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State v. Khadka

Court of Appeals of Minnesota

August 5, 2013

State of Minnesota, Respondent,
v.
Kanchan Jung Khadka, Appellant.

UNPUBLISHED OPINION

Lyon County District Court File No. 42-CR-11-1101

Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul, Minnesota; and Rick Maes, Lyon County Attorney, Tricia Zimmer, Assistant County Attorney, Marshall, Minnesota (for respondent)

David W. Merchant, Chief Appellate Public Defender, Jessica Merz Godes, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Cleary, Judge; and Smith, Judge.

CLEARY, Judge

Appellant challenges his conviction of first-degree burglary under Minn. Stat. § 609.582, subd. 1(a) (2010), arguing that the district court abused its discretion by limiting his questioning of the victim; that he received ineffective assistance of counsel; and that the jury returned legally inconsistent verdicts. We affirm.

FACTS

In the early-morning hours of September 9, 2011, A.M., A.S., and V.D. were watching television at A.M. and V.D.'s apartment in the 500 block of Village Drive in Marshall. Someone knocked on the door of the apartment, V.D. answered, and a fight broke out inside the door. A.S. and A.M. ran toward V.D. and saw four men hitting him. By the time they arrived at the door, V.D. was on the ground and bleeding from the eye. The four men hitting V.D. were appellant Kanchan Khadka, G.T., T.T., and R.T. A.S. and A.M. pushed the men out of the apartment and then called 911 to report the incident. Following the 911 call, Marshall Police Department officers were dispatched to the apartment. When the officers arrived, A.S. led them to an apartment in the same complex where T.T. lived and where the four men were at the time. Appellant and R.T. were standing outside of the apartment smoking, and the officers arrested them. The officers also arrested G.T. and T.T., who were in an apartment upstairs.

In January 2012, appellant was charged with one count of first-degree burglary under Minn. Stat. § 609.582, subd. 1(a), one count of first-degree burglary under Minn. Stat. § 609.582, subd. 1(c) (2010), one count of first-degree assault under Minn. Stat. § 609.221, subd. 1 (2010), and one count of third-degree assault under Minn. Stat. § 609.223, subd. 1 (2010). A jury trial was scheduled for March 2012.

Prior to trial, appellant filed several motions in limine. He requested an order allowing his counsel to cross-examine V.D. "regarding a pending civil suit, including a letter from [V.D.'s] civil attorney stating that financial settlement would improve [appellant's] position in the pending criminal case." He also requested an order allowing his counsel to introduce into evidence, through V.D. or V.D.'s counsel, M.G., "(1) the letter discussed . . . requesting a financial settlement and (2) a [voicemail message] from [M.G.] to [appellant's counsel] stating that [appellant's] charges could be possibly eliminated if he were to provide a financial settlement to [V.D.]"

The court issued an order allowing appellant to question V.D. to establish bias, but reserved ruling on whether appellant could question V.D. about the contents of the letter. The court also reserved ruling on appellant's motion to introduce the letter or the voicemail message into evidence. In its memorandum supporting the order, the court noted that the "correspondence from counsel to counsel, or communication from counsel to counsel does little to assist the jury in understanding the witness' bias" and observed that "[i]f witnesses establish that [V.D.] was the victim of a significant physical assault, the witness' bias would seem obvious." Finally, the court stated that "[b]oth the letter and voicemail [message] appear to add no specific information as to the practical issue of bias."

The court and counsel also had an off-the-record chambers discussion regarding the motions in limine on the morning that trial began. In response to an order from this court, the district court would later file a statement detailing that discussion. During the discussion, the court clarified proper areas of cross-examination of V.D. Areas that were identified as proper included whether a civil claim against appellant by V.D. existed, whether V.D. had retained counsel regarding that claim, and whether V.D. intended to commence a civil lawsuit, if necessary, to pursue that claim. The court also noted in its statement that "[n]o ruling was made on whether or not [M.G.] could testify. It was clear that until [V.D.] had testified, a ruling on that point would be premature. Counsel were told that [M.G.'s] testimony was unlikely unless [V.D.] denies having a claim, having an attorney, or possible litigation." Finally, the court noted that appellant's attorney "understood that it was his responsibility to bring [the issue of M.G.'s testimony] before the [c]ourt if he felt, after [V.D.]'s testimony, that testimony by [M.G.] was needed in order to establish the issue of the bias."

At trial, V.D. testified and was cross-examined by appellant's counsel. On cross- examination, the following exchange took place:

Q: Now, uh, you have hired a lawyer, right?
A: In the civil case?
Q: Uh, on the civil ...

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