Officer's race-based testimony prejudicial, appeals panel says in tossing conviction

Peterson

By Gretchen Schuldt

​A police office’s testimony that victims of Somali-on-Somali crimes tend to lie about them was unduly prejudicial to a man accused of participating in a Hudson shooting that injured three people, the State Court of Appeals has ruled.

"We also generally agree with (defendant Ahmed Farah) Hirsi’s argument that the racial and ethnic aspect of (Officer Tracy) Henry’s testimony raises heightened prejudice concerns, as such a notion is firmly supported by our case law," the District III appeals panel wrote in an unsigned opinion.

The error was "fundamental, obvious and substantial," said the panel that included Appeals judges Lisa K. Stark, Thomas M. Hruz, and Mark A. Seidl.

The panel, in overturning a ruling by Circuit Judge James M. Peterson, sent the matter back to Circuit Court for further proceedings. Peterson, a Dunn County judge, presided over Hirsi's St. Croix County trial.

Hirsi was convicted by a jury of multiple felonies stemming from a January 2014 shooting in a liquor store parking lot. Witnesses told police a passenger in a tan Cadillac fired multiple gunshots into an Kia SUV. Three of the six occupants were hit, and three were not. All six are Somali, as is Hirsi.

Hirsi was arrested later that day, along with a co-defendant.

The state's theory of the case was that Hirsi, recognizing one of the people in the car, referred to her in a derogatory manner. The woman responded in the same manner, and Hirsi began to shoot indiscriminately into the Kia.

Hirsi denied involvement and the woman said she did not know anyone in the Cadillac. She denied the derogatory term was aimed at her and said the shooting occurred about an hour after the name-calling. The woman did not identify Hirsi when shown a photo array that included him.

The Kia's driver testified that Hirsi was not the shooter and that he told law enforcement before the trial that "they had the wrong man in custody and that the man that shot me is out there and free."

Four victims did not testify, but one of them told police she did not know who did the shooting and another said she was asleep and did not see the shooting. Two declined to cooperate.

Only one person, a co-defendant, identified Hirsi as the shooter. The co-defendant had a plea deal with prosecutors under which he agreed to testify "truthfully" and plead guilty to two felonies. In exchange, 15 charges would be dismissed and prosecutors would recommend a two-year prison sentence, according to a brief filed by Hirsi's appellate lawyers, Cole Daniel Ruby and Albert T. Goins, Sr.

​Hirsi was sentenced to 50 years in prison and 35 years of supervised release.

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The state called Henry, St. Paul, Minnesota, police officer to testify as an expert witness about certain aspects of Somalian culture.

"And based upon your training and experience, would it be an accurate statement that victims or witnesses of Somalian-on-Somalian crime could have a tendency to fabricate certain events so as to avoid retribution within their community?" the prosecutor asked.

"Yes," she responded.

Assistant District Attorney Matthew Hartung questioned Henry, according to court records. He was one of three prosecutors in court. Hirsi represented himself with the assistance of standby counsel Christopher Petros.

Assistant District Attorney Michael E. Nieskes delivered the closing argument. He said the case rested on credibility and referred to Henry's testimony.

The witness who denied Hirsi was the shooter "is not telling – telling the truth," he said. "And you heard from Tracy Henry why that might be with the Somalian community. And another thing, we have six people shot at here, six persons. The good news is none actually died. Two of them made any kind of statements to the police, two out of six. That’s a reflection of Tracy Henry’s summary to you about the Somalian culture and their lack of cooperation with law enforcement. "

Nieskes’ statement was not true. Two declined to cooperate. Four testified and / or gave statements to police.

Nieskes also said he did not know why the witness was lying to protect Hirsi. "Why? I don't know why the cultural bias is that. But you heard the testimony of Tracy Henry about that," he said.

The state, on appeal, argued that Hirsi did not object in Circuit Court to Henry's testimony and so waived the right to raise it as an issue on appeal.

The panel, though, said the error was a "plain error" that allowed an appellate court to consider an issue even if there was no objection raised earlier. A plain error is one that is so fundamental that a new trial or other relief must be granted despite the lack of an objection, the opinion said. 

The state "wholly" failed to address the appropriateness of Henry's argument, and so conceded the issue, the panel wrote.

"Further, because the state fails to address Hirsi’s argument that the racial and ethnic aspects of the testimony raise heightened concerns of prejudice that counsel in favor of granting a new trial—and in conjunction with the support in our case law for such a notion—we likewise deem that aspect of Hirsi’s argument conceded," the panel wrote.

"This omission is especially troubling given that the first portion of our plain error analysis required a determination that the error was fundamental, obvious and substantial—which, again, we find to be the case," the panel said.

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