This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Anthony Lavelle Edwards,
Filed September 21, 2004
Anoka County District Court
File No. K5-02-6980
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Forsberg, Judge.
Appellant challenges his second-degree murder conviction, arguing that the district court abused its discretion in its evidentiary rulings and in failing to give a jury instruction requested by the defense. Appellant also argues that the prosecutor committed prejudicial misconduct during closing argument. We affirm.
On May 11, 2002, appellant Anthony Edwards walked into the Minneapolis Adult Detention Center and presented a note explaining his desire to turn himself in to police. Edwards gave police a photograph of a female he identified as Cha’Nar Kennedy, stated he had “shot [his] girl,” and provided the victim’s address in Coon Rapids. The Anoka County Sheriff confirmed that Cha’Nar Kennedy was shot dead in her home. Edwards told the deputies that he threw the gun off a bridge.
A grand jury indicted Edwards for first-degree murder in violation of Minn. Stat. § 609.185(1) (2000). The jury heard testimony from the victim’s friends and family concerning the relationship between the victim and Edwards, which the victim had recently ended. After ending the relationship, the victim changed the locks on her home, but found keys for the new locks in Edwards’s car. She told family members that this concerned her, and she was planning to have the locks changed again.
The last people to see the victim alive recounted the events leading up to the shooting, which took place around 11:30 p.m. When the victim obtained a ride home from her daughter’s father, Torrance Gray, she invited Gray and one of his children to spend the night at her home. When they arrived around 11:00 p.m., Edwards was there. The victim told Gray he should leave, and Edwards and the victim discussed whether Gray had intended to spend the night. Gray left, and the children were fed and put to bed. Edwards and the victim smoked marijuana and may have been drinking alcohol. Edwards was overheard on the telephone stating, “This bitch got me messed up.” Around 11:30 p.m., neighbors heard a noise believed to be a gunshot. A neighbor saw Edwards leave the victim’s home at about 1:30 a.m.
During the trial, the state sought to introduce Edwards’s prior convictions of armed robbery in 1990, third-degree assault in 1998, and fifth-degree controlled substance crime in 2000 as impeachment evidence if Edwards testified. The district court ruled that only the robbery and drug convictions were admissible. The state also sought to produce witness testimony of the victim’s hearsay statements that she had changed her locks and was trying to prevent Edwards from making keys to fit her new locks. The district court admitted the testimony under the state-of-mind exception to the hearsay rule.
Through testimony from the state’s witnesses, Edwards attempted to introduce his own hearsay statement to police that he could not believe the gun went off. The district court ruled that the statement was inadmissible hearsay. Edwards also requested a jury instruction on heat-of-passion manslaughter. But the district court refused to give the instruction after determining that the evidence presented was insufficient for the jury to convict Edwards of manslaughter in the heat of passion.
The jury acquitted Edwards of first-degree murder and convicted him of intentional second-degree murder in violation of Minn. Stat. § 609.19(1) (2000).
Edwards argues that the district court abused its discretion in (1) determining that the state could impeach him with his prior convictions, which prevented him from testifying, (2) allowing the state to admit inadmissible hearsay evidence at trial, and (3) determining that Edwards could not introduce his own hearsay statements in support of his theory that the killing was an accident. On appeal, we will not reverse a district court’s evidentiary ruling absent a clear abuse of discretion. State v. Glaze, 452 N.W.2d 655, 660 (Minn. 1990).
But where evidence is admitted and the defendant fails to object, we review only for plain error. Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Plain error exists where the district court clearly erred and the error affected the defendant’s substantial rights. State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002). We may correct the error only if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (citing State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001)).
A. Impeachment Evidence
A district court’s ruling on the impeachment of a witness by prior conviction is generally reviewed 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 the prejudicial effect is also a matter within the discretion of the district court. State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985).
