This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).





State of Minnesota,





David Nicholas Garcia,



Filed December 12, 2000


Forsberg, Judge*


Ramsey County District Court

File No. K2991093


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)


John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Willis, Presiding Judge, Forsberg, Judge, and Holtan, Judge.**

U N P U B L I S H E D   O P I N I O N




            Appellant David Nicholas Garcia challenges his convictions of second-degree intentional murder under Minn. Stat. § 609.19, subd. 1(1) (1996), and second-degree murder under Minn. Stat. § 609.19, subd. 1(2) (1996), arguing that (1) the evidence presented was insufficient to show that he had the requisite specific intent to kill, and (2) his conduct does not qualify him as a “drive-by shooter.”  Further, Garcia argues that the trial court abused its discretion by precluding an expert witness from testifying regarding his diagnosed attention deficit hyperactivity disorder (ADHD).  We affirm.


On October 1, 1997, juveniles R.W., D.C., W.W., M.S., and C.B. were at 1939 Marshall Avenue visiting a friend who resided in the building.  Upon leaving the apartment, the juveniles stopped at a convenience store so that M.S. could make a telephone call.  Upon hearing that M.S. was calling R.V., an individual that R.W. and D.C. disliked, D.C. became angry and started berating the girls for associating with R.V. 

M.S. summoned R.V. to the convenience store after M.S. complained that R.W. and D.C. were harassing, name-calling, and threatening M.S. and her friend C.B.  Before driving to the store to pick up M.S. and C.B., R.V. placed his short-barreled shotgun in the trunk of his vehicle.  Garcia, C.C., and P.C. were passengers in R.V.’s vehicle.  L.A., a friend of R.V.’s, drove separately to the store. Upon arrival at the store, a confrontation ensued wherein Garcia, R.V., C.C., P.C., and L.A. argued with R.W. and D.C. regarding the remarks they had previously made to M.S. and C.B.  Upon seeing the confrontation unfold, a store employee called the police and notified the juveniles that the police had been called.  The juveniles left the scene. 

Garcia, C.C., P.C., M.S., and C.B. rode with R.V. in his vehicle.  L.A. drove his vehicle and followed the R.V. vehicle.  While inside R.V.’s vehicle, M.S. and C.B. mentioned that R.W. and D.C. had earlier stated that they had some marijuana or approximately $1,000 on their persons.  A group decision was made to rob R.W. and D.C.  

  M.S. and C.B. knew the name of the apartment complex they had been at with R.W. and D.C. earlier in the evening; however, they did not know on which street the complex was located.  After asking two individuals for directions to the apartment complex, the juveniles spotted R.W. and D.C. walking near an alleyway.  P.C. and Garcia exited the vehicle with guns.  A second confrontation occurred between the two groups, wherein R.W. and D.C. were together robbed of $4, a bag of marijuana seeds, and a pager.  R.V. and his previously-mentioned passengers began to leave the scene.  As R.V. started to drive away, Garcia opened the car door, exited the vehicle, and fired his handgun four times.  Garcia shot D.C., injuring him, and mortally wounded R.W.

The jury found Garcia guilty of second-degree intentional murder, attempted second-degree intentional murder, second-degree murder (drive-by shooting), and second-degree assault.  The trial court convicted and sentenced Garcia of second-degree intentional murder and attempted second-degree intentional murder.


I.          Sufficiency of the Evidence


The state has the burden of proving beyond a reasonable doubt the existence of each and every element of the crimes charged.  State v. Robinson, 539 N.W.2d 231, 238 (Minn. 1995).  An appellate court reviews a sufficiency of the evidence challenge by viewing the evidence in the light most favorable to the verdict and assumes the fact-finder disbelieved any testimony in conflict with the verdict.  State v. Thomas, 590 N.W.2d 755, 757 (Minn. 1999).  The reviewing court will uphold the verdict if, “giving due regard to the presumption of innocence and to the state’s burden of proof beyond a reasonable doubt,” the fact-finder “could reasonably have found the defendant guilty.” Id. at 757-58.

Second-degree intentional murder

The elements of second-degree intentional murder as charged in this case are that the actor “causes the death of a human being with intent to effect the death of that person * * *, but without premeditation.”  Minn. Stat. § 609.19, subd. 1(1) (1996). 

