                          This opinion will be unpublished and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
                                      A16-0641

                                    State of Minnesota,
                                        Respondent,

                                             vs.

                                  Mohamed Adel Alwan,
                                      Appellant.

                                 Filed February 13, 2017
                                        Affirmed
                                      Jesson, Judge

                              Hennepin County District Court
                                File No. 27-CR-14-34073

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

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

Murad M. Mohammad, Minneapolis, Minnesota (for appellant)

         Considered and decided by Jesson, Presiding Judge; Ross, Judge; and Schellhas,

Judge.

                         UNPUBLISHED OPINION

JESSON, Judge

         Appellant Mohamed Adel Alwan challenges his conviction of attempted second-

degree intentional murder. He argues that the district court (1) plainly erred by admitting

the victim’s prior statements to a detective; (2) violated his confrontation right by limiting
his cross-examination of an inmate incarcerated with him; and (3) deprived him of the full

number of peremptory challenges by failing to remove an alternate juror until after trial

commenced. Because the district court acted within its discretion, and no plain error

occurred, we affirm.

                                          FACTS

       One evening in November 2014, R.G. was hosting a large party at a room he had

rented at the Residence Inn in Bloomington. A fight broke out, and R.G. asked some people

to leave. A short time later, one man came back and knocked on the door of the room.

When R.G. opened the door, the man shot him twice, grazing his hip and hitting his

forearm. The shooter then fled, and police were called. Alwan was ultimately found,

arrested, and charged with attempted second-degree intentional murder. See Minn. Stat.

§ 609.19, subd. 1(1) (2014).

       At Alwan’s jury trial, Officer Nicholas Sassor, who responded on the night of the

shooting, testified that R.G. identified the shooter as a light-skinned Somali male, about

five feet ten inches tall, with an Afro. Police took R.G. to the hospital, where he also gave

a statement to Detective Jerome Robertson. Two days later, while still in the hospital, R.G.

met again with Robertson and Officer Kerri Nolden and was shown a sequential photo

lineup. Nolden testified that when asked to identify the shooter, R.G. initially vacillated

between two photographs, but ultimately picked out Alwan’s photograph. When asked if

there was anyone who stood out in particular, he mentioned that the suspect had a cracked

or broken tooth.




                                             2
       At trial, R.G. testified that he described the shooter to police as a Somali male with

long hair and light skin, but that he was taking a lot of pain medication at the time. He

could not remember telling police anything about the shooter’s smile or his teeth. When

shown a copy of the photo lineup, he agreed that he had selected a photograph and stated

that the person in the photograph “looked familiar” from similar friendship circles. But he

testified that the person who shot him was not Alwan, whom he knew as “Moe,” and that

he never told police that Alwan shot him. He testified that he did not tell anyone that

Alwan was not the shooter until trial because nobody came to talk to him about it, and he

was in custody and then “on the run” because of outstanding warrants.

       An employee of the Residence Inn testified that on the evening of the shooting, he

saw a light-skinned black male with a distinctive hairstyle, half in an Afro and half in

braids, run down the stairs and out the back door. Photographs from a surveillance video

showed a person matching that description leave the hotel about 4:40 a.m. and return about

an hour later. The employee identified Alwan as the person in the photographs and the

video, which was played for the jury.

       One woman who attended the party testified that she remembered seeing Alwan

there, but that she did not unequivocally identify him as the shooter from the surveillance-

video photographs. Another woman at the party testified that she recalled a light-skinned

Somali male with his hair half in braids and half in an Afro, but she did not identify that

person as Alwan.

       L.G., an inmate who was incarcerated with Alwan, testified that Alwan told him in

jail that he was an active member of the Crips gang and that he was a “shooter.” According


                                             3
to L.G., Alwan said that he had “cracked on,” meaning that he had shot, someone at the

Residence Inn, and that he “could have had that bitch.” According to L.G., Alwan indicated

that the victim was going to retract his statement because Alwan was sending someone to

talk to him.

