This opinion will
be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
John E. Walker,
Filed August 21, 2007
Affirmed in part, reversed in
part, and remanded
Hennepin County District Court
File No. 05042063
Lori Swanson, Attorney General,
1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Mike Freeman, Hennepin County
Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center,
Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public
Defender, Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
and decided by Klaphake, Presiding Judge; Randall, Judge; and Willis, Judge.
U N P U B L I S H E D O P I N I O N
challenges his conviction of first-degree burglary and his sentence, arguing that
the district court abused its discretion by admitting evidence of a past
conviction, that the district court was not authorized to impanel a sentencing
jury, and that the district court erred by not defining “particular cruelty”
for the jury. We conclude that the
district court did not abuse its discretion by admitting the prior-conviction
evidence, and we affirm appellant’s conviction.
But because we conclude that the district court erred by not providing
to the sentencing jury a definition of particular cruelty, we reverse appellant’s
sentence and remand for resentencing.
approximately midnight on June 30, 2005, appellant John E. Walker called the
home of his ex-girlfriend, Lisa Ramirez.
Ramirez’s employer and landlord, who also lived in the home, answered
the phone and told Walker
that Ramirez was not home. At about 3:30
knocked on the back door of the house and asked to be let in. Ramirez told him to “just go away.” Walker
then broke down the door, entered the house, and repeatedly punched and kicked
Ramirez, threatening to kill her. As a
result of the assault, Ramirez suffered multiple facial fractures, a black eye,
skull abrasions, bruised ribs, and lost teeth.
Walker was charged with first-degree burglary. After a jury convicted him, the district
court addressed the jury:
You have an
additional question to answer and it will be put to you in the form of a
question on a Special Verdict form.
The question is, “Did the defendant
act with particular cruelty?” You will answer
the question yes or no.
The State has the burden of proving
this aggravating factor beyond a reasonable doubt. If you have a reasonable doubt as to the
answer, you should answer no.
court gave counsel an opportunity to address the jury regarding the aggravating
factor. The jury answered the question
in the affirmative, and based on that aggravating factor, the district court
departed upwardly from the presumptive sentence and sentenced Walker to 108 months’ imprisonment. Walker
appeals from his conviction and his sentence.
D E C I
S I O N
Walker did not testify at
trial. The state sought to impeach him,
if he had testified, with two prior convictions, and Walker moved in limine to exclude any
evidence of those convictions. Concluding
that use of both convictions would be “piling on,” the district court allowed
the state to choose one; the state chose a 1985 conviction of second-degree
murder. Walker argues that he is entitled to a new
trial on the ground that the district court abused its discretion by not
excluding evidence of that conviction. A
district court’s ruling on the impeachment of a witness with a prior conviction
is reviewed, as are other evidentiary rulings, under an abuse-of-discretion
standard. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).
Minnesota Rule of
Evidence 609 provides:
rule. For the purpose of attacking the
credibility of a witness, evidence that the witness has been convicted of a
crime shall be admitted only if the crime (1) was punishable by death or
imprisonment in excess of one year under the law under which the witness was
convicted, and the court determines that the probative value of admitting this
evidence outweighs its prejudicial effect, or (2) involved dishonesty or false
statement, regardless of the punishment.
limit. Evidence of a conviction under
this rule is not admissible if a period of more than ten years has elapsed
since the date of the conviction or of the release of the witness from the
confinement imposed for that conviction, whichever is the later date, unless
the court determines, in the interests of justice, that the probative value of
the conviction supported by specific facts and circumstances substantially
outweighs its prejudicial effect.
Walker was convicted of second-degree murder
in 1985, but he was released in December 2002 from imprisonment for the crime,
so he does not dispute that his conviction is not barred by the time limit in
rule 609(b) or that the conviction was punishable by more than one year’s
imprisonment. Rather, he argues that the
prior-conviction evidence was more prejudicial than probative.
determine whether the prejudicial effect of prior-conviction evidence outweighs
its probative value, courts consider: (1) the impeachment value of the prior
crime, (2) the date of conviction and the defendant’s subsequent history, (3)
the similarity of the past and charged crimes, (4) the importance of the
defendant’s testimony, and (5) the centrality of the credibility
issue. State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978).
The district court acknowledged the Jones
factors but did not apply them on the record, and this omission was error. But such an error is not reversible if the
appellate court, applying the Jones factors
itself, determines that the district court properly exercised its
discretion. See State v. Swanson, 707
N.W.2d 645, 655 (Minn.
2006). And our review of the Jones factors leads us to conclude that
the error was harmless.
Appellant argues that the first Jones factor has become an “anything
goes” standard through the use of the “whole person” rationale. See
State v. Brouillette, 286 N.W.2d 702, 707 (Minn.
1979) (explaining that “impeachment by prior crime aids the jury by allowing it
to see the whole person and thus to judge better the truth of his testimony”)
(quoting City of St. Paul v. DiBucci,
304 Minn. 97,
100, 229 N.W.2d 507, 508 (1975)) (internal quotations omitted). But Walker
concedes that an argument for discontinuing application of the “whole person”
rationale is “more properly made” to the supreme court and simply argues that
the first factor weighs against admission here.
