1. The trial court did not abuse its discretion when it excluded alternative-perpetrator evidence related to two alleged alternative perpetrators.
2. The trial court did abuse its discretion when it excluded alternative-perpetrator evidence with respect to a third alleged alternative perpetrator, but the error was harmless.
3. The trial court did not err when it admitted evidence that witnesses were threatened, felt threatened, or were assaulted.
4. The trial court did not commit error, plain or otherwise, when it failed to sua sponte provide a cautionary instruction with respect to evidence of witnesses being threatened, feeling threatened, or being assaulted.
5. The trial court did not commit plain error when it failed to sua sponte give a cautionary instruction with respect to unredacted police statements that appellant was being untruthful.
6. Appellant's claims with respect to newly discovered evidence, the exclusion of a letter for lack of foundation, and prosecutorial misconduct fail for lack of merit.
The opinion of the court was delivered by: Page, Justice.
Heard, considered and decided by the court en banc.
On October 5, 2004, a Dakota County jury found appellant Philip Vance guilty of first-degree premeditated murder, first-degree felony murder during an aggravated robbery, and second-degree intentional murder for the shooting death of Khaled Al-Bakri (Al-Bakri). The trial court judge sentenced Vance to life imprisonment. In this direct appeal, Vance raises a number of issues. He contends that the trial court erred when it denied his motion to admit certain alternative-perpetrator evidence and reverse-Spreigl evidence. He also contends that he was denied a fair trial due to the cumulative prejudicial effect of errors by the trial court, including the admission of evidence that witnesses were threatened, felt threatened, or were fearful; the trial court's failure to sua sponte give a cautionary instruction with respect to that evidence; and the trial court's failure to sua sponte give a limiting instruction with respect to unredacted statements by police officers asserting that Vance was lying. Pro se, Vance argues that: (1) newly discovered evidence entitles him to a new trial; (2) the trial court erroneously excluded introduction of a relevant letter; and (3) the prosecutor committed misconduct when she cried during her opening statement and while presenting the state's case. We affirm.
Tariq Bakkri (Bakkri), Al-Bakri's brother and the owner of Sabreen's Supermarket (Sabreen's) in South Saint Paul, was working at Sabreen's on the afternoon of December 22, 2002. At about 2:00 p.m., Al-Bakri arrived and offered to work the rest of the afternoon and evening. Bakkri left the store between 9:27 p.m. and 9:30 p.m. At about 9:41 p.m., Kathleen Johnson arrived at Sabreen's. When she entered the store, she observed a man in a black mask taking money out of the cash register. She thought she heard the man shout something and she saw him make a "motion like he was going to pull a gun out from his pants." She immediately ran from the store to her car. As she drove away, she observed two people running out of the store. One person was slightly taller than the other. Both were slender and wore baggy pants, hooded sweatshirts, and masks.
Also around 9:30 p.m., four teenagers, including D.M., walked to Sabreen's. As they were walking, one of the teenagers noticed a car parked in an alley just outside of Sabreen's. He described the car as a four-door, "regular sized car," "darkish," shiny, and "tinted gray." Another of the teenagers testified that it was a big, dark, "grayish-black," four-door car. The group observed two men run from the store, jump into the car, and drive away quickly. One of the teens described the two men as wearing baggy clothing, while another observed that the two men wore sweatshirts and dark jeans.
When the teenagers entered the store, they could not locate the clerk. As they waited at the counter, D.M. noticed that the cash register was open. He leaned over the counter and saw Al-Bakri lying on the floor, motionless. He also noticed some blood. The teenagers immediately ran back to D.M.'s home and called the police.
Al-Bakri was pronounced dead at the scene. The cash register indicated that the cash drawer was last opened at 9:35 p.m. for a no-sale transaction. The police found four cartridge casings from a .22 caliber gun on the floor of the store. Two of the cartridges were determined to be Winchester Western brand ammunition and two were CCI brand ammunition. Two bullets were found in Al-Bakri's body, a third was found in a flashlight near his body, and the fourth was not located. The police were unable to find any physical evidence at the scene connecting Vance or any other suspect to the murder and the murder weapon was never recovered.
