State of Minnesota v. Ty-Yn Shakhaun Holley ( 2015 )

This opinion will be unpublished and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
A14-0423
State of Minnesota,
Respondent,
vs.
Ty-Yn Shakhaun Holley,
Appellant.
Filed August 31, 2015
Affirmed in part, reversed in part, and remanded
Willis, Judge
Hennepin County District Court
File No. 27-CR-12-38603
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Stan Keillor, Special Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Willis,
Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
WILLIS, Judge
Because the district court did not prejudicially err by admitting recordings of
statements by a witness who did not testify, and did not plainly err by allowing expert
testimony about fingerprint analysis or by instructing the jury on constructive possession
of a firearm, we affirm in part. But because the district court erroneously entered a
conviction and sentenced appellant for a lesser-included offense, we reverse in part and
remand.
FACTS
On November 20, 2012, the Hennepin County Sheriff’s Office executed a search
warrant at a home owned by appellant Ty-Yn Shakhaun Holley’s grandmother and found
marijuana, several loaded guns, more than $5,000 in cash, and a document showing that
Holley used the home as his address. At the time, Holley was in the home, along with his
girlfriend, B.P., and their two children. The state charged Holley with two counts of
fifth-degree controlled-substance crime—for possession and for sale. See Minn. Stat.
§ 152.025, subds. 1(a)(1), 2(a)(1) (2012). The state sought to increase Holley’s sentence
under the firearm-enhancement statute. See Minn. Stat. § 609.11, subd. 5 (2012).
At trial, a police sergeant testified regarding execution of the search warrant and
his interview of B.P. after her arrest. Before the sergeant’s testimony, the district court
instructed the jury that the state would introduce a firearm as evidence and that it was
“offered for the purpose of assisting you in determining whether the defendant had actual
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possession or constructive possession” of the firearm to determine applicability of the
sentencing enhancement.
Later in the sergeant’s testimony, the district court admitted into the record,
without objection, two audio recordings of the sergeant’s interview of B.P. The sergeant
testified that B.P. stated that Holley lived with her in his grandmother’s home. At the
time the recordings were admitted, both the state and the defense planned to call B.P. as a
witness. Ultimately, B.P. exercised her privilege against self-incrimination and did not
testify. The district court thereafter permitted the state to recall the sergeant and play the
recordings for the jury.
In addition, a forensic scientist testified as an expert in the identification of latent
fingerprints. She gave a detailed explanation of the procedure used and the many factors
that could affect the identification of a particular print. When defense counsel asked
during cross-examination if the process was subjective or exact, the expert testified that
she “wouldn’t say that it was a subjective process” and that “[i]t is a scientific method
that we use for the examination of fingerprints.” When asked about the methodology’s
error rate, she testified that she did not know the rate but that she has “never made a
misidentification or exclusion.” Defense counsel did not object to either of her
statements.
At the end of the trial, the district court instructed the jury that it would be asked
whether Holley possessed a firearm. The district court explained that the jury could find
that Holley constructively possessed the firearm if the firearm was “in reasonable
proximity to the defendant or to the drugs” and instructed the jury to consider a number
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of factors in deciding whether to infer constructive possession. Defense counsel did not
object to the instructions.
The jury returned guilty verdicts on both counts and found that Holley possessed a
firearm during commission of the offenses. Before sentencing, Holley moved the district
court for a downward departure from the mandatory minimum sentence. The district
court found that there were no substantial and compelling reasons for a downward
departure and denied the motion. It then entered convictions on both counts and
sentenced Holley to 36 months on the possession count and 39 months on the sale count.
DECISION
I. The district court did not plainly err by admitting recordings of B.P.’s police
interviews because the statements did not affect Holley’s substantial rights.
Holley argues that the district court committed plain error by admitting recordings
of B.P.’s police interviews, in violation of the Confrontation Clause. At the time that the
recordings were admitted into the record, both the state and Holley had B.P. on their
witness lists, but B.P. ultimately did not testify because she invoked her Fifth
Amendment privilege against self-incrimination. Later, the district court allowed the
state to play the recordings for the jury. Holley did not object to the admission or the
playing of the recordings.
