Lead Opinion
OPINION
On September 12, 2008, appellant Andy William Prtine was indicted for first-degree premeditated murder and first-degree felony murder for the death of Brent Ward. On January 21, 2009, a St. Louis County jury acquitted Prtine of first-degree premeditated murder, but found him guilty of first-degree felony murder. The district court sentenced Prtine to the mandatory term of life in prison. In this direct appeal, Prtine raises the following issues: (1) whether the district court erred when it refused to strike, for cause, a juror who stated that she was more inclined to credit the testimony of police witnesses over that of other witnesses; (2) whether the district court erred when it allowed the medical examiner to offer his opinion that the victim’s assailant acted with an intent
In November 2006, Brent Ward moved to Hibbing, Minnesota, to take a job as a painter with his cousin, Mike Partyka. Ward rented an apartment above the Sportsmen’s Bar and Restaurant. While living in Hibbing, Ward sold drugs and sometimes “shorted” his customers.
On November 8, 2007, Prtine went to Ward’s apartment between 5 and 6 p.m. and purchased crack cocaine. The following day, Ward did not show up for work. That night, Partyka was drinking at the bar below Ward’s apartment when he received a phone call telling him he should check on Ward because there was blood on Ward’s door handle. Partyka went upstairs to Ward’s unlocked apartment, found Ward face down on the kitchen floor, and called the police.
When the police arrived, they observed a blood trail leading from Ward’s apartment down a stairwell and onto the exit door. Ward appeared to have been stabbed. The police concluded that there had been a struggle based upon blood splatter on Ward’s bed, kitchen counters and sink, refrigerator, and walls. The police found a crow bar underneath Ward, but the knife used to stab Ward was not at the crime scene. Inside Ward’s front pant pocket was $230; however, the police learned that Ward had been paid $800 the previous day. Blood was found in three of Ward’s pockets. It was subsequently determined that the blood in the pocket with the $230 matched Prtine’s DNA, and blood found in two of Ward’s other pockets contained DNA mixtures consistent with both Ward and Prtine. Police also learned that Ward’s cell phone was missing.
The medical examiner, Dr. Thomas Un-cini, conducted an autopsy on Ward’s body and found at least 63 knife wounds. The injuries centered around Ward’s face, hands, and neck. Ward also had additional knife wounds to his left diaphragm and shoulder and abrasions on his knees. Two stab wounds to Ward’s neck and upper chest severed his jugular vein and were fatal. There were also numerous incision wounds on Ward’s hands, which Dr. Uncini characterized as defensive injuries. Dr. Uncini determined that Ward bled to death and ruled the death a homicide.
On November 11, a woman contacted the police after finding a cell phone case, knife sheath, and bloody dollar bill in a dumpster behind her garage. When the police arrived, they saw a bloodstain on the lid of the dumpster and noticed that the knife sheath retrieved from the dumpster had the initials “A.P.” scratched onto the back of it. In front of the dumpster was another bloody dollar bill and, after searching the area, the police found a bloodstain on a second dumpster. The police searched the second dumpster and found a Green Bay Packers knit hat and a pair of gloves. DNA testing revealed that the blood smears on the dumpsters and dollar bills matched Prtine’s DNA. Prtine lived a block away from the dumpsters.
On November 13, Prtine told the police that they could recover the missing knife from his basement floor drain. Later that afternoon, with his counsel present, Prtine told police that he bought drugs from Ward between 5 and 6:30 p.m. on November 8 and returned between 9 and 10 p.m. to buy more drugs. According to Prtine, an argument ensued, Ward hit Prtine in the face with his fist, and then Ward grabbed a knife that Prtine had given him during an earlier drug transaction. Prtine claimed he managed to gain possession of the knife and began stabbing Ward. Prtine’s trial testimony mirrored his November 13 statement to the police.
At trial, the State introduced evidence that Prtine was having financial difficulty, had been “shorted” by Ward on the night of Ward’s death, and had once told a friend that he was going to stab another drug dealer who had “ripped [him] off.” The State also sought to discredit Prtine’s claim that he had given a knife to Ward in an earlier drug transaction. Several witnesses testified that the only knife Ward had was a small pocketknife. In addition, on cross-examination, a defense witness testified that Ward once told him that: “The golden rule of dealing drugs is never take nothing in trade.” The defense attempted to counter this evidence with testimоny from Partyka that he once . saw Ward give a. check and wallet back to Prtine after Prtine gave Ward $50. The jury weighed the evidence and found Prtine not guilty of first-degree premeditated murder but guilty of first-degree felony murder.
I.
