*1 why or how a different does indicate expert witness would have ei- phone
cell (1)
ther arrived at different conclusions or
(2)affected the outcome of the trial. Sec-
ond, trial he claims his counsel did not at
argue trial the search warrant
against Staunton executed in 1998 was not record, public implying that Staunton
could not have known that Kokochak was
named in the search warrant. But counsel evidentiary hearing
testified he object to the warrant
did because
was immaterial to Staunton’s alibi defense.
Further, undisputed police it is seized transcript of Kokochak’s in- interview
criminating Staunton as a drug dealer Thus, regard-
from under Staunton’s bed.
less of whether the search warrant was a record,
public Staunton was aware that cooperating
Kokochak was with police.
Third, Staunton claims that trial coun- challenge did not the search
sel warrant’s But, drug dealing.
references to indepen- drug dealing
dent of the unredacted refer- warrant, ample
ences the search there is
evidence the record Staunton was a
drug pro dealer. Staunton’s se claims of
ineffective assistance of counsel are with-
out merit.
Affirmed. Minnesota, Respondent,
STATE
Andy PRTINE, Appellant. William
No. A09-702.
Supreme Court Minnesota. 30, 2010.
June *4 Swanson, General, Attorney
Lori Peter *5 Marker, General, Attorney R. Assistant St. Paul, MN; Ford, Melanie and S. St. Louis Duluth, MN, County Attorney, respon- for dent. Merchant,
David Appellate W. Chief Defender, Russett, Public P. Steven Assis- Defender, Paul, MN, tant State Public St. appellant. for OPINION PAGE, Justice. 12, 2008, September appellant Andy
On William Prtine was indicted for first-de- gree premeditated murder and first-de- gree felony for of murder the death Brent 21, 2009, January a St. Louis Ward. On County jury acquitted Prtine of first-de- murder, gree premeditated found him but felony guilty first-degree murder. the man- district court sentenced Prtine to datory life in In this di- рrison. term of appeal, following rect Prtine raises the (1) court issues: whether district erred strike, cause, when refused to inclined to who stated she was more police credit witnesses (2) witnesses; whether over that of other the district court erred it allowed the when opinion medical examiner to offer his an intent the victim’s assailant acted with (3) kill; commit- prosecutor pant whether the the crime scene. Inside Ward’s front (4) misconduct; $230; however, ted whether district pocket police plain error when it told court committed learned that had paid Ward been $800 jury there was no need to consider previous day. Blood was found in three lesser-included offenses found pockets. subsequently It was Ward’s de- (5) offense; greater of a and guilty termined that the in the pocket blood with right whether Prtine was denied his DNA, matched Prtine’s and blood $230 effective assistance counsel when his found in pockets two of Ward’s other con- during closing argu- trial counsel conceded tained DNA mixtures consistent with both proven had ment that the State ele- Ward and Prtine. Police also learned that remand to the ment of intent. We district phone missing. Ward’s cell to determine whether Prtine ac- examiner, The medical Dr. Thomas Un- trial quiesced in his counsel’s decision to cini, autopsy body conducted an on Ward’s concede intent. and found at least 63 knife wounds. The In November Brent Ward moved injuries face, centered around Ward’s Minnesota, Hibbing, job to take a as a hands, and neck. Ward also had addition- cousin, painter Partyka. with his Mike al diaphragm knife wounds to his left an apartment Ward rented above the shoulder and abrasions on his knees. Two Sportsmen’s Bar and Restaurant. While stab wounds to neck upper Ward’s living Hibbing, drugs sold Ward jugular chest severed his vein and were sometimes “shorted” customers.1 fatal. There were also numerous incision Prtine was customer of Ward’s. *6 hands, wounds on Ward’s which Dr. Uncini 8, 2007, On November Prtine went to injuries. characterized as defensive Dr. apartment p.m. Ward’s between 5 and 6 Uncini determined that bled to Ward crack purchased and cocaine. The follow- death and ruled the a death homicide. ing day, up did not show Ward for work. Partyka On November a woman night, drinking That at the contacted police case, the apartment finding phone bar below Ward’s when he re- after a cell sheath, call him phone telling ceived a he should knife bloody and dollar bill in a check on Ward because there was blood on dumpster garage. behind her When the Partyka up- Ward’s door handle. went arrived, police they saw a bloodstain on apartment, stairs to Ward’s unlocked the lid of dumpster and noticed that found Ward face down on the kitchen the knife sheath dump- retrieved from the floor, police. and called the ster had the initials “A.P.” scratched onto In dumpster back of it. front of the arrived, police they
