This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).







State of Minnesota,


Michael R. Swan,


Filed July 24, 2007


Wright, Judge


Hennepin County District Court

File No. 05058135



John M. Stuart, State Public Defender, Bridget Kearns Sabo, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Michael O. Freeman, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent)



            Considered and decided by Kalitowski, Presiding Judge; Minge, Judge; and Wright, Judge.


U N P U B L I S H E D  O P I N I O N



In this appeal from his conviction of terroristic threats, appellant argues that the district court committed reversible error when it (1) denied appellant’s motion for a mistrial based on a claim of jury contamination, and (2) granted respondent’s motion to impeach appellant’s testimony with evidence of appellant’s prior convictions.  We affirm.


            Respondent State of Minnesota charged appellant Michael Swan with domestic assault by strangulation, a violation of Minn. Stat. § 609.2247, subd. 2 (Supp. 2005), and terroristic threats, a violation of Minn. Stat. § 609.713, subd. 1 (2004).  The complaint alleged that Swan choked and threatened to shoot his brother, R.J.S. 

During voir dire, the district court asked a prospective juror whether anything in her life would interfere with her ability to serve as a juror.  The prospective juror responded, “Truthfully, my car windows were smashed last week by three juveniles, by this guy that kind of resembled [Swan].”  When asked how this incident would affect her ability to serve as an impartial juror, the prospective juror responded, “Yeah, I am not in a great place to be doing this right now because I have a lot of anger about what happened.  They’d stolen a lot of stuff. . . .  Right now I am just right in the middle of pursuing that whole thing . . . .”  After a conference with counsel that is not part of the record, the district court dismissed the prospective juror. 

Outside the presence of the jury, Swan moved for a mistrial, arguing that the prospective juror’s statements “contaminated the jury.”  The district court denied the motion, concluding that the prospective juror’s statements did not rise to the level of prejudice.  But the district court agreed to give the jury pool the following curative instruction proposed by Swan: “This morning one of the potential jurors indicated that she thought that the defendant Michael Swan looked like one of the individuals that broke into her vehicle.  It is not possible that Mr. Swan broke into her car and no inference should be drawn from her comments.”

            During the trial, R.J.S. testified that Swan strangled him while he was driving, which inhibited R.J.S.’s ability to breathe and speak.  According to R.J.S., this caused him to “kind of black[ ] out” and drive off of the road.  He also testified that Swan threatened to “get a gun and shoot [him].”  Swan and R.J.S.’s mother, Susan Swan, testified that R.J.S. told her about this strangulation and that she heard R.J.S. report to Officer Brian Sloat that Swan had threatened to shoot him.  Officer Sloat confirmed that R.J.S. had reported this threat. 

            At the close of the state’s case, Swan moved to amend a pretrial ruling granting the state’s motion to impeach Swan’s testimony with evidence of Swan’s prior convictions of fifth-degree assault by disallowing any references to the nature of the offenses as assault.  The district court denied this motion.  On cross-examination, Swan confirmed that he had been convicted of fifth-degree assault in 1998, 1999, and 2002.  The district court instructed the jury that it “may consider evidence that [a] witness has been convicted of a crime [and] whether the kind of crime committed indicates the likelihood the witness is telling or not telling the truth.”  The district court cautioned the jury: “In the case of the defendant, you must be especially careful to consider any previous conviction only as it may affect the weight of the defendant’s testimony.  You must not consider any previous convictions as evidence of guilt of the offense for which the defendant is on trial.”

            The jury found Swan guilty of the terroristic-threats charge but acquitted him of the domestic-assault-by-strangulation charge.  This appeal followed.



            Swan challenges the district court’s denial of his motion for a mistrial on the ground of jury contamination, arguing that the prejudice caused by a prospective juror’s statement that Swan looked like the individual who had broken her car windows was too significant to be cured by the district court’s cautionary instruction.  We review a district court’s denial of a motion for a mistrial for an abuse of discretion.  State v. Marchbanks, 632 N.W.2d 725, 729 (Minn. App. 2001).

            Swan argues that the district court should have granted a mistrial because it could have replaced the jury pool without significant delay.  In denying Swan’s motion for a mistrial, the district court stated its belief that the jurors would not improperly rely on the prospective juror’s statement when deciding the case.  We “defer to such observations because the district court is in the best position to evaluate whether prejudice, if any, warrants a mistrial.”  Id.

