Lead Opinion
OPINION
Appellant, Lavon Antione Johnson, was present in the area of 645 Lafond Avenue in St. Paul, Minnesota on the evening of October 21, 1995 when gunshots were fired into a car of Asian-American youths, paralyzing Bing Xiong (Bing) and killing his girlfriend, 17-year-old Mary Yang (Mary). Johnson, an African-American male who was 17 years old at the time of the shooting, was subsequently identified from a photographic lineup as the shooter. Johnson was indicted for first-degree murder, second-degree murder, first-degree attempted murder, and second-degree attempted murder.
At trial, the defense attempted to prove that another African-American youth, who was also present at the crime scene, was the shooter. Pursuant to this theory, the defense offered reverse Spreigl evidence concerning a separate shooting incident involving the other youth, but the court excluded this evidence. The jury found Johnson guilty of first-degree murder and attempted first-degree murder, and the court sentenced Johnson to life imprisonment for first-degree murder and a consecutive 180-month sentence for attempted first-degree murder. On appeal, Johnson raises two grounds for reversal. First, Johnson claims that a new trial is warranted because the district court erred in excluding reverse Spreigl evidence concerning the shooting incident involving the other youth. Second, he claims that the witness identifications of him as the shooter were insufficient to support the convictions. We affirm.
On October 21, 1995, at approximately 10:30 p.m., seven Asian-American youths in a car were circling the area surrounding the Hmong Funeral Home Services, Inc. at the corner of Dale Street and Lafond Avenue in St. Paul, Minnesota in search of a parking space. Bing was the driver of the car. He was accompanied by his girlfriend, Mary, his cousin, Fong Xiong (Fong), Tou Chang (Tou), Billi Villi Yang (Billi), Peter Xiong (Peter), and John Vang. Simultaneously, a group of African-American youths and Caucasian youths (645 Lafond youths) was situated in and around the property at 645 Lafond Avenue. These youths included: April Brown-McCoy (April), who resided at 645 Lafond, Aleisha Feiner (Aleisha), who also resided at 645 Lafond, 15-year-old Mac Lesure (Le-sure), James Hobbs (James), and several others. Johnson was not present at this time in the evening.
The Asian-American youths and the 645 Lafond youths offered differing accounts of
April testified at trial that when the 645 Lafond youths encountered Johnson, he asked for Lesure, then lifted up his shirt and revealed a gun in the waistband of his pants. April testified that Johnson stated, “I got somethin’ for 'em.” Subsequently, Lesure rode up on his bicycle and Lesure, Johnson, and Aleisha each had some sticks. The car containing the Asian-American youths returned, and Aleisha and the others said to the Asian-American youths, “what’s up.” Then, the Asian-American youths’ car stopped in the middle of the street, and a couple of Asian-American youths jumped out of the car and started to run towards Lesure, Johnson, and Aleisha. Lesure, Johnson, and Aleisha “started running up towards the car and shootin’.” As soon as she heard gunshots, April ran into the house. April testified that she did not see the gun and did not see Johnson hand the gun to anyone.
At trial, Aleisha testified that a few minutes after Johnson joined the 645 Lafond group, Lesure came riding up on his bicycle and said that he had “had some problems with these Asians.” Lesure was mad because he had been hit in the head with a rock. Aleisha testified that Lesure showed her and the others that he had a gun in his pants. Within about a minute, the ear of Asian-American youths drove up and two Asian-American youths jumped out and started yelling. Lesure then ran toward the Asian-American youths, and the Asian-American youths took off across the street. Lesure then stood by the car, and when the car started rolling off, he followed behind and fired at it about four times. Aleisha testified that when Lesure was shooting at the car, Johnson was sitting on the curb near Aleisha and did not move toward the car.
April and Aleisha each changed her version of events several times prior to trial. April initially told the police that she had not seen anything. After the shooting, however, April told the pólice that on the night of the shooting, she saw that Johnson had a gun when he lifted up his shirt. April also identified Johnson from a photo line-up as the one who had done the shooting. Subsequently, though, April told the public defender’s investigator that Lesure had the gun and did the shooting. April then told the police that Lesure was responsible for the shooting, but upon further questioning, she stated that it was not Lesure and that it was Johnson. At trial, April admitted that her version of events had changed. She testified that a male caller identifying himself as Johnson had telephoned her approximately three times and told her to say that Lesure had the gun. She testified that she had falsely tried to implicate Lesure in order to keep Johnson from getting into trouble.