Minn. R. Evid. 609(a)(1) requires that prior convictions not involving dishonesty or false statement may be admitted for impeachment purposes only if they are punishable by more than a year of incarceration and the prejudicial effect of the evidence does not outweigh its probative value. To determine whether the probative value of a prior crime outweighs its prejudicial effect, the district court considers 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 the defendant’s testimony; and (5) the centrality of the credibility issue. Minn. R. Evid. 609(a)(1) (2002); State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978); see also Ihnot, 575 N.W.2d at 586 (reaffirming application of the Jones factors to determine whether probative value outweighs prejudicial effect). If the convictions could have been admitted after a proper application of the Jones factors, then the district court’s failure to make explicit findings as to these factors is harmless error. State v. Vanhouse, 634 N.W.2d 715, 719 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).
The state sought to introduce for impeachment purposes a fifth-degree controlled-substance conviction from 2000, a third-degree assault conviction from 1998, and an armed-robbery conviction from 1990. The district court ruled that if Edwards testified, the drug conviction and armed-robbery conviction would be admissible for impeachment purposes. Edwards argues that the district court did not perform a proper Jones analysis on the record and that the admission of the drug and robbery convictions precluded him from testifying. But application of the Jones factors establishes that the district court’s failure to make explicit findings was harmless error.
“[I]mpeachment by prior crime aids the jury by allowing it to see the whole person and thus to judge better the truth of his testimony.” State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (citing State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979) (quotations omitted)). The first factor thereby provides some support in favor of the admissibility of the impeachment evidence.
When a defendant is in prison during much of the time between offenses, the relevance of the prior offense is increased. Gassler, 505 N.W.2d at 67. Edwards was imprisoned for the armed-robbery offense from February 1990 through January 1996 and committed the drug offense in 2000. The second factor favors admissibility of the impeachment evidence.
The third Jones factor, the lack of similarity between prior and charged crimes, also weighs in favor of admissibility. See State v. Bias, 419 N.W.2d 480, 487 (Minn. 1988). The drug and armed-robbery offenses are not so similar to the murder offense as to weigh against their admissibility for impeachment purposes.
Finally, in examining the importance and credibility of a defendant’s testimony, “a greater case can be made for admitting the impeachment evidence” if the defendant’s credibility is a central issue in the case. State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980). Here, Edwards’s version of events was central to the issue of his intent. When the jury is charged with determining whether a defendant shot the victim intentionally or unintentionally, this factor weighs in favor of admitting the impeachment evidence.
Because each of the Jones factors provides some weight in favor of admission of the impeachment evidence, the district court’s failure to make explicit findings as to these factors is harmless error. Vanhouse, 634 N.W.2d at 719. But Edwards argues that the district court’s ruling to allow impeachment evidence interfered with Edwards’s right to testify in his own defense.
A defendant’s right to testify in his own defense is protected by both the Due Process Clause of the United States Constitution and Minnesota law. Faretta v. California, 422 U.S. 806, 819 n.15, 95 S. Ct. 2525, 2544 (1975); State v. Rosillo, 281 N.W.2d 877, 878 (Minn. 1979). But the mere fact that the district court would allow impeachment evidence if a defendant chooses to testify does not necessarily implicate his constitutional right to testify in his own defense. Gassler, 505 N.W.2d at 67-68. “[T]o prevail on this argument, [a defendant] would have to show that the [district] court abused its discretion in ruling that the probative value of the impeachment evidence outweighed its prejudicial effect.” Id. As discussed above, application of the Jones factors establishes that the district court did not abuse its discretion in ruling that the probative value of the impeachment evidence outweighed its prejudicial effect. Moreover, while Edwards did not testify, his defense theory of accident was presented to the jury through Boelter, who testified that “[Edwards] did state that he didn’t mean to shoot her and couldn’t believe the gun went off.” Thus, Edwards’s argument that his right to testify was impeded is unpersuasive.
