This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0452
State of Minnesota,
Respondent,
vs.
Montalvo Knowles,
Appellant.
Filed April 4, 2016
Affirmed
Stauber, Judge
Ramsey County District Court
File No. 62-CR-14-2786
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney,
St. Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Stauber, Judge; and
Reilly, Judge.
UNPUBLISHED OPINION
STAUBER, Judge
Appellant challenges his convictions of domestic assault by strangulation and
gross-misdemeanor domestic assault, arguing that the district court abused its discretion
by permitting the state to introduce an unredacted telephone call he made while in the jail
that included hearsay and prejudicial statements and allowing a witness to describe the
content of other jailhouse telephone conversations. Appellant also asserts that the
prosecutor committed misconduct that deprived him of his right to a fair trial by
suggesting that he tailored his testimony after sitting through trial. We affirm.
FACTS
Appellant Montalvo Knowles and A.R. were in a romantic relationship. On April
22, 2014, A.R. and Knowles had an argument while he drove her back to his apartment.
Knowles pulled to the side of the road, grabbed her around the neck, and choked her until
she could not breathe or cry out. The two returned to Knowles’s apartment, but, later in
the day, A.R. told Knowles she had to go to the hospital because she was having trouble
breathing. Initially, A.R. was afraid to tell Knowles that it was because of the
strangulation, but she lost her temper and yelled that she could not breathe because of
what he had done to her. Knowles pulled her out of the bathroom, told her “you’re
messing with the wrong man,” pushed her to the floor, and began to strangle her again.
A.R. said that the strangulation was much worse this time; she felt like her eyes were
popping and that the pressure on her throat was a “ten [out of ten].” Knowles then left
the apartment again.
A.R. texted her mother, J.R., to “please pray.” Knowles returned and said that he
was taking A.R. to her mother’s home in Plymouth. During the drive, J.R. called
Knowles because she was worried about the text message. Knowles, who had a good
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relationship with J.R., said A.R. “brought out a side of him that she never wanted to see”
and that he “choked her out.” Knowles dropped A.R. off and left shortly afterwards.
J.R. noticed marks on her daughter’s neck and that her nose “was swollen
profusely.” The next day, J.R. took her to the emergency room. A physician’s assistant,
Gregory Watkins, examined A.R. Watkins described A.R. as “tearful and anxious” and
complaining of congestion and nasal pain. He questioned her more closely, and she
finally admitted that her boyfriend “strangled” her. She described the incidents to him,
and Watkins concluded that the bruises on her neck and the feeling of pressure on her
face and nose were consistent with strangulation.
A.R. called 911 from the urgent-care facility and arranged for a St. Paul police
officer to take her statement. Officer Avery Yager’s report is consistent with the history
A.R. gave to Watkins. Yager observed scratches under A.R.’s chin and redness in her
neck area, consistent with strangulation, and took pictures. Officer Nicole Sipes
conducted a follow-up investigation and interviewed A.R. and J.R. Their descriptions of
the incident were consistent with their statements to Watkins and Avery.
Knowles was arrested and jailed. While he was in jail, he made a series of phone
calls to friends and relatives. Jail calls are recorded and monitored, and callers are
warned about this. Sergeant John Wuorinen listened to several phone calls and testified
that “[i]t became apparent to me that [Knowles] was trying to orchestrate his friends and
family to, on his behalf, contact [A.R.] and offer – there was offerings of gifts, money,
and people talking about how they can make this matter disappear . . . if they get
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physical.” One of the phone calls was played to the jury, with an accompanying
transcript; Wuorinen described the contents of the other calls.
Before trial, A.R. submitted a notarized statement that she had made up the
allegations against Knowles. In her testimony, A.R. stated that Knowles had not
strangled her and that she had said he did because she was angry at him. Knowles
testified as well and also denied strangling A.R.
The jury convicted Knowles of both charges. Knowles brought a motion for a
new trial, which was denied. This appeal followed.
DECISION
I.
Knowles argues that the district court abused its discretion by permitting the state
to introduce, over his objections, a taped phone call that contained prejudicial hearsay
statements, failing to redact from that evidence statements alluding to his bad character,
and allowing Wuorinen to summarize other conversations. We review the district court’s
evidentiary decisions for an abuse of discretion, and we will generally defer to the district
court’s determination of whether the prejudicial nature of the evidence outweighs its
probative value. State v. Diggins, 836 N.W.2d 349, 357 (Minn. 2013). We conclude that
the district court did not abuse its discretion for three reasons.
First, “‘[h]earsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Minn. R. Evid. 801(c). Hearsay statements are generally inadmissible, subject
to certain exceptions. Minn. R. Evid. 802. The statements admitted here were not
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offered for the purpose of proving the truth of whether Knowles committed domestic
assault; rather, they were offered to rebut A.R.’s testimony and recantation of her prior
statements made to police and medical personnel; the statements served to impeach
A.R.’s credibility. As such, the statements were not offered “to prove the truth of the
matter asserted” and are not hearsay. Minn. R. Evid. 801(c).
Second, a statement offered by a party-opponent is not hearsay. Minn. R. Evid.
