                          This opinion will be unpublished and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
                                     A14-1039

                                   State of Minnesota,
                                      Respondent,

                                            vs.

                                 Jermaine Edward Harris,
                                       Appellant.

                                  Filed August 10, 2015
                                         Affirmed
                                      Stauber, Judge

                             Hennepin County District Court
                               File No. 27-CR-13-33511

Lori Swanson, Minnesota Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael Kunkel, Assistant State
Public Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Stauber, Presiding Judge; Connolly, Judge; and

Bjorkman, Judge.

                        UNPUBLISHED OPINION

STAUBER, Judge

       On appeal from his conviction of second-degree intentional murder, appellant

Jermaine Edward Harris argues that the district court erred by ruling that he could not
cross-examine the state’s witness about conversations the witness had with his attorney,

and erred by failing to instruct the jury on accomplice testimony. In his pro se

supplemental brief, appellant also raises the jury-instruction issue and argues

insufficiency of the evidence and attachment of jeopardy following the second trial. We

affirm.

                                           FACTS

          Appellant, D.D., J.H., and R.J. decided to smoke some PCP-laced cigarettes called

“wet sticks,” on the evening of November 21, 2012. Of the foursome, D.D. and R.J. were

close friends, and appellant and J.H. were close friends. There had been a falling out

between R.J. and appellant after R.J. slept with the mother of appellant’s baby in July

2012. Upon learning this information, appellant had physically attacked R.J., and R.J.

later retaliated the fight on another occasion, resulting in appellant getting shot in the leg.

Thereafter, appellant stalked R.J. with the intention of shooting him or someone in his

family, but by September 2012, appellant and R.J. had apparently resolved their conflict.

          Earlier in the day on November 21, J.H., D.D., and appellant had been “riding

around drinking, smoking, and hitting stings1” in D.D.’s gray Impala. When all four

gathered at a friend’s house in the evening, appellant was driving a white Ford Explorer.

The four decided to “go get some sticks”; appellant was known to act “[k]ind of

aggressive” when using this narcotic; D.D. was known to act “stupid” and “slow” when

using this narcotic. They drove to a gas station in Minneapolis where they bought two or

three PCP-laced cigarettes. Video surveillance recordings show that appellant was

1
    Selling drugs.

                                               2
driving the Ford Explorer with J.H. as a passenger, and R.J. was driving the Impala with

D.D. as a passenger.

       According to J.H., they drove to a residential area near the gas station, the Impala

parked behind the Ford Explorer, and everyone got into the Ford Explorer to smoke the

PCP-laced cigarettes. R.J. and D.D. then left the Ford Explorer, appellant got out a few

seconds later, and J.H., who was reclining intoxicated in his seat, heard five or six rapid

gunshots. Appellant immediately got back into the Ford Explorer, and J.H. asked him

what had happened, to which appellant replied, referring to R.J., “He shot me, I shot

him.” The next day, appellant and J.H. decided to blame R.J.’s murder on D.D.2

       D.D.’s description of the events of the day mirrored J.H.’s, and his description of

the murder and the parties’ actions immediately preceding the murder were consistent

with J.H.’s testimony. D.D. testified that he saw appellant holding a gun and firing it

three or more times as he and R.J. stood outside of the Impala. According to D.D., J.H.

did not leave the Ford Explorer, but he saw appellant get back into it and heard it drive

away. After the shooting, D.D. could not rouse R.J. or find his car keys, which R.J. was

holding when he was shot. When D.D. scrambled around looking for the keys on the

ground, a neighbor threatened to shoot D.D., so he fled. D.D. tried to get help in a high-

rise apartment, eventually took a bus from the area, and spoke to a transit officer who

transported him to a hospital for evaluation because he was hysterical. Video recordings



2
 D.D. had been videotaped making inappropriate remarks about having sexual relations
with R.J.’s girlfriend’s nine-year-old daughter, which appellant and J.H. believed would
provide a believable motive to support their claim that D.D. shot R.J.

                                              3
from a bus and a high-rise apartment near the murder scene corroborated D.D.’s

testimony about his whereabouts and actions following the murder.

       Appellant was indicted on charges of first- and second-degree intentional murder.

