This opinion will be unpublished and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,
Marcus Orlando Glass,
Filed July 16, 2002
Hennepin County District Court
File No. 105176
John M. Stuart, State Public Defender, Theodora K. Gaitas, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Harten, Presiding Judge, Shumaker, Judge, and Parker, Judge.*
Appellant challenges his conviction of second-degree murder, arguing that the district court abused its discretion in giving an ambiguous good faith self-defense jury instruction. Appellant also argues that the district court committed plain error in giving a first-degree manslaughter jury instruction that did not specifically state that the prosecution had to prove the absence of heat of passion beyond a reasonable doubt. Because we find that the district court’s jury instructions accurately reflect Minnesota law, we conclude that the district court did not abuse its discretion and affirm.
On 28 October 2000, Cody Armstrong was visiting his mother in Minneapolis. After parking his car, Armstrong chatted with friends. While they talked, a minivan in which appellant was a passenger approached. The minivan stopped with the passenger side facing Armstrong and his friends. Armstrong and appellant then spoke.
Armstrong’s friends testified at trial that they believed the exchange was friendly. One testified that Armstrong embraced appellant. A neighbor, who also saw the encounter through his porch window, testified that appellant and Armstrong shook hands. During their conversation, appellant fired three shots at Armstrong. Another neighbor, who heard the shots and looked out his window to see Armstrong lying in the street and the minivan pulling away, called 911. None of the witnesses testified that Armstrong was armed. They also testified that no one took a weapon away from Armstrong after the shooting. Armstrong died from gunshot wounds to the abdomen.
Appellant left Minnesota that same day. Police later found appellant in Illinois. Appellant told the interviewing officer that he was not in Minneapolis on the day of the shooting. Appellant was charged with second-degree murder.
At his jury trial, appellant claimed self-defense. He testified that the day before the shooting four men, including Armstrong, had assaulted him. The men were arrested and released. Appellant testified that he believed that the men intended to assault a drug dealer for whom appellant stored drugs; a friend gave him a handgun and warned him that he was not safe because he had called the police.
Appellant testified that on the day of the shooting he was on his way to return the gun when he saw Armstrong. Appellant testified that while he and Armstrong were talking, Armstrong told appellant, “You got the police looking for us” and pulled him towards the window. He also testified that he saw Armstrong reaching for a gun and believed Armstrong was going to shoot him.
The district court instructed the jury on self-defense using both CRIMJIG 7.05 and CRIMJIG 7.08. The district court also instructed the jury on the lesser-included offense of first-degree manslaughter. The jury found appellant guilty of second-degree murder. This appeal followed.
D E C I S I O N
District courts are allowed “considerable latitude” in the selection of language for jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). Jury instructions must be viewed in their entirety to determine whether they fairly and adequately set forth the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). “An instruction is in error if it materially misstates the law.” State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001). “In reviewing a claim of error in instructing the jury, a reviewing court will generally not reverse absent an abuse of discretion.” State v. Oates, 611 N.W.2d 580, 584 (Minn. App. 2000) (citation omitted), review denied (Minn. 22 Aug. 2000).
1. Self-Defense Jury Instruction
At trial, appellant’s attorney asked the district court to give a self-defense jury instruction, which read:
No crime is committed when a person takes the life of another person, even intentionally, if the defendant’s action was taken in resisting or preventing an offense the defendant reasonably believed exposed the defendant to death or great bodily harm.
In order for a killing to be justified for this reason, three conditions must be met. First, the killing must have been done in the belief that it was necessary to avert death or great bodily harm. Second, the judgment of the defendant as to the gravity of the peril to which he was exposed must have been reasonable under the circumstances. Third, the defendant’s election to defend must have been such as a reasonable person would have made in light of the danger perceived and the existence of any alternative way of avoiding the peril.
10 Minnesota Practice, CRIMJIG 7.05 (1999). The prosecution requested the addition of a good faith self defense instruction, which read:
The legal excuse of self-defense is available only to those who act honestly and in good faith. This includes the duty to retreat or avoid danger.
10 Minnesota Practice, CRIMJIG 7.08 (1999). The district court gave both instructions in full.
Appellant argues that the district court erred in giving CRIMJIG 7.08 because it was not relevant to the case. Good faith is an essential element of self-defense. “It is a general rule that the legal excuse of self-defense is available only to those who act honestly and in good faith.” State v. Johnson, 277 Minn. 368, 373, 152 N.W.2d 529, 532 (1967). The prosecution argued at trial that appellant sought out Armstrong, an act that it contended was not in good faith. We agree with the district court that the good faith instruction was relevant. The evidence conflicted as to the acts of both appellant and Armstrong just before the shots were fired. One view of the evidence could question appellant’s good faith in asserting self-defense.
Appellant also argues that CRIMJIG 7.08 and 7.05, the instructions given by the district court, were ambiguous. But at trial, appellant’s attorney acknowledged that CRIMJIG 7.08 accurately stated the law. And we note that the supreme court has said that CRIMJIG 7.08 was drafted so that it could be given in conjunction with CRIMJIG 7.05 and has approved of the two being used together in “a number of cases.” State v. Sanders, 376 N.W.2d 196, 201 (Minn. 1985). We believe that CRIMJIG 7.08 and 7.05 correctly set forth the law of this state. The district court did not err in giving both CRIMJIG 7.05 and 7.08. See State v. Jones, 556 N.W.2d 903, 911 (Minn. 1996) (defendant challenging jury instruction must show that the instruction constituted a “material misstatement of the law”).