Aleisha initially told the police she did not know the identity of the shooter. Subsequently, however, Aleisha identified Johnson as the shooter from a photo line-up, told the public defender’s investigator that Johnson was the shooter, and testified before the grand jury that Johnson was the shooter. Aleisha later told the public defender’s investigator that the shooter was neither Johnson nor Lesure, but some light-skinned African-American male. Then, Aleisha told the police that Lesure was the shooter. Aleisha’s prior grand jury testimony was read into the record at trial. In that testimony, Aleisha stated that after the initial altercation with the Asian-American youths, Lesure called Johnson and told him to “bring the piece and to come quick because he had had some trouble with some Asians.” In her grand
The Asian-American youths offered a different account of what occurred that evening. In his testimony at trial, Bing denied having the initial altercation with the 645 Lafond youths. Tou testified that as the Asian-American youths’ car was driving down La-fond, there were African-American people and Caucasian people arguing on the side of the street carrying bats and sticks. Tou thought there was going to be a fight. The Asian-American youths parked their car and got out of the ear. Some African-American males approached them and said something indicating that the Asian-American youths should not park there. Tou then heard someone say “he has got a gun,” and saw an African-American male taking out a gun toward his right chest area. Tou then ran toward the ear, but his companions had closed the car doors as they got in, so he ran approximately three ear lengths down the street and stopped “sort of in the middle and towards the end of the side of the street,” somewhere around 50 or 60 feet away. Tou then turned back and saw the African-American male with the gun point the gun toward the car, turn around, laugh, and shoot five or six times. Tou recognized the shooter as someone he had seen when he was staying at Boys Totem Town (Totem Town), a juvenile facility, from April to July 1995. He testified that the shooter was wearing a red or maroon jacket.
The day after the shooting, Tou identified Johnson as the shooter from a photo line-up. Tou was shown three different photo lineups. The first photo line-up did not contain Johnson’s picture, and Tou did not make any identification. The second photo line-up contained six individual photos, including two or three persons who had been at Totem Town, as well as other filler photos, but not Johnson’s picture. Tou pointed to two or three of the pictures and said he knew the people from Totem Town, but none of them was the shooter. The third photo line-up was computer generated and contained six photos, including Johnson’s picture and five filler pictures. The police officer who showed Tou the third photo line-up testified that after looking at this line-up, “without hesitation” Tou pointed to Johnson and said, “That’s the one,” meaning that Johnson was the shooter. Tou also made an in-eourt identification of Johnson as the shooter. The record shows that Tou and Johnson were at Totem Town together for nearly three months.
Billi testified that the Asian-American youths were driving down Lafond Avenue, noticed the 645 Lafond youths on the side of the street, then drove around and came back to get a closer look at what the 645 Lafond youths were doing. The ear stopped and all of the Asian-American youths jumped out of the car except Fong, Mary, and Peter. They walked up to the curb to see what the 645 Lafond youths wanted and then Billi heard someone yell “he’s got a gun.” Billi then saw someone run out with a gun. Billi testified that events happened too quickly for him to see what the person with the gun was wearing, but he recognized the person holding the gun as Johnson. Billi ran back to the car and got in. He then heard someone laughing and ducked down. Billi looked back to see what was going on because he “thought it was all a joke about the gun,” but Johnson started firing the gun. Billi testified that he recognized Johnson as someone he knew at Totem Town.
On the night of the shooting, Billi told the police that the shooter was an African-American male, aged 14 to 15 years of age, 5’5” in height, with a skinny build, wearing a red waist-length jacket with white stripes and dark colored pants. At the time of the offense, Johnson was a 17-year-old African-American male with a medium complexion who weighs 145 pounds and is 5’9” in height. Billi did not tell the police on the night of the shooting that he recognized the shooter. However, Billi identified Johnson from a photo line-up the day after the shooting. Of the three photo line-ups that the police showed to Tou, Billi was shown the first and the third line-ups. Billi did not make an identification from the first photo line-up. Billi saw the third photo line-up, and after a maximum of five seconds, he pointed to Johnson’s picture and said, “That’s the one.” Tou and Billi viewed the photo line-ups separately and did not have an opportunity to confer before
Fong testified that he stayed in the ear with Mary. He looked out of the back window and saw a person in a red jacket holding a gun with a big handle and pointing it at the car. The person pulled the gun up and started shooting. Fong testified that it was too dark for him to see the shooter’s face.