When observed and, bloody another dollar bill after leading a blood trail from apart- Ward’s area, searching the police found a ment down a stairwell and onto the exit dumpster. bloodstain on a second The appeared door. Ward to have been police dumpster searched the second and police The stabbed. concluded that there Bay found a Green Packers knit hat a and struggle upon had been a based blood bed, pair gloves. of testing DNA revealed that splatter on Ward’s kitchen counters sink, the blood refrigerator, po- dumpsters and walls. The smears on the and Ward, lice found a crow underneath dollar bar bills matched Prtine’s DNA. Prtine but the away knife used to stab Ward was not at lived a from dumpsters. block 1. quantity drugs Evidence at trial established that to "short” smaller than the amount the give a purchasing. customer means to the customer a customer believed he or she was only Prtine that police, nesses testified knife Ward questioning Upon hat, addition, a a gloves, pocketknife. had was small that he had admitted cross-examination, those found in the a defense similar to witness knife sheath the items once him he indicated that testified Ward told that: dumpsters, but golden dealing drugs were not his and “The rule of is never dumpsters found in the nothing were at home. The take in trade.” The at- gloves that his hat and defense assistance, tempted to counter with Prtine’s searched this evidence with tes- police, hat, . gloves, timony Partyka for the and knife from that he once his house saw items, They give not find the check wallet sheath. did but Ward back to a. drops ga- gave on the Prtine after Prtine they did observe blood Ward $50. jury weighed floor drain. rage floor and near basement the evidence and found guilty first-degree premedi- Prtine indicated that he would tell Prtine not murder, guilty first-degree all he knew about Ward’s tated murder but fel- police ony togo he said that he first needed to murder. but had hospital. Prtine indicated that he on one of his arms that came from
cuts I. One of the cuts was a cutting scrap metal. We first address Prtine’s claim that super- forearm that been deep cut on his his conviction should be reversed because camouflaged by using a glued together and of the district court’s refusal to strike magic appeared marker to draw whаt juror for cause after the indicated a tattoo. more she would be inclined to believe police officer’s over police Prtine told the On November case, other witnesses. In this voir dire they missing recover the knife could a process during par involved which both from his basement floor drain. Later questioned prospective and the court afternoon, ties present, with his counsel jurors jurors removing with the court sub police bought drugs that he from told ject challenge for cause. From the p.m. between 5 and on Novem- Ward 6:30 jurors, remaining pool of 39 the defense p.m. 8 and returned between 9 and 10 ber *7 Prtine, required peremptory to exercise 15 buy drugs. According more ensued, challenges and the which reduced in State argument an Ward hit Prtine juror jurors 12 fist, pool and 3 alter the face with his and then Ward nates. him given a knife that Prtine had grabbеd an drug earlier transaction. During preliminary questioning from managed gain possession claimed he of court, juror district J.B. indicated that she began stabbing
the knife and
Ward.
personnel,
knew various
enforcement
law
testimony
Prtine’s trial
mirrored his No-
investigators in-
including one of the lead
police.
vember 13 statement to the
initially
in
volved
this case. When
asked
trial,
by
police
the court if she would treat “a
At
the State introduced evidence
difficulty,
testimony
inherently
as
either
having
that Prtine was
financial
officer’s
more or less
by
night
had been “shorted” Ward on the
better or worse or
believable
death,
else’s,”
“I
anybody
responded,
a
than
J.B.
and had once told friend
Ward’s
honest, I
be more in-
going
drug
guess
that he was
to stab another
to be
would
Upon further
“ripped
who had
off.” The
clined to believe them.”
[him]
dealer
court,
by the
J.B.
indicated
sought
questioning
also
to discredit Prtine’s
automatically
credit a
given
that he had
a knife to
that she would
claim
Ward
over other witnesses but
drug
police
an earlier
transaction. Several wit-
officer
facts, I think.”
peremptory
listen to the
After
fense counsel exercised a
“would
strike to remove J.B.
by
prosecutor,
examination
defense
if she would be more
counsel asked J.B.
