*1 RLPR, law under Rule practice of Rule costs under payment $900 24, RLPR. reviewed independently has
This recom- approves jointly
the file and disposition.
mended files, all the records upon
Based herein,
proceedings re- HEREBY
IT IS ORDERED is dis-
spondent Roland C. Amundson effective practice from the of law
barred
immediately. Respondent pay shall $900 Rule RLPR. costs under
GILBERT, J., no part took matter. or decision of this
consideration
BY THE COURT:
PAUL H. ANDERSON
Associate Justice Minnesota, Respondent,
STATE of STEWART, Appellant. Allen
Dale
No. C6-01-177.
Supreme Court Minnesota.
9,May *3 (# 144514), Pry Assistant
Lawrence W. MN, Defender, Minneapolis, State Public Appellant. for General, Hatch, Attorney Michael A. Minnesota, Gaertner, Ram- Susan State sey Attorney, Lystig Mark Nathan County (# 65730), At- Ramsey County Assistant Paul, MN, torney, Respondent’s. for St. OPINION GILBERT, Justice. found
Appellant Dale Allen was Stewart murder guilty first-degree two counts second- and the lesser-included offense of bicyclist An- degree shooting murder for thony April in the back on Basta re- his Appellant appeals conviction a that the quests grounds trial on new (1) a com- admitting district erred to aid shooting puterized animation the medical examiner (2) other crimes evidence that a mur- conspiracy to commit entered into be- der for hire. For reasons stated low, we affirm. 26, 2000, 17- April p.m., 9:30
On about mother Anthony old Basta told his year bicycle out for ride. going rid- Joy was p.m., At about 10:00 Charles lane on ing bicycle his the northbound Paul River in St. Mississippi Boulevard an they planned killing individual later identified as try noticed bicycle again. someone riding Basta southbound a car Joy approaching observed bike lane. police that appellant determined behind. When the car was Basta from person was the to whom Ernst and Bassett Basta, Joy “popping” next heard been speaking party. at the After say heard sound and “ow.” He then locating appellant, Sergeant Younghans ride forward on his bicycle saw Basta tape-recorded conducted three interviews bicy- 10 feet and fall about another off the appellant. The first and second inter- Joy cle. unable to see the car’s li- took place views the homicide office on *4 anyone in plate cense or Par- car. May 9. At the time the first two inter- views, at p.m. amedics arrived the scene at 10:12 appellant was not under arrest. Ac- Regions cording to brought Hospital Sergeant Younghans, appellant and to any Paul, he at denied involvement in the p.m. shooting St. where died 10:26 he, first Appellant interview. said that physical found no Investigators Angus, Daniel and Jonathan McNeill drove to shooting or witnesses than other Minneapolis to Northeast to look for two Joy. May investigators On in- received They friends. drove around for 4 hours formation that Victoria Ernst had heard returning before around 10:30 or 11:00 party someone a shooting. admit to the Sergeant p.m. Younghans appellant asked Ernst at a party April was her with if he anything knew about the murder of boyfriend Brad Bassett and person met a Tony he Basta and said he did not. Ser- whom she later identified appellant. geant Younghans appellant also asked if he Ernst, to According appellant said that he gun had ever a appellant handled and an- around, driving and some friends were saw only swered that he had pellet handled a bike, riding thought “kid” and it would gun. Sergeant Younghans then ap- asked be funny Appellant to scare the kid. ex- pellant he ever had been on Mississippi plained sitting that he was in the back of responded River Boulevard and he that he the car he the gun when shot out the Sergeant had never been there. Youn- window; saw fall bicycle, ghans he the kid off his told appellant police what the scared, got and learned from right away. left Ernst and Bassett. Appellant Appel- lant then kid; party said said that he was at the that he did not intend to kill Ernst lying. and Bassett Appel- only he wanted Appellant to scare him. lant also probation, said that he was on he signed prevention a crime petition “against type person that would do people do who that kind of stuff’ and this, and anybody. he could never kill visited memorial for Basta.1 Ernst appellant believed that “seemed sad” Sergeant Younghans left the interview Bassett, According he shot ap- Basta. to and from investigators room learned pellant said that he returned to the scene gun that a had been seen at signed crime some kind of Bloomington apartment before the shoot- prevention statement, and thought this ing. Sergeant Younghans then initiated a was funny. Appellant also said when appellant. second with Sergeant interview he and two companions Younghans left the scene asked about the gun keep Citizens made memorial at the where site of Public Works to the memorial. The memorial, Basta was shot. At the there was a petition stop reminded citizens petition Mayor addressed to St. Paul Norm violence. asking Department Coleman him direct the in- targets kill their suggested possible scenarios suggested and several robbing According agreed them and stead shooting occurred. how eventually plan. Angus used the term “first this new Younghans, Sergeant person refer first Sergeant Younghans blood” to to the and