During his grand jury testimony, J.H. stated that “he was present at the time of the

shooting,” “was in the front passenger seat of a white Ford Explorer, and [appellant] was

the driver.” J.H. also stated that appellant “got out of the vehicle, [he] heard several gun

shots, and [appellant] promptly got back in the vehicle and said words to the effect ‘he

shot me, so I shot him.’” Appellant’s first jury trial began in June 2013.

       After being granted immunity from prosecution except for perjury, J.H. gave

testimony that conflicted with his grand jury testimony. “He said he felt pressured by the

prosecution to implicate [appellant] before the grand jury. He was quite antagonistic to

the State and clearly appeared upset at the prosecutors for their handling of the case. The

Court allowed the State to treat [J.H.] as a hostile witness.” When the jury could not

reach a unanimous verdict, the district court declared a hung jury and ordered a mistrial.

       In September 2013, appellant’s second trial on the same charges began. Between

the first trial and second trial, J.H. was charged with aiding an offender under Minn. Stat.

§ 609.495, subd. 3 (2012). J.H.’s more limited immunity during the second trial was

referred to by the district court as “transactional immunity.” J.H. refused to testify at

appellant’s second trial, claiming his Fifth Amendment right to remain silent, and he

served a 90-day jail sentence for contempt of court.

       When the jury could not reach a unanimous verdict in the second trial, appellant

moved the district court to declare a hung jury and dismiss the charges; the state moved


                                              4
to reschedule the trial a third time. The district court dismissed the indictment “in the

interests of justice” but “allow[ed] the State to re-file against [appellant] if it chooses to

do so.” The district court found that appellant was estopped from arguing double

jeopardy and that “the Court may order [appellant] to stand trial on this matter for a third

time should the government seek to obtain a conviction.”

        The state immediately filed a complaint charging appellant with second-degree

intentional murder and prohibited person in possession of a firearm. The case proceeded

to a third trial. By then, J.H. had pleaded guilty to the aiding-an-offender charge but had

not been sentenced. Although J.H.’s plea to that charge was not made in conjunction

with a plea bargain, appellant made a motion in limine to cross-examine J.H. about his

conversations with his attorney relative to the plea and his potential sentence. The

district court excluded this evidence. Appellant raised the issue again during trial,

arguing that his constitutional confrontation rights should supersede J.H.’s right to claim

attorney-client privilege for the plea discussions. The district court ruled that J.H. could

not be questioned about “plea offers and settlement offers.” During trial, J.H. was cross-

examined at length about inconsistencies in his testimony at the other trials and his

admitted inaccuracies during previous testimony and statements to police. The district

court also permitted J.H. to be cross-examined thoroughly about numerous meetings he

had with the state that did not result in a plea bargain. Appellant did not testify at his

third trial.




                                               5
       After the jury convicted appellant of second-degree intentional murder following

his third trial, appellant received a 450-month executed sentence on the second-degree

murder conviction; the weapons charge was dismissed.

                                       DECISION

       Confrontation Clause. Appellant argues that the district court erred by denying

him the right to cross-examine J.H. about conversations J.H. had with his attorney

regarding the effect of his agreement to plead guilty to the aiding-an-offender charge.

              The evidentiary rulings of a district court lie within its sound
              judgment and will not be reversed absent an abuse of
              discretion. If an error was committed in admitting evidence,
              we determine whether there is a reasonable possibility that the
              evidence significantly affected the verdict. But if an
              evidentiary ruling involves constitutional error, we must look
              to the basis on which the jury rested the verdict and require a
              new trial unless the error is harmless beyond a reasonable
              doubt.

State v. Lasnetski, 696 N.W.2d 387, 392 (Minn. App. 2005) (citations omitted).

       The Sixth Amendment guarantees a criminal defendant the right to confront

witnesses against him. U.S. Const. amend. VI. This includes the right to cross-examine

witnesses. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 1110 (1974). The

Supreme Court has “recognized that the exposure of a witness’ motivation in testifying is

a proper and important function of the constitutionally protected right of cross-

examination.” Id. at 316-17, 94 S. Ct. at 1110. But the Confrontation Clause does not

“prevent[] a trial judge from imposing any limits on defense counsel’s inquiry into the

potential bias of a prosecution witness,” and a trial judge “retain[s] wide latitude . . . to

impose reasonable limits on such cross-examination based on concerns about, among


                                               6
other things, . . . prejudice . . . or interrogation that is repetitive or only marginally

relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435 (1986);

see State v. Lanz-Terry, 535 N.W.2d 635, 640 (Minn. 1995) (stating that it is within “the

discretionary authority of the judge to control the scope of cross-examination . . . limited

by the Sixth Amendment”).

