This opinion will
be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
State of Minnesota,
Elliot B. Holly,
August 23, 2005
File No. 09-K3-02-1564
Mike Hatch, Attorney General, 1800 Bremer Tower, 445
Minnesota Street, St. Paul, MN 55101-2134; and
Thomas H. Pertler, Carlton County Attorney, Paul T. Shaffer,
Assistant County Attorney, 202 Courthouse, P.O. Box 300, Carlton, MN 55718 (for
John M. Stuart, State Public Defender, Davi E. Axelson,
Assistant Public Defender, 2221
University Avenue S.E., Suite 425, Minneapolis,
and decided by Minge,
Presiding Judge; Lansing,
Judge; and Halbrooks,
U N P
U B L I S H E D O P I N I O N
a jury trial, appellant was convicted of second- and fifth-degree assault. Appellant challenges the introduction of
evidence of a past conviction of terroristic threats and testimony about appellant’s
behavioral history. We conclude that the
district court did not abuse its discretion in admitting the evidence of the
past conviction as impeachment evidence when appellant testified. With one exception, we conclude that
testimony regarding appellant’s behavioral history was admissible as rebuttal
evidence. Although the admission of
testimony about appellant’s use of weapons was error, because it was harmless
error, we affirm.
Holly was charged with two counts of second-degree assault with a dangerous
weapon, in violation of Minn. Stat. § 609.222, subd. 1 (2002), and two counts
of fifth-degree assault, in violation of Minn. Stat. § 609.224, subd. 1(2)
(2002). The incident that is the subject
of this action occurred on November 8, 2002, just before lunch was served at
the Minnesota Sex Offender Program facility in Moose
Lake (Moose Lake). Appellant had argued with another resident
who told him not to use the smoking area because the floor had just been waxed. Susan Eccles, a staff member, was trying to
diffuse the situation.
to appellant, he decided to drop the matter and was just standing waiting for
lunch, when he was unexpectedly hit by a rolling metal food cart and tackled by
Carl Haglund, another staff member. Appellant
claims that he was then attacked by 30-35 Moose Lake
staff members and that in desperation and self-defense, he bit and grabbed the hair
of his assailants.
the course of the trial, the state presented the testimony of four Moose Lake
staff members who were involved in or witnessed the incident. Their testimony differs dramatically from
appellant’s. Sue Eccles testified that appellant
remained agitated after his argument with the other resident, that she cleared
the rest of the residents from the room, and that when appellant came towards
her, another staffer pushed a cart between them. Carl Haglund testified he was behind
appellant and tried to grab him in a bear hug, but appellant slipped free and
grabbed a silverware knife from the cart.
According to staff testimony, Haglund then grabbed appellant from the
front, and Haglund, Eccles, and appellant fell to the floor. Staff testimony indicates that at some point
during the struggle appellant bit Haglund and was pulling his hair. Another staff member, Lori Kangas, testified
that while appellant was struggling with Eccles and Haglund, appellant had a
knife in his hand, and it appeared that he was directing the knife toward
Eccles. Other staff members arrived and
helped subdue appellant and free Haglund.
There was testimony that appellant was yelling and threatening various
people during and after the struggle.
The staff called the police, and appellant was transported to the jail.
objection, the district court allowed the state to introduce evidence of
appellant’s 2003 conviction of felony-level terroristic threats to impeach
appellant during the cross-examination. The
conviction was for threatening to stab staff members with a sharp metal object.
appellant’s testimony, he claimed that the staff at Moose Lake
was racist, routinely made racial slurs, and had unofficial discriminatory
policies. Appellant claimed that he was
singled out and that the staff at Moose
Lake was trying to get
rid of him. He also testified that as a
result of the racism at Moose
Lake, the staff falsified
reports to prevent investigations of poor treatment of African Americans.
state called Debra Konieska, a behavioral analyst at Moose Lake,
as a rebuttal witness to respond to appellant’s claims of racism. This was to be done by summarizing appellant’s
record to establish that disciplinary action against him was justified. Appellant objected to her testimony on
various grounds, including undue prejudice and improper Spreigl evidence. The state asked
Konieska, “Mr. Holly characterized himself as being picked on by staff for
racial reasons throughout his stay at the facility. What sort of patient has Mr. Holly been in
the behavioral sense?” The district
court overruled appellant’s objection to this question as long as it did not
relate to specific incidents, but just gave a general history. The state asked Konieska to describe
appellant’s history since he had come to Moose Lake. She stated, “Mr. Holly’s behavior since his
arrival at the Moose Lake Sex Offender Program has been very problematic and
very severe. He has had numerous
episodes of threats, terroristic threats, threats to assault peers, staff and
others.” She further testified that “He
has also additionally followed up on many of these threats to the point of
assaulting staff, peers and many of these assaults have resulted in physical [injury]
to the persons. Many of the persons that
suffered the physical [injury] also required medical attention.” In response to the state’s question if the
assaults involved weapons, she testified:
Mr. Holly has frequently used items as weapons. He has fashioned pieces of metal, pens, things
of that nature into what we call shanks.