told cried along Appellant said driving who killed someone. he, group McNeill were Angus, and McNeill the im- night gave Angus that he Boulevard on Mississippi River willing driving, ap- participant was a pression McNeill shooting. scheme, seat, but that he had no intention passenger front was in the pellant Appellant only kill McNeill to rob or someone. Angus was the back. go gun along was a because he feared pretended there rejected if he up his friends Appellant picked front seat. he would under the then, care- being stupid did not. less, gun out the window stuck the interview, During this third that he did trigger. He stated pulled Sergeant Younghans also told about trigger. pulled not see Basta as he leading up shooting events kept from the casing the shell *5 According itself. to shooting Sergeant He jammed gun. because it the fatal shot he, Younghans, appellant Angus, said that cas- Sergeant Younghans where the told Mississippi to River drove McNeill Sergeant Younghans located. ings were night April on the the Boulevard with under appellant arrest. placed then just to see if purpose killing someone the shell Investigators later recovered spotted do Basta they could it. Someone and a 9- casings from residence appellant’s the car around to fol- and McNeill turned from handgun mm semiautomatic explained that he Appellant low Basta. con- apartment. Ballistics tests McNeill’s hand the door gun right by had the his this that had been shot with firmed Basta Basta, and, they on stuck up as came gun. the and he pulled hand out window the Appellant Sergeant Youn- May 10, trigger. con- told Sergeant Younghans On Angus that and McNeill intended appellant. ghans interview with ducted third Basta, interview, that appellant appel- Youn- kill Sergeant At that third that to scare subjective only what intent was told that on lant’s ghans based grab Basta his left Appellant had he Basta. saw Angus police, and McNeill told say Appellant heard him “ouch.” shooting not an acci- side and the believed three of Sergeant Younghans the According Sergeant Younghans, to dent. away, but laughed they as drove gun then the be- them stated only because the others explained laughed to longed Angus. Appellant also night, later that Appellant shoot- said that during preceding the weeks the did. joke they had had between themselves appellant, Angus, McNeill ing, saying He also said that Angus’s gun people involved “ouch.” using discussed to rob of them toward Roseville Angus’s people. it idea the three headed and that was to rob Angus wanted shooting, shooting the days In the after preceding They up driving ended Riv- someone. gone Mississippi three of them had to shoot anyone shooting Paul without with back St. er Boulevard on several occasions girl- Angus’s in- After to meet Although they picked stopping out else. gun. loaded friend, Tromp, returned did not follow Jeanne targets, dividuals but left because them. told the scene of through rob by police. later was blocked off Younghans that McNeill the street Sergeant 2000, 14, appellant was In the sequence, facing On June indicted first Basta is 4, first-degree August murder. On is bicycling viewer and on the side 2000, Spreigl2 state filed a notice indi- A car from up road. moves behind Basta might and, it cating Basta, offer passen- as it moves toward trial evidence that seat, ger holding the front is a gun, who burglary in a previously participated takes his arm and it places outside the car. first-degree to commit conspiracy The arm side rests of the car and hearing murder.3 At a on October pretrial gun pointed ground. toward the the court indicated it would Basta, alongside When the car is the pas- wait until the close of the state’s case to senger Basta, turns to look lifts and ruling admissibility make the on the Basta, extends his arm toward fires hearing, At that same evidence. gun. A red beam indicates bullet’s provided the state notice that one of the path gun from where bullet present exhibits it would seek to at the sequence, strikes Basta. the second computerized pre- trial was a the viewer sees the back Basta as he is Davis, pared Dan an Henne- assistant bicycling down the road. The car is mov- examiner, pin County medical to aid the ing closer toward from behind. The Roe, testimony of Dr. Susan an assistant passenger in the front seat moves his arm Ramsey medical examiner for and Wash- out of the window and rests it on the side Counties, ington regarding Basta’s internal car, with pointing down. injuries. The state said that the exhibit Basta, When the car is passen- next help explain would the medical examiner Basta, ger turns to look at lifts and ex- *6 autopsy findings the because the exhibit arm, gun. tends his and fires the A red path. illustrated the bullet The state ex- beam indicates the bullet’s path. The plained path readily that the bullet was not sequence provides third a pas- view of the fact understandable due the the senger of side the passenger car. The moving shot came from a vehicle Bas- the front seat his arm out moves of the ta moving bicycle on a when he was car, window and rests it the of on side the shot. Then, with the pointing down. the
Following
Basta,
the
in favor
argument
passenger
state’s
looks
lifts and extends
admissibility,
arm,
of
the appellant stated that
gun.
