This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





Harvey William La Doucer,



Filed June 25, 2002


Kalitowski, Judge


Ramsey County District Court

File No. K9993701


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


Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)


John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Harvey William La Doucer appeals from his conviction of attempted first-degree murder, arguing that the district court (1) abused its discretion by allowing the victim, his estranged wife, to testify about prior incidents in which appellant had been violent with her, but precluding the defense from introducing his son’s testimony about appellant’s relationship with the victim; (2) abused its discretion by admitting appellant’s prior convictions for impeachment purposes; and (3) violated his Sixth Amendment rights by excluding him from judge-jury communications without his consent.  We affirm.



            Appellate courts largely 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).


            Appellant claims the district court abused its discretion by admitting his wife’s testimony about their relationship.  Appellant specifically objects to his wife’s testimony regarding “a few violent episodes.”  Appellant’s wife testified that:  (1) appellant threatened to kill her in 1996 when she told him she was going to call the police; and (2) on several occasions appellant screamed at her and during one argument appellant choked her, resulting in her obtaining an order for protection.

            Minnesota Rule of Evidence 404 (b) permits the introduction of evidence of another crime, wrong, or act “to show motive, intent and plan, among other things.”  State v. Bauer, 598 N.W.2d 352, 364 (Minn. 1999).  Evidence showing the strained relationship between the victim and accused establishes motive and intent and is admissible.  Id.  Before admitting such evidence the district court must determine that there is clear and convincing evidence that the accused committed the act and that the evidence’s probative value outweighs its potential for prejudice.  Id. 

Here, the district court permitted appellant’s wife to testify about their relationship and allowed the state to enter some documents that corroborated her testimony.  The court determined this evidence was more probative than prejudicial.  But the district court refused to allow into evidence the majority of the state’s documents supporting appellant’s wife’s testimony.  We agree with the district court that the evidence that was admitted illuminated the parties’ relationship and provided context for the crime charged, thus bearing on motive and intent.  Moreover, the district court instructed the jury that the relationship evidence “was admitted for the limited purpose of illuminating the relationship between the parties.”  We conclude the district court acted within its discretion in allowing appellant’s wife’s testimony regarding the history of her relationship with appellant.

            Appellant contends that the district court’s alleged error in admitting appellant’s wife’s testimony was compounded when the court refused to allow their son’s testimony concerning appellant’s relationship with his wife.  We disagree.  It was within the district court’s discretion to rule the son’s testimony inadmissible.  Moreover, even if the district court erred when it refused to allow the son’s testimony, the error is harmless if this court is

satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, an average jury (i.e., a reasonable jury) would have reached the same verdict. 


State v. Post, 512 N.W.2d 99, 102 (Minn. 1994).  Here, because appellant’s conviction was based on strong evidence of both his history of violence and his motive, we are satisfied beyond a reasonable doubt that the son’s proposed testimony about how appellant loved his wife would not have changed the jury’s verdict.  Thus, even if the district court should have allowed the testimony, any error was harmless.           


            A district court’s ruling on the impeachment of a witness by prior conviction is reviewed, as are other evidentiary rulings, under a clear abuse of discretion standard.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).  Whether the probative value of the prior convictions outweighs their prejudicial effect is a matter within the discretion of the district court.  State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985).  The district court’s decision will not be reversed absent a clear abuse of discretion.  Id. at 209. 

            Appellant contends the district court abused its discretion by ruling that appellant could be impeached with prior convictions contending that because the convictions were similar to the current charge, they were overly prejudicial.  We disagree.

            The district court stated that after reviewing the relevant factors, it found that “the probative value of these convictions outweighs any prejudicial effect it might have upon the defendant.”  Further, the district court noted that (1) the impeachment value of the convictions gave the jury the opportunity to see appellant’s true character; (2) the convictions were not very similar to the present crime; and (3) it was important that the jury see appellant’s “true person.” 

            Minnesota Rule of Evidence 609 (a) states that for attacking a witness’s credibility, evidence that the witness was convicted of a crime can be admitted if the crime (1) was punishable by imprisonment for more than one year and the court determines the probative value of the evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the length of punishment.  Such evidence is only admissible if ten years or less has elapsed since the date of conviction or date of release from confinement, unless the court determines the probative value substantially outweighs the prejudicial effect of the older convictions.  Minn. R. Evid. 609 (b). 

            In determining whether to admit evidence of a prior crime, the court should consider

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.


State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978) (citation omitted).

            Here, appellant was impeached with evidence of a 1987 “menacing” conviction and a 1996 conviction of aggravated robbery.  Appellant was not released from the menacing conviction until 1991, so it was within rule 609’s ten-year requirement.  Moreover, the impeachment value of the crimes is strong because they indicate appellant is tenacious.  And contrary to appellant’s contention, the previous crimes are not very similar to the present charge of attempted murder.  Finally, appellant’s credibility was critical because his entire defense rested on his claim that the shooting was an accident.  We conclude the district court did not abuse its discretion by ruling appellant could be impeached by evidence of his two most recent crimes.


            In determining whether appellant’s erroneous exclusion from judge-jury communications was harmless, reviewing courts consider the strength of the evidence and the substance of the judge’s response.  State v. Sessions, 621 N.W.2d 751, 756 (Minn. 2001) (citation omitted)

            Appellant contends the district court denied him the right to be present at a critical stage of his trial violating his Sixth Amendment right to be present during judge-jury communications.  “[T]he Sixth Amendment to the United States Constitution grants a defendant the right to be present at all stages of trial.”  Id. at 755(citation omitted).  “Responding to a deliberating jury’s question is a stage of trial.”  Id. (citation omitted). 

            Here, the jury asked:

If defendant is found guilty of attempted murder in the first degree, can he also be found guilty in the second degree?  We are questioning ‘without premeditation’ if he is found guilty of attempted murder in the first degree.


The court consulted with appellant’s trial counsel and the state’s counsel and answered: “You should reach verdicts on both counts.”  

            We conclude that the district court should have had appellant present when responding to the jury’s question but that any violation of appellant’s confrontation clause rights was harmless error.  The state’s evidence was strong.  Appellant had a history of violence toward his wife, and went to her house drunk with a gun on the night of a divorce proceeding.  Moreover, after the incident, appellant sent his wife a package with a bullet and some threatening language.  Importantly, the judge’s response to the jury’s question was agreed to by appellant’s counsel, and was as neutral as possible.  Thus, we conclude that the error was harmless.