State v. Taylor
264 N.W.2d 157
Minn.
1978
Check Treatment

*1 PER CURIAM. Minnesota, Respondent, a district guilty by. Defendant was found

STATE charge making of a threats in violation of TAYLOR, Appellant. Daniel Carl the trial court a limited sentenced day maximum term of 1 47347. No. prison. The sole issue on this from Supreme Court of Minnesota. an order judgment of conviction and from for a new trial denying defendant’s motion March 1978. erred prejudicially is whether the trial court elicit on cross-ex- permitting the state to amination of defendant that old, earlier, years when he was 20 possessing he had been convicted in Iowa of marijuana. agree

While we with defendant very had little relevance arguably to defendant’s truth-seeking process witness, we do not think this credibility as a is a case like the interests where justice defendant a granting warrant this ground. new trial on passing note in the issue We is now impeachment by prior conviction Rules of governed by Rule effective July Affirmed.

SHERAN, Chief Justice and re- this conviction would reverse to under- trial. In order mand for a new it is my position, the reasons for stand the facts. helpful briefly to sketch midnight, just before On 4-year-old McElroy and her Mrs. Laureen Grey- outside the sitting in a car child waiting Minneapolis Jones, Defender, Depot hound Bus C. Paul Public Robert E. young Defender, when she noticed Minneapo- Asst. Public for her husband Oliphant, and a full beard enter lis, long man with hair appellant. an attache case and depot carrying Gen., Paul, Spannaus, Atty. Warren thereaft- bag. Shortly a paper textbook in Flakne, W. Vernon E. Gary County Atty., and, parcels without his er he left the Div., Chief, David W. Lar- App. Bergstrom, McElroy, walked over to according to Mrs. Barry, and Lee Haugen son and Phebe S. voice, go “Don’t her and in a normal said for re- County Attys., Minneapolis, Asst. He then There’s a bomb in there.” there. spondent. walked off. wait in the car McElroy Mrs. continued to minutes a few her husband returned until *2 * * * “threat,” later. When she told him of the may be sentenced to reported he to the incident the authorities. imprisonment for not more than three subsequent search of rental lockers years.” (Italics supplied.) the police found an attache case which Mrs. linking de- only evidence introduced McElroy identified as the one she had seen. was the testi- alleged fendant crime notes, Inside were some books which the mony McElroy. of Mrs. The defendant inscribed, name Taylor Daniel and a repeated story. then his took the stand and calculator, but no bomb. prosecutor, by On recross-examination When the defendant returned to the de- admitted, objection by over his defendant pot the next day belongings, for his he was convicted in attorney, that he had been informed of the “bomb threat” and that the marijua- ounces of Iowa of of 1½ police had taken his attache case. He went After before. na to the station and retrieved his case and hours, found deliberating only 1½ book. He was not until May arrested he was sentenced guilty charged him and later, 10 days after he was identified prison day. to for 1 and police lineup by Mrs. McElroy. Defendant’s contention on defendant’s recitation of events was that prior the admission of his different. After attending classes at Dun- prejudicial error. Our decisions reflect woody student, Institute where he was a See, concern about evidence of this kind. spent some time playing pool a bar on West, 173 N.W.2d Hennepin Avenue rather than returning home with his books. In order to be able to (1973); City 209 N.W.2d 913 Paul v. dance at Zachariah’s without worrying DiBucci, Minn. about the possible theft of his attache case (1975) (Scott, J., The issue dissenting). which an expensive contained calculator 609, Rules has now been Rule resolved notes, some very important he decided July which became effective on to togo the bus depot and store them in a Rule 609 the conviction at 1977. Under rented locker. After depositing his attache inadmissible clearly issue here would be book, case and his he returned directly to nor it was crime since neither serious Zachariah’s without speaking anyone. to dishonesty or false state- involving crime During all his po- communications with the ments.1 lice and persons other about the incident he steadfastly maintained spoken that he had tried before the Rules of This case was with no one after leaving the terminal and went into effect. This does not Evidence had never made any bomb threat. mean, however, evidence necessarily

He was tried in In West we district court the conviction was for violat- ing the trend toward evi- recognized which reads as follows: a conviction to attack a witness’ dence of if the involved dishon- credibility only