A.
inclined to believe those witnesses she rec-
juror may
A
challenged
for
ognized
replied,
on the -witness list. J.B.
grounds, including
cause on a number of
Upon
“If
officer.”
further
police
it was a
a
“[t]he existence of
state mind on the
stated,
examination,
“I think that’s
J.B.
part
juror
...
which satisfies the
police
a
human nature to believe
officer.
juror
try
court
cannot
the case
police
You want to believe that
officer.”
impartially
prejudice
and without
to the
However,
“try
indicated she would
J.B.
rights
party challeng
substantial
weigh the facts.”
and be fair” and “would
5(1)1
26.02,
ing.” Minn. R.Crim. P.
subd.
if
Finally, when defense counsel asked J.B.
(2009).2
juror expresses
When a
such a
the facts were unclear and she had to
mind,
state of
the district court must ei
call between an
judgment
make
officer
“
cause,
juror]
ther
‘excuse
or
[the
person
way
and an unknown
which
would
questions
instructions and additional
con
lean,
responded,
she
J.B.
“[t]oward
[juror]
vince the
that there is no special
police officer.”
defense counsel
When
[police]
credence due the
offi
simply by
if that
virtue of the
asked
”
Logan,
State v.
cer[s].’
N.W.2d
officer,
being police
replied,
witness
J.B.
(Minn.1995) (third
origi
alteration in
“I guess so.”
nal) (fourth
original) (quoting
alteration in
Amerson,
United States v.
Prtine that he was B. challenges be- complement peremptory erroneously re- cause the district court Having concluded that the district He does erred, to dismiss J.B. for cause. must next' determine fused court however, not, that contend the district when it allowed the medical examiner to juror resulted in a biased court’s error opinion offer his that Ward’s assailant act- jury, identify sitting on his nor does he trial, ed with an intent to kill. At Dr. particular juror he would have stricken Uncini, examiner, the medical testified peremptory challenge had he not used the he believed that Ward’s assailant had the attempting In to distinguish to strike J.B. injure Specifically, intent to or kill Ward. Barlow, that, argues although Prtine nature, Dr. Uncini num- testified that the fair, jury may have been reversal is war- ber, and location of depicted the wounds ranted because he did not receive all of the photograph “indicates to me an intent peremptory challenges he to was entitled injure to or kill.” He later added that the law. Prtine argues under Minnesota injure wounds “a indicate clear intent peremptory challenge his exercise of the person this or kill him.” explained He remove J.B. had the same effect as if the that a long incision on the victim’s back only gave district court him 14 peremptory was one of the last ones made and would challеnges permit- instead of the 15 he was have left the victim in a helpless position. argues ted law. He further He further long testified that the incision peremptory loss of the challenge resulted “a person” shows real desire to kill this who, seating juror in the of a but for the and was “an attempt completely kill [ ] error, stricken, court’s would have been “really him” and him finish off.” improper seating juror, unbiased, juror even if the per was se objection by After an the defense that prejudicial. the medical examiner was speculating, the Prtine’s claim that reversal is warranted ruled that the was “ration- Here, unconvincing. Barlow, inas ally based on the observations.” [witness’s] peremptory challenge served the purpose explained medical examiner then created, for which it was to remove a he determined that this was a crime of juror, objectionable Prtine, from the passion based on the nature and extent of jury pool. The district court’s failure to injuries. Ward’s He testified that the as- may strike J.B. for cause have de “doing sailant was their kill best to this prived perfect jury-selection Prtine of a person,” “purposely them,” trying to kill process, but it did not him deprive of a fair and wanted to they charge show were in jury-selection process. It is well settled by maybe trying to cut off the victim’s that a criminal guaran defendant is not head. perfect pro teed trial or selection cess, simply a fair one. See State v. Bill evidentiary rulings We review 418, 427,
ington, 241 Minn. 63 N.W.2d (1954). discretion, for an Here, abuse of and we will 392-93 the district court’s may decision reverse a findings have affected how ex district court’s Prtine unless strikes, ercised his peremptory but it did findings clearly are erroneous. State deny him complement his full Mahkuk, (Minn. Therеfore, strikes. Prtine is not entitled 2007). The defendant has the burden of to a new trial based on his claim that he proving both that the district court abused complement denied his full peremp prejudice its discretion and that resulted. tory strikes. Nunn, (Minn. State v. 1997).
