State v. AmosState v. Amos
- Reporters:
- ,
- Before:
- Simonett
Dеfendant appeals his conviction for first-degree murder, claiming that premeditation is lacking as a matter of law and that various trial errors require a new trial or at least that the conviction should be reduced to second-degrеe murder. We affirm.
On August 7, 1982, at about 6 p.m., defendant Donald R. Amos shot and killed John Coles at the intersection of Eighth Street and Emerson Avenpe North in Minneapolis. The victim, Coles, driving his automobile southbound on Emerson, had stopped for the stop sign at the intеrsection with Eighth Street. Defendant Amos, riding as passenger in a car traveling northbound on Emerson, had also come to a stop at the Eighth Street intersection. Thus the two cars were stopped on Emerson,- facing each other acrоss Eighth Street. Defendant Amos got out of his car with a .22 revolver in hand, ran diagonally across the intersection to the driver’s side of Coles’ car, and fired a shot that struck Coles in the chest. The bullet, fired from a range of 1 to 2 feet, perforated thе lungs and heart, killing Coles. The cylinder fell off the revolver into the Coles car. Two passengers in the Coles car claim they heard the gun click after the first shot but defendant denies he attempted a second shot.
At trial defendant Amos argued thаt he fired at Coles in self-defense or at least under the heat of passion, and he denied any premeditation or intent to kill. There was evidence that earlier in the afternoon Amos and Coles had an argument, then an altercatiоn, and Coles threatened to shoot Amos the next time he saw him. Amos,
1. On appeal defendant Amos argues that as a matter of law the evidence was insufficient to show intentional and premeditated murder under
2. Appellant Amos claims it was error for the trial court to allow the testimony of the victim’s 8-year-old child, who was sitting in the back seat of his fathеr’s ear, behind his father, and witnessed the shooting. Except for children testifying in criminal sexual abuse eases,
“
* * * children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they аre examined, or of relating them truly, are not competent witnesses.”
Here the trial court held a preliminary chambers examination. The boy was asked what it meаnt to tell the truth; he seemed unable, either because of shyness or otherwise, to give an adequate answer, although after the judge permitted the boy to speak privately with the prosecutor and family members, the boy said it was not “okаy” to tell a lie. Without testing the child’s ability to relate the facts concerning his father’s death, the trial court then declared the boy competent to testify. The boy’s testimony consisted largely of one-word answers to leading questions on mattеrs not really in dispute, but when asked if the defendant said anything while at the car, the boy responded, “Yes. * * * He wouldn’t do it again.” This statement was later corroborated by a police officer who testified that when he had interviewed the boy several hours after the shooting, the boy told him that defendant had said, “You’ll never do it again.”
It would have been better, we think, if the trial court had not allowed the child to testify. Nevertheless, we are not prepared on this record to say there wаs error. In his courtroom testimony, the boy was able to relate events in a general way and his testimony about what the defendant had said was in response to a nonlead-ing question. Moreover, the witness’ testimony was essentially cumulative. Although a close question, we also think the police officer’s testimony was admissible as corroborative of the child’s testimony.
See State v. Lasley,
306 Minn. 224, 228, 236 N.W.2d 604, 607 (1975),
cert. denied,
429
3. Appellant Amos claims the trial court erred in excluding evidence of Amos’ knowledge of victim Coles’ police record and reputation for violence, as well as ex:-cluding statistics on the violent character of the neighborhood where the shooting occurred. This evidence, argues Amos, goes to whether he, as the defendant, was reasonably put in apprehension of serious bodily harm and who, in fact, was the aggressor. See State v. Matthews, 301 Minn. 133, 134, 221 N.W.2d 563, 564 (1974).