“Whoever communicates to another statement, with we refused purpose esty or false but to terrorize another or in reckless crimes could be disregard of the risk of our rule that all causing terror, such that explosives prosecution. explo- an used for this sive device any note, however, incendiary device is that— We went on to adopts deprive position Rule 609 enact rules of evidence which taken defend- Mr. * * * right. Otis in his dissent in State ant of that (1969): perpetuity N.W.2d “I condone in cannot law which perpetuate myth “To obviously effectively disclosure so denies defendant prior convictions has no effect on a opportunity profess my an his innocence. jury beyond reflecting unfavorably on his credi- opinion, simply vestige the statute is of an is, bility my opinion, judicial an abdication of prohibited era when the accused was from tes- responsibility. tifying any purpose.” on his own behalf for duty guarantee “It is our defendant a fair legislature constitutionally trial. The cannot effect, it so over- would have been the instant case admissible “the record in of de- reasoning establishes of DiBucci. whelmingly under improper ques- that even fendant of Evidence the even to the new Rules prior regarding tions had been (304 Minn. justice” “interest[s] a re- prejudice requiring a new trial at likely to arise in versal would have been be in- irrelevant evidence would *3 195, jurors.” the minds of the 173 N.W.2d 473. rule is also Application of the Stewart West rule served as exception This questionable here because of the warranted While the basis for remand Stewart. convicting de- charging of propriety again refused to its rule the statute. fendant under the terroristic-threat crimes, past the admission of all permitting of the stat- Although question neither the about the “expresse[d] grave it doubts” use ute nor the issue of whether applicability (297 of the conviction its of state sustained burden 915): interests of appeal, raised in this when the “ * * * The of this use old convic- judicial notice justice require, we can take * * * appears tion to have little rele- Rogers proceedings of errors in the below. to the truth-seeking process vance or to States, 95 v. United 422 U.S. S.Ct. character of the defendant. v. (1975); 7 Silber * * * It impossible is to determine States, 370 U.S. S.Ct. what if weight, any, ascribed to Carpen- of Brotherhood but the interests of ters 330 U.S. v. United justice mandate a new trial for defendant L.Ed. without the burden of such irrelevant “ * * * not ordinarily we do While testimony.” ** * proper- take note of errors not case, the evidence of here, is not without ly raised that rule past highly prej- defendant’s conviction was power ‘the The Court has exception. udicial, since it probably improperly was it is not error” “plain notice a jurors used to discredit the defend- * * * assigned specified,’ or [and] ant’s version of the events of circumstances, especially exceptional ‘[i]n Moreover, unlike the situation courts, in the cases, appellate in criminal evidence of hardly defendant’s was motion, interest, may, of their own public overwhelming. independent There was no exception has errors to which notice McElroy’s story; corroboration of Mrs. obvious, taken, or if if the errors are been hers. simply defendant’s word affect the fair- seriously otherwise of error in this evidence ness, reputation integrity, public added past conviction takes on ” v. United judicial proceedings.’ Silber changing significance society’s pos- of mere criminality attitude toward the L.Ed.2d 799. Although felony marijuana.2 session of of re- scope action is also within our Such in Iowa in of 1½ ounces possession 103.04, Rules by Rule contemplated view as a “small marijuana, which is considered Appellate Procedure. of Civil 152.01, subd. amount” under Minn.St. 406, 410, 144 Witzig Philips, to- in Minnesota petty misdemeanor 1(5) subds. day. Minn.St. ter- whether the highly questionable It is really a is not petty Since a misdemeanor have uti- should been roristic-threat statute crime, oc- possession had his conviction for in this situation. prosecution lized current laws were curred when Minnesota’s insignificant urged “the 2. The Bar Association and the Amer- American marijuana] personal should recently use rec- amounts ican Medical Association went on [of charges.” marijuana subject support criminal the user to ord of liberalization presidents A.B.A.J. 1695. laws. The of both associations statute, that defendant made never asked to deter- assuming Even that would not necessari- mine this defendant had the alleged, specif- comment whether terroristic threat. It have ly necessary be a ic intent to terrorize that was remark, may or he have been support conviction. joking when he said it. 609.- been Finally, a threat must be com- U.L.A., patterned 713 is after Model municated to the intended victim or 211.3,3 Code, Penal was intended to speaker it must be reasonable for the employ “those who threats in cir- relayed by assume that it will be the hearer. more serious than would be cumstance[s] Schweppe, supra. State In the case be- petty covered offenses like disorderly fore us the prosecution never demonstrated A.L.I., peace.” conduct or breach of the whom the defendant intended to terrorize. (Tent. Penal Code 211.- Model Draft Was his aim McElroy, to terrorize Mrs. Comments. drafters of this section the people inside the terminal? Since it to be clearly expected strictly construed inside, did not know that her husband was *4 (ibid.): her, he could not have terrorize intended to penalizing drafting legislation “In and the never determine threats, we would not wish to authorize expected whether he should have his threat grave sanctions the kind of verbal to be communicated to authori- expresses transitory anger threat fact, police squad ties. bomb officer carry rather than settled out admitted on cross-examination that he had per- the threat or to terrorize the other never heard of a bomb threat being made son.” way; always such threats are commu- Thus, contemplate did nicated either by telephone be utilized to behavior that personnel places letter to of the threatened. nothing consist of more serious than ruling the erroneous on the outright joke. remark or an admissibility of defendant’s Even if the statute were properly applied for mere of a small amount of

here, however, I do not believe that the marijuana and the court’s failure properly proven state has all the elements of the to charge jury, defendant’s conviction a reasonable doubt. In con beyond cannot stand. I would reverse and 609.02, this court in subd. struing remand the case to the district court for a v. Schweppe, 395, 400, new trial. (1975), “purpose” defined terrorizing in the “purpose context of OTIS, (dissenting). Justice aim, meaning objective, another” as or in join I in the the Chief Justice. dissent of See, also, A tention. similar Kansas statute was held to ROGOSHESKE, Justice (dissenting). specific that defendant had a intent Knight, another. to terrorize join I dissent of Chief Justice. Kan. 549 P.2d Gunzelman, 210 Kan. 502 WAHL, Justice Rogers v. P.2d join Mr. Chief the dissent of United Sheran. (1975) (Marshall, J.,

concurring); Watts v. 1399, 1401,22

U.S. suggesting compara that a

ble Federal statute be so construed. Since given

the instructions did no

more than merely restate words of the Schweppe,

3. State v.