We first address Prtine’s claim that his conviction should be reversed because of the district court’s refusal to strike a juror for cause after the juror indicated that she would be more inclined to believe a police officer’s testimony over that of other witnesses. In this case, voir dire involved a process during which both parties and the court questioned prospective jurors with the court removing jurors subject to challenge for cause. From the remaining pool of 39 jurors, the defense was required to exercise 15 peremptory challenges and the State 9, which reduced the juror pool to 12 jurors and 3 alternatеs.
During preliminary questioning from the district court, juror J.B. indicated that she knew various law enforcement personnel, including one of the lead investigators involved in this case. When initially asked by the court if she would treat “a police officer’s testimony as inherently either better or worse or more or less believable than anybody else’s,” J.B. responded, “I guess to be honest, I would be more inclined to believe them.” Upon further questioning by the court, J.B. indicated that she would not automatically credit a police officer over other witnesses but
After defense counsel moved to have J.B. removed for cause, the district court noted that it had “covered the same ground in [its] questioning and got a different answer.” During further discussions with the court, J.B. indicated that she knew some officers “are not good officers.” She also agreed with the district court that “ultimately, whether the person is a police officer or not is one small fact, and after you hear the testimony, [] you decide what weight you believe [the testimony] should be given without having a pre-judgment about it” and that “all law enforcement officers are [not] always right.” The discussion ended with the court having J.B. acknowledged that “[as] with any profession, there’s ... good and bad” police officers. Ultimately, the court declined to strike J.B. for cause and defense counsel exercised a peremptory strike to remove J.B.
A.
A juror may be challenged for cause on a number of grounds, including “[t]he existence of a state of mind on the part of the juror ... which satisfies the court that the juror cannot try the case impartially and without prejudice to the substantial rights of the party challenging.” Minn. R.Crim. P. 26.02, subd. 5(1)1 (2009).
In State v. Logan, we found reversible error when the district court denied the
While the district court here, using leading questions, was able to get J.B. to agree that police officers are fallible, J.B. never swore that she “could set aside any opinion [she] might hold and decide the case on the evidence.” See id. In fact, each time J.B. was given the opportunity to express her sentiments in her own words J.B. said she would be more inclined to believe a police officer’s testimony. In that respect, J.B.’s statements during voir dire are akin to those made by the juror in Logan. Therefore, we conclude that the district court erred when it declined to strike juror J.B. for cause,
B.
Having concluded that the district court erred, we must next' determine whether the error requires reversal of Prtine’s conviction. In an 1881 decision, State v. Lawlor, we held that а district court’s failure to strike a disqualified juror for cause was not grounds for reversal when the defendant, who had not exhausted all of his peremptory challenges, was required to use a peremptory challenge to strike the disqualified juror.
More recently in State v. Barlow, we held that even if the failure to dismiss a juror for cause was erroneous, any error was cured by the defendant’s exercise of a peremptory challenge to remove the juror.
Prtine argues that he was denied his full complement of peremptory challenges because the district court erroneously refused to dismiss J.B. for cause. He does
Prtine’s claim that reversal is warranted is unconvincing. Here, as in Barlow, the peremptory challenge served the purpose for which it was created, to remove a juror, objectionable to Prtine, from the jury pool. The district court’s failure to strike juror J.B. for cause may have deprived Prtine of a perfect jury-selection process, but it did not deprive him of a fair jury-selection process. It is well settled that a criminal defendant is not guaranteed a perfect trial or jury selection process, simply a fair one. See State v. Billington,
II.
Prtine next contends that the district court committed reversible error when it allowed the medical examiner to offer his opinion that Ward’s assailant acted with an intent to kill. At trial, Dr. Uncini, the medical examiner, testified that he believed that Ward’s assailant had the intеnt to injure or kill Ward. Specifically, Dr. Uncini testified that the nature, number, and location of the wounds depicted in the photograph “indicates to me an intent to injure or kill.” He later added that the wounds indicate “a clear intent to injure this person or kill him.” He explained that a long incision on the victim’s back was one of the last ones made and would have left the victim in a helpless position. He further testified that the long incision shows “a real desire to kill this person” and was “an attempt to [ ] completely kill him” and “really finish him off.”
After an objection by the defense that the medical examiner was speculating, the court ruled that the testimony was “rationally based on the [witness’s] observations.” The medical examiner then explained that he determined that this was a crime of passion based on the nature and extent of Ward’s injuries. He testified that the assailant was “doing their best to kill this person,” “purposely trying to kill them,” and wanted to show they were in charge by maybe trying to cut off the victim’s head.
