State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1754

State of Minnesota,
Respondent,

vs.

Tyrone Levar Price,
Appellant.

Filed March 6, 2017
Affirmed
Rodenberg, Judge

Mower County District Court
File No. 50-CR-14-2245

Lori Swanson, Attorney Gene ral, Edwin W. Stockmeyer, A ssistant Attorney General,
St. Paul, Minnesota; and

Kristen Nelsen, Mower County Attorney, Austin, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Stauber, Judge; and Rodenberg,
Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant challenges his convictions of a ttempted first- and second-degree murder
and first-degree assault. He argues that (1) the district court abused its discretion by

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erroneously excluding evidence at trial, (2) the prosecut or committed misconduct by
eliciting improper character evidence and referencing in trial summation appellant’s refusal
to submit to a DNA test, and (3) the district court abused its discretion by refusing to
compel discovery or conduct an in camera review of police records. We affirm.
FACTS
Appellant was charged with attempted first- and sec ond-degree murder and first-
degree assault after an incident on September 16, 2014. Appellant fired three shots at T.M.
from his silver car, striking T.M. in the chest and leg. Two witnesses saw T.M. fall to the
ground and separately called 911 to report the shooting. The 911 calls were logged at 5:55
p.m., and a police lieutenant and detective arri ved at the scene a few minutes later. A
witness told the emergency dispatcher that she saw a car pass her immediately after the
shots were fired, travelling away from the location of the shooting. She provided the
license plate number and described the vehicle as a silver car with a decorative stripe.
Officer Hartman received the description of the silver car and license plate number
shortly after the 911 calls were made. He was familiar with the described car and where
it was normally parked from having seen it five to six times per day. He also knew that
appellant normally drove such a car. Officer Hartman drove to the area where he typically
saw the car and found appellant walking from a backyard to the car. Officer Hartman
apprehended appellant in the silver car at 6:01, six minutes after the shooting was reported
by dispatch. The car’s license plate number corresponded with the witness report from the
shooting scene. Appellant acknowledged that he had possession of his vehicle during the
time of the shooting and that no other person had used his car during that time.

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Appellant had previously lived at the address where he was arrested and had
frequently used the garage there to work on vehicles. A search of the garage revealed three
spent cartridge cases, two live cartridges, and a five-shot revolver hidden in the insulation
of a partially covered wall. Bullet fragments were recovered from the scene of the shooting
and from T.M.’s knee. A fo rensic scientist with the Mi nnesota Bureau of Criminal
Apprehension determined that the bullet fragment recovered from the scene of the shooting
had been fired from the pistol found in the wall of the garage. Appellant’s DNA could not
be excluded from a mixed-DNA sample found on the pistol, though 99.6% of the general
population could be excluded from the mixture.
When T.M. was interviewed by police at the hospital, he identified appellant as the
shooter. He testified that he knew appellant, where he lived, and the silver car that he usually
drove. He testified that the incident began shortly after he walked past appellant’s house.
Appellant’s silver car was in his driveway. Shortly after T.M. walked past appellant’s house,
appellant pulled alongside where T.M. was walking and told him not to walk by his house
anymore. T.M. testified that appellant then fired three shots, striking T.M., and then drove
away.
After his arrest, appellan t waived his right to rema in silent and spoke with
investigators. His recorded statements were played for the jury, including a portion in which
appellant refused a request to provide a DNA sample. At trial, appellant testified that he
declined to provide a DNA sample but had hoped that the investigators would test his hands
for gunshot residue (GSR). No GSR test was done. After appe llant testified that he had
hoped a GSR test would be completed, the state asked him during cross examination: “But

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when they asked to do the DNA, what was your response?” Appellant answered that he
had said “no” to a DNA test.
During the state’s summation at trial, the state argued to the jury that appellant’s
testimony was not credible because of the vari ous inconsistencies in his statement. The
state argued:
You know, he gets up, and he says, “Oh, GSR. I studied GSR.”
Well, apparently he never st udied DNA. He studied GSR
because they didn’t do that, and that’s what he wanted them to
do because that would have exonerated him.
But the DNA, you heard on the tape, he wanted no part
of that test. He didn’t know that they could just go get a search
warrant. They are asking to see his reaction. And he gets up
here in court and says, “Well, yeah, I wanted them to do the
test.” If you didn’t commit the offense . . . you would want
them to do the DNA, because that’s going to exclude you.
Even if that had been all the ev idence in the case, that would
be a tremendous amount of evidence that [appellant]
committed this offense. He eliminates the reasonable
possibility in his statement of somebody else having done it.