and fires
A
the
red beam
the
subject
animation was the
of a motion
path.
indicates the bullet’s
The fourth
by appellant.
sequence
limine filed
The anima-
provides a front
of
view the car.
presented
tion was
to the district court Again,
sequences,
as in the
pas-
the
judge
Power
senger
use Microsoft
Point.
in the front seat moves his arm out
sequences.4
The animation consists of four
of the window and rests it on the side of
Minnesota,
originally
other crimes evidence is often
4. The animation
2.
contained five se
Spreigl
quences
referred to as
this
depicting
after
different views of the
Spreigl,
court’s decision
State
shooting.
Minn.
Although all five were later admit
(1965).
talk of rob argued Spreigl that the evi- gun. Sharlow also testified saw him with dence should be admitted because the appel- days shooting, that a after few the Spreigl case was not weak and state’s River that he shot a kid on lant told her highly prejudicial. was Accord- thought he he Basta Road and that shot the state’s case was not ing appellant, to he saw him his side grab the liver because appellant police because had told weak when he fell. the shot was an intentional shot rath- that discharge of the er than an accidental Walker, cousin, testi- appellant’s
Corrine pointed out that weapon. Appellant also arrest, fied that after Sergeant though appellant told Youn- even Basta, had while he he told her that shot to do that it not his nature ghans Basta, he to kill and that trying not been alreadyproved the state had because thought Basta would not die not true. this was for lower back. aiming Basta’s said testified Walker also counsel, Following arguments from pressured by Angus that he felt provided that the state had court observed shooting. McNeill to do Spreigl intent use the evi- notice of its case, found there dence. The the close state’s Before evidence, in convincing hearing presence was clear and court held a outside by appellant of admissions to address two issues—the form participated anima- admissibility computerized participants, conspira- hire burglary and murder for admissibility Spreigl tion and the court then noted that respect Spreigl cy. evi- The evidence. With dence, attorney that he through his shot told the court that it was claimed the state accident had not intended the other crimes evidence offering kill that ap- The noted Basta. court also conspiracy murder hire burglary and police made statements to the pellant mistake prove intent absence of Basta and that he law he intended scare accident. In its memorandum of evidence, intentionally anyone. kill admitting the could not support the evidence re- Angus, court found argued appellant, the state relevant, killing burglary was not garding the Tanya Achenbach discussed that, not admissible as pursuant husband and such evidence was Achenbach’s *9 However,- discussions, the evidence. court Spreigl these Spreigl The the evidence burglarized the husband’s residence. found key conspiracy hire was relevant to that the in the case murder for argued state issue or accident went intentionally shot show lack of mistake was whether state, predisposi- had a According “[defendant Basta. to whether act on the not to commit such an based Younghans that he did tion Sergeant given to the police.” prepared statements that who the animation and that it probative the determined that was someone she knew and had worked outweighed prej- of any value the evidence with before. The court asked Roe wheth- the could use the other udice because er the animation in would assist her her evidence to determine the absence crimes testimony the responded she of The court mistake or accident. ruled animation yes. She that the testified was regarding the the evidence different in some ways from one- and conspiracy murder for hire was admissible. exhibits, three-dimensional but was much better this visual era when are people so animation, respect to the the court With accustomed to looking things on televi- from Roe testimony heard Dr. to establish sion. Roe testified the animation would appropriate the foundation the admissi- make it explain “somewhat easier” to to a bility of the animation. The state said that jury and “very was effective.” it the She stated offering was animation “as an illus- using becoming exhibit animations was the trative demonstrative the testimony.” request course of Dr. Roe’s direct On state of the by art. There was no examination, direct Roe testified that it appellant to examine the actual animator was a common concern of a medical exam- toas foundation. The animation was on a iner to document the distance of fire- the computer CD-ROM disc. The court ad- body arm from the of the victim at the mitted the animation. (the point fire), time the shot was fired Following hearing, this the trial re- trajectory the the before it hit bullet the sumed and Roe jury. testified before the body, body, where the bullet entered the repeated Roe much testimony she and the wound track. She testified that to just provided had during the court the determinations, make these she infor- used hearing. She testified that it is a common mation investigators, including collected matter of concern for a medical examiner
