This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Albert Maurice Hillman,
Filed July 30, 2002
Isanti County District Court
File No. K700513
Mike Hatch, Attorney General, John Docherty, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Jeffrey Edblad, Isanti County Attorney, 555 18th Avenue SW, Cambridge, MN 55008 (for respondent)
John M. Stuart, Minnesota Public Defender, Jodie L. Carlson, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Forsberg, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Albert Maurice Hillman appeals from his conviction of attempted first-degree murder, first-degree assault, drive-by shooting, and first-degree controlled-substance crime. Appellant contends that the evidence was insufficient to sustain his conviction for attempted first-degree murder. Appellant also argues that (1) the district court abused its discretion by refusing to give the jury an intoxication instruction, (2) the district court erred by allowing appellant’s prior conviction for a third-degree controlled-substance crime to be used for impeachment, and (3) the prosecutor committed prejudicial misconduct. We affirm.
Around 2:00 p.m. on April 8, 2000, Isanti County Sheriff Deputies Gregory Kranz and Christopher Janssen received a call from dispatch regarding a report of a suspected intoxicated driver on County Road 23. The deputies spotted a van meeting the caller’s description, activated the squad car’s lights and sirens, and pulled behind the van, but the van refused to pull over.
Hillman, the driver of the van, turned onto Highway 65 and continued to evade the police. Deputy Kranz testified that it was apparent that Hillman knew that the squad car was behind him because Hillman periodically looked in his rearview mirror. At one point, the deputies pulled alongside the van in order to motion Hillman to pull over. Deputy Kranz made eye contact with Hillman and directed him to pull over, but Hillman did not stop. After Deputy Kranz had motioned for Hillman to pull over, the deputies followed Hillman for approximately another quarter of a mile before Hillman finally pulled off to the shoulder of the highway.
Deputy Janssen, who was driving, then parked the squad car at least eight feet behind, and two feet to the left of, Hillman’s van. Deputy Kranz, who was in the passenger seat, immediately exited the squad car and began walking towards the van. When Deputy Kranz was about midway between the squad car and the van he saw Hillman lean down and bring up a long gun. Deputy Kranz then began to move back towards the squad car. When he reached the passenger-side door of the squad car, he heard a rapid succession of shots. He continued to back up, and when he was near the rear of the squad car he saw the barrel of a long gun out of the driver’s side window of the van.
When Deputy Janssen exited the squad car, he saw a gun barrel “pointed directly * * * back towards [him].” According to Deputy Janssen, shots were then quickly fired in his direction and, as a result, he “dove back into the squad car.” He then grabbed the radio and told the dispatcher that the deputies “were being shot at.” Deputy Janssen then recalls seeing a cloud of smoke from behind the van and saw the van drive off.
The deputies then pursued the van at high speeds with the sirens and lights activated. Eventually, Hillman was apprehended after he was pushed off the road into a ditch with the help of Anoka County police officers.
Deputy Kranz checked the vehicle to see if there were any passengers and he observed an assault rifle on the floor of the van. A large white clump of a suspected controlled substance was also found on Hillman’s person. This substance was determined to be 43.7 grams of cocaine. Deputies Kranz and Janssen then transported Hillman to Isanti County jail. When they returned to the scene, they located eight spent cartridges.
On April 11, 2000, Hillman was charged with two counts of attempted murder in the first degree in violation of Minn. Stat. §§ 609.17, subd. 1, 609.185(4) (2000); two counts of attempted murder in the second degree in violation of Minn. Stat. §§ 609.17, subd. 1, 609.19, subd. 1(2) (2000); two counts of assault in the first degree in violation of Minn. Stat. § 609.221, subd. 2 (2000); and drive-by shooting in violation of Minn. Stat. § 609.66, subd. 1e(b) (2000). On May 24, 2000, the state filed an amended complaint, adding one count of controlled-substance crime in the first degree in violation of Minn. Stat. § 152.021, subd. 2(1) (2000).