II. Provost, expert State v. we held that next contends that the dis *10 trict court opinion testimony committed reversible error is admissible on the
313 that Prtine is not entitled to reversal of his whether the defendant question of ultimate prove he he conviction because has failed mens rea when com- requisite had agree. prejudice. We mens rea is mitted the crime because therefore a mixed construct and legal We will not reverse a defen 93, fact. 490 N.W.2d of law and question improper based on dant’s conviction testi (Minn.1992). “any pro- noted that We 101 mony from the medical examiner on the [experts oрining about value of bative testimony assailant’s intent when the does requisite the defendant had whether Bauer, in prejudice. not result State v. outweighed substantially mental state] (Minn.1999) (holding 598 N.W.2d prejudice engendered and by the confusion prejudiced by- that the defendant was not jousting’ experts.” of the by the ‘semantic testimony the medical examiner’s that the (cid:127) in “[j]urors noted that We further Id. kill victim’s assailant intended to her be constantly judg- make everyday lives their jury cause the could infer intent to kill of others on whether the conduct ments when the victim was covered in bruises accidental, premeditated intentional or was strangled by telephone cord concluded that a or not.” Id. We neck, wrapped tightly around her and se equally positioned to expert an are Chambers, by hanger); cured a metal coat and it is the make determinations of intent (hоlding that the defen 507 N.W.2d determinations, juror’s job to make such prejudiced was not because the dant juror.” as a thirteenth expert’s “not in readily could have found that whoever Id. at 102. did so with an intent to flicted wounds given eight kill that the victim was stabbed Chambers, in v. we held
Similarly, including elongated a fatal neck inci times expert should not be al- that a medical sion). case, preju In this Prtine was not “expert an inference” that to make lowed by improper diced the medical examiner’s committed with an intent the offense was testimony. are to kill because such determinations jury’s province. solely within at trial estab Admissible evidence (Minn.1993). However, wounds, stab lished that suffered 63 Ward testify expert may appropriately medical neck, including the face and largely around things such as “the number extent jugular vein. severing two fatal wounds wounds, bleeding, the amount of of the nature and extent of This evidence by a whether the wounds were caused readily injuries was extensive and Ward’s ... whether knife or a instrument blunt assail the conclusion that Ward’s supports or could not have been the wounds could Moreover, kill. the medi ant intended to death, accident, the cause of the result negate did not cal examiner’s Id.; v. Brad- and so forth.” see also State trial, trial. At Prtine’s defense at (Minn.2000)
ford, 618 N.W.2d self-defense, in that he acted claimed opinion medical examiner’s (holding that a killing was unintentional. Wheth that the homicide the manner of death was using deadly in force is justified one is er helpful jury’s to the determination of person objective inquiry into whether an was self- gunshot whether a fatal wound killing reasonably believed another). inflicted inflicted or bodily necessary great avert death or harm, the defendant’s Here, not an evaluation of concedes that “Dr. Unci- the State subjective of mind. See State intent state testimony as to the assailant’s ni’s (Minn. Johnson, 619, 631-32 of the rule established light was error (2008) § However, 2006); 609.065 see also Minn.Stat. argues the State Chambers.” *11 314 taking rights intentional of anoth substantial not af strate that were
(permitting “ fected, appellate ‘the necessary resisting life in or then assesses er’s when it should to the actor rea whether address the error an offense which preventing integrity actor ensure fairness and of the sonably exposes the or an believes ” death). judicial proceedings.’ (quoting at harm Be Id. 298 great bodily other to or 740). Griller, 583 N.W.2d To determine there was evidence ample cause admissible prejudicial, if as the error we evaluate support to the conclusion that Ward’s strength against a the evidence intended to kill and crim sailant bеcause defendant, pervasiveness im subjective to kill of the inal defendant’s intent claim, proper suggestions, and de negate not we whether the self-defense does (or opportunity fendant had an to made that the im conclude medical examiner’s to) rebut the preju improper suggestions. in efforts proper did not result Dobbins, 492, to See State v. 725 N.W.2d 513 dice Prtine. (Minn.2006); Mayhorn, State v. 720 III. 776, (Minn.2006); 790-91 State (Minn. Swanson, 645, 707 N.W.2d that argues Prtine next he is 2006); 329, v. Buggs, 581 N.W.2d prosecu- to a new trial entitled because (Minn.1998). object misconduct. torial Prtine did misconduct; thus, any alleged of the our Prtine’s claim prosecutori first plain for is error. See State v. review prosecutor al misconduct is that the elicit Jones, (Minn.2008); 753 N.W.2d improper ed character evidence from de R.Crim. P. for Minn. 31.02. order us to fense witness Alexis Mallick. cross- On error, plain must appellant review examination, the prosecutor asked Mallick (1) (2) error; that there that establish is: person. Ward was violent Mallick (3) plain; and is affects substantial no, replied prosecutor and the asked then Griller, State v. rights. 