the fact that victim on a bicycle the was to determine the distance away the fire- the time shot he was and the shooter was might body arm have been from vehicle, in a moving as well as her own point victim. She also testified autopsy findings. Roe testified that fire is a matter of concern to a medical fact pre- that the victim was in movement examiner. Roe path described the bullet’s problems describing sented the wound through body Basta’s based on her inter- jury. track She stated that nal examination of Basta. She also ex- “animated aid her in recreations” would plained the indicating describing trajectory shot gun was directly against Basta’s skin the wound track. Roe also testified that it when was fired. Roe then testified that she had one- diagrams used and three- going she was to use the animation to
dimensional models to aid her explain fire and the distance of previous cases, that this was first fire. She explained that the animation time she had used an animated re-creation autopsy based on findings her as well testimony. illustrate On her cross-ex- amination, fact riding bicycle that Basta was although Roe testified that when he and that sequences trajectory was shot the shooter was showed in a angle, none of vehicle. After sequences moving showing the five animated animation, entering showed the bullet into Basta’s Roe testified that the animation body. Roe accurately depicts also testified that she knew consistent with what autopsy findings, information been used to make distance the animation. Roe stated she knew firearm from the victim when the *10 appellant plan he to and fire of asked about fired, the direction and cross-examination, kill husband. told Appellant Roe Achenbach’s On firearm. Younghans that of- Sergeant was two feet or Achenbach gun that testified $1,000 it her body Angus surface when fered him and to “off’ greater from Basta’s why she reached explained Appellant they and husband. said that would fired was it, paid have but Achenbach never this conclusion. done any money they and cold feet. got them testimony, Roe’s state Following testimony of some additional presented the in Tanya Achenbach then that testified hearing a The court then held witnesses. her early April, late March visited or she jury to presence inform outside estranged raped and he and husband beat it granting that was counsel home, appel- her. arrived back When she 2.01 that standard CRIMJIG request lant, Wendy in Angus, Overby and were clarify for to be modified instruction Overby apartment. her was Achenbach’s purpose Spreigl evidence. jury the dating Appel- was Angus. roommate and and brought court then was and he would very upset lant said that jurors that the state was informed kill the for what had he done husband introduce of an occur- about Angus and immedi- appellant Achenbach. the limit- being that was offered for rence ately talking about and when started how jurors deter- assisting ed purpose According it. to Achen- would do committed the mining appellant whether bach, call was to have Achenbach plan charged. The which he was acts with her and have him her at husband meet that it could consider court told Appellant Angus Paul. and park St. only acts on the prior the evidence and hus- up could drive shoot the either intent, mistake, or absence issues could walk ask for a up band and gave The court this identical accident. shoot cigarette and then him. Achenbach prior closing arguments. instruction appellant Angus testified that were very plan about this and there was serious then Edward Hanson testified Detective money. no Achenbach knew discussion He stated about evidence. Angus afraid. On had regarding an appellant that he interviewed cross-examination, testified Achenbach, Achenbach appel- Tanya incident where Angus she believed lant, Angus conversations about hus- very killing about her serious Appellant killing husband. Achenbach’s acknowledged also band. Achenbach Angus approached appel- Hanson that told police them she did not call the and tell him Tanya her lant and wanted about the murder for hire scheme. $1,000 pay killed and them husband would told Hanson that Appellant to do it. testimony, Following Achenbach’s plan Angus was for Angus’s subsequently Appellant state rested. no place to follow the husband to where called and then testified two witnesses them; they then one would see would ask mur- own respect defense. With cigarette; for a and when he the husband issue, der for testified hire cigarette, they for the would shoot reached kill her he told Achenbach he would said to Hanson he did Appellant him. husband. said this because kill the not think it was him to husband upset did about what husband it was his. Angus’s plan and that —not Achenbach, it. that he not mean did Next, ap- According appellant, Achenbach Sergeant Younghans testified that May proached Angus proposed during his interview of *11 292 pay up