We review evidentiary rulings for an abuse of discretion, and we will not reverse a district court’s findings unless the findings are clearly erroneous. State v. Mahkuk,
In State v. Provost, we held that expert opinion testimony is not admissible on the
Similarly, in State v. Chambers, we held that a medical expert should not be allowed to make an “expert inference” that the offense was committed with an intent to kill because such determinations are solely within the jury’s province.
Here, the State concedes that “Dr. Unci-ni’s testimony as to the assailant’s intent was error in light of the rule established in Chambers.” However, the State argues that Prtine is not entitled to reversal of his conviction because he has failed to prove prejudice. We agree.
We will not reverse a defendant’s conviction based on improper testimony from the medical examiner on the assailant’s intent when the testimony does not result in prejudice. State v. Bauer,
Admissible evidence at trial established that Ward suffered 63 stab wounds, largely around the face and neck, including two fatal wounds severing the jugular vein. This evidence of the nature and extent of Ward’s injuries was extensive and readily supports the conclusion that Ward’s assailant intended to kill. Moreover, the medical examiner’s testimony did not negate Prtine’s defense at trial. At trial, Prtine claimed that he acted in self-defense, not that the killing was unintentional. Whether one is justified in using deadly force is an objective inquiry into whether a person reasonably believed that the killing was necessary to avert death or great bodily harm, not an evaluation of the defendant’s subjective state of mind. See State v. Johnson,
III.
Prtine next argues that he is entitled to a new trial because of prosecu-torial misconduct. Prtine did not object to any of the alleged misconduct; thus, our review is for plain error. See State v. Jones,
“An error is plain if it was clear or obvious,” and “[u]sually this is shown if the error contravenes case law, a rule, or a standard of conduct.” State v. Ramey,
Prtine’s first claim of prosecutorial misconduct is that the prosecutor elicited improper character evidence from defense witness Alexis Mallick. On cross-examination, the prosecutor asked Mallick if Ward was a violent person. Mallick replied no, and the prosecutor then asked Mallick to “[e]xplain to the jury what [Mal-lick] meant by that.” Mallick identified two instances in which Ward exhibited non-violent behavior. She testified that she once saw Ward get punched in the face while at a bar and refuse to fight back. She also testified that on another occasion, Ward was slapped in the face and Ward’s only reaction was to turn to his friends and say, “[l]et’s get out of here.”
Generally, evidence of a person’s character or a trait of character is not admissible to prove action in conformity therewith on a particular occasion. Minn. R. Evid. 404(a). However, evidence of the character trait of peacefulness of the victim offered by the State to rebut any evidence that the victim was the first aggressor is admissible. Minn. R. Evid. 404(a)(2). When admissible, proof of a character trait may be shown only by testimony as to
We need not decide whether the prosecutor’s questions constituted misconduct because, even if there was misconduct, it did not affect Prtine’s substantial rights. The prosecutor’s cross-examination of Mal-lick takes up less than two pages of a trial transcript that exceeds 2,700 pages. Given the brief and isolated nature of Mallick’s testimony, coupled with the fact that the State did not repeat or otherwise dwell on it and the other evidence in the record from which Prtine’s guilt could be inferred, we conclude there is no reasonable likelihood that the absence of the alleged misconduct would have had a significant impact оn the jury’s verdict.
We reach the same conclusion with respect to Prtine’s claim that the State elicited inadmissible hearsay from Malliek. Specifically, Prtine points to Mal-lick’s testimony that Ward had told her that “[t]he golden rule of dealing drugs is never take nothing in trade” and her statement that when she questioned Ward about not fighting back after being punched in the face Ward said “[t]here is not a man or woman out there worth going back to jail for [in light of my twin children].” The State concedes that this testimony may have been inadmissible, but again it argues that any error did not affect Prtine’s substantial rights. We agree.
As discussed above, Mallick’s testimony relating to what Ward said about being punched was brief, isolated, and not repeated. As for Mallick’s testimony that Ward would not have taken anything in trade for drugs, her testimony was not the only testimony at trial on that subject. Partyka testified, without objection at trial or challenge in this appeal, that Ward only owned a small black knife, that he would have known if Ward had another knife, and that Ward never took a knife in trade for drugs. Therefore, we conclude that it is unlikely that either of the claimed hearsay statements had a significant impact on the verdict.