Because “murder is not a crime of moral turpitude,” he argues, the
impeachment value of his prior conviction is low. In referring to a crime of moral turpitude, Walker apparently means the crimes described by Minnesota Rule of
Evidence 609(a)(2)—crimes involving “dishonesty or false statement.”
a prior conviction need not be for a “crime of moral turpitude” to have impeachment
value. See State v. Darveaux, 318
N.W.2d 44, 48 (Minn. 1982) (noting that
although an aggravated assault is not a crime involving dishonesty or false
statement, such a conviction would nonetheless be admissible if its probative
value outweighed its prejudicial effect, citing Jones). And we agree with
the state that this court “is without authority to change Rule 609(a) or
overrule a supreme court decision” and that Walker’s prior conviction is “reflective of
the whole person.” Use of the “whole person”
rationale is well established by our caselaw, and under that rationale, Walker’s prior conviction
had impeachment value.
Walker concedes that the “timeliness factor
technically weighs in favor of admission” because he was released from prison less
than ten years ago. The state agrees and
points out that in the two and a half years between Walker’s release and the
offense of which he was convicted here, he was also convicted of fourth-degree
burglary and served 180 days in the workhouse, which establishes “‘a pattern of
lawlessness’ and demonstrates that the prior conviction ‘ha[s] not lost any
relevance’ with the passage of time.” See Ihnot, 575 N.W.2d at 586. The second factor weighs in favor of
Under the third factor, Walker argues that his
prior conviction of second-degree murder is similar to the crime with which he
is charged here because he committed an assault during the burglary, and, therefore,
the jury would have been likely to use the prior conviction as evidence of a propensity
toward violence. The state argues that
the two crimes are dissimilar and that the district court would have given a
limiting instruction to the jury had Walker
testified, which would have minimized misuse of the evidence. Limiting instructions alleviate the concern
that a jury will use a past conviction as substantive evidence of guilt. State
v. Pendleton, 725 N.W.2d 717, 729 (Minn.
2007). But because Walker’s prior conviction of a violent crime
is similar to the assault underlying the burglary charge here, we conclude that
this factor weighs against admissibility.
See Swanson, 707 N.W.2d at 655.
The fourth and fifth Jones factors are often combined. Walker
argues that his “testimony was vitally important” because there was “no way,
other than via direct testimony, for [him] to present his version of the
offense to the jury.” And when the
district court did not exclude the prior-conviction evidence, it “kept [Walker] off the
stand.” Although Walker argues that his testimony was important,
he contends that the state did not need the prior-conviction evidence to attack
his credibility because the state could simply have pointed to the contrary
testimony of Ramirez and her landlord. Walker’s argument is
inconsistent with caselaw. Generally,
“[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. And when credibility is a central issue in a
case, it is often because there are witnesses with conflicting accounts of the
events. Under Walker’s rationale, a party should simply
point to the fact that the testimony conflicts rather than attempt to impeach a
witness, but such a practice would obviate the need for rule 609 and the Jones analysis. The fourth and fifth factors support
admission of the evidence.
Despite Walker’s criticism of the first Jones factor, that factor weighs in
favor of admissibility here, as do the second, fourth, and fifth factors. Only the third factor weighs against
admissibility. We conclude that it was
not an abuse of the district court’s discretion to allow the prior-conviction
We also reject the argument that Walker makes in his pro
se supplemental brief that he was denied effective assistance of counsel because
his trial was delayed once due to a conflict in his attorney’s schedule. First, there is nothing in the record to
support his assertions that his attorney “gave preference” to his conflicting
“federal case” or that Walker
was not informed of the delay in advance.
Second, to succeed on a claim of ineffective assistance of counsel, an
appellant “must affirmatively prove that his counsel’s representation fell
below an objective standard of reasonableness and that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotations
omitted). Walker asserts that the “outcome would have been
‘different’” but for the delay because his trial would have taken place as
originally scheduled, but he does not claim that the verdict or the sentence
would have been different. A delay in
trial does not by itself constitute prejudice for purposes of a claim of
ineffective assistance of counsel.
Because the district court did not
abuse its discretion by denying Walker’s motion
to exclude the evidence of his prior conviction and because none of the
arguments in Walker’s
pro se supplemental brief requires reversal of his conviction, we affirm the
argues next that the district court erred by asking the jury whether Walker
acted with particular cruelty, thereby allowing the jury to determine whether an
aggravating factor existed for sentencing purposes. He asserts both that the district court was
not authorized to impanel a sentencing jury and that the question that the
district court asked the jury was unconstitutionally vague, and, therefore,
reversal of his sentence is required.
whether the district court had the authority to impanel a sentencing jury
involves a question of law, which this court reviews de novo. State
v. Chauvin, 723 N.W.2d 20, 23 (2006).