Achenbach front pose and assisting jury determining $500 $500 killing. Appellant after the testified that whether committed the acts with going through he had no intention of which charged with he was in the indictment. it, agreed plan jurors to the because “It was The may court told the they that just something being that was talked about consider prior only the evidence of acts intent, thought and it be cool to talk [I] would the issues of absence of mistake or it.” about accident. The court said that appellant was not being tried for and could not be Basta respect With ap- convicted of any offense other than he, pellant Angus, testified that charged The court stat- offenses. further Mississippi McNeill drove to River Boule- ed that jury was not to appel- convict night April looking vard the 26 for lant on the basis the murder hire for Appellant someone shoot. testified that and to do so result in might unjust double and, picked McNeill out Basta as the car punishment. Basta, pulled next to McNeill appel- pick up put lant to it The appellant guilty out the found of first- degree window. Appellant premeditated murder, testified his hand first-degree hanging felony was not (drive-by shooting), outside window at this murder sec- ond-degree felony moment—it was of the car inside and his murder. Appellant resting arm was on the windowsill. seeks a Appel- reversal his conviction and new grounds lant testified that McNeill then told him trial on that the district (1) his hand court put admitting out the window and shoot and erred in the computer- that he did so. ized Appellant insisted that he animation the shooting to aid the (2) did not aim at testimony Basta and he was not of the medical examiner and looking at he fired gun. Basta when crimes evidence that en- only He also insisted tered trying conspiracy that he into a to commit a mur- scare Basta. testified der for Appellant that after hire. gun,
he fired the he heard say I. “ouch,” side, saw Basta grab and real- ized he shot According Basta. The district admitted the appellant, Angus and McNeill intended to computerized animation for illustrative shoot and evening rob someone the of purposes to aid medical examiner in 26, April subjective but that his own intent her testimony. Rulings on the admission towas scare He Basta. testified that he of evidence at trial are within the broad along went with others because discretion of the district court and are not picking rejecting on him him. reversed on appeal absent a clear abuse Rhodes, discretion. State 627 N.W.2d Immediately closing arguments, before (Minn.2001); 84 State v. Kennedy, the court jurors instructed the (Minn.1998). N.W.2d A defen animation was not trial or dant claiming district court erred proof of any fact should in admitting evidence must demonstrate disregard it did animation not cor- that the admission was both erroneous rectly reflect the or other evi- prejudicial. Id. dence case. court did not permit jurors to take the animation contends that the animation into the room. deliberation The court substantive evidence and that the district jurors instructed the court abused its discretion in admitting evidence was pur- admitted the limited lay state failed
293 proper jury the foundation for its admission with them to the room during delib- the animation contains hear- erations. Because the animation was ad- say. Alternatively, appellant contends mitted and used for illustrative purposes, animation is demonstrative evi- the animation is demonstrative evidence. court abused its dence and the district To determine whether the district in the animation admitting discretion be- admitting court abused its discretion in inadequate cause there was foundation for evidence, animation as demonstrative we animation, the animation was neither a must evaluate whether the admission was depiction fair nor accurate Rhodes, prejudicial. erroneous and 627 the animation did not illustrate the medical at admissibility N.W.2d 84. The of a com testimony, examiner’s and the animation animation used to puter-generated assist a unfairly prejudicial. argues was He also witness in in testifying a criminal case is a appeared that the animation so real that in question impression first Minnesota. unduly by influenced it. For admissibility The standard for the of de reasons, appellant these asks us to reverse monstrative evidence and visual aids is his conviction and order a new trial. whether the evidence is and accu relevant rate and assists the in understanding
Substantive evidence is evidence
testimony
of a witness. State v. DeZ
support
offered to
a fact
issue.
eler,
39,
47,
313,
230 Minn.
41
(7th
N.W.2d
Law Dictionary
Black’s
580
46 —
(1950).
318-19
This same standard
ed.1999).
is also
contrast,
By
demonstrative or
“
applicable
computerized
animations.
‘admitted,
illustrative evidence is
when
verified,
properly
express
to illustrate or
Demonstrative evidence must be an
witness,
testimony
competent
of a
accurate representation of the evidence in
”
original
evidence.’
[is]
State
DeZeler,
the record to which it relates.
Bauer,
(Minn.1999)
598 N.W.2d
362
46-47,
Minn. at
41
230
N.W.2d at 318-19.
Stabeck,
(quoting Strasser v.