He has also used items that are commonly available on the living unit
such as chairs, silverware during meals.
He has broken CDs and fashioned those into weapons. He has broken articles that are available in
his room such as stereos, T.V.’s, things like that and used pieces of those as
weapons. He has also ripped up bed
sheets and used those to fashion weapons or shanks that he has made and also
has used strips of bed sheets against himself.
The jury found appellant guilty of all
charges. This appeal followed.
D E C I S I O N
The first issue is
whether the district court abused its discretion by allowing the state to
impeach appellant’s testimony by introducing evidence of a prior conviction for
terroristic threats. Evidentiary rulings are within the district
court’s discretion, and a decision to admit evidence to impeach a defendant who
chooses to testify will not be reversed without a clear abuse of
discretion. State v. Ihnot, 575 N.W.2d 581, 584 (Minn.
1998); see State v. Gassler, 505
N.W.2d 62, 67 (Minn.
1993). It is within the district court’s
discretion to determine whether the probative value of the prior conviction
outweighs the prejudice. State v.
Graham, 371 N.W.2d 204, 208 (Minn.
Minn. R. Evid. 609 allows evidence of a
prior crime to be admitted in order to attack the credibility of the witness,
if the underlying conviction or release is less than ten years old, is
punishable by imprisonment for more than one year, and the probative value of the
evidence outweighs its prejudicial effect.
R. Evid. 609(a)(1), (b). Appellant’s
prior conviction of terroristic threats was a felony and occurred in 2003; therefore,
the only question is whether the probative value of admitting the evidence
outweighed the prejudicial effect. In
order to make this probative-value/prejudicial-effect determination, the district
court must weigh the five Jones
(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, 538 (Minn.
1978). An examination of the five Jones factors is required to determine
whether the district court abused its discretion.
It is well
established in Minnesota
that although a crime such as terroristic threats does not directly involve
truth or falsity, it still has impeachment value because it allows the jury to
see the “whole person” to better judge the truth of his testimony. See Gassler,
505 N.W.2d at 67; State v. James, 638
N.W.2d 205, 211 (Minn. App. 2002), review
Mar. 27, 2002). Appellant argues that
this standard is outdated and does not reflect the reality of how a jury uses
the information of a past offense.
Appellant contends that in reality, juries use the evidence of past
convictions to convict a defendant for the present crime. Although appellant points to significant
evidence that the use of prior convictions improperly prejudices a jury, the
law in Minnesota
allows the factfinder to consider whether evidence of past crimes can show a
general propensity for dishonesty. See Gassler,
505 N.W.2d at 67.
factor clearly weighs in favor of admission because appellant’s terroristic-threats
offense was committed almost immediately before the events underlying this
of past crime
more similar a past crime is to the present crime, the greater the danger that
the jury will use the evidence substantively as well as for impeachment
purposes. Gassler, 505 N.W.2d at
67. In this case, there is a reasonable
degree of similarity. The past
conviction was for verbally threatening to stab staff members with a sharp
metal object, while the current second-degree assault charges resulted from trying
to actually stab two staff members with a table knife. However, the Minnesota Supreme Court has
upheld the admission of a prior conviction for attempted murder in a trial for
murder and the admission of prior convictions for rape in a trial for
first-degree criminal-sexual assault. Gassler, 505 N.W.2d at 67; State v. Frank, 364 N.W.2d 398, 399 (Minn. 1985). Based on these decisions, we conclude the
district court did not abuse its discretion by admitting the terroristic-threats
conviction to impeach appellant despite the factual similarity to the current
and credibility of appellant’s testimony
the central issue in a case is weighing the credibility of the defendant versus
the credibility of other testimony, the need for the evidence is greater and
therefore there is a stronger reason for admitting impeachment evidence. See
Ihnot, 575 N.W.2d at 587; State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980). Appellant’s testimony was central in this
case because his guilt depended on whether the jury believed appellant or the
staff members at Moose
similarity of the charges in this case to the conviction of terroristic threats
and the use of a sharp metal object against staff members does raise some
issues about the danger of prejudice by admitting the prior conviction. However, weighing all of the Jones factors together and given past
caselaw, we conclude that the district court did not abuse its discretion by
allowing the prior conviction to be introduced to impeach appellant’s
testimony. Appellant argues that this
rule should be changed. Given the
existing caselaw, that argument should be addressed to the Minnesota Supreme Court.
next issue is whether the district court abused its discretion by allowing
testimony about appellant’s past behavior at Moose Lake
to rebut his claim of racism. Appellant
claims that the testimony of Konieska regarding his past behavior at Moose Lake
was improper Spriegl evidence because
it was introduced to show that appellant had acted in conformity with that
behavior. See State v. Spreigl, 272 Minn. 488, 495-96, 139
N.W.2d 167, 172 (1965). Evidence of
other crimes or misconduct is usually “not admissible for the purpose of
showing that he or she acted in conformity with that character.” State
v. Kennedy, 585 N.W.2d 385, 389 (Minn.
