Dakota County District Court File No. 19HA-CR-11-2526
Lori Swanson, Attorney General, St. Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, Jenny R. Nystrom, Assistant County Attorney, Hastings, Minnesota (for respondent)
Michelle L. MacDonald, MacDonald Law Firm, LLC, West St. Paul, Minnesota (for appellant)
Considered and decided by Cleary, Chief Judge; Kalitowski, Judge; and Kirk, Judge.
CLEARY, Chief Judge
Appealing the denial of his motion for a new trial, appellant argues that the prosecutor committed misconduct when referencing appellant's opportunity to testify; the court erred in allowing an investigator's testimony regarding appellant's voicemail and that his past work included "high profile crimes"; the district court abused its discretion in determining that photographs of text messages were properly authenticated; appellant was not properly on notice of the predicate violent crime for the terroristic-threats charge; the prosecutor's offer of a plea bargain violated appellant's constitutional rights; the cumulative effect of errors deprived appellant of a fair trial; and the time lapse between charging and trial violated appellant's right to a speedy trial. We affirm.
This case arose from a number of threatening text messages sent to B.M. from appellant Terrance Newsome. On March 4, 2011, B.M. reported receipt of these messages to the Lakeville Police Department. The text messages came from the number saved in B.M.'s phone as "Terry Compton" or "Compton Terry, " the nickname B.M. used for Newsome. B.M. stated that Newsome was angry with B.M. for spending time with Newsome's girlfriend and helping her buy a car and that he was not aware of anyone else who would be upset with him during the period the text messages were sent. The text messages included personal threats and threats to B.M.'s family. The threatening messages read: "U BETTER PRAY U DON'T C ME!!!!!! CUZ HONESTLY IM HUNTIN U DOWN"; "i would move rite about now if u still wanna breathe"; "ima deliver ur head to ur mom n then ur bro n mom r f-cked!"; and "ur goin to the hospital tonite p-ssy! . . . ur dead."
On July 28, 2011, Newsome was charged with one count of terroristic threats pursuant to Minn. Stat. § 609.713, subd. 1 (2010). On November 14, 2011, Newsome waived his right to a speedy trial, and the district court set his trial for May 7, 2012. Because of newly retained counsel, Newsome requested a continuance on May 7, 2012 and the trial was continued to August 6, 2012. On August 2, 2012, the prosecutor called Newsome's attorney, offering a plea bargain. The prosecutor had just been informed that B.M. had reported that Newsome had violated the harassment restraining order (HRO) that B.M. had obtained after the charges were filed. The state was willing to consider not charging the HRO violation in exchange for a guilty plea to the terroristic-threats charge. Newsome rejected the offer and proceeded to trial.
At trial, the state called B.M., Officer Danielson, Officer Stevens, and Investigator Helmueller. Over Newsome's objection, the district court admitted into evidence eight photographs depicting the messages on B.M.'s phone. B.M. identified his phone in the pictures by the black rubber case and he confirmed that the phone number from which the text messages were sent belonged to Newsome. B.M. testified that he and Newsome had been friends in the past, and he had Newsome's phone number saved in his phone as "Terry Compton" or "Compton Terry." B.M. denied deleting any text messages from his conversations with Newsome. B.M. testified that he sold the cell phone to which Newsome sent the threatening text messages. On cross-examination, Newsome attempted to offer his own phone records to show that text messages had been deleted from the conversations depicted in the state's exhibits. The court sustained the state's objection to admitting the records due to lack of foundation and relevance.
Officer Danielson testified that he responded to B.M.'s complaint, took B.M.'s statement, and viewed the text messages. Officer Danielson then testified to calling
Newsome using the number from which the text messages were sent, and that Newsome agreed to come in the next day to provide a statement. Newsome never came in or provided a statement. Officer Stevens testified that he photographed the messages and that he observed Officer Danielson take B.M.'s recorded statement.
Investigator Helmueller testified that he was assigned as the investigating officer. When describing his job duties, Investigator Helmueller said, "I investigate high profile crimes and I investigate computer crimes, internet crimes." Shortly thereafter, the court requested a sidebar. After the unrecorded sidebar, the following questioning occurred:
STATE: Detective, when you were describing your duties as a detective for the Lakeville Police Department, you indicated that sometimes you're required to investigate high profile type cases, right?
STATE: But other times you are required to investigate cases that are not high profile?
STATE: Is this case high profile in any way?
HELMUELLER: Not at all.
Investigator Helmueller then testified about his attempts to contact Newsome at his residence. He testified to calling Newsome at the phone number from which the text messages at issue were sent and the voicemail which Newsome left for him. The voicemail itself was not introduced. On cross-examination, defense counsel questioned Investigator Helmueller about other statements in the voicemail, statements to which he had not yet testified. The state objected: "Objection, Your Honor. Self-serving hearsay. The Defendant has the opportunity to testify." The district court immediately asked the attorneys to approach the bench. After an unrecorded sidebar, cross-examination continued. Defense counsel asked, "Did [Newsome] also say [in the voicemail], that it's just a – it's just bullsh-t because [B.M.] has threatened him, too?" Helmueller responded that he did.
The prosecution rested and Newsome did not call any witnesses or testify. The court then gave each party a copy of the proposed jury instructions. The instructions provided that the predicate crime of violence was second-degree murder. ...