112 Minn.
Appellant argues that
there was inade
90, 92,
(1910));
127 N.W.
385
see quate foundation for the animation because
Dictionary
also Black’s Law
(noting
personal knowledge
Roe had no
of most of
usually
that demonstrative evidence is
of
facts which
depicted
the animation
clarify testimony).
fered to
At the hear
authenticating any
had no
parts
basis
animation,
ing on
admissibility
sequences
preceded
of the animated
which
argued
offering
the state
that it was
entry
the actual
of the bullet into Basta’s
“as an
illustrative or demons
body, including the actual time in which
trative exhibit in the
Dr.
course of
Roe’s
place,
the events took
the distance of the
testimony.”
hearing,
direct
At that same
gun from
the time the shot was
examination,
on direct
Roe stated that
fired, and where
looking
the animation would aid her in describing
pulled
trigger.
when he
trajectory
and the
shot
wound
703(a) provides:
Minn. R. Evid.
track.
district
court admitted the ani
mation for
purposes. During
particular
illustrative
The facts or data
case
trial,
her direct
Roe
an
upon
expert
opinion
used
which an
bases
explain
the animation to
may
perceived
or inference
be those
place
expert
fire—the
where the shot was
or made
at or
fired
known to
hearing.
type
relative to where it hit the victim—and
before the
If of a
rea-
Finally,
jurors
the distance of
sonably
upon by experts
fire.
relied
permitted
particular
forming opinions
were not
to take the animation
field
319).
subject,
facts
upon
specifically,
inferences
More
we have held that
or data
not be
need
admissible
evi-
aids such
photographs
visual
are admis
dence.
sible as an aid
description
to a verbal
objects and
conditions when
are accu
Bradford,
See also State v.
618 N.W.2d
*13
rate and relevant to some material issue.
(Minn.2000).
782,
ease,
In this
793-94
Martin,
(citing
Id.
State v.
261 N.W.2d
regarding
opinion
point
Roe’s
the
of fire
(Minn.1977)).
Here,
344
the cause of
autopsy findings
was based on the
and the
Basta’s death is- a material
issue in the
moving
fact that
was in a
vehicle
Accordingly,
case.
the medical examiner’s
Basta, who
riding
when he shot
testimony regarding
path
the wound
bicycle.
Roe testified
these are the
trajectory
the
of the bullet is relevant to
types
relied on medical examin-
facts
understanding the cause of
death.
in
Basta’s
forming
opinion
ers
an
on the
point
Thus,
may
the animation
addition,
relevant
fire and wound track.
Roe
the extent that it
not original
in
is
testified that she was
contact with inves-
and is an accurate
tigators,
expression
thus
or illustra
implying
she received
tion to
in
jury
understanding
assist
investigators
additional information from
testimony.
that formed the
witnesses’
expert opin-
basis
her
,
ion. Roe’s use of information other than
Based on the
arguments
state’s
to the
autopsy findings
as the basis for the
pretrial hearings
court at certain
as well as
appropriate
animation was therefore
under
testimony
hearing
Roe’s
at the
held out-
Rule 703.
presence
side the
jury
to establish
Furthermore,
testimony
McNeill’s
in
animation,
foundation for the
expected
conjunction
testimony
with Roe’s
was ade-
subject
matter of Roe’s
quate
provide
foundation for the intro-
fire,
jury
point
was the
path,
bullet
sequences
duction of the animation
fire,
the distance of
entry
and the
wound.
depicted testimony. More importantly,
Roe was expected
explain
opportunity
had the
to cross-
that Basta was moving and that the shot
regarding
accuracy
examine Roe
of her
was fired from a moving vehicle. Roe did
opinions and
every
inferences and about
testify
in fact
about
these issues. She
However,
depicted
fact
in the animation.
gunshot
stated that the
entrance was on
analysis
our
does not end here because the
left
side of Basta’s trunk and used
presented
material
information
photographs to
entry
illustrate the
beyond
testimony.
wound. She then described the bullet’s
foundation,
provide
In order to
path through multiple organs in Basta’s
Next,
state must demonstrate that
ani body.
a diagram was shown to the
mation is relevant and
jury.
diagram
accurate. Evidence
illustrated the location
“any
is relevant if it
tendency to make
entry
has
of the wound and
where
any
the existence of
fact that is of conse
body
Basta’s
the bullet was recovered.
quence to the determination of the action Roe then testified that the distance of the
probable
more
probable
less
than it
firearm from the
body
victim’s
when the
would be without
fired,
the evidence.” Minn. R.
fire,
shot was
point
as well as the
Evid. aids
Visual
are relevant if
were common matters of concern for a
assist
in understanding a wit medical examiner. She stated that
Walen,
testimony.
ness’s
State v.