Bing, the driver of the car, testified that he was not involved in any fights or arguments. He testified that the group of Asian-American youths was cruising around and that Peter wanted to go to the funeral home to get some money from his father. Bing testified that he parked the car and got out to go to the funeral home, and there was a whole bunch of commotion. He saw a person pull out a gun, got back into the car, looked around to see if everyone was in the car, looked back, and saw some person cocking a gun. Then, he put the car in drive, started to drive out of the parking area, and heard five or six gunshots and somebody laughing. He then felt numbness and told his friends that he was shot. Bing had been shot behind his right shoulder and is permanently paralyzed from the chest down. Mary, seated next to Bing, was shot three times and died as a result of her wounds. The police recovered the gun used in the shooting, a .22 caliber semi-automatic pistol.
Two residents of 657 Lafond, which is two houses West of 645 Lafond, also testified at trial as to the events that occurred on the evening of October 21, 1995. Timothy Skot-tegaard testified that he looked out of his bedroom window and saw four or five Asian-American persons hop out of a car like they were confronting the youths at 645 Lafond. After a lot of hollering and arguing, the Asian-Ameriean persons got back into their car and proceeded to pull in front of his house. The people in the car were all looking behind them like somebody was talking to them. Then, another teenager came from the corner of his house. Skottegaard could see the teenager clearly because he stopped right at the street light in front of his house. The teenager was trying to say something to the Asian-American persons. The teenager looked like he was going to turn and walk away, but he suddenly turned around and pulled out a gun and started shooting at the car. As the car was trying to get away, the teenager followed the car in a quick jog. The teenager was wearing dark pants and a red oversized jacket like a “Starter” jacket with a design on it like stripes. Skottegaard could not really see the teenager’s face, but under the street lights, the teenager “looked more of an Asian-type person” with short, dark hair.
Victoria Skottegaard, also a resident of 657 Lafond, testified that she looked out of the window and saw a bunch of kids and the occupants of a car having some sort of confrontation. The car started moving and one person was still yelling at the people in the ear. She was looking at the car when she heard the first gunshot, and she watched as five additional gunshots were fired. The shooter was wearing a red and white jacket and dark pants. Due to the yellow color of the street light, Victoria Skottegaard could not tell what race the shooter was, but she believed she saw a short, short-haired male.
Johnson was arrested and indicted for first-degree murder, second-degree murder, first-degree attempted murder, and second-degree attempted murder. He pleaded not guilty to all charges. At the omnibus hearing, the district court ordered that certain statements made by Johnson during his interrogation by the police would not be admissible as substantive evidence at trial. The court, however, denied the defense’s motion to exclude the photo line-up identifications. The defense’s theory at trial was that Lesure was the shooter. The defense offered reverse Spreigl evidence concerning a June 15, 1994 shooting incident involving Lesure, but the court excluded this evidence. The jury found Johnson guilty of the first-degree murder of Mary Yang and the attempted first-degree murder of Bing Xiong. The court sentenced Johnson to life imprisonment for first-degree murder and a consecutive 180-month sentence for attempted first-degree murder.
In this appeal, Johnson first claims that a new trial is warranted because the district court erred in excluding reverse Spreigl evi
I.
We first address Johnson’s reverse Spreigl claim. Johnson argues that the district court erred in excluding from trial reverse Spreigl evidence concerning a 1994 shooting incident involving Lesure, a 15-year-old African-American male who also was present at 645 Lafond on the night of the shooting. According to three police reports, on the evening of June 15, 1994, a woman flagged down a squad ear and told the police that she had been driving in the area of Lafayette Avenue and University Avenue in St. Paul, Minnesota when five or six gunshots were fired at her car. The intersection of Lafayette and University is approximately 20 blocks from La-fond Avenue. The victim described the suspects as five or six African-American males on bicycles. A second victim described the shooter as an African-American male, 14 years old, 5’5” in height, wearing a striped shirt. The victims named in the reports were Sarn Samouen, Yang Mao, and a three-year-old child.