When an appellant did not object to the admission of evidence at trial, we review
for plain error. State v. Tscheu, 758 N.W.2d 849, 863 (Minn. 2008). To warrant reversal
under plain-error review, the appellant must show that: (1) an error occurred, (2) the error
was plain, and (3) the error affected his substantial rights. Id. An error is plain if it
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“contravenes case law, a rule, or a standard of conduct.” State v. Ramey, 721 N.W.2d
294, 302 (Minn. 2006). An error affects substantial rights if the error was prejudicial and
there “is a reasonable likelihood that the error had a significant effect on the jury’s
verdict.” State v. Sontoya, 788 N.W.2d 868, 873 (Minn. 2010) (citing State v. Griller,
583 N.W.2d 736, 741 (Minn. 1998)). If these three prongs are satisfied, we then
determine “whether the error seriously affects the fairness, integrity, or public reputation
of the judicial proceeding before granting relief.” State v. Hull, 788 N.W.2d 91, 100
(Minn. 2010) (quotation omitted).
The right to confront witnesses is violated if testimonial hearsay is admitted,
unless the declarant is unavailable and the defendant had a prior opportunity for cross-
examination. State v. Caulfield, 722 N.W.2d 304, 308 (Minn. 2006) (citing Crawford v.
Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004)). The state does not dispute
that B.P.’s statements were testimonial hearsay, that B.P. was unavailable at trial, or that
Holley did not have an opportunity for cross-examination before the trial. When B.P.
invoked her Fifth Amendment right against self-incrimination, the district court could
have stricken the recordings as evidence because they had not yet been played for the
jury. Instead, the district court permitted the state to recall a witness to play the
recordings for the jury and specifically requested that the state re-offer one of the
recordings to ensure that it was on the record. Therefore, we conclude that there was an
error and it was plain.
The content of the recordings, however, did not affect Holley’s substantial rights.
The recordings included only a few inculpatory remarks, including (1) that Holley lived
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at his grandmother’s house; (2) that the key to the safe, in which guns and cash were
found, belonged to Holley; (3) that B.P. had seen Holley bring a gun into the house; and
(4) that Holley gave her the $4,000 that was found in her purse.
The record here includes other testimony that the police had confirmed that Holley
was living at his grandmother’s home, through “computer intelligence records” and a
cell-phone agreement in Holley’s name found at the home. But we note that it was
unnecessary for the state to prove that Holley lived at the home because Holley admitted
that his grandmother owned the home, that he was inside the home at the time of the
search, and that he had keys to and regular access to the home. A police officer testified
that Holley admitted at the scene that the safe key was his. An expert witness testified
that Holley could not be excluded as a contributor of DNA found on several of the guns.
And finally, Holley testified that the $4,000 in B.P.’s purse came from his promotional
work and that he asked B.P. to deposit it for him. Given that each of B.P.’s statements
was corroborated by other significant, admissible evidence or was unnecessary to the
outcome of the case, the recordings did not affect Holley’s substantial rights because they
were unlikely to have had a significant effect on the jury’s verdict.
II. The district court did not plainly err by allowing the fingerprint expert’s
testimony because any error was not plain.
Holley argues that the district court erred by allowing the fingerprint-analysis
expert to testify that there was no subjective component to latent-print analysis and to
state that she had never made a misidentification, which he contends “exaggerated the
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reliability of her own conclusions.” Because Holley did not object at trial, we again
review for plain error.
To allow an expert to testify in a “sweeping and unqualified manner” about the
certainty of the results established through testing without a cautionary instruction is
“technical error.” State v. Spencer, 298 Minn. 456, 461, 216 N.W.2d 131, 134 (1974)
(discussing testimony that test results indicated that the defendant had definitely fired a
gun, when the results were merely consistent with the defendant firing a gun). But the
error is not prejudicial if the expert is subjected to thorough cross-examination, id., or the
outcome was supported by extensive and strong evidence, Hull, 788 N.W.2d at 104.