       The district court did not abuse its discretion by excluding the evidence of

discussions between J.H. and his attorney surrounding J.H.’s guilty plea. Such

communications are protected by the attorney-client privilege. See Minn. Stat. § 595.02,

subd. 1(b) (2014). But appellant argues that, consistent with some federal law,

Minnesota should recognize that the attorney-client privilege “must yield if necessary to

ensure the level of cross-examination demanded by the Sixth Amendment. Murdoch v.

Castro, 365 F.3d 699, 702 (9th Cir. 2004).” Murdoch recognizes that to date, in the

federal cases that recognize that the primacy of the constitutional right over the privilege,

no court has held that the underlying facts “warrant[ed] yielding the privilege to

accommodate the Sixth Amendment.” Id. at 703.

       Even if we were inclined to recognize that the attorney-client privilege could be

“trumped” by appellant’s confrontation rights, the facts do not support doing so in this

case. The district court gave defense counsel great leeway in the cross-examination of

J.H. The jury was made fully aware of the timeline of J.H.’s ever-changing story about

what happened on the night of R.J.’s murder, and of the inaccuracies of J.H.’s statements

to police and court testimony. The district court also permitted defense counsel to cross-

examine J.H. about each of at least three meetings he had with the prosecutor before


                                                7
entering a guilty plea, suggesting that J.H. was motivated to testify against appellant in

the third trial by the state’s implied promises of sentencing leniency for his own

conviction. Thus, the interest appellant would have gained in being able to obtain the

privileged communications between J.H. and his attorney was of relatively low probative

value because of the state’s otherwise effective cross-examination. See Lanz-Terry, 535

N.W.2d at 642 (concluding that when the jury “possessed information sufficient to allow

it to make a discriminating appraisal of” a witness’s testimony, the district court did not

abuse its discretion or permit a constitutional violation of the defendant’s confrontation

rights by excluding evidence that would have further demonstrated the witness’s bias).

Finally, even if the state was unable to fully discredit J.H. because of the district court’s

exclusion of this evidence, any error in that ruling was harmless. D.D. was also an

eyewitness to the murder and testified that appellant shot R.J., and J.H.’s testimony on

that point was cumulative.

       Accomplice Jury Instruction. Appellant argues that the district court’s failure to

give an accomplice-liability instruction led to his being convicted of second-degree

murder based on the uncorroborated testimony of his accomplices, J.H. and D.D. A

conviction cannot be based on uncorroborated accomplice testimony. Minn. Stat.

§ 634.04 (2014) (stating that a defendant cannot be convicted on the “testimony of an

accomplice, unless it is corroborated by such other evidence as tends to convict the

defendant of the commission of the offense”). An accomplice is generally a person who

“could have been indicted and convicted for the crime with which the defendant is

charged.” State v. Scruggs, 822 N.W.2d 631, 640 (Minn. 2012) (quotations omitted).


                                               8
“Corroborating evidence is sufficient to convict if it reinforces the truth of the

accomplice’s testimony and points to the defendant’s guilt in some substantial degree.”

State v. Bowles, 530 N.W.2d 521, 532 (Minn. 1995). “An accomplice[-liability]

instruction must be given in any criminal case in which any witness against the defendant

might reasonably be considered an accomplice to the crime.” State v. Lee, 683 N.W.2d

309, 315 (Minn. 2004) (quotation omitted).

       Appellant did not ask for an accomplice instruction at trial. “[W]here a district

court fails to give a required accomplice corroboration instruction and the defendant does

not object, an appellate court must apply the plain error[3] analysis.” State v. Reed, 737

N.W.2d 572, 584 n.4 (Minn. 2007). An appellate court reviews corroboration evidence

of “an accomplice’s testimony in the light most favorable to the verdict.” Bowles, 530

N.W.2d at 532.

