This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





James Evans Johnson,



Filed March 15, 2005

Klaphake, Judge


Hennepin County District Court

File No. 03033507


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


John M. Stuart, State Public Defender, Sara L. Martin, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.

U N P U B L I S H E D  O P I N I O N


            A jury found appellant James Evans Johnson guilty of second-degree intentional murder for shooting his girlfriend in his home on May 12, 2003.  On appeal, he argues that the district court abused its discretion when it refused to instruct the jury on self-defense and on the lesser-included offense of first-degree manslaughter.  He claims that these instructions were warranted based on his testimony that the victim shot him in the head and that the next thing he remembered was waking up on the floor at the dead victim’s feet.  Because the evidence fails to support either instruction, we affirm.


            A district court has discretion to determine whether to give a requested jury instruction.  State v. Broulik, 606 N.W.2d 64, 68 (Minn. 2000).  A defendant is entitled to an instruction on his theory of the case only if there is evidence to support that theory.  State v. Kuhnau, 622 N.W.2d 552, 557 (Minn. 2001).  When, as here, a defendant’s theory “appears to have been an afterthought, inasmuch as it was first raised by defense counsel at the close of the evidence, was never presented to the jury in an opening statement, and defense counsel examination of witnesses never reflected it,” and when the theory “was inconsistent with [the defendant’s] own testimony that the incident was an accident,” the district court’s refusal to give a requested instruction is not an abuse of discretion.  State v. Pacholl, 361 N.W.2d 463, 465 (Minn. App. 1985) (affirming district court’s refusal to give instruction on defense of other, when that theory was without support in record).[1]

            First-degree Manslaughter Instruction

            Appellant argues that he was entitled to an instruction on the lesser-included offense of first-degree (heat-of-passion) manslaughter.  The district court was required to submit the instruction only if there was a rational basis to convict on the lesser crime and acquit on the greater crime.  See State v. Griffin, 518 N.W.2d 1, 3 (Minn. 1994).  Such a rational basis exists here if sufficient evidence was presented to find that (1) appellant killed the victim in the heat of passion, and (2) appellant’s passion was provoked by words or acts that would provoke a person of ordinary self-control under similar circumstances.  See State v. Brocks, 587 N.W.2d 37, 41 (Minn. 1998).

            The first inquiry requires a subjective analysis, with the primary focus on the emotional status of the defendant.  See id.; State v. Shepherd, 477 N.W.2d 512, 515 (Minn. 1991).  Here, appellant argues that the evidence established that his emotional state was consistent with heat of passion:  the victim showed up at his house, became “crazy mad,” started to pack her belongings, and made it clear that she was leaving him.  He further insists that his hazy and spotty memory of the incident is consistent with heat of passion.  See State v. Shannon 514 N.W.2d 790, 793 (Minn. 1994) (determining that trial court erred by failing to give heat-of-passion manslaughter instruction where evidence showed that defendant and girlfriend both participated in physical altercation while under influence of alcohol and crack cocaine, even though defendant’s memory was hazy and he did not think that he choked girlfriend to death during dispute but admitted that he might have done so); State v. Leinweber, 303 Minn. 414, 418, 228 N.W.2d 120, 123-24 (1975) (mere fact that defendant’s testimony repudiated heat-of-passion shooting did not preclude instruction, when testimony and circumstantial evidence showed that defendant and victim’s marriage was under increasing emotional strain, with resulting anger and frustration on part of both parties).

            However, the evidence shows that appellant continued to have rational thoughts “before, during, and after” the murder.  See State v. Carney, 649 N.W.2d 455, 461 (Minn. 2002) (“heat of passion . . . clouds a defendant’s reason and weakens his willpower” and “[a]nger alone is not enough”).  Neither appellant nor any of the witnesses who saw him before or after the murder testified that he appeared angry or upset, or that his behavior was otherwise unusual.  By all accounts and by his own admissions, appellant was not angry and remained calm throughout the incident.  The evidence thus fails to support appellant’s claim that he acted in the heat of passion.  See, e.g., id. at 460-61 (evidence provided no rational basis to find that defendant acted in heat of passion where it was clear that defendant’s actions in the months and hours leading up to shooting demonstrated anger, vengeful planning, and preparation); Brocks, 587 N.W.2d at 41 (concluding that evidence does not provide rational basis to find that defendant acted in heat of passion when claim was refuted by defendant’s own testimony that he was neither mad at girlfriend nor jealous of victim, and when remainder of record was devoid of any credible evidence that would suggest defendant acted in heat of passion); State v. Buntrock, 560 N.W.2d 383, 386-87 (Minn. 1997) (evidence, including defendant’s own statement that his argument with his mother was typical, contradicted his claim that he was “very, very angry” at his mother).