The jury returned guilty ve rdicts on all three counts. The district court denied
appellant’s post-trial motions for acquittal or a new trial.
This appeal followed.
D E C I S I O N
I. The district court’s proper application of the rules of evidence did not violate
appellant’s constitutional right to present a complete defense.

Appellant argues that he was prevented from presenting a complete defense because
the district court excluded evidence at trial of both the testimony of a detective concerning

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an out-of-court statement of a non-testifying witness and a copy of an image from the
ballistics investigation.
“A defendant has the constitutional right to present a complete defense.” State v.
Atkinson, 774 N.W.2d 584, 589 (Minn. 2009). Bu t this right is not unrestricted. Id. In
exercising the right to presen t a complete defense, the de fendant must comply with
evidentiary rules “designed to ensure both fairness and reliab ility in the ascertainment of
guilt and innocence.” State v. Richardson, 670 N.W.2d 267, 277 (Minn. 2003) (quotation
omitted). “[W]hen a defendant alleges that hi s inability to present a defense violates his
constitutional rights, evidentiary questions are reviewed for abuse of discretion.” State v.
Henderson, 620 N.W.2d 688, 698 (Minn. 2001). Appellant bears the burden of establishing
that the district court abused its discretion and that he was prejudiced by the error. State v.
Bustos, 861 N.W.2d 655, 666 (Minn. 2015). An abuse of discretion occurs “when the
district court’s ruling is based on an erroneou s view of the law or is against logic and the
facts in the record.” Id. (quotation omitted).
Statement of R.H.
During trial, appellant attempted to elic it testimony from a detective that R.H., a
person who had been speaking with T.M. on the phone at the time of the shooting, told the
detective that she heard T.M. say, “I don’t know who you is,” immediately before the shots
were fired. R.H. did not tes tify as a witness at trial, and T.M. testified th at he did not
remember making such a remark. The stat e objected to the detective’s testimony
concerning R.H.’s statement as inadmissible h earsay. The district court sustained the
state’s objection. Appellant argues that th e exclusion of the out-of-court statement

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rendered him unable to present his theory that an alternative perpetra tor shot T.M. In
making a record of the excluded evidence, appellant’s attorney stated that the evidence was
“offered for the specific purpose that [T.M.] did not know who shot him.”
On appeal, appellant does not explain how R.H.’s statement to the detective should
have been considered admissible under the evid entiary rules. Instead he relies solely on
arguments concerning the statement’s relevance to his defense. But relevant evidence may
be excluded under the rules of evidence. See Minn. R. Evid. 402 (providing that all relevant
evidence is admissible except as provided by these rules). Hearsay is an out-of-court
statement “offered in evidence to prove the truth of the matte r asserted.” Minn. R. Evid.
801(c). The rules of evidence bar the admissi on of hearsay evidence unless an exception
to the rule against hearsay a pplies. Minn. R. Evid. 802. Appellant attempted to admit
R.H.’s out-of-court statement—that R.H. hear d T.M. indicate that he did not know the
shooter—for its truth. Appellant identifies no applicable exception to the rule against
hearsay. The district cour t acted within its discretion in sustaining the objection to
inadmissible hearsay.
The ballistics photocopy
Appellant argues that his ability to presen t a complete defense was limited by the
district court’s exclusion of a copy of a photo taken by th e forensic scientist during
examination of the bullet fragments. He argues he was unable to effectively cross-examine
the witness because of the exclusion of this evidence.
The copy was excluded on f oundation grounds after the witness explained that it
was a “very dark copy” of the original phot ograph and did not accu rately represent the