       Appellant’s claim does not satisfy the plain-error test. With regard to J.H., an

accessory after the fact is not an accomplice. State v. Henderson, 620 N.W.2d 688, 701

(Minn. 2001). Under the facts presented, it may be reasonable to consider J.H. as an

accomplice because he was appellant’s good friend, rode in the Impala with him, and to a

large degree acted in concert with him on the night of the murder. But even if the district



3
  “[B]efore an appellate court reviews an objected to error, there must be (1) error;
(2) that is plain; and (3) the error must affect substantial rights. If these three prongs are
met, the appellate court then assesses whether it should address the error to ensure
fairness and the integrity of the judicial proceedings.” State v. Griller, 583 N.W.2d 736,
740 Minn. (1998). Plain error requires reversal only if “the fairness, integrity, or public
reputation of the judicial proceeding is seriously affected.” State v. Barrientos-Quintana,
787 N.W.2d 603, 611 (Minn. 2010) (quotation omitted).

                                              9
court erred by failing to give the instruction as to J.H., evidence is lacking that D.D. was

appellant’s accomplice. D.D. drove in R.J.’s vehicle and was a closer friend to R.J. than

to appellant and J.H. When R.J. was shot, D.D. was standing next to him outside of the

Impala, and the experience was so unnerving that he ran from the scene and was

eventually taken to a hospital for psychiatric evaluation. These are not the actions of an

accomplice.4 Because D.D. was not an accomplice and his testimony alone would have

convicted appellant, the district court’s failure to give an accomplice instruction as to J.H.

did not affect appellant’s substantial rights. See State v. Rossberg, 851 N.W.2d 609, 618

(Minn. 2014) (applying only third prong of plain-error test to deny defendant’s

constitutional claim, stating that it was unnecessary to consider whether there was plain

error when any violation did not affect defendant’s substantial rights).

       Double Jeopardy. Among his pro se arguments, appellant asserts that the district

court’s order dismissing the charges against him in the interests of justice and without

prejudice was the functional equivalent of an acquittal, so that jeopardy attached, and he

should not have been retried a third time. Appellate courts review double-jeopardy issues

de novo. State v. Leroy, 604 N.W.2d 75, 77 (Minn. 1999). Appellant did not raise this

issue in the district court, and appellate courts “do not ordinarily decide issues that are

raised for the first time on appeal, even constitutional questions of criminal procedure.”

State v. Anderson, 733 N.W.2d 128, 134 (Minn. 2007) (quotation omitted); see State v.


4
  We reject appellant’s pro se argument that D.D. was his accomplice because D.D., not
appellant, shot R.J. A witness who is alleged to have committed the crime instead of the
defendant is not included in the definition of an accomplice under section 634.04. State
v. Swanson, 707 N.W.2d 645, 653 (Minn. 2006).

                                              10
Michaud, 276 N.W.2d 73, 77 (Minn. 1979) (ruling double-jeopardy issue was waived

when not raised to the district court). We will address the issue briefly, applying the

plain-error test for unobjected-to trial errors. Minn. R. Crim. P. 31.02; see Griller, 583

N.W.2d at 740.

       Once a defendant has been acquitted on the merits, he may not be retried on the

same charges. Minn. Const. art. I, § 7. See U.S. Const. amend. V. “A [district] court’s

actions constitute an acquittal on the merits when the ruling of the judge, whatever its

label, actually represents a resolution in defendant’s favor, correct or not, of some or all

of the factual elements of the offenses charged.” State v. Sahr, 812 N.W.2d 83, 90

(Minn. 2012) (quoting State v. Large, 607 N.W.2d 774, 779 (Minn. 2000)). An appellate

court considers “both the form and the substance of the [district] court’s ruling” in

determining whether a ruling constitutes an acquittal. Sahr, 812 N.W.2d at 90. In Sahr,

the state conceded that it “lacked sufficient evidence to prove an essential element of the

crime,” the district court issued extensive findings that made clear that its “dismissal of

the complaint constituted a decision in [the defendant’s] favor,” and that “it did not

contemplate that [the defendant] would be subject to retrial.” Id. Double jeopardy barred

the defendant’s retrial in Sahr. Id. at 93.

