This opinion will be unpublished and
may not be cited except pursuant to
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
State of Minnesota,
Jesse William King,
Toussaint, Chief Judge
Anoka County District Court
File No: K7987607
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Robert M.A. Johnson, Anoka County Attorney, Mary K. Doty, Assistant County Attorney, Anoka County Courthouse, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)
John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414; and
Joseph P. Tamburino, Allan Hart Caplan & Associates, P.A., 525 Lumber Exchange Building, 10 South 5th Street, Minneapolis, MN 55420 (for appellant)
Considered and decided by Toussaint, Chief Judge,Peterson, Judge, and Huspeni, Judge.*
TOUSSAINT, Chief Judge
Appellant Jesse William King challenges his convictions for: (1) first-degree assault in violation of Minn. Stat. § 609.221 (1998); and (2) fleeing a peace officer in a motor vehicle in violation of Minn. Stat. § 609.487, subd. 3 (1998). King contends the trial court erred in refusing to modify the self-defense instruction given to the jury. King also argues the trial court’s admission of testimony regarding recorded telephone communications violated his rights to privacy under Minn. Stat. § 626A.01, subd. 4 (1998), 18 U.S.C. § 2510(2) (1998), the Fourth Amendment of the United States Constitution, and Article I, Section 10 of the Minnesota Constitution. Because there was no error in the jury instructions or admitting evidence concerning the telephone call, we affirm.
In a lover’s triangle, bad blood quickly developed between King and Michael Peterson as they both sought the affection of Susan Peters. This tumultuous relationship inevitably boiled over into a fight between King and Peterson in the early morning hours of August 22, 1998. King slashed at Peterson with his machete, while Peterson swung a baseball bat. During the fracas, King cut Peterson’s right forearm. The wound began to bleed profusely and he lost control of the bat. But, the fight continued until Peterson saw King slice off his hand as he tried to guard his face from the machete.
While Peterson made his way to a nearby convenience store, where Peters was calling 911, King used his machete to cut the radiator hose and wires of the van Peters and her daughters were living in. Peters’s older daughter, April Hronoski, hit King in the head with a board used to prop the van hood open and slammed the van hood on King’s head. Peters’s other daughter, V.H., testified that she wanted to drive King into a tree with the van, but couldn’t because April was holding King’s hair and punching him in front of the van. During the beating, King dropped his machete. Before racing away from the scene on his motorcycle, however, King threatened to harm V.H.
Blaine Police Officer Patrick Daly arrived first and saw Peterson trying to stop the bleeding by holding his arm tourniquet-style. After the ambulance arrived, Daly found Peterson’s severed hand next to the machete and placed it in a cold pack to be taken to the hospital with Peterson. Following a high-speed chase through a residential neighborhood, the police arrested King after he lost control of his motorcycle.
King was taken to the Anoka County jail. During booking, King: (1) was informed of the jail’s telephone recording system; (2) was assigned a personal identification number; and (3) signed a waiver and consent form acknowledging that he understood the police would monitor and record his social telephone calls. As part of his investigation in this case, Blaine Police Detective Steve Wolf listened to two tape recordings of King’s telephone conversations. At trial, Wolf testified about King’s conversations.
King was charged with attempted second-degree murder, first-degree assault, and fleeing a police officer. Despite conflicting testimony as to which party was the initial aggressor, the jury convicted King of first-degree assault and fleeing a police officer, but acquitted him of attempted second-degree murder. King moved for a new trial, but the trial court denied the motion and sentenced him to concurrent sentences of: (1) 86 months on the assault conviction; and (2) one year and one day on the conviction for fleeing a police officer. This appeal followed.
King contends the trial court’s refusal to modify the self-defense jury instruction misled the jury to believe there was no alternative but to convict him, entitling him to a new trial. An appellatecourt reviews a trial court’s jury instructions for abuse of discretion and errors of law. State v. Lory, 559 N.W.2d 425, 427 (Minn. App. 1997), review denied(Minn. Apr. 15, 1997). There is no reversible error where a court’s charge to the jury, read as a whole, “correctly states the law in language that can be understood by the jury.” State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998) (citation omitted). In determining whether jury instructions fairly and adequately state the applicable law, this court assumes the jurors are “intelligent and practical people.” Id. (citation omitted).