B. Hearsay Evidence
To show that the victim was afraid of Edwards, the state sought to admit the victim’s statements to her sister and brother that she was planning to change the locks to her home. Edwards objected to the testimony on the grounds that it was hearsay evidence. The district court ruled that the evidence was admissible under Minn. R. Evid. 803(3) to show the victim’s state of mind.
Minn. R. Evid. 803(3) provides that an unavailable declarant’s statement of then-existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health) is admissible as an exception to the hearsay rule. See State v. Blanchard, 315 N.W.2d 427, 432 (Minn. 1982).
In analyzing the victim’s statements to her siblings, both parties discuss the Minnesota Supreme Court’s determination that state-of-mind hearsay evidence concerning a homicide victim’s fear of a defendant is admissible only when three conditions are satisfied: (1) the victim’s state of mind must be relevant and is only relevant when a defendant raises the defense of accident, suicide, or self-defense; (2) the trial court must weigh the probative value of the evidence against the risk of unfair prejudice; and (3) a proper limiting instruction must be given. State v. Langley, 354 N.W.2d 389, 398-99 (Minn. 1984) (citing Blanchard, 315 N.W.2d at 432). This analysis is unwarranted here, however, because the victim’s statement was not that she was afraid of Edwards but that she planned to change her locks and prevent him from making new keys. While the evidence may show the victim’s state of mind, it does not directly show that the victim feared Edwards.
A defendant claiming error in the district court’s admission of evidence has the burden of showing both the error and the prejudice resulting from the error because reversal is warranted “only when the error substantially influences the jury to convict.” Blanchard, 315 N.W.2d at 433 (quoting State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981)). Edwards argues that (1) the victim’s statement is unreliable because there was ample evidence presented that he and the victim were friends; (2) the evidence does not fit within the state-of-mind exception; and (3) admission of the evidence violates his rights under the Confrontation Clause of the United States Constitution. These arguments are without merit.
Evidence that Edwards and the victim were friends does not conflict with her statement that she was planning to change the locks to her home to keep Edwards out. Rather, evidence regarding the victim’s state of mind becomes increasingly probative in light of evidence that she and Edwards were once romantically linked and continued to maintain contact after she ended their relationship. The victim’s statement that she was planning to change her locks clearly shows her intent, plan, or design to keep Edwards from gaining access to her home without her consent. Thus, this evidence fits squarely within the exception created under Minn. R. Evid. 803(3). Accordingly, the district court was within its discretion to allow the victim’s statement to go before the jury.
Edwards sought to introduce his statement to police detectives shortly after his arrest that he couldn’t “believe the gun went off” to show his state of mind at the time of the shooting. The state objected to the testimony as inadmissible hearsay under Minn. R. Evid. 801, and the district court determined that the testimony was inadmissible as state-of-mind evidence. But the hearsay statement was admitted without objection through the testimony of Hennepin County Deputy Sheriff Richard Boelter, who testified that “[Edwards] did state that he didn’t mean to shoot her and couldn’t believe the gun went off.” Accordingly, Edwards has not shown prejudice from the district court’s ruling.
The district court denied Edwards’s request for an instruction on heat-of-passion manslaughter. District courts are allowed “considerable latitude” in selecting the language for the jury instructions. State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002). 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. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996). The focus of our analysis is on whether the refusal resulted in prejudice. See State v. Kuhnau, 622 N.W.2d 552, 555 (Minn. 2001).
When the evidence presented warrants a lesser-included-offense instruction, the district court must give it. Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986); State v. Davis, 656 N.W.2d 900, 903 (Minn. App. 2003), review denied (Minn. May 20, 2003). The failure to give a lesser-included-offense instruction is grounds for reversal only if the defendant is prejudiced. Davis, 656 N.W.2d at 903; Bellcourt, 390 N.W.2d at 273. A lesser-included instruction should be given only if there is a rational basis to acquit on the greater offense and convict on the less serious charge. Id. Every lesser degree of homicide is intended to be characterized as an included offense of first-degree murder. State v. Leinweber, 303 Minn. 414, 421, 228 N.W.2d 120, 125 (1975). Therefore, we must determine whether the evidence reasonably could support a conviction of the lesser-included offense and an acquittal of the greater offense. Id. at 422, 228 N.W.2d at 125-26; Bellcourt, 390 N.W.2d at 274.