1998); see Minn. R. Evid.
general, rebuttal evidence is evidence that explains, contradicts, or refutes
evidence elicited by the defense.” State
v. Gutierrez, 667 N.W.2d 426, 435 (Minn.
2003). The determination of whether or
not something is appropriate rebuttal evidence rests “almost wholly” within the
discretion of the trial court and will only be reversed upon a showing of a
clear abuse of discretion. State v.
Swanson, 498 N.W.2d 435, 440 (Minn. 1993)
(quoting State v. Eling, 355 N.W.2d
286, 291 (Minn.
1984)). Evidence that is not otherwise
admissible may be admissible as rebuttal evidence. Gutierrez,
667 N.W.2d at 435.
the present case, appellant claimed
that the staff was racist, that he was being singled out for mistreatment, that
the staff wanted him out of Moose
Lake, and that staff had
falsified reports of his misbehavior to prevent investigation. In response to this testimony, the state called
Konieska to testify about appellant’s behavioral history at Moose Lake. She testified that appellant had made many
threats, some of which he had followed up on, to assault the staff and other
patients. She further testified that
during these assaults he had frequently used weapons fashioned out of available
objects such as pieces of metal, pens, and broken CD’s.
testimony countered appellant’s claim that he was disciplined for racist
reasons. It also responded to appellant’s
challenge to the credibility of the state’s witnesses by providing evidence
that actions taken against appellant were justified by appellant’s threats and
assaults against staff members and other patients. By claiming past discrimination against appellant
by staff members based on racism, appellant “opened the door” for testimony
regarding the reason for actions taken against appellant. With one exception, we conclude that the
district court did not abuse its discretion by admitting Konieska’s testimony.
The exception is Konieska’s detailed testimony that appellant had
used weapons fashioned out of items found at Moose Lake.
This rebuttal testimony concerned
conduct similar to conduct for which he was on trial. This would be highly prejudicial and has
little additional value in refuting appellant’s testimony about past
discrimination based on racial prejudice.
Because of the similarity, it created a risk that the jury would think
that appellant acted in conformity with this earlier behavior or that even if
appellant did not do the specific act for which he was on trial, he had done
this act before and deserved to be punished.
For this reason, the district court abused its discretion by allowing Konieska
to testify with specificity regarding the use of weapons fashioned out of
things appellant found at Moose
The third issue is whether allowing
Konieska’s testimony regarding appellant’s use of weapons in past assaults was
harmless error. A conviction can stand
if the error was harmless beyond a reasonable doubt. State
v. King, 622 N.W.2d 800, 809 (Minn.
2001). When examining whether harmless
error occurred, an appellate court determines “whether there is a reasonable
possibility that the wrongfully admitted evidence significantly affected the
verdict.” State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994). The proper consideration is not whether the
jury could have convicted the defendant without the erroneous testimony, but
rather, what effect the error had on the jury’s verdict, “and more
specifically, whether the jury’s verdict is ‘surely unattributable’ to the
testimony.” King, 622 N.W.2d at 811 (quoting State v. Jaurez, 572 N.W.2d 286, 292 (Minn. 1997)). In evaluating the impact of the district
court’s error, a reviewing court should look at the record as a whole. State
v. Dillon, 532 N.W.2d 558, 558 (Minn.
1995). The stronger the evidence of
guilt, the more likely the error was harmless; but the more serious the error,
the more likely the error was prejudicial.
was strong evidence of appellant’s guilt.
Four staff members testified to the events that occurred at Moose Lake. All of their testimony indicated that
appellant assaulted Eccles and Haglund.
The primary issue in this case was whether the jury believed appellant
or the Moose Lake staff. Konieska’s testimony had the potential to be
fairly prejudicial because it alleged that appellant had committed virtually
the same offense before. Although the
jury could have been swayed by Konieska’s testimony regarding prior use of
weapons and afforded appellant’s testimony less credence, given the
circumstances and the strength of the state’s case there is no reasonable
possibility that Konieska’s testimony regarding the use of weapons
significantly affected the verdict. This
conclusion is reinforced by the fact that questions regarding appellant’s
conviction for terroristic threats were admitted for impeachment purposes and
included appellant threatening staff members with a sharp metal object. This admissible evidence gave the jury access
to evidence very similar to that of Konieska’s offending testimony. Therefore, the admission of this testimony
was harmless error.
The final issue
regards appellant’s claims in his pro se supplemental brief that he has been
mistreated and tortured at Moose
Lake and that the staff
is racist and discriminates against him because he is African American. None of these accusations is related to the
current charge. To the extent that the appellant
claims that prejudice of the staff caused them to lie about the events giving
rise to his conviction, these issues of credibility have been decided by the jury,
and this court will not disturb the jury’s decisions about the credibility of
witnesses. See State v. Johnson, 568
N.W.2d 426, 435 (Minn.