Before trial, defense counsel objected to the prosecution’s proposal that the court read 10 Minnesota Practice, CRIMJIG 7.07 (1998) (“Revival of Aggressor’s Right of Self-Defense”) to the jury, but offered no argument or reasoning for the objection. At the conclusion of the trial, defense counsel renewed his objection to CRIMJIG 7.07 because: (1) the instruction is not implicated unless the defendant instigated an actual physical confrontation; and (2) the phrase “began or induced the incident” is vague. The trial court declined to modify CRIMJIG 7.07 and instructed the jury as follows:
If defendant began or induced the incident which led to the necessity of using force in the defendant’s own defense, the right to stand the defendant’s ground and thus defend himself is not immediately available to him, but instead, he must first have declined to carry on the affray and have honestly tried to escape from it, and must clearly and fairly have informed the adversary of a desire for peace and of abandonment of the contest. Only after he has done that will the law justify him in thereafter standing his ground and using force upon the other person.
10 Minnesota Practice, CRIMJIG 7.07.
In addition to reading CRIMJIG 7.07, the record shows that the trial court instructed the jury that: (1) King would not be guilty of a crime if he used reasonable force to resist Peterson’s attack; (2) King could lawfully use the same degree of force a reasonable person would deem necessary to thwart an attack; (3) the state bears the burden of proving King did not act in self-defense; (4) self-defense does not authorize revenge or punishment; and (5) self-defense is only available if King acted honestly and in good-faith in retreating and attempting to avoid danger. On this record, the trial court clearly and adequately explained the law of self-defense in Minnesota and properly instructed the jury that the state bears the burden of proving beyond a reasonable doubt that King did not act in self-defense. See Peou, 579 N.W.2d at 475 (explaining there is no reversible error where jury instructions, read in their entirety, correctly state the law in language understandable to the jury).
Moreover, there was no error in declining to modify the language of CRIMJIG 7.07. The refusal to give a requested jury instruction lies within the discretion of the trial court and will not be reversed absent an abuse of that discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996). A trial court has considerable latitude in determining the appropriate language for the jury instructions. State v. Auchampach, 540 N.W.2d 808, 816 (Minn. 1995). Here, the trial court chose not to alter the language of CRIMJIG 7.07 to define “incident” at the time actual physical confrontation commenced. Because the instructions accurately addressed whether King could avail himself of the defense of self-defense, the trial court did not abuse its discretion in submitting CRIMJIG 7.07 to the jury without modification. See State v. Jaworsky, 505 N.W.2d 638, 643 (Minn. App. 1993) (holding specific requested language not required where jury instruction fairly presented issue to jury), review denied (Minn. Sept. 30, 1993).
King also contends the self-defense instruction was inappropriate because the evidence did not show he was the initial aggressor. While there is conflicting evidence and testimony regarding who instigated the fight, the record shows King: (1) waited at Peters’s home for several hours, in order to catch her with Peterson in his van; (2) engaged in a heated argument with Peters when she returned home with the van; (3) retrieved a machete from his motorcycle during the argument; (4) pushed Peters and cut her thumb with the machete during the argument; (5) approached the van with a suspicion Peterson would be inside; and (6) slashed at Peterson with his machete. On this record, there was sufficient evidence to raise the issue of self-defense and permit a jury instruction on the issue. It is the jury’s province to determine which party was the original aggressor and whether King could avail himself of the defense of self-defense. Accordingly, there was no abuse of discretion in submitting CRIMJIG 7.07 to the jury.
In addition, King argues the phrase “began or induced the incident” in CRIMJIG 7.07 is unconstitutionally vague and overbroad under State v. Machholz, 574 N.W.2d
415 (Minn. 1998). There is no caselaw to support a viable argument regarding the constitutionality of CRIMJIG 7.07.