       In contrast, the order of dismissal here includes a clear statement that the district

court dismissed in the interests of justice under Minn. Stat. § 631.21 (2012), not as a

decision in appellant’s favor. The district court found that it would be “inappropriate” to

require appellant, who had been jailed for approximately 11 months during the two trials,

to stand trial a third time “on a first-degree murder charge determined by a grand jury


                                              11
based upon prior testimony of [J.H.]—who has repudiated his earlier under-oath grand

jury testimony.” But the district court ultimately did not discount the possibility that the

state could gain a first-degree conviction, finding that “the State may still be able to

obtain an indictment for first-degree murder based upon the remaining evidence in the

case” by refiling charges against appellant. See State v. Hart, 723 N.W.2d 254, 258

(Minn. 2006) (stating that upon dismissal of charges under Minn. Stat. § 631.21, the state

may reinstate its case by recharging the accused).

       The district court also specifically analyzed whether double jeopardy applied and

concluded that it did not and that appellant was estopped from making this argument. See

State v. Soyke, 585 N.W.2d 418, 420 (Minn. 1998) (noting that a hung jury is a typical

reason showing manifest need for a mistrial, and that a mistrial for this reason does not

trigger double-jeopardy protections and is entitled to great deference on appeal). On

these facts, we conclude that the district court dismissed the indictment but did not intend

the dismissal to constitute an acquittal on the merits, nor was the dismissal the functional

equivalent of an acquittal on the merits.

       Sufficiency of Evidence. In his pro se brief, appellant also argues that the evidence

was insufficient to support his conviction.

                     When evaluating whether the evidence is sufficient,
              [an appellate court] carefully examine[s] the record to
              determine whether the facts and the legitimate inferences
              drawn from them would permit the jury to reasonably
              conclude that the defendant was guilty beyond a reasonable
              doubt of the offense of which he was convicted. We view the
              evidence presented in the light most favorable to the verdict,
              and assume that the fact-finder disbelieved any evidence that
              conflicted with the verdict.      The verdict will not be


                                              12
              overturned if the fact-finder, upon application of the
              presumption of innocence and the State’s burden of proving
              an offense beyond a reasonable doubt, could reasonably have
              found the defendant guilty of the charged offense.

State v. Fox, ___ N.W.2d ___, ___, 2015 WL 1810482, at *12 (Minn. Apr. 22, 2015).

Appellant argues that the jury could not have found that he intended to commit the

murder and that there was reasonable doubt as to whether he committed it because J.H.

and D.D. were unreliable witnesses and accomplices to the murder, and other evidence

suggested an alternative perpetrator, did not show appellant’s presence at the murder

scene, or contradicted their testimony.

       As to appellant’s specific arguments, the jury could have found that appellant

intended to commit the crime. While appellant argues that appellant’s statement, “He

shot me, I shot him” infers a lack of his intent to kill, it could also demonstrate his motive

for killing. The closeness in proximity of the two clauses with the sentence and their

parallel construction suggest a relational aspect between the two clauses. Further, the

victim was shot six times, which alone would support an inference of intent. And while

appellant now argues that his ingestion of PCP could have affected his mental state, he

did not raise a defense based on his intoxication, and the jury implicitly rejected the

notion that appellant’s intent was diminished by his use of PCP. Moreover, any conflicts

in the testimony, such as between a neighbor’s testimony suggesting that D.D. might

have been the shooter, and J.H.’s and D.D.’s testimony that appellant was the shooter,

were entitled to be resolved by the jury. See State v. Hamilton, 289 N.W.2d 470, 477




                                             13
(Minn. 1979) (“[T]he jury was entitled to believe complainant’s story and disbelieve

defendant’s account.”). The evidence was sufficient to support the jury’s guilty verdict.

       The jury could have reasonably found appellant guilty of second-degree murder.

Two eyewitnesses testified to seeing appellant shoot the victim and provided a motive for

him to do so. J.H.’s and D.D.’s character flaws and penchants for untruthful statements

were fully explored by defense counsel, but the jury chose to believe their testimony,

which was consistent. Other evidence, such as the gas station, bus, and high-rise

apartment taped recordings partially corroborated their testimony. J.H. and D.D. were

not accomplices, and doubts about the veracity or reliability of D.D.’s and J.H.’s

testimony were to be resolved by the jury. See State v. Pieschke, 295 N.W.2d 580, 584

(Minn. 1980) (“[W]here resolution of the case depends on conflicting testimony, . . .

weighing the credibility of witnesses is the exclusive function of the jury.”).

       Affirmed.




                                             14
