STATE of Minnesota, Respondent, v. James Allen POST, Petitioner, Appellant.
No. C2-92-1351.
Supreme Court of Minnesota.
Feb. 18, 1994.
Rehearing Denied March 28, 1994.
512 N.W.2d 99
COYNE, Justice.
(b) Defendant in his pro se supplemental brief claims that the trial court erred in admitting evidence seized pursuant to the search warrants, that the trial court failed to represent him effectively, and that newly-discovered evidence entitles him to a new trial. Contrary to what defendant argues, we conclude that the trial court properly admitted the evidence seized in the warranted searches. The record on direct appeal fails to support the conclusion that defendant is entitled to a new trial on the ground that his trial attorney failed to represent him effectively. Defendant‘s allegation that he is entitled to a new trial on the ground of newly-discovered evidence is not properly before this court.
In summary, our review of the record satisfies us that the evidence was sufficient to support the guilty verdicts and fails to support defendant‘s contention that he was denied a fair trial.
Affirmed.
Hubert H. Humphrey, III, Atty. Gen., William F. Klumpp, Jr., Asst. Atty. Gen., St. Paul, and Michael J. Thompson, Meeker County Atty., Litchfield, for respondent.
COYNE, Justice.
Defendant is a 30-year-old Minneapolitan with a master‘s degree in theater who was employed as a security guard. On the evening of September 6, 1991, he accompanied 17-year-old Eric Geislinger and 20-year-old Thomas Yost to a gunshop in Eden Valley. Yost, impatient to practice target shooting, asked defendant to buy a handgun because defendant had a permit to carry a gun and, therefore, was not subject to the seven-day waiting period.
After defendant had purchased the gun, Geislinger drove them to the Corner Bar in Eden Valley so that defendant could buy beer to take home. While the defendant was in the bar, Jeffrey Teicher drove by the parking lot where Geislinger and Yost were waiting. Thinking he had heard something, Teicher doubled back and confronted Geislinger and Yost. After Teicher and Geislinger exchanged insults, Teicher drove off.
Defendant, who is 5 feet 6 inches tall and weighs about 150 pounds, thrust a loaded 9 millimeter semi-automatic handgun into his belt holster (the gun was not the one purchased that evening) and left the car to meet Teicher between the two cars. Defendant testified that he showed Teicher his security guard identification, said he was a private security guard and that he could arrange to have Teicher, who obviously had been drinking, arrested for DWI and harassment. Teicher, who weighs approximately 100 pounds more than defendant, slapped the card from defendant‘s hand. At some point—either then or during a subsequent struggle, if there was a subsequent struggle—defendant‘s watch came loose and fell off.
There is a conflict in the evidence about what happened after Teicher slapped the identification card away. Defendant claimed that he reasonably believed Teicher pulled a knife; defendant testified that it was in response to that and to Teicher‘s lunging at him that he pulled out the gun. He testified that he fired three shots, the first, intended as a warning shot into the ground, grazed Teicher‘s knee; the second, aimed at Teicher‘s lower leg struck Teicher in the hip, and a third shot, discharged when the two men struggled for the gun, hit Teicher in the abdomen. There was testimony that Teicher might have died had he not received prompt medical attention.
It is undisputed that defendant hopped into the car and fled with the others immediately after the shooting.
Defendant‘s attorney has raised three main issues on appeal relating to the fairness of the trial and also has raised a sentencing issue. He concedes that the evidence was sufficient to establish lack of justification and that therefore defendant is not entitled to an outright reversal of his conviction on that ground. He argues, however, that we should engage in a “weight” of the evidence analysis rather than a “sufficiency” of the evidence analysis and on that basis should grant defendant a new trial. He also seeks a new trial on the ground that the trial court erred in excluding testimony by one of the people in Teicher‘s car that Teicher was the “aggressor” in the confrontation and erred in permitting the prosecutor, Michael Thompson, to present evidence relating to the standards taught defendant by his employer, the security guard company, when he received his training in the use of a firearm.
We first address defendant‘s claim that the trial court prejudicially erred in striking and then directing the jury not to consider testimony by one of Teicher‘s passengers that Teicher was the “aggressor.”
We upheld the admission of analogous testimony by a state‘s witness (that the defendant in that case was not defending himself against an attack when he stabbed the victim) in State v. Salazar, 289 N.W.2d 753 (Minn.1980). The defendant in that case contended that the testimony was admitted in violation of
If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.
Under this rule the emphasis is not on how a witness expresses himself or herself—i.e., whether in the form of an opinion or a conclusion—but on whether the witness personally knows what he or she is talking about and whether the testimony will be helpful to the jury. 3 J. Weinstein, Evidence—United States Rules § 701[02] (1992).
Defendant‘s contention that the trial court erred in permitting the prosecutor to ask one of the two key witnesses whether defendant was defending himself against an attack when he stabbed the victim has no merit, since the purpose of the prosecutor‘s question was not to elicit a legal opinion on the issue of self defense—which would not have been helpful to the jury—but simply to elicit testimony as to whether the witness saw the victim do anything which prompted defendant to stab him. See
R. 701 and704, R.Evid.
In this case the shoe was on the other foot; not only was it the defendant who elicited such testimony from a witness allied with the injured party, not with the defendant, but here the trial court sustained the state‘s objection and then directed the jury to disregard the testimony. The court of appeals, without discussing Salazar, concluded that the trial court did not abuse its discretion in ruling as it did. The court of appeals added that if there was error it was harmless error.