A short time after the police were flagged down, the police were driving on Mount Airy Road and spotted five African-American male juveniles on bicycles. The police ordered the juveniles to stop, which they did. The police took Yang Mao to the group of juveniles that the police had stopped, and she identified them as the juveniles she had seen earlier. One of the juveniles, later identified as Lesure, appeared to the police to be “extremely nervous.” When approached by the police to be interviewed and possibly searched, Lesure started running, was chased by the police, and apprehended. He was wearing a blue striped shirt. The time of arrest was approximately 9:40 p.m. The police found a loaded .22 caliber long rifle automatic handgun approximately 25 feet from where Lesure was apprehended. Le-sure stated that he had found the gun a few weeks earlier, but said that he did not shoot the gun. The police interviewed the remaining four juveniles, none of whom appear to have been appellant Johnson. The other youths stated that they had just met up with Lesure. These youths were released at the scene. Lesure, however, was charged in that incident for the crime of dangerous discharge of a firearm, but the state dismissed this charge. Lesure did admit to being a juvenile in possession of a pistol.
At trial, the defense made an offer of proof of evidence that Lesure had been involved in the 1994 shooting incident and the district court held a hearing outside the presence of the jury.
I agree with the State that the incidents here are not so clearly similar as to permit the use of the 1994 incident as Spriegl [sic] evidence in this case. Certainly if the state was offering this incident against Mr. Johnson, I would not permit its admission and I believe that it is not appropriate in this case to allow the defense to use the 1994 incident as reverse Spriegl [sic].
Johnson argues that the court erred when it excluded the evidence of the 1994 shooting incident involving Lesure and that this error deprived him of a fair trial.
Evidentiary rulings generally rest within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Glaze,
Pursuant to rule 404(b), the state may seek to introduce evidence of a defendant’s other crimes or misconduct to prove that the defendant committed the crime in question. See State v. Moorman,
Also pursuant to rule 404(b), a defendant may seek to introduce evidence of other crimes or misconduct of a third person to prove that the third person, rather than the defendant, committed the crime charged. The defendant’s offer of proof in this situation is referred to as “reverse Spreigl ” evidence. See generally State v. Willis,
If * * * the conduct of a third party * * * is an issue and if the evidence of ‘other crimes, wrongs, or acts’ by the third party is not offered to prove the third party’s character as a basis for an inference as to his conduct but instead is offered to prove the conduct of the third party without any need to infer his character, then the evidence is admissible.
The first requirement for admission of Johnson’s reverse Spreigl evidence is clear and convincing evidence that Lesure participated in the 1994 shooting incident. “Clear and convincing” requires more than a preponderance of the evidence, but less than proof beyond a reasonable doubt. Weber v. Anderson,
There are certain similarities between the 1994 shooting incident involving Lesure and the shooting incident at 645 Lafond. The incidents occurred approximately 20 blocks apart on the streets of St. Paul at around 9:00 or 10:00 at night. Both incidents involved shooting at persons of Asian-American descent. The modus operandi, shooting five or six gunshots into a car with a .22 caliber handgun while accompanied by a group of juveniles, was similar in both incidents. But, as the state points out, there are also differences between the two incidents which provide a reasonable basis for exclusion. The shooting at 645 Lafond was apparently a retaliatory act in connection with a prior altercation. Conversely, the shooting incident involving Lesure was apparently a random act. In addition, the incidents occurred 16 months apart. In Cogshell, we stated that an offense committed 15 months earlier was “clearly not closely related to the crime charged in temporal terms.”
Johnson points out that in some of our recent decisions we have upheld the admission of Spreigl evidence when the similarity between the Spreigl incident and the crime charged was at least as great as in the case at bar. See, e.g., State v. Lewis,
II.
We next address Johnson’s insufficiency of the evidence claim. Johnson con
Two eyewitnesses, Tou and Billi, testified at trial that Johnson was the shooter at 645 Lafond on the evening of October 21, 1995. Both Tou and Billi also identified Johnson as the shooter from a photo line-up shown to them on the day after the murder. This court has held that in order to support a conviction, an identification need not be positive and certain; rather, the identification can be sufficient if a witness testifies that in the witness’ belief,, opinion, and judgment, the defendant is the person whom the witness saw commit the crime. State v. Daniels,
The jury could have believed Tou’s testimony that he saw an African-American male take out a gun from his right chest area, that he saw the male point the gun toward the car and shoot the gun five or six times, that he recognized the shooter as someone he had seen at Totem Town several months before, that the shooter was wearing a red or maroon jacket, and that the shooter was Johnson. Tou’s testimony is consistent with his statement to the police on the night of the shooting when he told the police he could identify the shooter as someone who had been at Totem Town with him. Tou’s in-court identification is also consistent with his identification of Johnson as the shooter from a photo line-up the next day.