7
conditions she viewed through the microsc ope. Adequate foundation for photographic
evidence requires testimony that the image accu rately depicts the conditions at issue.
LaCombe v. Minneapolis St. Ry. Co., 236 Minn. 86, 93, 51 N.W.2d 839, 844 (1952), cited
with approval in State v. Jackson, 770 N.W.2d 470, 483 (Minn. 2009). The district court
acted within its discretion in excluding the copy on foundation grounds as not accurately
depicting the original photograph and the condition of the bullet portrayed in the
photograph.
Even if the exclusion were considered an abuse of the district court’s discretion,
which it was not, appellant was not prejudiced by the exclusion in any event. See Bustos,
861 N.W.2d at 666 (sta ting reversal is not warranted if a claimed constitutional error is
“harmless beyond a reasonable doubt”). Appellant was permitted to question the forensic
scientist regarding her met hodology. He challenged the conclusions derived from her
examination. The district court’s ruling was neither erroneous nor prejudicial.
II. Appellant is not entitled to a new trial on the basis of prosecutorial misconduct.

Appellant argues that his conviction must be reversed because the prosecutor
committed misconduct by (1) eliciting improper character evidence concerning Officer
Hartman’s previous contacts with appellant and (2) arguing that the jury could infer guilt
based on appellant’s refusal to give a DNA sample. Appellant did not object to the alleged
misconduct during trial.
Alleged prosecutorial misconduct is reviewed under a modified plain-error standard
when no objection was made during trial. State v. Peltier, 874 N.W.2d 792, 803 (Minn.
2016). This standard requires appellant to establish that the prosecutor committed an error

8
and that the error was plain. Id. “An error is plain if it is clear or obvious,” and typically
“contravenes case law, a rule, or a standard of conduct.” State v. Cao, 788 N.W.2d 710,
715 (Minn. 2010) (quotation om itted). If appellant demons trates that a plain error
occurred, the burden shifts to the state to demonstrate th at the error did not affect
appellant’s substantial rights. State v. Carridine, 812 N.W.2d 130, 146 (Minn. 2012). The
state must show “there is no reasonable likelihood that the absence of the misconduct in
question would have had a significant e ffect on the verdict of the jury.” State v. Ramey,
721 N.W.2d 294, 302 (Minn. 2006) (quotati ons omitted). If the state fails to show
substantial rights were not affected, this cour t “may correct the error only if it seriously
affects the fairness, integrity or public reputation of judicial proceedings.” State v. Mosley,
853 N.W.2d 789, 801 (Minn. 2014) (quotations omitted). Ultimately, we will reverse a
conviction “only if the misconduct, when consider ed in light of the whole trial, impaired
the [appellant’s] right to a fair trial.” State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).
Elicitation of questions about prior contacts with police
Appellant argues that the prosecutor e licited improper charact er evidence from
Officer Hartman regarding appellant’s prior contacts with law enforcement.
“It is improper for a prosecut or to ask questions that ar e calculated to elicit or
insinuate an inadmissible and highly prejudicial answer.” Henderson, 620 N.W.2d at 702.
It is reversible error for the prosecutor to “d eprive a defendant of a fair trial by means of
insinuations and innuendos which plant in the minds of the jury a prejudicial belief in the
existence of evidence which is otherwise inadmissible.” State v. Harris, 521 N.W.2d 348,
354 (Minn. 1994) (quotation omitted). “Use of such insinuation and innuendo is reversible

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error whether the allusion to prior misconduct is containe d in the question which the
prosecutor asks or in the answer which the witness gives.” Id. (quotation omitted).
Officer Hartman testified about his prior knowledge of the silver car reportedly
involved in the shooting. He testified that he knew that a man who looked like appellant
typically drove the car because he knew appellant “from the past .” He also testified that
he knew from “previous contacts” where the car was normally parked. When asked if he
was aware of a connection between appellant and the location where he was arrested, the
officer replied that he knew that the house at that location belonged to a relative of
appellant. The prosecutor then asked, “[H]ow do you know that?” The officer replied,
“Previous contacts there. . . . I have been there before. I was there for a domestic, I think,
probably about two years ago.”
Appellant argues that this line of questioning by the state was designed to elicit, and
did elicit, improper character evidence. He argues that similar questioning constituted
prosecutorial misconduct in State v. Strommen , 648 N.W.2d 681 (Minn. 2002). In
Strommen, a case where identity was not an issue, the Minnesota Supreme Court held that
it was plain error affecting the defendant’s substantial rights for the state to elicit testimony
from an officer that he knew the defendant from prior contacts. 648 N.W.2d at 688. The
supreme court concluded that, because the defe ndant did not deny hi s involvement in the
attempted robbery, the state’s purpose in aski ng the questions was to establish that the
defendant was a person of bad character who had frequent contact with police. Id. In State
v. Valentine, we likewise held that it was error for the state to elicit testimony that the
officer knew the defendant from prior contacts when the defendant’s identity was not at