583 N.W.2d “[e]xplain Mallick to to the [Mal- what (Minn.1998). require If each of these by meant that.” Mallick lick] identified met, is we then whether ments assess two instances which Ward exhibited should address the error to ensure fairness non-violent behavior. She testified integrity judicial proceed and the get punched she once saw Ward face Id. ings. at a bar and refuse to back. fight while occasion, She also testified on another “An plain error is if it was slapped in Ward was the face and Ward’s obvious,” or “[u]sually clear this is only reaction was to turn to his friends and law, if the shown error contravenes case say, get out of here.” “[l]et’s rule, or a standard of conduct.” State v. (Minn.2006) Ramey, Generally, person’s evidence of a charac- (citations omitted) (internal quotation ter or a trait character is not admissible omitted). marks plain proven prove If error is in conformity action therewith misconduct, prosecutorial in the context of particular occasion. Minn. R. Evid. 404(a). However, the burden then shifts to the State show evidence of the charac- that substantial rights peacefulness were affected. ter trait of of- of the victim Unobjected-to Id. any error affects substan the State to fered rebut evidence rights tial if there is a reasonable likeli victim was the aggressor first 404(a)(2). hood the absence of Minn. misconduct would R. Evid. admissible. admissible, have had a significant jury’s proof effect on the of a trait When character verdict. Id. If may only by testimony the State fails to demon be shown as *12 knife, testimony opinion, а that he would by way or of owned small black reputation knife, inquiry when if on cross-examination have known Ward had another except permit- of conduct is specific instances that never a in trade into Ward took knife Therefore, 405. Minn. R. Evid. drugs. ted. that it for we conclude unlikely is either of hear- that the claimed prose- not decide whether needWe had a say significant impact statements on misconduct questions constituted cutor’s the verdict. misconduct, it because, if there even rights. Prtine’s did not affect substantial Prtine also claims that the State of Mal- cross-examination prosecutor’s The during closing argu committed misconduct than of a trial up pages lick takes less two intentionally by misstating the evi ment 2,700 Given transcript pages. that exceeds trial, Stookey At Eric that dence. testified isolated nature of Mallick’s the brief and telephone a he had conversation with testimony, coupled with the fact that that during Prtine which Prtine indicated or repeat otherwise dwell State did by drug Prtine had been cheated dealer it in the record and the other evidence arranged Stookey that for Prtine to meet. inferred, guilt Prtine’s could be from which that Stookey testified that conver no likeli- there is reasonable we conclude Stookey nig- sation Prtine told that “this alleged mis- that the absence hood gar ripped me off.... I’m to stab going im- significant have had a conduct would every black come off motherf —ker that pact jury’s on the verdict. I figure got business until out it.” this who reach conclusion We the same said, Stookey also testified that Prtine “I that respect to Prtine’s claim with I got my knife.... a f — k.... give don’t hearsay from elicited inadmissible State my money, me I’m give Dude better back to Mal- Specifically, points Malliek. Prtine every niggar out of stabbing that comes her testimony that Ward had told lick’s building.” this dealing drugs rule is golden that “[t]he then some of incorporated nothing in and her state never take trade” into closing argument these statements that she Ward questioned ment when saying: fighting being back after about not Stookey you Eric told that Remember punched in the face Ward “[t]here said a week had the defendant or two earlier going man or woman out there worth not a some ripped been off down in Duluth on jail light chil my [in back to for twin and he is drugs, up, and he called him that this testi The State concedes dren].” him “I’m pissed, angry, he is and he told inadmissible, may have been but mony knife, rips me holding anyone if again argues any error did not again, going I’m to kill them.” off rights. affect Prtine’s We substantial agree. contends that misstated the State above, he the words the evidеnce when attributed testimony Mallick’s