The jury could also have believed Billi’s testimony that he recognized Johnson as someone he knew from Totem Town and that Johnson was the shooter. When the police questioned Billi shortly after the shooting, he did not disclose to the police that he had recognized the shooter; but the next day, he identified Johnson as the shooter from a photo line-up. Billi’s in-court identification of Johnson is consistent with his prior identification of Johnson in the photo line-up.
Johnson points out that Tou and Bil-li had only a limited opportunity to observe the shooter. This court has noted that “eye witness identification made upon fleeting or limited observation at the time of a crime is not reliable and in the absence of corroboration should not be the basis for conviction.” State v. Spann,
Tou’s testimony that the shooter was wearing a red or maroon jacket was corroborated by other evidence. Fong, Timothy Skotte-gaard, and Victoria Skottegaard all testified that the shooter was wearing a red jacket. One of the police officers testified that on the night of the shooting, Billi told him that the shooter was wearing a red jacket. Moreover, Aleisha testified before the grand jury that Johnson was wearing a red jacket on the night of the shooting and was the shooter. Finally, Tou’s testimony that Johnson took out a gun from his chest area is corroborated by April’s testimony that Johnson had a gun shortly before the shooting occurred. There is ample corroborating evidence to sustain a jury’s conclusion that Tou’s and Billi’s identifications of Johnson as the shooter were reliable even if Tou and Billi had only a fleeting or limited opportunity to observe the shooter.
In further support of his argument that the evidence was insufficient to support his convictions, Johnson points to the discrepancies in the testimony of the various witnesses. However, “[a] jury, as the sole judge of credibility, is free to accept part and reject part of a witness’ testimony.” State v. Poganski,
The evidence in this case could reasonably lead the jury to conclude beyond a reasonable doubt that on October 21, 1995, Johnson fired the shots that paralyzed Bing Xiong and killed Mary Yang. We conclude that the evidence was sufficient to sustain the convictions.
Affirmed.
Notes
. The state and the defense stipulated that if the police officers were called to testify about the 1994 shooting incident, their testimony would be the same as that documented in the police reports.
. This court has declined to bar Spreigl evidence of other crimes which either were prosecuted and dismissed, or were not prosecuted at all. State v. Kasper,
. This court has held that district court is permitted some discretion in determining relevancy, and that the other crime be similar in some way — either in time, location, or modus operan-di — although this " ‘is not an absolute necessity.' " State v. Kumpula,
. See State v. Zernechel,
. See State v. Triplett,
Concurrence Opinion
(concurring specially).
I concur with the result reached by the majority, but write separately to express my concern about the standards of determining the admissibility of “reverse Spreigl ”
Although I agree that the foundational requirements for admissibility of reverse Spreigl evidence are identical to those foundational requirements for admissibility of Spreigl evidence, I disagree with the conclusion reached by both the majority and the dissent that the analyses within each foundational requirement for admissibility of reverse Spreigl evidence are the same as the analyses within each foundational requirement for admissibility of Spreigl evidence. Whereas Spreigl evidence is offered to show that prior crimes committed by the defendant make it more likely that the defendant
The majority correctly states that the party proffering “other-crime” evidence must show by clear and convincing evidence that the “other crime” has been committed; that evidence of the “other crime” is relevant and material to a party’s case; and that the probative value of the “other-crime” evidence outweighs its potential for unfair prejudice. See State v. Landin,
When the state is offering “other-crime” evidence, it is attempting to show that prior crimes committed by the defendant make it more likely that the defendant has committed the crime for which he or she is charged. Because evidence of all prior crimes committed by the defendant make it more likely that the defendant committed the crime for which he or she is charged, all “other-crime” evidence is relevant. See Minn. R. Evid. 401; Spreigl,
Before a court can properly determine the relevance and materiality of “other-crime” evidence, therefore, it must identify the party proffering the evidence. If the party proffering the evidence is the state, the question is whether the “other crime” was sufficiently similar to the charged crime to ensure that the “other crime’s” probative value substantially outweighs its danger of unfair prejudice. If the party proffering the evidence is the defendant, however, the question is whether the “third-party crime” was so similar to the charged crime that it can be inferred that the third party also committed the crime for which the defendant is charged. Because I agree that the “other crime” offered by the defendant in this case was not so similar to the charged crime that it can be inferred that the third party also committed the crime for which the defendant was charged, I join the result reached by the majority.