       After R.G. testified and Nolden testified about the photo identification, the state

moved to introduce R.G.’s two statements to Robertson, one made shortly after the

shooting and one made two days later, regarding the photo identification. Defense counsel

challenged the motion as untimely because it was made after the district court’s initial

deadline for filing motions in limine, but asserted no other objection. The prosecutor

responded that adequate notice had been given and that, following R.G.’s testimony,

admission of the statements had become necessary for the state’s case. The district court

granted the motion, ruling that the statements met the criteria for admission under the

residual hearsay exception, Minnesota Rule of Evidence 807, and that they were also prior

consistent statements under Minnesota Rule of Evidence 801(d)(1)(B).1

       Robertson then testified that in R.G.’s first statement shortly after the shooting, he

identified the shooter as a light-skinned Somali male about five feet ten inches tall, with

his hair in an “Afroish style,” and something strange about his tooth, such as a chip.

Robertson learned that Alwan went by the nickname “Illeg,” which meant something about



1
  The statements would generally be inadmissible as hearsay because they are out-of-court
statements offered to prove the truth of the matter asserted. See Minn. R. Evid. 801(c)
(defining hearsay); Minn. R. Evid. 802 (barring admission of hearsay, except as provided
by rules of evidence).


                                             4
a tooth, and he personally observed that Alwan had a chipped tooth. Robertson also

testified that in his second statement, when R.G. identified Alwan in the photo lineup, he

mentioned the name, “Illeg.”

       The jury convicted Alwan, and the district court sentenced him to 153 months in

prison. This appeal follows.

                                     DECISION

  I.     R.G.’s prior statements to Detective Robertson were properly admitted under
         the residual hearsay exception.

       Alwan challenges the district court’s admission of R.G.’s two statements to

Robertson on the basis that they did not qualify as prior consistent statements under rule

801(d)(1)(B) and did not meet the criteria for admission under rule 807, the residual

hearsay exception. This court generally reviews the district court’s objected-to evidentiary

rulings for an abuse of discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). But

here, defense counsel did not challenge the statements as hearsay at trial. Rather, he

objected only on the basis that the state did not provide timely notice of its motion to

introduce the statements, a ground which he has not reasserted on appeal. “A party may

not obtain review by raising the same issue under a different theory.” State v. Carroll, 639

N.W.2d 623, 629 n.3 (Minn. App. 2002), review denied (Minn. May 15, 2002).

       Nonetheless, even though the defense has raised a different objection to the

statements on appeal, this court may review the district court’s evidentiary ruling for plain

error. See Minn. R. Crim. P. 31.02. Reversal under the plain-error standard requires an

error that was plain and that affected the defendant’s substantial rights. State v. Hull, 788



                                             5
N.W.2d 91, 100 (Minn. 2010). An error is plain when a district court’s ruling contravenes

caselaw, a rule, or a standard of conduct. State v. Ramey, 721 N.W.2d 294, 302 (Minn.

2006). Generally, an error affects substantial rights if it “was prejudicial and affected the

outcome of the case.” State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998). Stated another

way, substantial rights are affected when a reasonable likelihood exists that the error had a

significant effect on the jury’s verdict. State v. Finch, 865 N.W.2d 696, 703 (Minn. 2015).

         The district court found that R.G.’s statements to Robertson fell within the residual

hearsay exception, Minnesota Rule of Evidence 807. Under that exception, a statement

may be admitted if (1) it has “equivalent circumstantial guarantees of trustworthiness” to

statements covered by enumerated hearsay exceptions; (2) it is offered as evidence of a

material fact; (3) it is more probative on the issue “for which it is offered than other

evidence which its proponent can procure through reasonable efforts”; and (4) admitting

the statement will best serve the general purposes of the evidentiary rules and the interests

of justice. Minn. R. Evid. 807; see State v. Ahmed, 782 N.W.2d 253, 259 (Minn. App.

2010).

         In determining whether        a statement has circumstantial guarantees           of

trustworthiness, a court examines the totality of the circumstances, using several factors.