            Garcia argues that “the testimony elicited at trial showed that appellant acted rashly and impulsively, but without the specific intent to kill R.W.” 

When viewed in the light most favorable to the jury’s verdict, however, the evidence supports the conviction. The victim, D.C., testified that during the confrontation in the alleyway Garcia was continuously saying, “Should I pop him?”  When the prosecutor asked what that meant, D.C. said it meant, “Should I shoot him?” D.C. also testified that (1) Garcia stood still and pointed the gun at D.C.; (2) D.C. ducked in between a row of cars after he was shot in the back; (3) after two shots were fired, Garcia was “raising the gun over the car like he was trying to shoot me over the car”; and (4) Garcia was approximately 10-12 feet away from R.W. and D.C. when he shot them.

P.C. also testified that after the confrontation at the convenience store, but before arrival at 1939 Marshall Avenue, Garcia exited the vehicle, took his .22 caliber handgun out of R.V.’s trunk, and loaded it.  P.C. further testified that, upon arrival at 1939 Marshall Avenue, (1) the confrontation between the two groups had ended; (2) Garcia asked R.V., “Should I pop him?,” and that R.V. indicated he should go ahead; and (3) Garcia got out of the vehicle “took a couple steps back and just started shooting.”  

            C.C. testified that (1) during the confrontation in the alleyway, Garcia was holding a handgun; (2) after the confrontation had ended, Garcia entered the vehicle and shut his passenger-side door; (3) R.V. asked Garcia and C.C. “Did [you] get them fools?” and both replied, “No”; (4) R.V. placed the car in drive and began to drive away from the scene; and (5) Garcia exited the moving vehicle, fired his gun, and re-entered the vehicle.

            R.V. testified that (1) R.W. started walking away from the confrontation; (2) Garcia entered R.V.’s vehicle and shut the door; (3) R.V. asked Garcia, if “you're such a hard ass, why don't you shoot him?”; (4) R.V. put the car into drive and began “rolling”; and (5) Garcia exited the vehicle and fired several shots.   

            M.S. testified that after hearing gunshots, Garcia re-entered the vehicle, and “started saying that he missed.  We got to go back.”              

            Based on the standard of review, this court assumes that the jury believed the testimony of the above-named individuals, and disbelieved evidence to the contrary.  The trier of fact determines the credibility of witnesses, as well as the weight of evidence admitted.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).   

The evidence shows that Garcia intended to shoot R.W., and believed that the act, if successful, would cause R.W.’s death.  Garcia had an opportunity to leave the scene and end the confrontation with R.W. and D.C.  The evidence shows that Garcia acted with the intent to kill R.W.  Garcia loaded his handgun in preparation for the robbery of R.W. and D.C., inquired whether he should shoot R.W. and D.C., expressed disappointment when he believed that he had not struck either R.W. or D.C. with a bullet, and wanted to return to the scene to finish the shooting. 

The trier of fact was entitled to believe the testimony of the state’s witnesses and disbelieve all contrary evidence.  The evidence was sufficient to support the conviction.

Second-degree murder (drive-by shooting)

The elements of second-degree murder (drive-by shooting) as charged in this case are that the actor recklessly discharges a firearm at or toward a person, causing the death of a human being, while committing or attempting to commit a drive-by shooting while in or having just exited from a motor vehicle.  Minn. Stat. § 609.19, subd. 1(2) (1996). 

            It is unnecessary for this court to determine if there was sufficient evidence to support a conviction for second-degree murder (drive-by shooting) since Garcia was not convicted on that charge.  Although Garcia was found guilty of all four charges, he was only convicted and sentenced on second-degree intentional murder and attempted second-degree intentional murder.

II.        Exclusion of Expert Testimony

Generally, admission of expert testimony rests within the district court’s discretion and will not be reversed absent clear error.  State v. Koskela, 536 N.W.2d 625, 629 (Minn. 1995).  Even where a defendant alleges a constitutional violation, we review evidentiary questions for abuse of discretion.  State v. Profit, 591 N.W.2d 451, 463 (Minn. 1999), cert. denied, 120 S. Ct. 153 (U.S. Oct. 4, 1999).