563 gun
placed directly against
was not
(Minn.1997)
N.W.2d
(citing DeZ
skin when it was fired. She also testified
eler,
46-47,
victim. though Even the district court car, including inside the the facial events animation, admitting in erred not ev of expressions passen- and movements ery judicial An error warrants reversal. ger prior firing gun, express did not if actually error is harmless the verdict testimony. or illustrate Roe’s The third surely rendered not attributable to the sequence provides animation a view of the Bradford, Ap error. 618 at 794. N.W.2d passenger depicts side of the car. It pellant contends that admission of the ani passenger taking the front seat his arm beyond a mation was not harmless reason resting it on out of the car and the side able doubt because the issue in the trial gun pointing the car with the down. It then appellant’s intent and the state did not head, passenger turning shows the his ex- of his intent to kill. have lot of evidence arm, tending firing gun. reason, that it For this contends depictions These do not aid the certainty cannot said with that the ani understanding the distance of fire and jury’s mation did contribute to the Only of fire. the end of the However, decision to convict. the anima sequence, path from the when bullet accurately tion did illustrate the medical body depicted, of the victim to the testimony regarding examiner’s the wound testimony does the animation aid the addition, path trajectory. the evi examiner; the medical and this evidence made dence substantial and dia- photographs was cumulative preparations to find someone to shoot was Thus, grams already the record. evidence, overwhelming. coupled Such great animation deal of material contains overwhelming with an amount of corrobo conjecture did not was based evidence, inculpatory including rative testimony precise illustrate Roe’s on the Indeed, testimony himself where record. the four animation se- he admitted the indicates that quences depicting appellant’s eyes face and surely not the verdict rendered was attrib shooting at the time of the amounted Furthermore, original depicting evidence in- utable to the error. the dis- jurors trict court instructed II. disregard the should it did not Appellant also claims that he was denied correctly reflect or other a fair trial when the district court admitted evidence the case. The animation was crimes evidence that en- jury during
not available to the
delibera-
conspiracy
tered into a
to commit a mur-
in closing
tions nor discussed
statements
rule,
general
der for hire. As a
reasons,
by counsel. For these
the district
of other crimes or misconduct is not ad-
beyond
court’s error was harmless
a rea- missible
prove
the defendant’s character
sonable doubt.
for the purpose
showing
that he or she
in conformity
acted
with that character.
Although we hold that admitting
404(b);6
Minn. R. Evid.
see
Kennedy,
error,
the entire animation was
our deci
However,
N.W.2d
such evi-
prohibit
sion is not meant to
the use of the
may
dence
be admitted for the limited
technology
new
computerized
anima
purpose
motive, intent,
of showing
absence
However,
tions in court.
such evidence
accident,
of mistake
identity,
or
or a com-
fairly express
must
or illustrate the testi mon scheme
plan.
Minn. R. Evid.
mony
helpful
of a witness so as to be
*15
404(b); Kennedy,
Animation
powerful
is a new and
evidentia-
Spreigl evidence should not
ad
tool,
ry
great
but must be used with
care.5
(1)
mitted in a criminal prosecution unless
McCormick has cautioned
party’s
that one
gives
state
notice that it intends to use
staged reproduction of facts creates the
(2)
evidence,
clearly
the state
indicates
danger
jury may
that “the
confuse art with what
being
evidence is
offered to
reality”
impressions generat
and
“the
(3)
prove,
the evidence is clear and con
by
may
ed
prove particularly
evidence
vincing that the defendant participated in
difficult to limit.” 2 John
Strong,
William
(4)
offense,
the other
the evidence is rele
(5th ed.1999).