The jury acquitted Edwards of first-degree murder. Edwards now asserts that there was sufficient evidence to prove that he shot the victim during the heat of passion, claiming that this case is factually identical with Leinweber. The elements of heat-of-passion manslaughter are: (1) the killing must be intentional; (2) the killing must be done in the heat of passion; (3) the passion must have been provoked by the words or acts of another; and (4) a person of ordinary self control would have been provoked under like circumstances. Minn. Stat. § 609.20 (1) (2002).
The defense theory, however, was that the killing was accidental and not intentional. Additionally, there was no evidence presented that the victim spoke or acted in a way that would have caused an ordinary person to be provoked under like circumstances. The evidence established that, at the time she was shot, the victim was either lying or kneeling on the bed, while her upper body was reclining against the wall. There was no evidence of a physical struggle in the home or on Edwards when he turned himself in. The victim’s neighbors testified that between 11:00 p.m. and midnight they heard the victim telling her children to go to sleep, the house was quiet, and a half hour later they heard a sound they believed to be a gunshot. The victim’s cousin, Eniesha Kennedy, who was in the house when the shooting occurred, testified that when the victim arrived home intending to have her daughter’s father, Torrance Gray, spend the night, she saw Edwards at the house and told Gray “not tonight,” and Gray left without incident. Kennedy testified that she went to bed around 11:00 p.m. and that the evening was uneventful. This evidence does not support the theory that the victim provoked Edwards in some way or that circumstances had occurred that would have provoked a person of ordinary self-control. The evidence was therefore insufficient to support a conviction of intentional manslaughter in the heat of passion. Accordingly, the district court correctly determined that the instruction was not warranted.
Edwards argues that the prosecutor mischaracterized the reasonable doubt standard in closing arguments by stating that proof beyond a reasonable doubt is established by the quantity of the evidence. In reviewing claims of prosecutorial misconduct, we will only reverse “if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.” State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003). There are two distinct harmless-error standards for prosecutorial misconduct. Serious misconduct will be found “harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error.” For less serious misconduct, the standard is “whether the misconduct likely played a substantial part in influencing the jury to convict.” State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000). “If the defendant failed to object to the misconduct at trial, he forfeits the right to have the issue considered on appeal,” unless the misconduct is unduly prejudicial. Powers, 654 N.W.2d at 678; State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997). Misconduct is unduly prejudicial when it plays a “substantial part in influencing the jury to convict.” State v. Parker, 417 N.W.2d 643, 647 (Minn. 1988).
During closing arguments, the prosecutor used the “Wheel of Fortune” television game as an analogy to explain the concept of proof beyond a reasonable doubt. Using a visual aid, the prosecutor stated:
And we fill in the letters as we go to try and solve the puzzle. So if I fill in a few letters . . . some of you might be able to guess at what the answer is.
Now, I have filled in just four letters, . . . [s]ome of you who might be really good at word games maybe are starting to figure it out. Others would have a reasonable doubt, because there are a lot of letters missing, a lot of pieces to this puzzle are missing.
What if I fill in a few more letters. Does anyone have a reasonable doubt as to what I have written there? Even though there are some pieces of the puzzle missing and they aren’t there, everyone knows what I have written. And, conversely, does anyone think that I should put a U there instead of saying “defendant is guilty”? Well, it’s possible that a U could go there, someone might have a reasonable doubt, they could be thinking: “Defendant us guilty”. But would that make any sense: No, it wouldn’t.
(Emphasis added.) Edwards argues, despite his failure to object, that the “Wheel of Fortune” analogy was identical with the prejudicial “blank chalkboard” analogy made by the prosecutor in State v. Trimble, 371 N.W.2d 921, 926 (Minn. App. 1985), review denied (Minn. Oct. 11, 1985). We disagree.