Garcia argues that the trial court’s denial of his motion to present expert testimony regarding Garcia’s diagnosed attention deficit hyperactivity disorder (ADHD), its treatment, and the general effects of the disorder on an individual deprived him of his constitutional right to present his defense, thereby denying him a fair trial. 

Generally, expert testimony is admissible if:

(1) it assists the trier of fact, (2) it has a reasonable basis, (3) it is relevant, and (4) its probative value outweighs its potential for unfair prejudice.


State v. Jensen, 482 N.W.2d 238, 239 (Minn. App. 1992), review denied (Minn. May 15, 1992).   

Minn. R. Evid. 702 sets the basic standard for admission of expert testimony:

If scientific, technical, or other specialized knowledge will assist the trier of fact * * * a witness qualified as an expert by knowledge, skill, experience, training, or education may testify * * * in the form of an opinion or otherwise.


While Minn. R. Evid. 401 adopts a minimal relevancy approach, the trial court may consider the offered expert testimony under a balancing test embodied in Minn. R. Evid. 403:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or * * * undue delay, waste of time, or needless presentation of cumulative evidence.


See also State v. Nystrom, 596 N.W.2d 256, 259 (Minn. 1999) (holding district court must scrutinize proffered expert testimony and exclude it if it is irrelevant, confusing, or not helpful).  We proceed with great caution when reviewing the admissibility of expert testimony in criminal trials.  State v. Grecinger, 569 N.W.2d 189, 193 (Minn. 1997).  This is necessary to guard against the expert’s “potential to influence a jury unduly” with his court-recognized “special knowledge” and to “ensure that the defendant’s presumption of innocence does not get lost in the flurry of expert testimony.”  Id.

            In the first phase of a bifurcated trial, expert psychiatric opinion testimony on whether the defendant had the requisite mens rea and the capacity to form the requisite mens rea is inadmissible.[1]  State v. Provost, 490 N.W.2d 93, 104 (Minn. 1992), cert. denied, 507 U.S. 929 (U.S. Feb. 22, 1993).  Minnesota courts do not allow expert psychiatric opinion testimony to show diminished capacity or diminished responsibility.  Id. at 100.  The Provost court reasoned that the role of the court and the jury is to determine whether the facts of a particular case fit within a criminal statute, and that

all those who commit the same acts with the same mens rea are guilty of the same offense, regardless of differences in upbringing, mental condition, or environmental background, so long as they understand the nature of their act and that it was wrong.  In other words, all defendants who are not insane are held to a certain minimal standard of conduct.



The trial court denied Garcia’s motion to present general characteristics of the condition, including the effects of ADHD on perception, thought processes, and ability to reason.  The court concluded that the proffered expert testimony lacked probative value.  Further, the court found that the expert testimony “adds nothing to what defendant here had in mind which is the issue under consideration.”  The Provost court reasoned that

if psychiatric opinion testimony is admitted on the issue of whether the defendant did or didn’t have the requisite guilty mind the jury will inevitably take the testimony as an invitation to consider whether the defendant could or couldn’t have a guilty mind. * * * Cautioning the jury not to consider diminished capacity or responsibility would only cause confusion.


Id. at 100.  Although the Provost court stated that there might be a few exceptions to the general rule that excludes all expert psychiatric opinion testimony that evaluates a defendant’s general capacity to entertain the requisite intent, these situations are “very rare.”  Id. at 103.  This is not the “very rare” case contemplated by Provost.

            In Provost, the defendant’s offer of proof outlined that a psychiatrist would have testified that the defendant is schizophrenic, that schizophrenic persons typically have thought disorders, that it can loosen association, and determination of cause and effect and consequences can be impaired.  Id. at 104.  The court found that the offered testimony lacked probative value.  Id.  Similarly, Garcia attempts to introduce the same type of testimony through his offer of proof.  The proposed testimony has no probative value on the intent Garcia had when he shot and killed R.W.

            The trial court’s refusal to admit expert testimony offered in support of Garcia’s claims that his diagnosed ADHD impaired his ability to form the requisite intent for murder was not clear error, given the trial court’s finding that the testimony was offered to show diminished capacity, and that it lacked probative value.




* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

** Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Garcia did not assert that he is not guilty by reason of mental illness.  Therefore, he is not entitled to a bifurcated trial under Rule 20.02 of the Minn. R. Crim. P., in which he would be free to explore his mental illness in the second phase of trial.