State v. Martinez, 725 N.W.2d 733, 737-38 (Minn. 2007). Under this approach, we

consider: (1) whether the declarant testified and was available for cross-examination;

(2) whether a dispute exists as to whether the declarant made the statement or concerning

its contents; (3) whether the declarant made multiple consistent versions of the statement;

(4) whether the statement is against the declarant’s penal or relationship interest;


                                               6
(5) whether other evidence corroborates the statement; and (6) whether other evidence

discredits the recanted version. See Martinez, 725 N.W.2d at 737 (citing State v. Ortlepp,

363 N.W.2d 39, 44 (Minn. 1985)); State v. Robinson, 718 N.W.2d 400, 410 (Minn. 2006);

State v. Plantin, 682 N.W.2d 653, 659 (Minn. App. 2004), review denied (Minn. Sept. 29,

2004).

           Alwan argues that R.G.’s statements to Robertson lack circumstantial guarantees of

trustworthiness, so that the district court committed plain error by admitting them. We

disagree and conclude that the statements had sufficient circumstantial guarantees of

trustworthiness to support their admission under rule 807. R.G. testified and was cross-

examined. There is no dispute that he made the statements while in the hospital. Other

evidence corroborates R.G.’s statements of identification, including his statement to

Officer Sassor at the scene, the hotel surveillance video, and Alwan’s admissions to L.G.

in jail.

           Alwan further contends that R.G. was on medication when he gave the statements.

He also maintains that the reliability of R.G.’s statement on the lineup identification is

questionable because Robertson acknowledged that R.G. asked for more proof, and Nolden

admitted that the skin tone on the photos may be off. But Robertson testified that the

reference to R.G. being medicated referred to his first statement, and that on the day of the

second statement, when R.G. identified Alwan as “Illeg,” he was alert and oriented as to

time and place. And R.G.’s statement identifying Alwan in the photo lineup was consistent

with his previous statements of identification. In addition, a statement is considered against

a declarant’s interest if the declarant is hostile to the prosecution and supportive of the


                                               7
defendant. State v. Tate, 682 N.W.2d 169, 176-77 (Minn. App. 2004), review denied

(Minn. Sept. 29, 2004). Here, R.G., who did not wish to be shown a copy of his statement

to refresh his memory when he testified, appeared to be supportive of the defense.

Therefore, his statement is considered against his penal interest. Finally, as the state points

out, the reliability of R.G.’s hospital statements is increased by their timing because they

occurred within a few days after the offense, as contrasted with his identification testimony

at trial nearly a year later. In sum, R.G.’s statements contained the requisite circumstantial

guarantees of trustworthiness, and the district court did not plainly err by admitting them.2

    II.     The district court did not violate Alwan’s confrontation rights.

          Generally, district courts have broad discretion to control the scope of cross-

examination. State v. Greer, 635 N.W.2d 82, 89 (Minn. 2001). Nonetheless, the accused’s

right to confront the witnesses against him under the Sixth Amendment to the United States

Constitution limits the district court’s discretionary authority to control the scope of cross-

examination. U.S. Const. Amend. VI; State v. Lanz-Terry, 535 N.W.2d 635, 640 (Minn.

1995). Alwan asserts that Confrontation Clause violations occurred because he was denied

the opportunity for thorough cross-examination of L.G. that could lead to exposing bias on

the part of L.G. He argues that the district court violated his Confrontation Clause right by

sustaining the state’s objections on the basis of attorney-client privilege to two questions

the defense asked of L.G. on cross-examination. He also maintains that the district court



2
 Because we have concluded that the statements were properly admitted under rule 807,
we do not address Alwan’s additional argument relating to their admission as prior
consistent statements under rule 801(d)(1)(B).

                                              8
improperly sustained an objection on the basis of relevance to the defense question of

whether L.G. told Alwan that L.G. had shot a person. Because Alwan did not raise these

claims before the district court, we review the district court’s rulings for plain error. See

Griller, 583 N.W.2d at 740.

       Attorney-client privilege

       On cross examination, L.G. testified that he was in custody and that his lawyer, who

was in the courtroom with him, had reported the jail conversation with Alwan to the

prosecutor’s office, hopefully to get a benefit for L.G. Defense counsel then asked whether

L.G. had spoken to his attorney in detail about “what kind of deal [he] will get if [he]

testif[ies].” The district court sustained the prosecutor’s objection on the basis of attorney-

client privilege. Then, after L.G. testified that he still had an active case, defense counsel

asked L.G., “That’s why your lawyer’s here, right?” The district court also sustained the

prosecutor’s objection to this question on the same basis.