Despite this conclusion, I cannot agree with either the majority or dissent in applying a rule whereby a criminal defendant can establish the relevance of a “third-party crime” by showing only that the “third-party crime” is “substantially similar to the crime charged.” Crime statistics demonstrate the existence of many similar crimes, closely related in time, committed by many unrelated persons. In the case of a drug-related murder committed with a handgun at night in a large city, for example, a creative defense attorney might be able to find any number of “substantially similar” murders committed within any given area and time. Without more distinguishing characteristics, such “substantial similarities” — although sufficient to increase the probative value of already relevant evidence — do not magically transform otherwise irrelevant evidence into relevant evidence.
I do not feel it is necessary at this time to define the appropriate standard for determining when “third-party crimes” become relevant. At the same time, I feel it is necessary to accentuate the differences between the admissibility requirements for evidence of “other crimes” committed by the defendant and “other crimes” committed by third parties. Failure to recognize such distinctions not only will allow criminal defendants to parade every “substantially similar” crime before the jury for the purpose of casting doubt on the defendant’s guilt, it will
. Spreigl evidence encompasses "other crimes” committed by the defendant. See generally State v. Spreigl,
. As we noted in Spreigl:
That such former misconduct is relevant, i.e., has probative value to persuade us of the general trait or disposition, cannot be doubted. * * * It may almost be said that it is because of this indubitable relevancy of such evidence that it is excluded. It is objectionable, not because it has no appreciable probative value, but because it has too much. The natural and inevitable tendency of the tribunal — whether judge or jury — is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge.
. At no time did the defendant offer proof that the act of using a .22 caliber handgun to shoot five or six bullets into a vehicle filled with Asian-Americans was so unusual or unique to provide an inference that the third party also committed the crime for which the defendant was charged.
Dissenting Opinion
(dissenting).
I respectfully dissent because I disagree ■with the majority’s determination that the reverse Spreigl evidence is not relevant to Johnson’s ease. I would hold instead that the reverse Spreigl evidence is sufficiently similar to the offense in question that it should have been admitted.
A defendant has the right to show that crimes of a similar nature have been committed by some other person in order to cast doubt on the defendant’s identification as the person who committed the crime charged against the defendant. State v. Bock,
The similarities between the reverse Spreigl incident the defendant here sought to introduce and the charged offense are striking. Both occurred on the streets of St. Paul in the late evening; both involved shooting at Asian individuals who were not known to the perpetrator; and both involved shooting five or six gunshots into a carload of Asian people with a .22 caliber gun while accompanied by a group of juveniles. Although the incidents were not particularly close in time, 16 months apart, they were not so far apart as to render the other similarities meaningless. The only difference between the charged offense and the prior offense was that the prior offense was a random act, while the charged offense was apparently a retaliatory act for a prior altercation. I do not believe this single difference provides a reasonable basis to exclude the reverse Spreigl evidence.
This court has allowed the state to introduce, against a defendant, “other crimes” evidence involving much less similarity to the charged crime than that presented here. In State v. Cogshell,
In State v. Lewis,
I have registered my disagreement with the outcome of both of these cases before, Cogshell,
The majority relies on the discretion afforded to the trial courts in making eviden-tiary rulings, and appropriately so. But the rules for determining when- that discretion is abused should be the same for both sides in a criminal matter, the state and the defendant. We simply should not say the trial court is correct in allowing the introduction of marginally relevant evidence that supports the state’s case and excluding evidence, which is more relevant, when it supports the defense position.
I believe that the trial court in this instance erred, and the error was not harmless. I would therefore reverse.
Concurrence Opinion
(concurring specially).
I join in Justice Tomljanovich’s special concurrence.