Following a trial, the jury found Hillman guilty of two counts of assault in the first degree, attempted murder in the first degree (as to Deputy Janssen), drive-by shooting, and controlled-substance crime in the first degree. But the jury found Hillman not guilty of attempted murder in the first degree (as to Deputy Kranz) and not guilty of attempted murder in the second degree as to either deputy. This appeal followed.
I. Sufficiency of the Evidence
Hillman contends that the evidence at trial was insufficient to warrant a conviction for attempted first-degree murder of a peace officer. Specifically, he challenges his conviction because he alleges that he did not intend to kill Deputy Janssen.
When reviewing a challenge to the sufficiency of the evidence, this court performs a careful analysis of the record to determine if the evidence, viewed in the light most favorable to the conviction, is sufficient to sustain the verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court should assume that the jury “believed the state’s witnesses and disbelieved any evidence to the contrary.” State v. Miles, 585 N.W.2d 368, 372 (Minn. 1998) (citation omitted). “The jury determines the credibility and weight to be given the testimony of witnesses.” State v. Boitnott, 443 N.W.2d 527, 531 (Minn. 1989) (quotation omitted). Therefore, this court will not reverse a conviction if the factfinder, in accordance with principles of presumed innocence and proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty as charged. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
A person is guilty of attempt if he intentionally “does an act which is a substantial step toward, and more than preparation for, the commission of the crime.” Minn. Stat. § 609.17, subd. 1 (2000). A person is guilty of murder in the first-degree if he
causes the death of a peace officer * * * with intent to effect the death of that person or another, while the peace officer * * * is engaged in the performance of official duties.
Minn. Stat. § 609.185(4) (2000). The phrase “[w]ith intent to”
means that the actor either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result.
Minn. Stat. § 609.02, subd. 9(4) (2000).
Intent, because it is a state of mind, is generally proved circumstantially. State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997). Intent is usually “provable only by inferences drawn from a person’s words or actions in light of all the surrounding circumstances.” Boitnott, 443 N.W.2d at 531. And because a jury is in the best position to evaluate circumstantial evidence, its verdict is entitled to due deference. Webb, 440 N.W.2d at 430.
The record contains evidence indicating that Hillman intended to shoot Deputy Janssen. Deputy Janssen testified that Hillman pointed the gun directly at him. In addition, one passing motorist testified that when he passed Hillman’s van he noticed that “the barrel was directly facing the back of the van towards the squad car.” Another passing motorist testified that the bullets hit the ground “towards the front of the squad, more towards the driver’s side door of the squad.” And another witness testified that the bullets had impacted the ground on the left side of the squad car.
Because this court should assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary, we must assume that the jury believed Deputy Janssen and disbelieved Hillman’s claim that he never intended to kill the deputy. Therefore, when we view the evidence in the light most favorable to the conviction, there is sufficient support for the jury’s verdict.
II. Intoxication Instruction
Hillman contends that the district court abused its discretion by refusing to give an intoxication instruction. The refusal to give a requested jury instruction lies within the discretion of the district court and will not be reversed absent an abuse of discretion. See State v. Torres, 632 N.W.2d 609, 616 (Minn. 2001).
Under Minnesota law,
[a]n act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent * * * is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent * * * .
Minn. Stat. § 609.075 (2000).
“[A] defendant is entitled to an instruction on his theory of the case if there is evidence to support it.” State v. Lopez, 587 N.W.2d 26, 28 (Minn. 1998) (quotation omitted). The district court must give an intoxication instruction if the defendant is charged with a specific intent crime and if the defendant offers intoxication “as an explanation for his actions.” State v. Lindahl, 309 N.W.2d 763, 766 (Minn. 1981). Therefore, in order to obtain a voluntary intoxication jury instruction:
(1) the defendant must be charged with a specific-intent crime; (2) there must be evidence sufficient to support a jury finding, by a preponderance of the evidence, that the defendant was intoxicated; and (3) the defendant must offer intoxication as an explanation for his actions.
Torres, 632 N.W.2d at 616.
Hillman was charged with two specific intent crimes: first-degree attempted murder of a peace officer and first-degree assault. Hillman, therefore, satisfies the first requirement.