As discussed going me off being anyone rips again, “if I’m relating to what Ward said about brief, isolated, Prtine. Prtine is cor- punched not re- kill them” to While testimony state- peated. attributing As for Mallick’s rect the above anything him the State the rec- Ward would not taken ment to misstated ord, us drugs, testimony for her was not the our review of record satisfies trade testimony subject. sig- trial not have a only on that that the misstatement did testified, objection impact at trial on Prtine’s substantial Partyka without nificant First, the challenge appeal, only rights. or in this distinction between Ward crime, testimony person and the character person actual State’s is not crime, guilty may person of that is subtle and not ization crime.”). Second, guilty of lesser likely jury. to have influenced the The comment *13 3.20 to CRIMJIG cautions “not to offending words were brief and not courts thе any indicate order in on, only 11 which the crimes consisting of words dwelled considered” Third, should be and not to “instruct 52-page closing argument. from a jury to consider only the the lesser crimes that jury court instructed the counsel’s the if the guilty it finds defendant not of the and that statements were not evidence the cmt.; charged offense.” CRIMJIG 3.20 jurors disregard any should as statements Dahlstrom, 301, see v. also State 276 Minn. from to the evidence that differed their 53, (1967) 311, (concluding 150 N.W.2d 61 Johnson, recollection. See State v. 616 that district court the should not instruct (Minn.2000) 720, (noting 728 that N.W.2d with jury the his or her own on the views jury is a in finding the instruction factor followed). order procedures of to be Con- any prosecutor’s that error in the state greater-and sideration both the lesser- nonprejudicial); Ferguson, ment is v. State crimes important included is it because (observ (Minn.1998) 824, 581 N.W.2d 833 may the jury cause to the evi- evaluate that that ing jury the court assumes the differently with regard dence to an essen- instruction); a follows district court’s State Dahlin, tial element. See State v. 695 (Minn. 35, Washington, v. 521 40 N.W.2d 588, (Minn.2005) (noting N.W.2d 601 that a 1994) (ruling jury instructions are rel part jury jury deliberations is the evalu- misconduct). analysis to evant the Fi ating a whether lesser-included crime nally, the State’s reference to Prtine’s ear crime). appropriate more than greater the threat closing argument lier Thus, it is error for a district court to support killing of the State’s claim that the suggest the order in which jury the should However, premeditated. jury the ac charges. consider the premeditated quitted first-degree Prtine of murder. That acquittal suggests that the object A defendant’s failure to a jury’s misstatement did not the influence jury they instruction before given are decision. jury the right constitutes waiver of the Cross, State v. appeal.
IV. (Minn.1998). However, 726 reviewing Prtine nеxt contends that district court can reverse if the instruction consti when, court committed reversible error Griller, error. plain tuted 583 N.W.2d at to a response question jury, from the Butler, 740; 659 N.W.2d jury no told there was need to (Minn.1980). consider lesser-included offenses trial, At the close of the dis
jury guilty greater found Prtine of a of- gave trict jury complete fense. proper jury correctly instruction that de A person prosecuted who is scribed the elements of each charges of the crime, the commission of a but found and lesser-included did offenses and guilty, may guilty of a lesser crime. suggest jury the order the should consider § (2008); deliberations, Minn.Stat. 609.04 see also 10 charges. During Ass’n, Judges Minn. Dist. jury Minnesota following ques asked court the Guides, Jury tions, agree Instruction Crim higher charge, “If on a do Practice — inal, (4th 1999) (“The CRIMJIG 3.20 ed. rule on charges? we need to the lesser Do provides upon law prosecution of a we to vote on all charges? in- degree require showing does not if we ruled on first murder So Example: Dimmick, degree murder, rule on second State v. we wouldn’t tent. (Minn.1998). with counsel consulting After own
murder?” Prtine’s obtaining an the State and for Prtine and establishes Prtine went to Ward’s the district agreement respond, on how narcotics, purchased and dur- apartment, language of 3.20 court cited the CRIMJIG multiple stabbed times. ing a scuffle Ward in- offenses and regarding lesser-included This uncontroverted establishes evidence jury generally about the bur- structed the drug felony, and a rea- predicate sale presumption of innocence. proof den of stab sonable would find *14 However, the district court also instructed kill. wounds are indicative of an intent to the proceed the that it should “down jury (finding a defendant who Id. at 129-30 that at a and guilty line” until it arrived verdict victim, times, a and robbed stabbed her 35 guilty after at a it was not arriving verdict is not left her to die entitled to a second- required remaining consider of- the degree felony murder instruction because we conclude that the dis- fenses. While jury there is no rational for a basis response jury’s question trict the court’s murder). first-degree felony Be- acquit of that because plain constituted error was Prtine was not to the sec- cause entitled suggested the the order in which answer instruction, felony tell- ond-degree murder we charges, the consider the jury should ing jury the that need not consider affect also that the error did not conclude felony second-degree murder if it found rights. substantial Prtine’s guilty first-degree felony murder Prtine Therefore, prejudice. not result in did Considering jury the instruc that the error did not affect Prtine’s hold whole, apparent it is that Prtine tions as a rights. substantial by was the error such prejudiced not the the case. the error affected outcome of court’s
Prtine concedes
the district
V.