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issue in the case. 787 N.W.2d 630, 641 (Minn. App. 2010), review denied (Minn. Nov. 16,
2010).
Here, the identity of the shooter was at issue. Appellant denied any involvement in
the shooting. The state’s questions and the o fficer’s responses about prior contacts were
intended to establish the location of the car, appellant’s connection to it, and appellant’s
connection to both the scene of the shooting and where appellant and the gun were located
just minutes after the shooting. Because th e identity of the shoote r was at issue, the
admission of this testimony was not plain error.
We also note that the testimony about O fficer Hartman’s previous contacts with
appellant and the property where he was found after the shooting made no reference to any
earlier criminal conduct by appe llant. And the reference by the officer was brief, only
providing context for why he went to that property looking for appellant and his car. It did
not affect appellant’s substantial rights in any event.
Appellant’s refusal to consent to warrantless search
Appellant argues that the prosecutor committed misconduct “ by arguing the jury
should infer guilt from [appellant’s] initial refusal to provide a DNA sample.” The state
responds that the argument in its summation was permitted to rebut appellant’s claim that
the investigation was inadequate because a GSR test was not completed. The state also
argues that the reference was permitted as a challenge to appellant’s credibility.
Appellant did not object to the introduction of the portion of the recording containing
appellant’s refusal to permit warrantless DNA testing, nor did he object to the state’s use of
that refusal during trial summation. Counsel for appellant explained during the motion for

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a new trial that he made a strategic decision not to object during trial because he did not want
to draw attention to the evidence.
“It is a violation of the defendant’s right to due process for a prosecutor to comment
on a defendant’s failure to cons ent to a warrantless search.” State v. Jones, 753 N.W.2d
677, 687 (Minn. 2008) ( Jones II); see also State v. Jones, 678 N.W.2d 1, 12 n.3 (Minn.
2004) (Jones I) (“A passive refusal to consent to a search cannot be treated as evidence of
a crime.”). The defendant’s due process rights are violated “when the state presents direct
evidence that the defendant failed to consent to a search, but not when the state creates an
inference based on little more than speculation that a defendant did not consent to the
search.” State v. Hill , 801 N.W.2d 646, 654 (Minn. 2011) (quotations omitted). If the
government was permitted to use the refusal of a warrantless DNA search as evidence of
guilt, “an unfair and impermissible burden wo uld be placed upon the assertion of a
constitutional right and future consents would not be freely and voluntarily given.” Jones
I, 678 N.W.2d at 12 n.3 (quoting United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir.
1978) (quotation marks omitted).
The state presented direct evidence that appellant refused a warrantless search when
it played to the jury appellant ’s recorded statements to po lice. Although appellant later
testified that he had refused the request for a DNA sample, the state had already admitted
and played to the jury appellant’s taped refusal. The state then argued in its summation:
If you didn’t commit the offense . . . you would want them to
do the DNA, because that’s going to exclude you. Even if that
had been all the ev idence in the case, that would be a
tremendous amount of evidence that [appellant] committed this

12
offense. He eliminates th e reasonable possibility in his
statement of somebody else having done it.