The testimony here was not sweeping and unqualified. Holley contends that the
expert’s testimony was misleading because she testified that she “wouldn’t say that
[latent-print analysis] was a subjective process.” In support, Holley cites State v. Dixon,
in which the court stated that “there is a subjective component to print analysis.” 822
N.W.2d 664, 674 (Minn. 2012) (noting that the “subjective component” does not prevent
the analysis from being “reliable or accurate”). But the expert’s testimony was given in
response to defense counsel’s question about her opinion of whether the process was
subjective, not whether the Minnesota Supreme Court had ever characterized the process
as subjective. Indeed, she later testified that the identification process involved “side by
side comparison” to spot similarities and dissimilarities between the latent prints and the
exemplars. She also discussed many factors that might affect or impede identification
and did not testify that it was “an exact process” when asked by defense counsel.
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Therefore, there was no plain error because the expert did not make a broad, unqualified
statement about the accuracy of latent-print analysis.
Holley also argues that the latent-print expert exaggerated the reliability of her
identifications by testifying that she had never misidentified a print. While the statement
arguably may have encouraged jurors to give undue weight to her testimony, the potential
error was not so obvious that it constitutes plain error. Moreover, Holley does not argue
on appeal that the statement was inaccurate. At trial, defense counsel made no attempt to
impeach the expert on this ground and presented no evidence about the error rate in
latent-print analysis. Furthermore, the testimony aided the defense as well because the
expert also testified that the prints that were identified as Holley’s could have been on the
baggies before drugs were placed in them, supporting Holley’s argument that he had
touched the bags before they were reused to store marijuana without his knowledge and
that several of the prints were identified to another person, who Holley argued was the
actual culprit.
III. The district court did not plainly err in its jury instructions regarding
possession of a firearm because any error was cured by the district court’s
final instructions and because the remaining jury instructions accurately
summarized the law and a separate Blakely hearing was not required.
Holley argues that the district court made three errors in its jury instructions:
(1) when it instructed the jury during testimony that evidence was “being offered for the
purpose of assisting you in determining whether the defendant had actual possession or
constructive possession” of a firearm for the sentencing enhancement, it implied that
possession had been established and the jury was merely to determine the type of
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possession; (2) when it instructed the jury to consider the Royster factors in determining
whether Holley possessed a firearm, it asked the jury to reach a legal conclusion instead
of a factual finding; and (3) when it instructed the jury on the firearm issue, it “denied
[Holley] a separate Blakely proceeding on the section 609.11 sentencing enhancement.”
See State v. Royster, 590 N.W.2d 82, 85 (Minn. 1999) (outlining factors courts should
consider in determining whether presence of a firearm increased the risk of violence and
to what degree).
Because Holley did not object to the jury instructions, we again review for plain
error. District courts are allowed “considerable latitude” in the selection of language for
jury instructions. State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002). But the
instructions must “fairly and adequately explain the law of the case.” State v. Koppi, 798
N.W.2d 358, 362 (Minn. 2011). “An instruction is in error if it materially misstates the
law.” State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001).
First, Holley argues that the jury instruction given during testimony implied that
the jury was only to decide between actual or constructive firearm possession for the
sentencing enhancement. That argument fails. We must consider the jury instructions as
a whole. State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998). The district court clarified
its earlier instruction, given during testimony, by providing a more detailed final
instruction. The final instruction asked the jury to answer the question: “[W]as the
defendant in possession of a firearm?” The instruction then explained “that possession
may be actual or constructive.” Reviewing the instructions together, any potential error
in the earlier instruction was cured by the later clarification.
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Second, Holley argues that the instruction, based on CRIMJIG 20.57, asked the
jury to reach a legal conclusion by telling jurors to consider the Royster factors to
determine whether constructive firearm possession existed. See 10A Minnesota Practice,
CRIMJIG 20.57 (2014). In State v. Royster, the supreme court held that the sentencing
court should consider circumstances surrounding constructive possession to determine
whether the predicate offense should trigger a sentencing enhancement. 590 N.W.2d at
85. Although Royster did not hold that the factors must be considered in making a
factual finding on whether constructive possession existed, Minnesota courts have since
used the factors for that purpose. See State v. Barker, 705 N.W.2d 768, 771 (Minn.
2005). The instruction, therefore, accurately summarized the law.