greater
first-degree
on the
instruction
Prtine’s last claim that he was denied
is
the
charges specifically required
murder
when,
assistance of counsel
the effective
jury
the
of
to consider
lesser-included
consent,
con-
his
trial counsel
without
second-degree intentional murder
fenses of
during closing argument
ceded
first-degree
but Prtine
manslaughter,
particular,
proven
State had
intent.
suggests
jury
did not
that the
instructions
stated:
counsel
guide the
to consider the second-
charges
murder
[ ]
The lesser
are
count,
a
degree felony murder
which is
degree.
are two different
second
There
first-degree
offense to
felo
lesser-included
degree.
of murder in the second
counts
However,
ny
district court
murder.
one
Dr. Uncini has furnished
And herе
second-degree
was
to submit
required
key
He said that there
of the
elements.
a
crime
felony murder as
lesser-included
definitely an
to cause death.
intent
a lesser-included-offense instruc
because
that in order to
... We understand
tion
is no
is not warranted when there
self-defense, you
raise the defense of
support acquitting
adduced to
evidence
all,
to,
you
first of
inten-
have
admit
greater charge
convicting
tionally caused
of someone.
the death
Dahlin,
at 595.
charge.
lesser
695 N.W.2d
missing.
never been
That’s
re
First-degree
felony murder
the defen
When
quires
to kill
the commission
counsel
intent
however,
felony
guilt
a defendant’s
without
second-degree
dant admits
felony;
consent,
perform-
surely
the counsel’s
and Prtine
would have been convict-
defendant’s
concession,
prejudice
pre-
is deficient and
ed without
“whether or not
anсe
State,
guilt
sumed. See Dukes
N.W.2d to admit
at
trial is a
decision
(Minn.2001); State v. Wiplinger,
system
only
under our
can
be made
(Minn.1984).
Wiplinger,
defendant.”
Furthermore,
is the
guilt
decision to concede
defendant’s 861.
Prtine’s counsel did
Dukes,
make.
decision alone to
621 not use
trial.
strategy throughout
the same
N.W.2d at 254.
If that decision is taken The concession on the issue of
intent
defendant,
defendant
from the
is enti-
the closing argument
made until
trial, regardless
tled to
new
of whether
closing
there was no indication before the
he would
been convicted without the
argument
that such concession would be
Wiplinger,
object
admission.
