This opinion will be unpublished and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. 

U N P U B L I S H E D O P I N I O N

JESSON, Judge

Appellant Mohamed Adel Alwan challenges his conviction of attempted seconddegree 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 
2

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. 
3

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 surveillancevideo 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 
4

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). 
5

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.

D E C I S I O N

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 
6

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; 
7

(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 crossexamined. 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 
8

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 crossexamination. 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 crossexamination. 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).
9

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 attorneyclient 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 
10

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 attorneyclient 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 
11

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 
12

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 crossexamination 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 
13

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 
14

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).