801(d)(2). Knowles’s statements in the telephone conversations are admissible as non-
hearsay statements made by a party-opponent. In certain circumstances, evidence of
threats against witnesses may be relevant as demonstrating consciousness of guilt, but
such evidence may not be used to show a defendant’s propensity to commit the charged
offense. Holt v. State, 772 N.W.2d 470, 481 (Minn. 2009). Generally, the district court
should provide a cautionary instruction to the jury limiting the use of such evidence. Id.
at 481-82. The district court in this matter gave a cautionary instruction.
Third, Knowles argues that the statements of the person he spoke with during the
telephone call that was played for the jury were hearsay. We disagree. “[S]tatements of
third parties [to a conversation] may be admissible to provide context for the responses
and admissions sought to be admitted.” State v. Caine, 746 N.W.2d 339, 351 (Minn.
2008); State v. Tovar, 605 N.W.2d 717, 726 (Minn. 2000) (holding that police statements
in an interview were admissible because they were offered not “for their truth, but rather
to give context to [the defendant’s] responses and admissions on the tape”). Here,
Knowles’ statements make very little sense without the responses of the person with
whom he was speaking.
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Knowles also argues that the district court abused its discretion by failing to redact
references to his criminal record or his bad temper. Knowles objected to the statements
and asked the district court to redact them from the transcript prepared for the jury. The
district court determined that any prejudicial effect of the statements was outweighed by
their probative value in light of A.R.’s recantation. In denying Knowles’ motion for a
new trial, the district court stated that the evidence of bad acts was “inextricably
intertwined” with the rest of the phone conversation and that the references to these acts
“without understanding the defendant’s criminal record, would be quite obscure, and they
would be otherwise simply harmless.” The conversation played for the jury is long and
rambling; the reference to an incident that occurred during a prior incarceration is brief
and confusing:
FEMALE CALLER: Keep your hand to your mother
fucking self, if mother fucker poor something in your cereal
this time, don’t fucking break him off, alright?
DEFENDANT: I didn’t do nothing. Oh, you talking
about in here, yeah.
FEMALE CALLER: I’m [inaudible]
DEFENDANT: You talking about in hear, yeah.
FEMALE CALLER: Yeah, I’m talking about be cool.
We know how your temper is. Please.
If the district court erred in admitting the telephone call evidence, the error is not
harmless “if there is a reasonable possibility that the verdict might have been different.”
State v. Hall, 764 N.W.2d 837, 842 (Minn. 2009) (quotation omitted). This court
considers several factors to determine if a verdict is surely unattributable to an error:
(1) how the evidence was presented; (2) whether the evidence was highly persuasive;
(3) whether the state used the evidence in closing argument; (4) whether the defendant
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presented opposing evidence; and (5) the strength of the evidence against the defendant.
Id.
Here, (1) the objectionable testimony is a short reference in a longer transcript,
and it is partially unintelligible; (2) the evidence was submitted not on the issue of guilt,
but to rebut A.R.’s recanted testimony; (3) the state did not use the objectionable
statements in closing; (4) Knowles denied trying to influence A.R.’s testimony; and
(5) the evidence of guilt was very strong. The testimony of J.R., Sipes, Avery, the 911
operator, and Watkins confirmed A.R.’s injuries and her contemporaneous description of
events; although A.R. denied the assaults in her trial testimony, she confirmed the
timeframe of events. This verdict was surely unattributable to an erroneous admission of
evidence.
II.
Knowles argues that the prosecutor committed misconduct by alluding to
Knowles’ presence at trial; she commented twice in closing that he had the benefit of
sitting through the trial and suggested that he may have tailored his testimony to fit with
the evidence introduced at trial. Knowles did not object at trial. This court may review
an allegation of error for which there was no objection if the error was plain and affected
a defendant’s substantial rights; if these requirements are met, we decide whether we
must address the error to ensure fairness and the integrity of judicial proceedings. State
v. Ramey, 721 N.W.2d 294, 298 (Minn. 2006). But in the case of prosecutorial
misconduct, although a defendant has the burden of demonstrating plain error, the
prosecution has the burden of demonstrating lack of prejudice – that the error did not
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affect the defendant’s substantial rights and there was no reasonable likelihood that the
misconduct significantly affected the jury’s verdict. Id. at 302.
In State v. Swanson, 707 N.W.2d 645, 656-58 (Minn. 2006), the supreme court
considered whether the prosecutor’s remarks regarding the defendant’s ability to tailor
his testimony after listening to the other witnesses constituted misconduct. The supreme
court concluded that because the defendant’s right to confront witnesses was
constitutionally guaranteed and there was no particular evidence that the defendant was
tailoring his testimony, the prosecutor committed misconduct by commenting on his
presence at trial. Id. But because the reference was limited and the evidence of guilt was
overwhelming, the supreme court concluded that the error was harmless. Id. at 658.
Here, the prosecutor twice commented that Knowles sat through trial, listened to
the witness testimony, and then testified; under the reasoning of Swanson, this was
misconduct. But as in Swanson, the evidence of guilt here is strong, and the references to
Knowles’s presence at trial are even more limited. In Swanson, the prosecutor cross-
examined the defendant and argued in closing about his presence at trial. Id. at 656-57.
Here, the prosecutor made two short references in a 25-page closing argument. There is
no reasonable likelihood that these references significantly affected the verdict.
Affirmed.
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