We decline the state’s invitation that we hold that the prosecutor was permitted to
make these arguments to rebut appellant’s defense strategy. The use of this evidence, and
the argument by the state in its summation, invited the jury to infer guilt from appellant’s
refusal of an unconstitutional search.
Here, and even if admission of the reco rding and the state’s comment on it were
plainly erroneous, the state has met its burde n of showing that there is no reasonable
likelihood that the evidence and argument had a significant effect on the verdict. See Hill,
801 N.W.2d at 654 (declining to decide whether the state committed prosecutorial
misconduct because the state met its burden of de monstrating that the error had no effect
on the jury’s verdict). When deciding whether the state has met its burden, we consider
the strength of evidence against the defendant , the pervasiveness of the misconduct, and
whether the defendant had the opportunity, or made efforts, to rebut the prosecutor’s
improper conduct. Hill, 801 N.W.2d at 654-55. When examining alleged prosecutorial
misconduct in the context of a closing argument , we “consider the closing argument as a
whole rather than focus on particular phrases or remarks.” State v. Jackson, 714 N.W.2d
681, 694 (Minn. 2006) (quotations omitted).
The state presented overwhelming evidence of appellant’s guilt. T.M. identified
appellant as the person who shot him. He testified that he knew appellant, his car, and the
location of his residence. Another witness testified that she saw appellant’s car, as
identified by its description and license plate number, driving from the area of the shooting

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moments after the shots were fired. She desc ribed the car’s license plate number to the
police, one of whom knew where that car wa s normally parked and that appellant was
normally driving it. That officer apprehended appellant in the silver car minutes after the
shooting in an alley near where appellant had recently lived. Appellant admitted that he
had possession of his car at the time of the sh ooting and that no one else had been with
him in the car. A gun, three cartridge cases, and two cartridges, were found in the garage
where the car was kept. Witnesses testified that they heard three shots. A forensic scientist
with the Minnesota Bureau of Criminal Apprehension concluded that the bullet fragment
found during the investigation was fired from the recovered gun. Appellant’s DNA could
not be excluded from the DNA found on the gun.
The alleged misconduct by the prosecutor was not pervasive, and appellant had the
opportunity to rebut the argument during hi s summation. Appellant’s counsel, when
making his closing argument, had the opportunity to rebut the state’s argument concerning
appellant’s lawful refusal, but elected not to rebut the state’s argument concerning the
evidence.
We conclude that there is no reasonable likelihood that any error concerning the
DNA-test-refusal evidence had a significant effect on the verdict. The evidence of
appellant’s guilt here is so significant that appellant’s having declined a warrantless DNA
test could not possibly have had any significant effect on the jury’s verdict.

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III. The district court did not abuse its di scretion by refusi ng to conduct an in
camera review of police files.

Appellant argues that the district court abused its discretion by declining to conduct
an in camera review of police records concerning a separate shooting that may have
involved T.M. The request stemmed from an informant’s tip that T.M. may have been the
shooter in a gang-related incident that happened after September 16, 2014 and before trial.
The district court denied the motion. We review a district court’s decision whether to allow
in camera review of police records for abuse of discretion. See State v. Evans, 756 N.W.2d
854, 872-73 (Minn. 2008) (applying an abuse- of-discretion standard in reviewing district
court’s decision to limit its in camera review).
“Criminal defendants have a broad right to discovery in order to prepare and present
a defense.” State v. Hokanson, 821 N.W.2d 340, 349 (Minn. 2012).
When a criminal defendant requests records that are subject to
the Minnesota Government Data Practices Act or other
legislation, the district cour t may screen the confidential
records in camera to balance th e right of the defendant to
prepare and present a defense against the rights of victims and
witnesses to privacy.

Id. To justify an in camera hearing, a defendant must “establish a plausible showing that
the information sought would be both mate rial and favorable to his defense.” Id.
(quotations omitted). Argume nt and conjecture ab out what the information sought may
contain is insufficient to establish a plausible showing. Evans, 756 N.W.2d at 873.
Here, the district court did not abuse its discretion in denying appellant’s request for
in camera review. Appellant failed to make a plausible showing that information contained
within the investigative files would be both material and favorable. All appellant argued

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was that T.M. might have been involved in a separate shooting between the date of the
charged offense and the trial. There was no showing that the recent shooting, even if there
was one, was connected to the 2014 shooting of T.M. Appellant’s argument that the
investigative file might contain information ma terial to his defense is based entirely on
conjecture. The district court acted within its discretion in declining the requested in
camera review.
Affirmed.