This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
David Lee Dalton,
Filed December 19, 2000
Stearns County District Court
File No. K3-99-3878
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and
Roger S. VanHeel, Stearns County Attorney, Box 1168, St. Cloud, MN 56302 (for respondent)
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Anderson, Judge.
Appellant challenges his conviction of felony domestic assault, arguing that the trial court abused its discretion in refusing to give a self-defense instruction and in excluding evidence that the victim and an eyewitness had been arrested in order to ensure their appearance at trial. Appellant also moves this court for leave to file a pro se reply brief raising new issues. Because we see no abuse of discretion in the jury instructions and evidentiary decision, we affirm; because the reply brief is not properly before this court and this court is not the appropriate forum for addressing appellant’s postconviction issues, we deny his motion.
Appellant David Dalton has three prior convictions for assaulting his wife, Gay Marie Johnson. In October 1999, appellant and Johnson were staying at the residence of a friend, Yvonne White. When appellant telephoned his wife from a bar, she told him not return to White’s residence because he had been drinking. Appellant nevertheless arrived at White’s residence and began fighting with Johnson. Who threw the first punch is disputed.
Appellant hit Johnson with his fists, kicked her, smeared peanut butter on her, and chased her around the house. White called 911. An officer arrived, subdued appellant, and placed him in a squad car. Appellant was charged with felony domestic assault.
Because the state had difficulty serving trial subpoenas on Johnson and on White, warrants were issued for their arrest. Police located White the day before trial and detained her overnight; she was released the next morning when she agreed to return to testify. Johnson was located the night before trial; she was unable to post $500 bail and was retained in custody until she testified the next day.
The officer who answered White’s 911 call testified that (1) when he arrived at the house a male and female were arguing, shouting, and moving around; (2) “the male was pursuing the female”; (3) the officer had to stand between the couple to physically separate them; (4) the female was cowering and attempting to avoid the male; (5) the male ignored the officer’s instructions and had to be placed in handcuffs; (6) the male was very belligerent, appeared intoxicated, and smelled of alcohol; and (7) the male continued to shout in the squad car, “most of it * * * directed at the female.”
After a two-day trial, a jury convicted appellant of felony domestic assault. He challenges the conviction on the grounds that the district court abused its discretion in refusing to instruct the jury on self-defense and in refusing to allow appellant to question Johnson and White about their involuntary appearance at trial. Appellant also moves this court for leave to file a pro se reply brief.
D E C I S I O N
1. Jury Instruction on Self-Defense
The giving of a requested jury instruction lies within the discretion of the district court and will not be reversed absent an abuse of discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996). Appellant argues that the district court abused its discretion in refusing to instruct the jury on self-defense.
For this argument, he relies on State v. Graham, 371 N.W.2d 204, 209 (Minn. 1985) (holding that a defendant seeking a self-defense instruction must submit reasonable evidence that the victim was committing an independent assault on the defendant at the time the defendant committed the assault on the victim). Appellant argues that because Johnson admitted hitting him, she was committing an independent assault.
But Johnson had told appellant to stay away from White’s house, had attempted unsuccessfully to flee from appellant when appellant arrived at the house, and had been pursued through the house by appellant. She did not commit an independent assault when she returned his blows. Appellant offers no support for his view that fighting back is an independent assault.
Moreover, appellant fails two other legal criteria for self-defense. State v. Basting, 572 N.W.2d 281, 285 (Minn. 1997), requires that there be no aggression or provocation on the part of a self-defense claimant; the record shows that appellant provoked Johnson by going to White’s residence when he had been told to stay away and that he was the aggressor. State v. Boitnott, 443 N.W.2d 527, 532 (Minn. 1989), requires that a defendant show a reasonable or good-faith effort to withdraw from the conflict; the record shows that any effort to withdraw was on the part of Johnson, not of appellant.
Appellant also relies on State v. Glowacki, __ N.W.2d __ (Minn. App. 2000), review granted (Minn. Sept. 27, 2000). Glowacki involved a physical dispute between co-residents of the same dwelling. In Glowacki we reversed and awarded a new trial because the jury had been incorrectly instructed that self-defense “is available only to those who act honestly and in good faith and this includes the duty to avoid the danger if reasonably possible.” Glowacki held that this instruction should not be given in cases involving co-residents because it could cause a jury to conclude erroneously that self-defense claimants are obligated to leave their own residences to avoid altercation.
Glowacki is clearly distinguishable from this case. Appellant and Johnson were not co-residents of White’s house; they were temporary guests, and appellant had been told to stay away. Moreover, appellant could have withdrawn from the conflict by going into another room; he would not have had to leave the house.
The district court did not abuse its discretion in refusing to instruct on self-defense.
2. Cross-examination of State’s Witnesses
Appellate courts defer to the district court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).
Both Johnson and White testified that they were appearing involuntarily. Appellant, however, wanted to examine them as to the circumstances of their arrests and detentions, arguing that this evidence would impeach them by showing what the state had done to ensure their cooperation and would reveal that they were biased in favor of the state. The district court refused, stating that this evidence would be collateral to the case in chief.
After Johnson testified, appellant exclaimed within the jury’s hearing:
Jury, I need for you all to * * * hear this. They have taken advantage of my wife because she can’t read and write. * * * They locked her up. They locked her up to make her come testify. * * * They have taken advantage of my wife. They locked her up. And they taken [sic] advantage of me in the Stearns County Jail. * * * I am not lying to you. And they know my wife. * * * [S]he don’t want to testify against me, and they [are] making her do it. They [are] making her.
Johnson and White testified that they were appearing involuntarily; appellant told the jury that Johnson’s testimony was involuntary. Questioning Johnson and White on how they had been brought to testify would neither have impeached them nor shown their bias in favor of the state.
Moreover, even if the district court did abuse its discretion in not allowing appellant to question Johnson and White, the error was harmless and would not entitle appellant to a new trial. The officer’s testimony provided ample support for the jury’s finding that appellant was guilty of felony domestic assault. Where an average jury would have reached the same verdict if erroneously excluded evidence had been admitted, the error is harmless. See State v. Post, 512 N.W.2d 99, 102 (Minn. 1994).
3. Appellant’s Pro Se Reply Brief
Appellant’s pro se reply brief is devoted entirely to issues not previously raised by either party, namely ineffective assistance of counsel, prosecutorial misconduct, and discrimination based on race. Both case law and the Rules of Civil Appellate Procedure mandate that we deny appellant’s motion to file the brief. See Berg v. State, 557 N.W.2d 593, 596 (Minn. App. 1996) (holding that issues first raised in a reply brief are not properly before this court and will not be considered); Minn. R. Civ. App. P. 128.02, subd. 3 (providing that a reply brief must be confined to new matter raised in the respondent’s brief). Moreover, even if appellant’s reply brief were properly before us, there is no relief this court could grant. Appellant’s claims, made for the first time on appeal, are bare averments on an undeveloped record and are not within our scope of review.
Affirmed; motion denied.
 The jury acquitted him of interference with a 911 call.