In Trimble, the state argued:
Presumption of innocence is like a blank chalkboard. There is nothing on there against the defendant, and until you go into the jury room and start determining what evidence is credible and what evidence there is against the defendant, that presumption stays with him. The chalkboard stays blank. When you enter the jury room you will discuss among yourselves the evidence which you have heard, the testimony of the various witnesses, and you’ll decide which evidence or items of evidence to believe. And believable evidence is written down, or in this analogy, put on a chalkboard. As more and more evidence against the defendant is found to be credible, gradually the presumption of innocence disappears.
Id. at 926 (emphasis in original). This court concluded that the argument in Trimble was misconduct because proof beyond a reasonable doubt does not depend on the quantity of evidence. Id. Rather, whether the burden of proof is satisfied depends completely on the jury’s evaluation of whatever evidence is presented. Id. (citing State v. Jensen, 308 Minn. 377, 380, 242 N.W.2d 109, 111 (1976)). We additionally determined that, while the state’s remarks were improper, the case did not require reversal, because the remarks did not play a “substantial part in influencing the jury to convict.” Id. at 927. This determination was based on the evidence that the district court fully instructed the jury on presumption of innocence and that the defense argued at length against the state’s “blank chalkboard” theory. Id.
The prosecutor’s argument in this case suggested that reasonable doubt would diminish as more letters were added, much like the accumulation of evidence in Trimble. But the prosecutor did not argue that the presumption of innocence disappeared at any point. Even if this argument was improper, the district court’s final instructions advising the jury that closing arguments of counsel are not evidence and setting forth the state’s burden of proof along with the absence of any burden of proof for the defense, mitigated the misconduct. See State v. Johnson, 679 N.W.2d 378, 389 (Minn. App. 2004). We presume that the jury followed the court’s instructions, which fully advised the jury on the requirement of proof beyond a reasonable doubt. Id. (citing State v. Taylor, 650 N.W.2d 190, 207 (Minn. 2002)). That instruction, coupled with the lack of defense objection and the overwhelming evidence supporting the jury’s verdict, leads us to conclude that any misconduct during the state’s closing argument did not likely play a substantial part in influencing the jury to convict. Therefore, reversal is not warranted.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 If the victim’s hearsay statement was admitted to show that she feared Edwards, the statement is relevant because Edwards advanced a defense theory of accident. However, the district court did not provide the jury with a limiting instruction. But absent a request for such an instruction, reversal is not required unless the failure to give the instruction rises to the level of plain error. State v. Bauer, 598 N.W.2d 352, 365 (Minn. 1999). Because Edwards did not request a limiting instruction, but the district court erred in not giving one, this court determines whether the error affected Edwards’s substantial rights. As discussed below, Edwards fails to show that the error substantially influenced the jury to convict him.
 While the state-of-mind exception allows out-of-court statements that illustrate the declarant’s intent, plan, motive, design, or mental feeling at the time the statement was made, the exception does not permit evidence of a declarant’s present state of mind to be admitted to establish the declarant’s previous actions. Minn. R. Evid. 803(3) 1989 comm. cmt.; State v. King, 367 N.W.2d 599, 602 (Minn. App. 1985) (disallowing witnesses’ testimony regarding defendant’s statements that she was abused by the victim under the state-of-mind exception as merely an attempt to offer defendant’s testimony without her having to testify); see also State v. Taylor, 258 N.W.2d 615, 621 (Minn. 1977) (determining that a defendant’s self-serving hearsay statement was inadmissible because it did not fall within a hearsay exception). Thus, Edwards’s statements that he was surprised that the gun went off was not admissible under the state-of-mind exception to show that at the time of the shooting his actions were accidental. See King, 367 N.W.2d at 602. Accordingly, the district court was within its discretion in ruling that the evidence was inadmissible hearsay.