While deliberating, the jury asked the district court, “When does the clock start?”
The district court responded, “I did not understand the question when does the clock start.”
The foreperson answered, “I guess the question was are we talking about his entire life or that particular situation?”
The district court replied,
Okay. That sounds like it’s a question that has to do with the facts of the case and it’s up to you as the triers of the fact to make those decisions and I can’t give any response or comment in that regard.
Appellant did not object to this district court reply.
Nevertheless, appellant contends that the district court should have told the jury that appellant’s actions after the incident did not affect his self-defense claim. This argument misinterprets the jury’s question. The jury asked when the clock began to run, not when it expired. And an explanation was unnecessary because CRIMJIG 7.08 placed the duty to act in good faith at a time in temporal proximity to the shooting by referring to the duty to retreat or avoid danger. Likewise, CRIMJIG 7.05 stated that the defense was only available if appellant’s actions were necessary to avert death or great bodily harm and that appellant’s judgment must have been reasonable under the circumstances. See Flores, 418 N.W.2d at 155 (jury instructions must be viewed as a whole).
We conclude that the jury instructions accurately reflected Minnesota’s self-defense law. The district court did not abuse its discretion.
2. Lesser Offense Jury Instruction
The district court’s jury instructions on second-degree murder read:
First, the death of [Armstrong] must be proven.
Second, the defendant caused the death of [Armstrong]
Third, the defendant acted with the intent to kill [Armstrong]. To find the defendant had an intent to kill, you must find that the defendant acted with the purpose of causing death or believed that the act would have that result. “* * *.”
Fourth, the defendant’s act took place on or about October 28th, 2000[,] in Hennepin County, Minnesota.
If you find that each of these elements has not been proven beyond a reasonable doubt, the defendant is not guilty.
Appellant requested that the district court also give a jury instruction covering the lesser-included offense of first-degree manslaughter. Over the prosecution’s objection, the district court gave the requested instruction, which was the same as the second-degree murder instruction except for the third element that read:
Third, the defendant acted in the heat of passion with the intent to kill [Armstrong]. To find the defendant had an intent to kill, you must find that the defendant acted with the purpose of causing death, or believed that the act would have that result. “* * *.”
In addition, the district court, using 10 Minnesota Practice, CRIMJIG 3.20 (1999), instructed the jury that
[t]he presumption of innocence and the requirement of proof beyond a reasonable doubt apply to this lesser crime. If you find beyond a reasonable doubt that the defendant has committed each element of the lesser included crime, but you have a reasonable doubt about any different element of the greater crime, * * * the defendant is guilty only of the lesser crime.
Appellant did not object to any of these instructions.
Appellant now argues that the district court should have given CRIMJIG 11.37 for second-degree murder, which explicitly states that the prosecution must prove beyond a reasonable doubt that the defendant did not act in the heat of passion. Because appellant did not object to the instructions at trial, we review the failure to give CRIMJIG 11.37 under the plain error analysis. We may reverse for plain error only if appellant demonstrates that there is (1) an error; (2) that is plain; (3) that affects substantial rights. See State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).
The supreme court reviewed a similar claim in State v. Auchampach, 540 N.W.2d 808 (Minn. 1995), where defendant was charged with and convicted of first-degree murder. There, the district court instructed the jury on first-degree manslaughter and refused Auchampach’s request for a first-degree murder instruction specifically stating that the prosecution had to prove absence of heat of passion. The supreme court held that the instructions “were more than adequate to inform the jury of the state’s burden of proof.” Id. at 818. The jury instructions in Auchampach are almost identical to the instructions given in the instant case. Both courts gave correct instructions for intentional murder and first-degree manslaughter. Both courts emphasized the presumption of innocence and that the state had the burden of proof on all elements. And both courts used CRIMJIG 3.20, which informed the jury that, if they found beyond a reasonable doubt that the defendant had committed a crime but were uncertain as to which crime, the defendant could only be found guilty of the lesser crime. Accordingly, like the instructions in Auchampach, the instructions in this case sufficiently explained the state’s burden of proof for second-degree murder.
Appellant nonetheless argues that the instant case differs from Auchampach because here the jury specifically inquired whether the state had to prove absence of the heat of passion. The district court replied by referring to the portion of the jury instructions that the Auchampach court held to have adequately explained the law. See State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998) (no reversible error when an instruction “correctly states the law in language that can be understood by the jury”). We conclude that the district court did not abuse its discretion in giving CRIMJIG 11.45.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Appellant points to an affidavit that indicates that at least one of the jurors believed that appellant was not entitled to the defense because he lied to police after the incident. Minnesota Rule of Evidence 606(b) clearly states that an affidavit concerning any matter or statement made during jury deliberations or a juror’s mental process may not be used to inquire into the validity of a verdict. We cannot consider this affidavit.