The record does contain evidence that Hillman had consumed an unknown quantity of drugs and some alcohol before the shooting incident. Hillman testified that he passed out at his ex-wife’s house on the evening of April 7, 2000, because he had taken valium pills. On April 8th, Hillman stated that he took some more pills with “a bunch of beer,” but he does not remember how many pills he took. He testified that later that day he again took more valium pills and drank a Heineken.
Hillman’s ex-wife testified that Hillman visited her home on the evening of April 7th. That night she saw him use cocaine and awoke in the morning to find Hillman passed out in her bathroom. She found rocks of crack cocaine and a bottle of valium on the floor near him. She asked him to leave and, as he was leaving, she saw Hillman take a handful of valium pills along with a “big swallow of Heineken beer.” Based on her experience as a nurse, Hillman’s ex-wife stated that she believed that Hillman was high on valium. The record, therefore, contains evidence sufficient to support a jury finding that Hillman was intoxicated.
Although Hillman satisfies the first two requirements, he does not meet the third requirement because he failed to offer his intoxication “as an explanation for his actions.” See Lindahl, 309 N.W.2d at 766; see also State v. Peterson, 262 N.W.2d 706, 707 (Minn. 1978) (holding, in part, that trial court did not err by refusing to give intoxication instruction because “defendant did not offer drinking as an explanation for his actions”). Although Hillman testified that he took some valium and alcohol within a few hours of the incident, he did not state that the drugs and alcohol impaired his thinking. An intoxicated defendant is not automatically entitled to an intoxication instruction. Courts will not presume that a person is incapable of intending to do certain acts just because the person may have been intoxicated. See Lopez, 587 N.W.2d at 29 (stating that “the possibility of intoxication does not create the presumption that a person is rendered incapable of intending to do a certain act”).
While Hillman did not offer intoxication as an explanation for his actions, he did, in fact, offer another explanation for his actions. He has implied that his actions were the result of a desire to kill himself. Hillman hoped that, by shooting the gun out of his van, the officers would respond by shooting back.
The record clearly indicates that Hillman did not offer intoxication as an explanation for his actions. As a result, the district court did not abuse its discretion by failing to give an intoxication instruction.
III. Evidentiary Rulings
Hillman contends that the district court abused its discretion by permitting the state to introduce evidence of his prior conviction for impeachment purposes. Hillman was convicted of a felony, third-degree controlled-substance crime for possession of methamphetamine on January 27, 2000. He contends that the district court abused its discretion because it admitted evidence of the conviction without first determining whether the probative value of this evidence outweighs its prejudicial effect.
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).
The state may introduce evidence that a witness was convicted of a crime only if: (1) the crime was “punishable by death or imprisonment in excess of one year” and “the court determines that the probative value of admitting this evidence outweighs its prejudicial effect” or (2) the crime “involved dishonesty or false statement.” Minn. R. Evid. 609(a) (emphasis added). Hillman and the state agree that the conviction was not introduced because it was a crime involving dishonesty or false statement.
When deciding whether the probative value of an impeachment conviction outweighs its prejudicial effect, the district court must consider five factors:
(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.
Ihnot, 575 N.W.2d at 586 (citation omitted). The district court should state on the record that it has considered the Jones factors. State v. Lund, 474 N.W.2d 169, 172 (Minn. App. 1991). But a district court’s failure to discuss the Jones factors on the record is harmless “if the conviction could have been admitted after a proper application of the Jones-factor analysis.” State v. Vanhouse, 634 N.W.2d 715, 719 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).
Even though the district court did not discuss the Jones factors on the record, the district court’s ruling was not erroneous because we conclude that Hillman’s prior conviction would have been admitted after a proper analysis of the Jones factors.