A number of witnesses testified about Vance's activities before and after the murder on December 22. John Martin, a convicted burglar, testified that on December 22, 2002, he, Vance, and Dominic Johnson were at the Radisson bar in downtown St. Paul between 7 p.m. and 8 p.m. While at the bar, the three discussed the upcoming holidays, and Vance and Johnson discussed making arrangements to buy presents for their children. Martin testified that the three did not discuss a robbery while at the Radisson bar. According to Martin, around 8:30 p.m., Johnson made a phone call from Vance's cell phone to Yvonne and Nicole, two women from South St. Paul. Vance and Johnson told Martin they were going to South St. Paul and invited him along. Martin declined, and the three left the bar. As Martin was heading to his bus, he saw Yvonne and Nicole arrive in a four-door, dark blue Chevy Corsica. The car pulled up to the area where Vance and Johnson were standing.
Melissa Stites, the head bartender at the Radisson bar, testified that on December 22, 2002, Vance, Johnson, and a third man came into the bar around 7:30 p.m. Stites knew both Vance and Johnson, and she testified that they were "more secretive" than usual that evening. When Stites asked them what was going on, Vance replied "that they were getting their plan on." Stites interpreted "getting their plan on" to mean "planning to commit a robbery." Vance and Johnson were in the Radisson bar for about half an hour. As they were leaving, Stites commented that tips were low that night, because Vance and Johnson normally did not tip her. Vance responded, "Don't worry, Baby, when I get back there's going to be plenty of money."
Eric Griffin, an acquaintance of Vance and Johnson, testified that he saw Vance and Johnson arrive at The Buttery, a bar in St. Paul, sometime after 10:00 p.m. on December 22, 2002. Griffin testified that Vance's demeanor was "kind of wild * * * from drinking." Vance was wearing a black hooded sweater and loose-fitting dark blue jeans. Vance told Griffin "that he had did a robbery and it had gone bad, and the guy he was robbing, he had f---ed him up." Vance told Griffin that the robbery had occurred in South St. Paul.
Colleen McManus, the night manager at The Buttery, saw Vance and Johnson outside the bar as she arrived at work sometime between 10:15 p.m. and 10:30 p.m. on December 22. She saw the two get out of a car, which she believed was a four-door, "silver, light green" midsized car. Johnson wore a white hooded sweatshirt, a light blue Starter jacket, dark jeans, and white tennis shoes. Vance wore a dark blue jacket with leather sleeves, dark pants, and a dark hooded sweatshirt. As she entered the bar, she saw Vance and Johnson talking to a group of people, which included Maynard Cross. Vance approached McManus and asked her not to "throw him out" of the bar.*fn1 Vance and Johnson both seemed nervous. When McManus asked Vance what was wrong he said, "I really f---ed up this time." She responded, "It couldn't have been that bad," and he said, "Oh, yeah, it was. I really did it this time. I did it this time." At one point, Vance started crying, which McManus noted was unusual for him. When she again inquired about his agitation, he said, "Well, I didn't mean for it to happen, it wasn't supposed to happen that way." He then made a motion that McManus interpreted to mean that he had shot someone. When she asked him if he had shot someone, he replied, "It wasn't supposed to happen like that."
McManus immediately called to report her conversation with Vance to her brother, John McManus, a police officer assigned to the Minnesota Gang Strike Force (MGSF). On December 23, 2002, Stites also reported the conversation she had had with Vance at the Radisson bar to Officer McManus, whom she knew because she had previously provided information to him.
Stites agreed to participate in an undercover investigation of Vance and on January 3, 2003, Stites met with Vance and Johnson at The Buttery. Stites was meeting with Vance under the guise of purchasing a gun from him, with the hope that she would be able to elicit information about the murder. The police had arranged to intercept Stites' conversation with Vance. At some point during the meeting, Vance asked Stites ...