McCormick on Evidence 19
vant
case,
and material to the state’s
power,
Because of its dramatic
proposed
(5) the probative value of the evidence is
carefully
animations must be
scrutinized
not outweighed by
potential
its
for unfair
foundation,
proper
for
relevancy, accuracy, prejudice. Kennedy,
297 Doty, Tanya 167 that he told Achenbach that he (quoting at 172 State v. N.W.2d (1926)). 164, 166, 760, husband, kill 208 N.W. 761 would her testified that Minn. Second, Tanya he never intended to do it. claims that the district An- Achenbach testified admitting erred gus and when discussed how would safeguards of these five because three learning kill her husband after she specifically, appellant not met. More raped by had been beaten and him. argues that the other crimes evidence Achenbach testified that she took their should not have been admitted because seriously frightened discussions and was prove prior did misconduct state not Third, by Han- those discussions. Officer evidence, convincing clear and the other questioned appellant son testified that he crimes evidence was not relevant alleged plot about the and that shooting theory state’s the Basta Angus’s told him it was to kill plan intentional, crimes evidence Hanson also husband. testi- Achenbach’s “overwhelmingly prejudicial.” him that he not fied told did conspiracy re The crime of capable killing think he was the husband (1) an between two or quires agreement Finally, Sergeant Younghans himself. tes- (2) an people to commit a crime and more him tified that that he would conspiracy. overt act in furtherance of the husband, killed the but that did have 609.175, (2000); § 2 Minn.Stat. subd. State pay did not him because Achenbach (Minn. Kuhnau, 622 556 v. N.W.2d killing. to commit the 2001) Peterson, Minn. (citing State 213 (1942)). 56, 60, An N.W.2d of these witnesses slightest overt act can be the action on the *16 convincing by indicates clear and evidence part conspirator. of a State v. St. Christo that there was a discussion about commit 226, 798, 232 804 pher, 305 Minn. N.W.2d However, ting nothing a crime. there was (1975). crimes evidence shall not Other in any in the record about overt act done admitted unless the evidence is clear and conspiracy. furtherance of the Achenbach convincing participated that the defendant agreement an denied that there was offense. The clear and con other paying any money even a of her discussion vincing “requires standard more than a her killed. The district husband to be preponderance the evidence but less court reasoned that the other crimes evi proof beyond than a reasonable doubt.” had dence went to whether the defendant Anderson, 269 895 Weber N.W.2d act,” commit such an “predisposition (Minn.1978). This met standard is when which is in the nature of character evi sought truth facts to be admit appellant dence to show that the offered probable.” Id. “highly ted is This court conformity in in acted with character has concluded the clear and convinc 404(b), violation of Minn. R. Evid. rather is not ing evidence standard satisfied when convincing than clear evidence that clearly the foundational evidence does not in the other offense. appellant participated in participation direct person’s show reason, court in For this the district erred Shannon, other crime. State v. 583 admitting this other crimes evidence. (Minn.1998). 579, 584 N.W.2d case, conclude that the In the instant four testi- Because we witnesses in court its discretion in ad appellant plot fied that was involved district abused evidence, mitting the other crimes there is Tanya estranged murder Achenbach’s hus- First, argu- no need to address appellant band. himself testified 298 act, propriety by “wrong” of admit- an overt was a admissible regarding
ments 404(b). However, by rule As stated the ma- ting the other crimes evidence. under in though jority, the district court did err the state established clear and even evidence, a admitting convincing the other crimes new evidence that there is a required Angus agreed trial is not unless rea- to commit murder. Daniel wrongfully Furthermore, that the ad- possibility sonable he shot appellant claimed significantly affected the Anthony interperson- mitted evidence Bolte, verdict. State v. N.W.2d dynamics al between him and his car- (Minn.1995). by appel- mates; As admitted pressuring him and counsel, the state’s case was not making rejected. lant’s him That feel admitted he shot Bas- very weak Angus, two members of this and others testified that a ta. group, recently agreed engage days shooting, appellant few before the activity criminal proba- was relevant and Angus had discussed with McNeill and interpersonal tive on the matter of the loll plans to seek out and someone. There dynamics dynamics and the effect those tapes were also of three interviews with on appellant’s state of mind when he shot plans Thus, which he discusses his I Basta. would hold that the district to kill with McNeill and someone. admitting within its discretion Finally, gave appropriate the district court this evidence.
cautionary regarding instructions reasons, Spreigl (con- For these ANDERSON, A., evidence. Russell Justice possibility there is no reasonable that the curring specially). signifi-
admission of the join I special concurrence of Jus- cantly affected the verdict. tice Lancaster. Affirmed. LANCASTER,
Concurring specially, ANDERSON, A.,
Justice, and Russell
Justice.
LANCASTER, (concurring spe- Justice
cially). I concur I sepa- with the result. write Minnesota, Respondent, STATE of however, rately, disagree I with majority’s that the district conclusion in admitting abused its discretion VARNER, Theodore Stevie Spreigl appellant’s agreement evidence of Petitioner, Appellant. Tanya to kill Achenbach’s husband. Un- No. C4-00-801. 404(b), der Minn. R. Evid. evidence of crime, may “another wrong, or act” Supreme Court of Minnesota. admitted to show absence of mistake or 9,May majority accident. The holds that the dis- trict court abused its discretion admit-
ting evidence because the state
failed to establish an overt act in further- view,
ance conspiracy. my
agreement itself, accompanied even