Prtine also claims that the State committed misconduct during closing argument by intentionally misstating the evidence. At trial, Eric Stookey testified that he had a telephone conversation with Prtine during which Prtine indicated that Prtine had been cheated by a drug dealer that Stookey arranged for Prtine to meet. Stookey testified that during that conversation Prtine told Stookey that “this nig-gar ripped me off.... I’m going to stab every black motherf — ker that come off this business until I figure out who got it.” Stookey also testified that Prtine said, “I got my knife.... I don’t give a f — k.... Dude better give me back my money, I’m stabbing every niggar that comes out of this building.”
The State then incorporated some of these statements into closing argument by saying:
Remember Eric Stookey told you that the defendant a week or two earlier had been ripped off down in Duluth on some drugs, and he called him up, and he is pissed, he is angry, and he told him “I’m holding a knife, and if anyone rips me off again, I’m going to kill them.”
Prtine contends that the State misstated the evidence when he attributed the words “if anyone rips me off again, I’m going to kill them” to Prtine. While Prtine is correct that in attributing the above statement to him the State misstated the record, our review of the record satisfies us that the misstatement did not have a significant impact on Prtine’s substantial rights. First, the distinction between the
IV.
Prtine next contends that the district court cоmmitted reversible error when, in response to a question from the jury, it told the jury that there was no need to consider lesser-included offenses if the jury found Prtine guilty of a greater offense.
A person who is prosecuted for the commission of a crime, but not found guilty, may be guilty of a lesser crime. Minn.Stat. § 609.04 (2008); see also 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 3.20 (4th ed. 1999) (“The law provides that upon the prosecution of a person for a crime, if the person is not guilty of that crime, the person may be guilty of a lesser crime.”). The comment to CRIMJIG 3.20 cautions courts “not to indicate any order in which the crimes should be considered” and not to “instruct the jury to consider the lesser crimes only if it finds the defendant not guilty of the charged offense.” CRIMJIG 3.20 cmt.; see also State v. Dahlstrom,
A defendant’s failure to object to a jury instruction before they are given to the jury constitutes a waiver of the right to appeal. State v. Cross,
At the close of trial, the district court gave the jury a complete and proper jury instruction that correctly described the elements of each of the charges and lesser-included offenses and did not suggest the order the jury should consider the charges. During deliberаtions, the jury asked the court the following questions, “If we agree on a higher charge, do we need to rule on the lesser charges? Do we have to vote on all of the charges?
Considering the jury instructions as a whole, it is apparent that Prtine was not prejudiced by the error such that the error affected the outcome of the case. Prtine concedes that the district court’s instruction on the greater first-degree murder charges specifically required the jury to consider the lesser-included offenses of second-degree intentional murder and first-degree manslaughter, but Prtine suggests that the jury instructions did not guide the jury to consider the second-degree felony murder count, which is a lesser-included offense to first-degree felony murder. However, the district court was not required to submit second-degree felony murder as a lesser-included crime because a lesser-included-offense instruction is not warranted when there is no evidence adduced to support acquitting of the greater charge and convicting of the lesser charge. Dahlin,
First-degree felony murder requires intent to kill during the commission of a felony; however, second-degree felony murder does not require a showing of intent. State v. Dimmick,
V.
Prtine’s last claim is that he was denied the effective assistance of counsel when, without his consent, his trial counsel conceded during closing argument that the State had proven intent. In particular, counsel stated:
The lesser charges are [ ] murder in the second degree. There are two different counts of murder in the second degree. And here Dr. Uncini has furnished one of the key elements. He said that there was definitely an intent to cause death.
... We understand that in order to raise the defense of self-defense, you have to, first of all, admit that you intentionally caused the death of someone. That’s never been missing.
When cоunsel for the defendant admits a defendant’s guilt without the
Here, counsel’s statement that Prtine intentionally caused Ward’s death conceded guilt in regard to intent. While this concession may have been a valid strategy to build credibility with the jury and Prtine surely would have been convicted without the concession, “whether or not to admit guilt at a trial is a decision that under our system can only be made by the defendant.” Wiplinger,
Remanded.
Notes
. Evidence at trial established that to "short” a customer means to give the customer a smaller quantity of drugs than the amount the customer believed he or she was purchasing.
. Effective January 1, 2010, this court adopted a complete stylistic revision to the Rules of Criminal Procedure. Order Promulgating Amendments to the Minnesota Rules of Criminal Procedure, Cl-84-2137 (Minn. Oct. 27, 2009). The changes made to Minn. R.Crim. P. 26.02, subd. 5(1)1 (2010), were not substantive. We have cited to the version of Rule 26.02, subdivision 5(1)1, that was in effect when the district court ruled on Prtine’s motion to strike juror J.B. for cause.
Concurrence Opinion
(concurring in part, dissenting in part).