            Swan argues that the district court’s curative instruction was not sufficient to cure the prejudice that resulted from the prospective juror’s comment.  But the district court concluded that the comment did not “rise[] to the level of prejudice.”  Again, we accord deference to this evaluation of the likelihood of prejudice.  Id.  Moreover, any prejudice that could have resulted from this comment was cured by (1) the district court’s dismissal of the prospective juror, and (2) its instruction to the remaining jurors, which we must assume they followed.  State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998); see Marchbanks, 632 N.W.2d at 729 (holding that prejudicial effect of prospective juror’s question of whether defendant was convicted felon was minimized when defense counsel struck prospective juror and district court instructed selected jurors not to speculate about attorney’s inability to answer question).

            In light of our deference to the district court’s observations about the likelihood of prejudice and the curative effect of the district court’s actions, Swan has failed to establish that the district court’s denial of the motion for a mistrial was an abuse of discretion.


Swan also challenges the district court’s decision to permit the state to impeach his testimony with evidence of his prior convictions of fifth-degree assault.  We review a district court’s ruling on the admissibility of prior convictions for impeachment purposes for a clear abuse of discretion.  State v. Swanson, 707 N.W.2d 645, 654 (Minn. 2006).

Evidence that a witness has been convicted of a crime punishable by imprisonment of more than one year may be admitted for impeachment purposes if the district court determines that the probative value of the evidence outweighs its prejudicial effect.  Minn. R. Evid. 609(a).  To determine whether the probative value of the evidence outweighs the prejudicial effect, a district court considers:

(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).  Here, the district court analyzed each Jones factor and found that (1) Swan’s prior convictions have significant impeachment value because they assist the jury in seeing him as a whole person, (2) the convictions are relatively recent, (3) the convictions are very similar to the charged offense, (4) Swan’s testimony may be important because only he and R.J.S. were present when the altercation occurred, and (5) Swan’s credibility is crucial because this is a “one-on-one situation.”

            Regarding the first Jones factor, Swan challenges the district court’s conclusion that the convictions have significant impeachment value to assist the jury in seeing Swan as a “whole person.”  The “whole person” doctrine is based on the principle that

[t]he object of a trial is not solely to surround an accused with legal safeguards but also to discover the truth. . . .  When a defendant voluntarily testifies in a criminal case, he asks the jury to accept his word.  No sufficient reason appears why the jury should not be informed what sort of person is asking them to take his word. . . .  Lack of trustworthiness may be evinced by [the defendant’s] abiding and repeated contempt for laws [that] he is legally and morally bound to obey . . . .


State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979) (quotation omitted).  Minnesota courts have relied on the “whole person” doctrine when considering whether a prior conviction has impeachment value and have held that, under the doctrine, in order to have impeachment value, crimes need not involve dishonesty.  See, e.g., State v. Pendleton, 725 N.W.2d 717, 728 (Minn. 2007) (holding that defendant’s prior convictions of fleeing peace officer and making terroristic threats were admissible in trial for first-degree premeditated and felony murder because they were important to jury’s judgment of defendant-witness’s credibility and helped jury see “whole person”); Swanson, 707 N.W.2d at 655 (holding that defendant’s prior convictions of motor-vehicle theft, assault, criminal vehicular operation, and possession of stolen property were admissible in trial for first- and second-degree murder, felony murder, kidnapping, and false imprisonment because they were relevant under “whole person” analysis to better evaluate defendant’s truthfulness). 

            Swan maintains that Minnesota courts should reexamine the “whole person” doctrine.  He argues that it “directly conflicts with the underlying premise of our criminal justice system, that the defendant must be tried for what he did, not for who he is,” and causes the first Jones factor to weigh in the state’s favor in every case.  Swan waived these arguments when he failed to raise them before the district court.  Swanson, 707 N.W.2d at 656; Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  But even if these arguments were preserved, we would decline to grant the relief Swan seeks because we are bound by established precedent.  See, e.g., Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating that “function of the court of appeals is limited to identifying errors and then correcting them”); Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) (stating that “task of extending existing law falls to the supreme court or the legislature, but it does not fall to [the court of appeals]”), review denied (Minn. Dec. 18, 1987).  The applicability of the “whole person” doctrine has been upheld by Minnesota courts notwithstanding criticism of the doctrine.  See, e.g., State v. Flemino, 721 N.W.2d 326 (Minn. App. 2006).  Indeed, we recently observed that,