       Alwan argues that a Confrontation Clause violation occurred when the district court

sustained the prosecutor’s objections based on attorney-client privilege. First, he maintains

that the prosecutor lacked standing to assert this objection on behalf of L.G. Although the

government ordinarily lacks standing to assert the attorney-client privilege for a witness,

the Eighth Circuit Court of Appeals has held that any such error was harmless when the

defense had ample opportunity to discredit the witness’s testimony. United States v.

Ortega, 150 F.3d 937, 942 (8th Cir. 1998). Similarly, here, any error in the state’s asserting

attorney-client privilege on behalf of L.G. was harmless because the defense elicited L.G.’s

testimony that he hoped to obtain a benefit for himself by reporting the conversations and


                                              9
that his attorney had contacted “whoever they felt necessary to contact” to report his

conversations with Alwan.

       Alwan also argues that his Sixth Amendment right to confrontation trumps the

attorney-client privilege. Federal caselaw has recognized that the attorney-client privilege

must, if necessary, yield “to ensure the level of cross-examination demanded by the Sixth

Amendment.” Murdoch v. Castro, 365 F.3d 699, 702 (9th Cir. 2004); cf. State v. Evans,

756 N.W.2d 854, 872 (Minn. 2008) (acknowledging that privileges must give way to a

defendant’s right to confrontation in narrow circumstances). But courts acknowledging

this precept have not held, in the fact situations presented, that a defendant’s Sixth

Amendment rights were violated by assertion of the attorney-client privilege. Murdoch,

365 F.3d at 702; see, e.g., United States v. Rainone, 32 F.3d 1203, 1206-07 (7th Cir. 1994)

(holding that when defense attorney extensively cross-examined a witness and elicited

information that he had committed perjury and other crimes, notes written to his attorney

were not necessary for effective cross-examination); Mills v. Singletary, 161 F.3d 1273,

1288-89 (11th Cir. 1998) (holding that, when court allowed witness to invoke attorney-

client privilege regarding prior inconsistent statements made to defense investigator, no

Confrontation Clause violation occurred when cross-examination already exposed prior

inconsistent statements); United States v. Franzen, 688 F.2d 496, 500-01 (7th Cir. 1982)

(rejecting argument that Confrontation Clause was violated when attorney-client privilege

was invoked, because defense counsel had wide latitude on cross-examination and was

able to make a record from which to argue that witness’s confession was unreliable). Here,

L.G. was thoroughly cross-examined by the defense, and the information sought by defense


                                            10
counsel would have had low probative value in assisting the jury to assess L.G.’s reliability

as a witness. We cannot conclude that under these facts, Alwan’s Sixth Amendment

confrontation rights take precedence over the assertion of L.G.’s attorney-client privilege.

       Relevancy objection

       When cross-examining L.G., defense counsel asked him, “Did you tell [Alwan] you

shot somebody?” The prosecutor objected on the grounds of relevancy, and the district

court sustained the objection. Alwan argues that the denial of the opportunity to question

L.G. on this issue violated his Confrontation Clause right because his answer to that

question would have exposed L.G.’s background as a criminal and showed that he

committed a serious felony, for which he may have expected a favor from the state. But

the jury already had that information because L.G. had testified that he was in custody and

that he was hoping for consideration from the state.

       Cross-examination under the Confrontation Clause allows a defendant the

opportunity to show bias and thus expose the jury to facts from which jurors may

appropriately draw inferences relating to witness reliability. State v. Tran, 712 N.W.2d

540, 551 (Minn. 2006). But the right to cross-examine witnesses may be limited as long

as the jury is “presented with sufficient information from which to draw inferences as to

witness reliability.” State v. Yang, 774 N.W.2d 539, 552 (Minn. 2009). Here, the defense

elicited from L.G. that he was in custody at the time he testified, that he had an ongoing

case, that he told his attorney about Alwan’s admission, that he was hoping for some kind

of benefit, and that his attorney was present in the courtroom. Thus, the defense had had

ample opportunity to present sufficient information to the jury from which the jury could


                                             11
draw inferences about L.G.’s reliability. See id. at 553 (concluding that no Confrontation

Clause violation occurred when witnesses testified on cross-examination that they were

allowed to plead guilty and receive less jail time in exchange for their testimony, but the

district court did not allow questioning about the exact lengths of their sentences). “[T]he

Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-

examination that is effective in whatever way, and to whatever extent, the defense might

wish.” State v. Holliday, 745 N.W.2d 556, 566 (Minn. 2008) (quotation omitted). We

cannot conclude that, under these circumstances, plain error occurred affecting Alwan’s

substantial rights.