Defendant Amos wanted to testify to a conversation he had with Coles when both were in prison in which Coles described the crime for which he had been convicted. This testimony was ruled inadmissible hearsay. Amos’ testimony on other acts of violence by Coles was also disallowed as irrelevant. Finally, the court refused, on grounds of relevancy, to allow the defense to elicit from a policе officer the high rate of violent crime in the area. The hearsay ruling would seem incorrect, since the statement was offered not for its own truth but to show Amos’ apprehension of Coles. Amos’ knowledge of Coles’ past acts of violеnce would seem relevant to Amos’ apprehension from Coles’ threats. The violent character of the neighborhood, however, would seem to have little or no relevancy. Amos does not claim he armed himself because it was a rough neighborhood but because of Coles’ threats.
In any event, under
Under these circumstances, the trial judge could reasonably have excluded the evidence in question as cumulative or unnecessary to the case, or as confusing on the precise issues in the case, namely, the circumstances under which Amos shot Colеs.
4. Defendant Amos claims it was error for the trial court to allow use of his prior convictions for impeachment and, once having allowed their use, to not give a cautionary instruction. We hold there was no error. Amos took the stand in support of his claim of self-defense, and he was then questioned about a simple robbery conviction in 1975 and an aggravated rape conviction in 1977. Earlier the trial court had ruled that only the robbery conviction would be admissible but, upon lеarning that the rape was aggravated, allowed that conviction to be admitted also.
Admissibility of prior convictions for impeachment is governed by
Defendant Amos argues that the trial court should have cautioned the jury that evidence of defendant’s prior convictions went only to his credibility and could not be used as substantive evidencе of guilt. Defendant claims this instruction should have been given even though not requested. The law is well settled in this state, however, that the failure to give such an instruction, absent a request by counsel, is not reversible error. State v. Wahlberg, 296 N.W.2d 408, 420 (Minn.1980); State v. Forsman, 260 N.W.2d 160, 169 (Minn.1977).
5. Defendant Amos contends that blacks were systematically excluded from his jury in violation of his constitutional rights to trial by an impartial jury and to equal protection of the laws. A defendant has the burden of proving his discriminatory challenge. See Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); State v. Gatlin, 295 N.W.2d 538 (Minn.1980). Here defendant presents no evidence and makes no showing that the jury was selected improperly. His claim, consequently, must be denied.
6. Defendant argues that the trial court erred in refusing to instruct the jury on first-degree manslaughter as a lesser included offense. In this case, however, no rational view of the evidence would permit a conviction of first-degree manslaughter. See State v. Keaton, 258 Minn. 359, 104 N.W.2d 650 (1960); see also State v. Merrill, 274 N.W.2d 99, 105 (Minn.1978). We hold that the trial court’s ruling was correct.
7. Finally, defendant Amos asserts inadequate representation by his defense counsel, citing six grounds: (1) failure to find facts to support Amos’ defense of duress and heat of passion; (2) failure to request a bench trial; (3) failure either to keep Amos off the witness stand or to request a cautionary instruction on the pri- or convictions; (4) failure to have made a record for the purpose of challenging jury selection on racial grounds; (5) waiver of counsel’s right to be present when the prosecutor talked with the child witness during the competency examination; and (6) agreeing to the introduction of witness Coleman’s grand jury testimony instead of requesting a continuance for the purpose of finding Coleman. Amos has asked for a copy of the trial transcript to make his argument on these six grounds, but we see no need for it here. Most of these grounds concern the kind of factual decisions which any reasonably competent attorney might make. See State v. Berry, 309 N.W.2d 777, 785 (Minn.1981); White v. State, 309 Minn. 476, 480, 248 N.W.2d 281, 285 (1976). With regard to the heat of passion defense and prejudicial jury selection, Amos’ real dissatisfaction is with the fаcts of his case. A lawyer cannot create an issue the facts will not support. Coleman did not witness the shooting, and it does not appear his presence would have added anything to his grand jury testimony. We have carefully reviewed the record. Our review shows that Amos was afforded a fair trial and that his defenses were adequately presented by his trial counsel.
Affirmed.