I agree with the majority on the eviden-tiary, misconduct, and lesser-included-offense issues, but I write separately to address two issues on which I part company from the majority’s analysis. I disagree with the majority’s conclusion that the district court abused its discretion in denying Prtine’s challenge for cause of prospective juror J.B. I also disagree with the majority’s conclusion that we need to remand the
A.
With respect to the challenge for cause, we have recognized that the district court is “in the best position to observe and judge the demeanor of the prospective juror” and as a result, we defer to the court’s credibility determinations that support its decision to deny a challenge for cause. State v. Graham,
The majority relies on Logan in setting aside the district court’s credibility determination, but Logan was a much different case. In Logan, the prospective juror agreed that it would be “virtually impossible” for him to “conclude as a juror that a police officer had testified falsely.” Id. at 322. In the face of this assertion of near certainty, we concluded that the district court’s conclusion that the juror had been rehabilitated was erroneous. Specifically, we said “that the trial court erred in rejecting defense counsel’s challenge in this case because the juror did not swear that he could set aside any opinion he might hold and decide the case on the evidence, but only that he would try.” Id. at 324 (citation оmitted) (internal quotation marks omitted). The majority concludes that J.B. similarly failed to swear that she “could set aside any opinion [she] might hold and decide the case on the evidence,” and that therefore the district court erred. In my view, the majority misreads the record.
Unlike the juror in Logan, J.B. specifically said, in response to the court’s questions, that she “could” be “a fair and impartial juror.” The court asked: “what we really want to know is whether you believe you could be a fair and impartial juror and participate in a trial of this nature.” In response, J.B. said, “I think I could, yes.”
The court later asked: “[A] [jjuror’s function would be to be unbiased, not have any pre-judgments, to listen to the evidence during the trial. Set aside anything that you may have heard or seen elsewhere, not let that influence you, so you can be a fair and impartial juror. Can you do that?” In responsе, J.B. said, “I think I can, yes.”
Finally, the court asked J.B.: “So as you sit here right now, do you think you could be a fair and unbiased juror?” J.B. answered, “Yes, although a nervous, anxious” juror. In my view, the majority’s conclusion that “J.B. never swore that she ‘could set aside any opinion [she] might hold and decide the case on the evidence’ ” cannot be squared with J.B.’s answers to these questions.
I acknowledge that during the questioning, J.B. said that she “would be more inclined to believe” police officers. The court then asked:
But do you think that you can have an .unbiased view and not prejudge anybody’s testimony until you have heard it, and give it just such open mind and fair consideration as you believe it deserves in the light of all the other evidence, in the light of your own experience and common sense, and after discussing it*320 with your fellow jurors, that would really be the question?
In response, J.B. said “yes.”
Based on J.B.’s testimony as a whole, and giving due deference to the district court’s ability to observe her demеanor during her answers to all of the questions posed during voir dire, I would defer to the court’s credibility determination that J.B. was truthful when she said she “could” be a fair and impartial juror. I therefore would hold that the court did not abuse its discretion when it denied Prtine’s motion to strike J.B. for cause.
B.
I also disagree with the majority’s conclusion that we need to remand this matter for a determination of whether Prtine consented to his counsel’s concession on the question of intent. Prtine alleges that he received ineffective assistance of counsel because, in closing argument, his lawyer admitted “that you intentionally caused the death of someone [has] never been missing” from the case. The majority concludes that this admission was one of guilt and that unless Prtine consented to this admission, his counsel was ineffective. I disagree.
I would hold that counsel did not concede Prtine’s guilt. As the majority notes, Prtine’s defense at trial was not that he did not kill Ward. Rather, Prtine’s contention was that he killed Ward in self-defense. As the majority also notes, “[wjhether one is justified in using deadly force is an objective inquiry ... not an evaluation of the defendant’s subjective state of mind.” Moreover, as the majority also correctly concludes, “a criminal defendant’s subjective intent to kill does not negate a self-defense claim.” Because counsel’s statement conceded at most a subjective intent to kill and Prtine’s self-defense claim was not negated thereby, I would hold that counsel did not admit Prtine’s guilt. A remand to determine whether Prtine consented therefore is not necessary.
Concurrence Opinion
(concurring in part, dissenting in part).
I join in the concurrence and dissent of Justice Gildea.
Concurrence Opinion
(concurring in part, dissenting in part).
I join in part B of Justice Gildea’s concurrence and dissent.
Concurrence Opinion
(concurring in part, dissenting in part).
I join in the opinion of the majority except for Part V. With respect to Part V, I dissent and in doing so join in Part B of Justice Gildea’s dissent.