  III.     The district court appropriately exercised its discretion when it did not
           disqualify an alternate juror until after voir dire, when Alwan had used up all
           of his peremptory challenges.

         Alwan argues that the district court committed plain error by improperly interfering

with the exercise of his peremptory challenges when it failed to timely remove an alternate

juror who asserted that he could not fully understand the proceedings in English. After

voir dire, one juror from the panel passed a note to the district court stating that English

was his second language, and he was only understanding some of the proceedings. The

district court privately interviewed that juror and retained the juror on the panel. At the

beginning of trial the next day, the juror told the court that he had an interpreter when he

went to court in the past and that when the judge started explaining more about this case,

he did not fully understand. Defense counsel argued that the juror was one of two alternates

and requested that the juror either continue in that capacity or that he be discharged. The

juror remained seated for that day of trial. The next morning, however, when the district


                                              12
court inquired how the juror was understanding the proceedings, he indicated he was

having difficulty without an interpreter in this case. The district court released him for

cause, and both attorneys agreed to proceed with a single alternate juror.

       Alwan argues that because the juror was not excused until after trial began, he was

effectively denied his right to select jurors from a full jury panel and was required to use

his last peremptory challenge on another venire panelist. The Minnesota Rules of Criminal

Procedure prescribe the use of peremptory challenges in jury trials. Minn. R. Crim. P.

26.02, subd. 6. In 1965, the United States Supreme Court indicated that the denial or

impairment of the right to peremptory challenges amounts to reversible error, even without

prejudice shown. Swain v. Alabama, 380 U.S. 202, 219, 85 S. Ct. 824, 835 (1965). But

more recently, the Supreme Court has held that peremptory challenges are not

constitutionally protected fundamental rights, so that they may be withheld without

impairing the guarantee to an impartial jury and a fair trial. Georgia v. McCollum, 505

U.S. 42, 57 112 S. Ct. 2348, 2358 (1992). “The loss of a peremptory challenge does not

automatically deprive a defendant of a fair trial or require the reversal of his conviction.”

State v. Jackson, 773 N.W.2d 111, 121 (Minn. 2009).

       The ability to communicate in the English language is one of the qualifications for

service on a jury. Minn. R. Gen. Pract. 808(b)(4). This court has held in a similar situation,

when a juror stated that she had trouble understanding the proceedings in English, that the

district court did not abuse its discretion by removing that juror and replacing her with an

alternate. State v. Berrios, 788 N.W.2d 135, 140 (Minn. App. 2010). There was no

indication that the alternate juror was biased. Id. at 141. Here, when the juror indicated


                                             13
that he had difficulty understanding English, defense counsel observed that the juror was

one of two alternates and suggested the possibility of the juror continuing in that capacity.3

The next day, when the juror again stated that he had difficulty understanding the

proceedings, the district court released the juror. This comports with the procedure

approved in Berrios. See id. Further, there was no prejudice to Alwan because the juror

who was removed was acting as one of two alternate jurors, who, if not replacing a principal

juror, would be discharged when the jury retired to consider its verdict. See Minn. R. Crim.

P. 26.02, subd. 9 (stating rules for alternate jurors). Because there is no showing of actual

bias to support an improper restriction of peremptory challenges, and no prejudice from

the removal of the juror as an alternate, the district court’s exercise of discretion was

appropriate, and no plain error occurred.

       Affirmed.




3
  In light of Alwan’s initial endorsement of retaining the juror as an alternate, the doctrine
of invited error is instructive. “As a general rule a party cannot assert on appeal an error
that he invited or that could have been prevented at the district court.” State v. Benton, 858
N.W.2d 535, 540 (Minn. 2015) (quotation omitted).

                                             14