Here, counsel’s statement with majority’s the conclusion that dis- the intentionally denying caused Ward’s death trict court its in abused discretion guilt in to regard conceded intent. Prtine’s for challenge prospective While cause of may juror majori- this concession have been a disagree valid J.B. I also with the to strategy credibility ty’s build with conclusion that we need to remand evidence,” on to hold decide the case Prtine consented of whether question intent. and that the district court erred. attorney’s concession therefore my view, majority In misreads the record. A. cause, challenge for respect With juror Logan, specifi- Unlike the J.B. recognized that the district court said, cally to the response ques- court’s best to observe and position “in the is tions, that “сould” be “a fair and im- she prospective ju- judge the demeanor of juror.” court partial The asked: “what we result, we defer and as ror” really you want to know is whether believe credibility sup- determinations that court’s you impartial could be a fair deny challenge port its decision to participate in a trial of this nature.” Graham, v. cause. State said, could, “I response, yes.” J.B. think I (Minn.1985). the majority In the case on, Logan, we said that the
relies [jjuror’s asked: later “[A] question court’s “resolution district unbiased, function would to be not have juror’s protesta- prospective whether listen any pre-judgments, to the evi- is believable entitled impartiality tion of anything trial. Set dence aside deference.” 535 N.W.2d special you have heard or else- may seen (citation (internal omitted) (Minn.1995) where, you you, not let that influence so omitted). marks Notwithstаnd- quotation juror. impartial you can be a fair and Can *16 review, of the ing our deferential standard said, that?” J.B. “I think response, do In the district court majority concludes that can, yes.” I determining in that J.B. credible erred Finally, you the asked J.B.: “So as court swearing that could be fair and in she now, you you sit here do think could right juror. disagree. I impartial juror?” a fair unbiased J.B. an- be and in majority Logan setting on The relies nervous, swered, “Yes, although a anxious” credibility the district court’s deter- aside view, juror. my majority’s In the conclu- mination, much Logan but was a different ‘could sion that never swore that she “J.B. Logan, prospective juror In the case. and any opinion might aside hold [she] set “virtually impossi- that it agreed would be ” decide the case on the evidence’ cannot juror him to as a that a “conclude ble” squared to these with J.B.’s answers falsely.” had officer testifiеd Id. police questions. face of In the of this assertion near 322. certainty, we concluded that the district during acknowledge question- I juror conclusion that the had been court’s more ing, J.B. that she “would be said Specifically, rehabilitated erroneous. The police inclined officers. to believe” erred in re- said “that the trial court then court asked: challenge in this jecting defense counsel’s you have an But do think that can you did not swear that
case because any- not prejudge and .unbiased view any opinion might set he he could aside it, you until heard body’s testimony evidence, on the hold and decide the case open and fair give just and such mind try.” that he Id. at 324 only but would you it deserves consideration as believe (citation omitted) (internal quotation evidence, omitted). in in the of all the other light majority marks concludes and light your еxperience own similarly of to swear that she that J.B. failed sense, discussing it and after might aside common any opinion [she] “could set your jurors, with fellow that would real- would hold that counsel did not admit question? be the ly guilt. A Prtine’s remand to determine whether Prtine consented is not therefore response, “yes.” J.B. said necessary. whole, as a Based J.B.’s giving due deference to district DIETZEN, Justice in (concurring part, ability to court’s observe her demeanor in dissenting part). answers to the questions her all of dire, during voir I defer posed would in join I the concurrence dissent of credibility court’s determination that Justice Gildea. truthful J.B. was when she said she juror. be a fair impartial “could” I (con- ANDERSON, H., PAUL Justice would
therefore hold did not curring part, in dissenting in part). abuse its discretion when it denied Prtine’s join part I in B of Justice Gildea’s con- motion to strike J.B. for cause. currence and dissent. B. ANDERSON, (con- H„ PAUL Justice I also disagree majority’s with the con- part, in curring in dissenting part). clusion we need to remand this matter I join opinion majority for a determination of whether Prtine con- except V, for Part V. With Part respect sented his counsel’s concession on I in doing dissent and question join so in Part B of alleges intent. Prtine that he Justice Gildea’s dissent. received ineffective assistance counsel because, closing argument, lawyer you intentionally “that
admitted caused the
death someone [has] never been miss-
ing” majority from the case. The con-
cludes that this admission one guilt unless Prtine consented to this
admission, his counsel was ineffective. I disagree. Minnesota, Respondent, STATE I would hold that counsel did not con- guilt. notes, cede Prtine’s majority As the Prtine’s defense at trial was not that he Eugene ANDERSEN, Kenneth Rather, not kill did Ward. Prtine’s conten- Appellant. tion was that he killed inWard self-de- No. A08-1521. majority notes,
fense. As also “[wjhether justified using deadly one Supreme Court of Minnesota. objective is an inquiry force ... not an June 2010. subjective evaluation of the defendant’s Moreover, state mind.” majority as the concludes, correctly
also “a criminal defen- subjective
dant’s intent to kill does not
negate a self-defense claim.” Because
counsel’s statement conceded most
subjective intent to kill and Prtine’s self- claim
defense negated thereby, I