Hillman argues that his third-degree controlled-substance crime has no impeachment value because the crime does not directly relate to his character for truthfulness or untruthfulness. This argument is not persuasive, however, because the supreme court has held that “the fact that a prior conviction did not directly involve truth or falsity does not mean it has no impeachment value.” State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (citation omitted). The evidence of Hillman’s prior conviction has impeachment value because it will assist the jury by allowing it to view him as a whole person to better judge his truthfulness. See id. (stating that evidence of a prior conviction aids the jury by enabling the jury “to see the ‘whole person’ and thus to judge better the truth of his testimony” (quotations omitted)).
Date and Subsequent History
Courts usually examine the date of the conviction and the defendant’s subsequent history “to determine whether the prior offense has lost its relevance over the passage of time.” Vanhouse, 634 N.W.2d at 719-20 (citation omitted). Hillman was convicted of a third-degree controlled-substance crime on January 27, 2000. This conviction occurred approximately ten weeks before the shooting incident involving Deputies Kranz and Janssen. Hillman concedes that this conviction “has not lost relevance due to the passage of time.” Therefore, this Jones factor is easily satisfied.
Similarity of Prior Conviction
In this case, Hillman was charged with a controlled-substance crime in the first degree. His January 2000 conviction for a third-degree controlled substance offense is therefore similar. This fact does weigh against the admissibility of the prior conviction. See State v. Bias, 419 N.W.2d 480, 487 (Minn. 1988) (noting that close similarity between the prior and charged crime is a factor that weighs against admissibility).
Minnesota courts, however, do allow impeachment by prior conviction of similar crimes. Vanhouse, 634 N.W.2d at 720. In this case, the prejudicial effect of the third-degree drug conviction was probably minimal considering the fact that this case involved an eight-count complaint in which Hillman’s charge for a controlled substance offense was by far the least serious charge against him. Moreover, the state did not introduce into evidence the underlying facts from the prior conviction. Hillman’s testimony was the only evidence related to this prior crime. Consequently, on the witness stand, Hillman would have been “able to attempt to explain away its relevance.” See Vanhouse, 634 N.W.2d at 720 (noting that “the only evidence of the conviction was Vanhouse’s own testimony, in which he was able to attempt to explain away its relevance”). As a result, the similarity between Hillman’s prior conviction and the charged crime was not unduly prejudicial.
Importance of Defendant’s Testimony & Centrality of the Credibility Issue
In this case, Hillman acknowledges that his testimony “was extremely important on the only issue in the case, his intent.” The jury was presented with evidence that Hillman intended to kill Deputy Janssen based on Deputy Janssen’s testimony that Hillman pointed the gun directly at him. But Hillman testified that he did not aim the rifle at the deputy. The jury was faced with a major credibility issue as to whom to believe. “A defendant’s credibility is central ‘if the issue for the jury narrows to a choice between defendant’s credibility and that of one other person * * * .” Vanhouse, 634 N.W.2d at 720 (quotation omitted). Therefore, not only was Hillman’s testimony important, it was central to the main credibility issue of intent.
A review of the Jones factors indicates that the district court did not abuse its discretion by denying Hillman’s motion to exclude evidence of his prior conviction because the probative value of that conviction would have outweighed any prejudicial effect.
Hillman additionally argues that the district court erred by failing to give a cautionary instruction to the jury at the time his prior conviction was admitted into evidence. He contends that the court should have given the jury CRIMJIG 2.02. Hillman also contends that the district court’s jury instructions related to the admission of the prior conviction for impeachment were inadequate because the judge did not include a cautionary instruction.
The supreme court has indicated that the court should, on its own, give a limiting instruction when the evidence is admitted and when the final instructions are read to the jury. State v. Bissell, 368 N.W.2d 281, 283 (Minn. 1985). After Hillman’s testimony regarding his prior conviction was admitted into evidence, the court did not provide a cautionary instruction nor did Hillman’s counsel request one.
In addition, Hillman failed to object to the jury instructions at trial. As a result, he has waived his right to object to them on appeal. See State v. Knaak, 396 N.W.2d 684, 688 (Minn. App. 1986) (noting that appellant waives right to object to jury instructions on appeal when he fails to propose specific instructions or fails to object to proposed instructions at trial).