Finally, Holley argues that the instructions denied him a bifurcated trial, which is
mandated for sentencing-enhancement issues when the evidence may unduly prejudice
the jury in its determination of guilt. This argument fails because Holley did not request
a bifurcated trial, and a bifurcated trial is mandated only when the evidence in support of
the sentencing enhancement is “otherwise inadmissible at a trial on the elements of the
offense” and “would result in unfair prejudice to the defendant.” Minn. Stat. § 244.10,
subd. 5(c) (2012). The gun-possession evidence here was admissible and would not
result in unfair prejudice because the presence of guns is relevant to the issue of whether
Holley possessed controlled substances for a purpose other than personal use, such as for
sale. See State v. Love, 301 Minn. 484, 484-85, 221 N.W.2d 131, 132 (1974) (stating that
the fact that the defendant was armed was relevant in determining if the defendant
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possessed methamphetamine with an intent to distribute). The district court therefore did
not plainly err in its jury instructions.
IV. The district court did not abuse its discretion by denying Holley’s motion to
sentence without regard to the mandatory minimum when it found that there
were no substantial and compelling reasons for a downward departure.
Holley argues that the district court abused its discretion by denying his motion to
sentence without regard to the mandatory minimum under the firearm-enhancement
provision of Minn. Stat. § 609.11, subd. 5(a) (2012). “Sentencing rests within the broad
discretion of the [district] court and will not be disturbed on appeal absent an abuse of
that discretion.” State v. Larson, 473 N.W.2d 907, 908 (Minn. App. 1991).
Holley cites State v. Svec to argue that there is “tension between Barker’s
treatment of section 609.11 . . . as an upward departure and that statute’s treatment of the
failure to impose the mandatory minimum as a downward departure.” No. A10-602,
2011 WL 691644, at *6 (Minn. App. Mar. 1, 2011) (noting that Barker requires a jury to
find that a sentencing factor exists before a district court may make a discretionary
departure based on the factor). Svec is, however, unpublished and thus lacks precedential
value. See Minn. Stat. § 480A.08, subd. 3(b) (2014). In any event, Svec makes clear that
“[a] sentence under section 609.11, subd. 5(a), is treated as a departure for Blakely
purposes” only, so that the defendant has a right to require that a jury find that he
possessed or used a firearm at the time of the underlying offense. Id. (emphasis added).
But because the enhancement “is automatic” upon such a finding, there must be
“substantial and compelling reasons” to sentence without regard to the mandatory
minimum. Id. There appears to be no conflict between the application of Blakely and the
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need for substantial and compelling reasons to deviate from the automatic enhancement
upon the jury’s factual finding on the firearm-possession issue.
Holley also argues that evidence was inconclusive that the presence of a firearm
increased the risk of violence associated with the offenses and that there was a general
lack of evidence that the guns were actually his. This argument fails because it asks us to
disregard the jury’s explicit factual finding, which is supported by the record, that Holley
possessed a firearm at the time of the offenses. Because the district court determined that
no substantial and compelling reasons exist here to depart from the mandatory minimum
sentence, it did not abuse its discretion by denying Holley’s motion to sentence without
regard to the mandatory minimum.
V. The district court erroneously convicted and sentenced Holley on the
controlled-substance possession charge, which was an included offense of the
controlled-substance sale charge.
Holley next argues that the district court erred by convicting him of both counts of
fifth-degree controlled-substance crime, for sale and for possession, when possession is
included in the sale offense. At oral argument, the state conceded that the possession
offense was a lesser-included offense of the sale under Minn. Stat. § 609.04, subd. 1
(2014), and that the district court erred in convicting and sentencing Holley on the
possession charge. See, e.g., State v. Traxler, 583 N.W.2d 556, 562 (Minn. 1998)
(referring to a possession charge as a lesser-included offense of a sale charge). We agree
and thus reverse Holley’s possession conviction and remand for resentencing. If the sale
conviction were to be vacated or reversed on independent grounds, the district court
would be permitted to formally adjudicate and sentence Holley on the possession count.
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See State v. Grampre, 766 N.W.2d 347, 354 (Minn. App. 2009), review denied (Minn.
Aug. 26, 2009).
Affirmed in part, reversed in part, and remanded.
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