[a]lthough credibility might be most directly and concretely assessed through considerations of past dishonesty that not only rose to the level of a crime but that also were established beyond a reasonable doubt, credibility in evidence law is broader than just those types of crimes.  Bias, prior inconsistent statements, contradiction, and faulty perception or inaccurate recollection all implicate credibility, even though they might not involve dishonesty.  See Minn. R. Evid. 616; 10 Minnesota Practice, CRIMJIG 3.15 (1999).  The broader credibility reflected in the felony category of impeachment prompts the question, noted in Brouillette, [286 N.W.2d at 706,] of whether a person who violates the law in a serious way can be trusted to tell the truth in the matter at issue.


Id. at 329.

            Swan also challenges the weight the district court gave to the remaining Jones factors, arguing that they are either neutral or weigh in favor of excluding the evidence of Swan’s prior convictions.  Because a district court is in the unique position to determine the proper weight to be assigned to each factor, we defer to the district court’s broad discretion when making that determination.  State v. Hochstein, 623 N.W.2d 617, 625 (Minn. App. 2001).

Regarding the second Jones factor, Swan argues that, although the prior crimes were recent, they were less probative because they occurred before Swan completed treatment for substance abuse.  But when, as here, the convictions “show a pattern of lawlessness and are less than 10 years old, the dates of conviction do not weigh against admission.”  Pendleton, 725 N.W.2d at 728.  Moreover, nothing precluded Swan from explaining the circumstances of the convictions or how those circumstances have changed since he completed treatment.  See State v. Frisinger, 484 N.W.2d 27, 32 (Minn. 1992) (holding that district court erred by disallowing defendant to explain circumstances of prior conviction).

With respect to the third Jones factor, Swan argues that, because the offenses are so similar to the charged offense, they demonstrate criminal propensity rather than a lack of credibility.  Although the risk that a jury might misuse impeachment evidence to rely on it as propensity evidence exists, that risk is diminished when the district court gives the jury a cautionary instruction, which the law presumes the jury will follow.  Pendelton, 725 N.W.2d at 729 (holding that instruction that jury may not consider evidence of past convictions as evidence of guilt of charged offense protects defendant from concern that jury will use past convictions as substantive evidence); Flemino, 721 N.W.2d at 329 (holding that risk that jury will use impeachment evidence as propensity evidence is diminished by district court’s “careful exercise of discretion in applying the Jones factors; by cautionary instructions, which the law presumes the jury will follow; and by the [district] court’s discretion to allow the accused to mitigate the impeachment evidence by explaining the circumstances of the prior conviction”).  Here, the district court instructed the jury that it “must be especially careful to consider [Swan’s] previous conviction[s] only as [they] may affect the weight of [his] testimony” and “not consider any previous convictions as evidence of guilt of the offense for which [Swan] is on trial.”

Swan also argues that the importance of his testimony, given that there were no third-party witnesses to the altercation[1] and that his prior convictions are not probative of his credibility, causes Jones factors four and five to weigh in favor of excluding the prior-conviction evidence.  But the Minnesota Supreme Court has held that, “[i]f credibility is a central issue in the case, the fourth and fifth Jones factors weigh in favor of admission of the prior convictions.”  Swanson, 707 N.W.2d at 655.  Credibility was a central issue here because, as the district court found, and Swan concedes, the jury was required to determine whether to credit Swan’s version or R.J.S.’s version of the events.

The district court did not abuse its broad discretion when it weighed the Jones factors.  Accordingly, we affirm the district court’s admission of the impeachment evidence.


[1] Swan maintains that the district court’s decision to allow this testimony “discouraged” him from testifying.  But Swan did testify.  And had Swan chosen not to testify, it would have been his strategic decision, not the district court’s ruling, that caused him not to do so.  See State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (holding that decision to admit evidence of prior offenses did not prevent defendant from testifying, as defendant “made a decision not to testify based on the evidence that would have been admitted had he taken the stand”).