            The second inquiry, whether there were acts and words sufficient to provoke a person of ordinary self control under the circumstances, requires an objective analysis.  Id. at 387.  Appellant claims that several acts combined to provoke him:  he testified that the victim pushed and hit him before kicking him in the knee and shooting him in the head.

            The physical evidence and the testimony of the witness who was standing at the bottom of the stairs, however, contradict appellant’s claim that the victim provoked him by firing the gun and shooting him before she was fatally shot.  In particular, that evidence shows that (1) the victim had no stippling on her palms that would indicate that she fired the gun; (2) according to the forensic evidence, the victim was shot at close range from above in the back of her head, while she was crouching or sitting with her hands covering her head; (3) after the first shot, the witness standing at the bottom of the stairs saw appellant back out of the upstairs bedroom with a gun in his hand;  (4) the witness heard a second shot as he was leaving the house to call 911;  (5) several minutes later, appellant came out of the house with a gunshot wound to the side of his head; and (6) the victim was found in the upstairs bedroom with the gun in her hand.

            The only rational inferences that can be drawn from this evidence is that appellant shot the victim, shot himself, and then either placed or dropped the gun in her hand.  Because the evidence fails to support any claim of provocation by the victim or heat of passion on the part of appellant, the district court did not abuse its discretion in denying an instruction on first-degree manslaughter.

            Self-defense Instruction

            Appellant argues that he was entitled to a self-defense instruction.  The elements of self defense are (1) the absence of aggression or provocation on the part of the defendant; (2) the defendant’s actual and honest belief that he was in imminent danger of death or great bodily harm; (3) existence of reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat.  State v. Basting, 572 N.W.2d 281, 285 (Minn. 1997).  A self-defense instruction is required only if a defendant raises the defense by creating or raising a reasonable doubt that his use of force was justified.  State v. Liggons, 348 N.W.2d 785, 790 (Minn. App. 1984), review denied (Minn. July 26, 1984).

            Here, appellant claims that the victim was the aggressor because she came to his house while on meth, became “crazy mad,” and pushed, hit, and kicked him; he further claims that after she shot him in the head, he was entitled to use deadly force against her.  Again, the problem with appellant’s argument is that the testimony of the witness and the physical evidence left at the scene fail to support his version of the events.  Rather, the evidence overwhelmingly establishes that appellant was the aggressor and that his use of force was not reasonable:  he brought the gun into the bedroom, shot the unarmed cowering victim at close range, and placed the gun in her hand.  See State v. Vazquez, 644 N.W.2d 97, 99-100 (Minn. App. 2002) (holding that district court did not abuse its discretion in refusing to instruct jury on self-defense where record contradicted defendant’s claim that he shot victim during struggle after she shot him in the stomach).  Under these circumstances, we cannot conclude that the district court abused its discretion by denying appellant’s request for an instruction on self defense.


[1]  Appellant’s theory was not well defined, either in the presentation of evidence or in the opening or closing arguments of either party.  At one point, appellant’s counsel appears to suggest that appellant is not guilty of second-degree murder because the shooting was an accident.  While there was no specific instruction on the accident defense, the failure to give such an instruction was not error if the instructions as a whole adequately informed the jury that a finding of intent is a prerequisite to a finding of guilt and if the arguments of the prosecutor and defense counsel further explained this to the jury.  State v. Gustafson, 610 N.W.2d 314, 319 (Minn. 2000).  Here, a review of the record shows that the intent requirement was adequately set out and defined.