King contends he is entitled to a new trial because the trial court violated his statutory and constitutional rights of privacy by allowing a police officer to testify about
King’s incriminating recorded telephone communications. At the Omnibus hearing, King moved to suppress any testimony regarding recorded telephone statements during his incarceration. The trial court denied the motion because King knowingly, freely, and voluntarily consented to the jail’s practice of recording all inmates’ telephone communications, except calls to an attorney. A trial court’s evidentiary rulings are accorded broad discretion and will not be reversed absent an abuse of discretion. State v. Flores, 595 N.W.2d 860, 865 (Minn. 1999).
King first argues oral communications made with the expectation that they are not subject to interception are statutorily-protected communications. See Minn. Stat. § 626A.01, subd. 4 (1998) (defining “oral communications”); 18 U.S.C. § 2510(2) (1998) (same). Generally, oral communications cannot be recorded or admitted into evidence without a warrant, except under specifically defined exceptions and procedures. See Minn. Stat. §§ 626A.02 (1998) (enumerating circumstances where it is not unlawful to intercept otherwise protected communications), 626A.05 (1998) (authorizing interception of protected communications with warrant); see also 18 U.S.C. §§ 2510-2521 (1998) (explaining the general prohibition on warrantless interception of oral communications). While no warrant was issued to record King’s communications, it is not unlawful to intercept oral communications where “one of the parties to the communication has given prior consent to such interception.” Minn. Stat. § 626A.02, subd. 2(c); 18 U.S.C. § 2511(2)(c) (1998). Because the record clearly shows King consented to the jail’s policy of recording phone calls, there was no violation of federal or state statutory rights of privacy. See, e.g., United States v. Horr, 963 F.2d 1124, 1126 (8th Cir. 1992) (holding it is not unlawful for law enforcement officials to intercept oral communication where defendant signed waiver consenting to prison’s policy of recording and monitoring inmate telephone calls).
But, King also claims tape-recording inmate telephone calls violates an individual’s constitutional right to be free from unreasonable searches and seizures. See U.S. Const. amend. IV; Minn. Const. art. I, § 10. An unreasonable search and seizure occurs when police conduct violates an individual’s actual, subjective expectation of privacy, which society is prepared to recognize as reasonable. Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 516 (1967) (Harlan, J., concurring). King cites State v. Edrozo for the proposition that Minnesota has not decided whether covert taping of a defendant’s conversations violates the Fourth Amendment of the United States Constitution, Article I, Section 10 of the Minnesota Constitution, or related federal and state communications statutes. State v. Edrozo, 578 N.W.2d 719, 726 (Minn. 1998) (Blatz, C.J., concurring specially). In that case, Justice Blatz commented that:
Without deciding the issue, it would seem disingenuous for the police to develop investigatory practices such as the covert taping in the instant case, the success of which depends upon the privacy expectations of individuals, and then later claim that these expectations are not reasonable.
This case does not involve covert taping because King was informed of the recording policy and asked to sign a waiver acknowledging his understanding that all social phone calls would be monitored and recorded. Therefore, Edrozo is distinguishable and there is no Minnesota caselaw to support King’s contention.
Moreover, the Eighth Circuit Court of Appeals recently held that:
[i]f someone agrees that the police may listen to his conversations and may record them, all reasonable expectation of privacy is lost, and there is no legitimate reason to think that the recordings, like any other evidence lawfully discovered, would not be admissible.
United States v. Eggleston, 165 F.3d 624, 626 (8th Cir. 1999) (citing Horr, 963 F.2d at 1126), cert. denied, 526 U.S. 1031 (1999). While Eggleston does not bind this court, it provides persuasive guidance for addressing King’s constitutional arguments. Because the record shows King knowingly, freely, and voluntarily consented to the jail’s tape-recording policy, he lacked a reasonable expectation of privacy in his telephone communications while in jail and his constitutional arguments are unsuccessful. Therefore, the trial court properly admitted evidence concerning King’s telephone communications.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 We note that this court recently held that it is not an abuse of discretion to submit the self-defense jury instruction where there is sufficient evidence to permit a reasonable juror to conclude the defendant was the original aggressor. State v. Dolan, No. C5-99-86, 1999 WL 101196F, at * 4 (Minn. App. Nov. 9, 1999). However, we recognize that unpublished opinions are of persuasive value “[a]t best” and not precedential. Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn. App. 1993).