We believe that under Salazar it was error for the trial court to exclude the evidence. We also disagree with the court of appeals’ analysis of the impact of that error. Harmless error impact analysis applies to the erroneous exclusion of defense evidence in violation of the defendant‘s right to present evidence, Crane v. Kentucky, 476 U.S. 683, 691 (1986), but the appropriate test is not whether the exclusion of the evidence “substantially influenced the jury to convict.” The correct inquiry is that set forth in Delaware v. Van Arsdall, 475 U.S. 673, 683-84 (1986): whether, “assuming that the damaging potential of the [excluded evidence] were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” Id. at 684. In other words, the reviewing court must be satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, an average jury (i.e., a reasonable jury)1 would have reached the same verdict. Only then can it be said that the erroneous exclusion of the evidence was harmless. If, on the other hand, there is a reasonable possibility that the verdict might have been different if the evidence had been admitted, then the erroneous exclusion of the evidence is prejudicial.2
We need not decide whether the exclusion of the evidence in question by itself would warrant an award of a new trial, because we believe that the trial court committed other error and that the cumulative effect of these errors was to deprive defendant of a fair trial.
The other claim of error relied upon by defendant is that the trial court erred in admitting evidence of the defendant‘s employer‘s standards for the use of a firearm by a security guard.
Defendant argues that “[b]ecause the privilege of self-defense depends on whether the decision to use force is reasonable, not on whether justifiable force is used in a careful manner, the trial court abused its discretion and confused the jury” by admitting the manual. He contends that the manual was irrelevant and prejudicial because it “injected a negligence-style standard of care” which could mislead the jury in evaluating his self-defense claim.
The state counters by arguing that whether defendant was trained in the use of deadly force and what he was told bear on the issue of defendant‘s intent.
We conclude that the trial court erred in admitting the manual and allowing its use in cross-examining defendant. For example, as a result of the trial court‘s ruling, the jury learned that defendant had been instructed never to fire a warning shot and that his firing a warning shot violated the standards in the manual. However, those standards rather obviously were designed to guard against the employer‘s potential civil liability for the discharge of a firearm by one of the employer‘s guards. The standards are not standards for determining if a criminal defendant acted reasonably in shooting someone during a nighttime confrontation out on a highway, and their introduction tended to divert the jury‘s attention from the issues before it. Indeed, without the evidence that it was a violation of “standards” to fire a warning shot, the jury might well have been inclined to view the firing of a warning shot as evidence of a reasonable, gradually increasing use of force by defendant to meet a perceived threat to his own safety.
As Justice Rogosheske said in State v. Peterson, 266 Minn. 77, 83, 123 N.W.2d 177, 182 (1963), an appellate court has a “responsibility to review the record even though assignments of error are inadequate.” See also Allan D. Vestal, Sua Sponte Consideration in Appellate Review, 27 Fordham L.Rev. 477, 508-12 (1959).
In our review of the record in this case we noted (a) that defendant‘s attorney at trial sought and was denied permission to cross-examine Teicher about his prior felony conviction of criminal damage to property and (b) that in closing argument the prosecutor said:
Now, I ask you, at the conclusion of your deliberations, that you preserve the integrity of our society and keep us from having to worry about when we‘re going to face the next individual with a gun in his hand and when he‘s going to decide to use it on us.
(a) While we need not decide whether the trial court abused its discretion in denying defendant permission to use Teicher‘s prior conviction to impeach his credibility as a witness, on retrial the trial court may want to reconsider this ruling, given the importance of the issue of the relative credibility of Teicher and defendant.
(b) The above-quoted statement by the prosecutor, although not objected to, was improper. See State v. Salitros, 499 N.W.2d 815, 819-20 (Minn.1993), where we awarded a new trial to a criminal defendant because the prosecutor‘s closing statement included a number of improper arguments, one of them similar to this argument. On retrial the prosecutor is cautioned against repeating such an argument. The jury‘s role, as we said in Salitros, “is not to enforce the law or teach defendants lessons or make statements to the public or to ‘let the word go forth‘; its role is limited to deciding dispassionately whether the state has met its burden in the case at hand of proving the defendant guilty beyond a reasonable doubt.” Id. at 819.
Reversed and remanded for new trial.
TOMLJANOVICH, Justice (dissenting in part and concurring in part).
I believe the trial court acted within its discretion in excluding a witness‘s lay opinion that the victim was the aggressor; therefore, I dissent from that portion of the opinion.
Rulings on evidentiary matters rest within the sound discretion of the trial court. State v. Olkon, 299 N.W.2d 89, 101 (Minn.1980). Clearly the trial judge could have admitted the opinion testimony if he had found that the opinion was rationally based on the perception of the witness and was helpful to a clear understanding of the witness‘s testimony or a determination of a fact in issue.