talk to one.
MA: Now? I don't see anyone. I mean. I don't know. Probably I can't afford an attorney. Well, I need somebody, whatever, county, court appoint me oneà we can tryàI tired . . . I don't know. I don't know.
DP: We can't make you give any statements against yourself. We can't make you say anything or tell us what you know without your consent.
MA: Well, yeah I mean. I don't know. I'm lost. I am here. My car gone. I don't know what happen. And I stopped, nobody stop me. And the officer saw me outside, not inside the car. I don't know.
DP: Do you want to tell me what happened when you stopped? Can you tell me what you did or---
MA: Actually I was the driver and I'm tired. I feel something bump my car. I drive away a little bit. I feel no light. I went outside to check the light. I had no lights. I need to find out what is going on. So I do the lights. I hit it. I have lights. I thought that I would make it maybe. I not know so then I'll call my friend and see what has happened.
DP: If I understand, what you are telling me is, you say that you were very tired last night when you were driving?
MA: No. Today. I don't know. I don't know. If something happened I don't know.
Sergeant Prischmann continued to question appellant for another 50 minutes. The videotape shows that appellant was very unsure as to why he was there and why Sergeant Prischmann was questioning him. The videotape also shows that because of the language barrier, appellant is difficult to understand, and doesn't always understand what Sergeant Prischmann is saying to him. At one point, he seems to think he is being questioned because he did not have lights: "I need to go to court because I'm suppose to go to the gas station but I cannot go because I don't have lights."
After Sergeant Prischmann asked appellant several questions about the problems appellant was experiencing with his car, he asked, "Do you recall hitting anything along the way? I think you told the officer you hit something a while before you pulled over. Do you recall hitting anything?" Appellant responded, "No. I don't know."
The state charged appellant with two counts of criminal vehicular homicide for causing the accident through gross negligence and leaving the scene of an accident. Before trial, appellant stipulated that he was driving the vehicle that hit Thomson. An interpreter was appointed to assist him when needed during the trial.
Appellant moved to suppress the videotaped interview, arguing that Sergeant Prischmann obtained the statement after appellant invoked his right to counsel. The district court denied the motion because appellant "simply never paused in his attempt to explain his story to Sergeant Prischmann, even while referring to his need for counsel," and he did not request to terminate the interrogation until his counsel was present.
At trial, the state showed the jury the entire videotaped interview. In addition, appellant testified that he didn't understand English very well and was confused during that interview. Appellant also testified that he was tired the night of the accident but did not recall having the accident and that it took him several days to believe that he hit Thomson. He stated that if he had known that he hit something he would have stopped.
Dustin Leingang, who was with Thomson on the night of the accident, testified that when Thomson's car got a flat tire, they pulled to the shoulder, put the hazard lights on, and used the light of the trunk and a small flashlight to see what they were doing. Leingang testified that there was enough room between the fog line and the ditch for the car, the removed tire, and Thomson, who weighed 250 pounds and was 6 feet 3 inches tall.
Leingang held the flashlight as Thomson crouched down to change the tire. Leingang testified that when the accident occurred he was spun around as if being pushed. He then saw Thomson's body several feet in front of the car and saw a car's taillights, but no brake lights, and heard no acceleration.
The police officers, who arrived shortly after the accident, also testified. They described the scene and debris matching appellant's car. One of the officers also testified to finding appellant on the side of the road. He testified that appellant initially stated that he must have hit something but did not know what, and later became unclear as to what occurred.
An accident reconstructionist theorized that appellant's car made a gradual arc until his car crossed about a foot over the fog line and hit Thomson while he was crouched down changing the tire. He also theorized that, given Thomson's position, appellant would not have seen Thomson when he hit him, would not have seen him in the rearview mirror after the impact, and would not have been able to notice the damage to the front passenger side of his car without getting out of his car.
Thomson's wife (Ms. Thomson) testified about her life with Thomson and read a poem Thomson had written. Over appellant's objection, she also presented three photos to the jury–of Thomson and his father; of the Thomsons on their honeymoon; and of the Thomsons and their family on Thomsons' wedding day, six months before the accident.
Ms. Thomson stated that, based upon the motion to sequester, she would be testifying and could not attend the entire trial. Appellant moved for a mistrial based on the state's comments regarding Ms. Thomson's absence from much of the trial, her reading of the poem, and her testimony regarding Thomson's life. The district court denied the motion and gave a corrective instruction on the sequestration. Defense counsel requested that the district court submit the lesser-included offense of careless driving on the gross-negligence charge. The district court denied this motion.
During jury deliberations, the jury sent three written questions to the judge regarding the knowledge requirement of the leaving-the-scene charge. The court answered that "there's no specific intent required." When appellant asked about general intent, the district court responded, "I'm not going to get into that. You can argue that on appeal." Appellant objected, stating that for someone to remain at the scene of an accident it was inherently necessary that there be an element of knowledge that there had been an accident.
The jury convicted appellant of both criminal vehicular homicide involving gross negligence and criminal vehicular homicide involving a fatality and leaving the scene of an accident. Appellant was sentenced under the first count to 48 months in prison and ...