Walker argues that although the legislature amended state law in the
wake of Blakely v. Washington, 542
U.S. 296, 124 S. Ct. 2531 (2004), to authorize district courts to convene
sentencing juries to make findings of fact relating to upward sentencing
departures, the sentencing guidelines had not yet been modified to authorize
district courts to use those jury findings to impose aggravated sentences. The modifications to the sentencing
guidelines took effect on August 1, 2005, after Walker committed his offense. Therefore, Walker contends, the district court was not
authorized by the sentencing guidelines to convene a sentencing jury or use a
jury finding to support an enhanced sentence.
We reject Walker’s argument because of the supreme
court’s decision in Chauvin, which
held that the district court had “inherent authority to impanel a jury on
sentencing factors” although the legislature had not yet enacted legislation to
specifically authorize the use of sentencing juries. 723 N.W.2d at 29. Here, the district court had inherent
judicial authority to comply with Blakely
by seeking a jury finding regarding whether an aggravating factor existed
regardless of the fact that the sentencing guidelines had not yet been modified
to provide for such a procedure.
argument that the modified sentencing guidelines do not apply here is based on
his assertion that they went into effect after he committed the offense for
which he was being sentenced. But in Chauvin, the supreme court considered
the legislation that was in effect “[a]t the time the district court impaneled
the sentencing jury,” not at the time the defendant committed his crime. Id.at 27.
Here, the modifications to the sentencing guidelines were in effect by
the time the district court tried and sentenced Walker after using a sentencing jury. The district court was authorized to allow a
jury to determine whether the aggravating factor of particular cruelty was
Walker argues next that the
phrase “particular cruelty” is unconstitutionally vague when, as here, the
district court provides no instruction to the jury regarding its meaning. The state contends that although Walker objected to jury
consideration of sentencing factors generally, he failed to object to the
particular-cruelty instruction, and we should therefore review it only for
plain error affecting substantial rights.
v. Griller, 583 N.W.2d 736, 740 (Minn.
1998). We note that Walker may have preserved an objection to the
particular-cruelty instruction by objecting to the entire sentencing-jury
procedure. When the district court discussed
with Walker the
question it intended to ask the jury regarding particular cruelty, it advised
him, “If you want to chat with [your attorney] about any of that, now is the
time to do it. You already preserved
your objections to this whole procedure.”
But even if we agree
with the state and determine that Walker failed to object to the
particular-cruelty instruction and therefore review it only for plain error, we
conclude that the instruction was plain error under our recent decision in State v. Weaver, 733 N.W.2d 793 (Minn.
App. 2007), pet. for review filed (Minn. July 31, 2007).
As here, the
district court in Weaver did not
provide the jury with a definition of “particular cruelty” and merely read the
special-verdict form, which instructed: “The first [aggravating factor] that’s
being submitted to you is whether the victim . . . was treated with particular
cruelty for which the defendant should be held responsible.” Id. at 802. On
appeal, we determined that the instruction failed to provide sufficient
guidance to the jury regarding particular cruelty. Id.
explained in Weaver, before the
advent of sentencing juries, a determination of whether a crime had been
committed with particular cruelty was made by a district-court judge who
generally was able to rely on his or her experience and accumulated knowledge
of “typical cases” to make the determination, so a precise definition of that
term was unnecessary. See id. But when a sentencing jury determines whether aggravating factors are
present, “particular cruelty” is a “relative term that requires a uniform meaning
irrespective of the jurors’ lay understanding
of the term.” Id.
definition of the phrase “particular cruelty” must be given to the sentencing
jury. And although we decline to provide
such a definition of the phrase and leave the matter to the district court and
attorneys on remand, we offer the following guidance: in general, to be
particularly cruel, a defendant’s conduct must be significantly more cruel than
that usually associated with the offense of which he was convicted. See,
e.g., Holmes v. State, 437 N.W.2d
58, 59-60 (Minn. 1989) (holding that a departure was not justified because the
defendant’s conduct was not significantly different from that typically
involved in the crime); State v. Hanson,
405 N.W.2d 467, 469 (Minn. App. 1987) (holding that a departure was not
warranted because the defendant did not commit manslaughter “in a manner
significantly more serious than the typical manslaughter”). Defendants’ conduct has been deemed
particularly cruel when it has involved threats, degradation of the victim, or
the gratuitous infliction of pain. See, e.g., State v. Smith, 541 N.W.2d 584, 590 (Minn. 1996). Courts have also found that defendants acted
with particular cruelty when they left a victim to die alone without notifying
emergency personnel, set fire to a victim who was still alive, and attempted to
conceal or destroy a victim’s body. See, e.g., State v. Folkers, 581 N.W.2d 321, 327 (Minn.
1998); State v. Jones, 328 N.W.2d
736, 738 (Minn.
1983); State v. Gurske, 424 N.W.2d
300, 305 (Minn. App. 1988); State v.
Dircks, 412 N.W.2d 765, 767-68 (Minn. App. 1987), review denied (Minn. Nov. 24, 1987).
court’s omission of a definition of “particular cruelty” was plain error, and
that error contributed to Walker
receiving a sentence that was an upward departure from the presumptive
sentence, thereby affecting his substantial rights. Because we conclude on this ground that Walker’s sentence must be
reversed, we need not address his other argument against the upward
departure. We remand for a new
Affirmed in part, reversed in part,