Although the district court may have erred by refusing to offer a cautionary instruction at the time the evidence was received and at the time the jury instructions were read to the jury, Hillman is not entitled to a new trial because any errors were harmless. “An error is harmless when there is no reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.” Vanhouse, 634 N.W.2d at 721 (citation omitted). In this case, any errors were harmless because the state presented very strong evidence of Hillman’s guilt.
IV. Prosecutorial Misconduct
Hillman alleges that the prosecutor engaged in misconduct during closing argument and during cross-examination of Hillman. On review, this court must determine whether the challenged conduct was in error and whether it was so prejudicial such that Hillman’s constitutional right to a fair trial was denied. Sanderson v. State, 601 N.W.2d 219, 225 (Minn. App. 1999), review granted (Minn. Jan. 18, 2000) and order granting review vacated (Minn. Mar. 28, 2000).
Many of the comments made by the prosecutor which Hillman now contends constitute misconduct were not objected to at trial by Hillman’s attorney. As a result, Hillman waives his right to object on appeal. See King v. State, 562 N.W.2d 791, 795 (Minn. 1997) (noting that defense counsel’s failure to object to evidence at trial generally constitutes waiver of those issues on appeal).
Hillman’s other claims of prosecutorial misconduct are without merit. But even if we were to conclude that the prosecutor engaged in some misconduct, Hillman would not be entitled to a new trial because the alleged prosecutorial misconduct in this case did not play a substantial part in influencing the jury to convict. See State v. Caron, 300 Minn. 123, 128, 218 N.W.2d 197, 200 (1974) (citation omitted) (holding that in cases involving less serious prosecutorial misconduct, the test is “whether the misconduct likely played a substantial part in influencing the jury to convict”).
Any prosecutorial misconduct in this case probably did not play a substantial part in influencing the jury to convict because, with respect to the charge of attempted murder of Deputy Kranz, the jury exonerated Hillman. And, because the jury found Hillman guilty of attempting to kill Deputy Janssen, it is more likely that the jury was strongly influenced by Deputy Janssen’s testimony, not by alleged prosecutorial misconduct. And, in terms of the other charges against Hillman, the evidence against him was extremely strong. It is not likely that any alleged prosecutorial misconduct played a substantial part in influencing the jury to convict. Therefore, Hillman was not deprived of his right to a fair trial.
V. Hillman’s Pro Se Arguments
Hillman’s additional arguments in his pro se supplemental brief are without merit. Hillman argues that the district court erred by denying his motion for judgment of acquittal because he contends that his guilty verdict for first-degree attempted murder is legally inconsistent with his not-guilty verdicts for second-degree attempted murder. “Verdicts are legally inconsistent when proof of the elements of one offense negates a necessary element of another offense.” State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996) (citation omitted). Although Hillman’s verdicts may seem logically inconsistent they are not legally inconsistent. “[L]ogically inconsistent verdicts do not entitle a defendant to a new trial.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (citations omitted). Moreover, the jury in a criminal case has the power of lenity, which is “the power to bring in a verdict of not guilty despite the law and the facts.” State v. Perkins, 353 N.W.2d 557, 561 (Minn. 1984).
Lastly, Hillman argues that two of the jurors should have been prevented from serving on the jury because he asserts that they were not impartial. In order to succeed on an appeal asserting juror bias, the appellant must show: (1) “the challenged juror was subject to challenge for cause,” (2) “actual prejudice resulted from the failure to dismiss,” and (3) “an appropriate objection was made by appellant.” State v. Stufflebean, 329 N.W.2d 314, 317 (Minn. 1983). Hillman did not challenge these jurors for cause and did not object. He has therefore waived his right to appeal this issue. See State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980) (noting that an issue may not be considered on appeal when the party raising the issue failed to raise it in the district court).
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
See 10 Minnesota Practice, CRIMJIG 2.02 (1999) (“The evidence concerning a prior conviction of the defendant is admitted only for your consideration in deciding whether the defendant is telling the truth in this case. You must not consider this conviction as evidence of the defendant’s character or conduct except as you may think it reflects on believability.”)