This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Geoffrey Ronald Gilbertson,



Filed October 17, 2007

Reversed and remanded

Willis, Judge


Clay County District Court

File No. K5-05-1780


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Brian Melton, Clay County Attorney, Heidi M.F. Davies, Assistant County Attorney, 807 Eleventh Street North, Moorhead, MN 56560 (for appellant)


Daniel B. Mohs, 201 Ridgewood Avenue, Minneapolis, MN 55403-3508 (for respondent)


            Considered and decided by Willis, Presiding Judge; Randall, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


The state appeals from the district court’s denial of its pretrial motion to preclude respondent from presenting a legal defense of mental deficiency in the form of post-traumatic shock and to exclude evidence, including expert testimony, regarding that defense.  We reverse and remand.


            At approximately midnight on August 30, 2005, respondent Geoffrey Gilbertson was driving in the northbound lane on Highway 75 in rural Clay County.  He attempted to pass two vehicles, realized that another vehicle was approaching in the southbound lane, and cut back into the northbound lane between the vehicles that he was in the process of passing.  Gilbertson lost control of his car, and it struck the rear of the vehicle in front of him, which caused Gilbertson’s car to re-enter the southbound lane, colliding head-on with the southbound vehicle.  The driver of that vehicle died as a result of the collision. 

Gilbertson and his passenger got out of his car just before it caught fire.  According to his testimony at the plea hearing, Gilbertson asked his passenger and the driver of the vehicle not involved in the accident, who was standing nearby, whether each was all right.  He then walked away from the scene into the ditch on the west side of the highway and continued to walk along a railroad track to his home, approximately one and a half miles from the scene.  A Clay County deputy located him there at approximately 2:45 a.m.  The deputy transported Gilbertson to the sheriff’s department, where he admitted that he had been drinking before the accident and that he walked away from the scene.                      

Gilbertson was charged with criminal vehicular homicide for operating a motor vehicle in a grossly negligent manner, in violation of Minn. Stat. § 609.21, subd. 1(1) (2004); and criminal vehicular homicide—leaving the scene of an accident, in violation of Minn. Stat. § 609.21, subd. 1(7) (2004).  He pleaded guilty to leaving the scene of an accident, for which he was sentenced to 48 months’ imprisonment, and the other count was dismissed. 

On July 26, 2006, Gilbertson moved to withdraw his guilty plea.  The district court granted the motion, and Gilbertson was released to stand trial on the original charges against him.  Gilbertson filed notice that he intended to present at trial a defense of mental illness or deficiency due to “immediate-onset post-traumatic shock” and included his treating physician in the list of witnesses whom he intended to call at trial.  His physician had written a letter, which was submitted with Gilbertson’s motion to withdraw his guilty plea, expressing the opinion that Gilbertson’s “condition at the time immediately following this accident might affect the judgment of a young man . . . .”    

The state filed a motion in limine to, inter alia, prohibit Gilbertson from asserting a mental-deficiency defense and to exclude expert testimony regarding any alleged mental deficiency on the ground that no expert qualifications or reports had been disclosed.  The district court denied the state’s motion.  The court expressed its intent to allow Gilbertson to present the defense only as to the count of leaving the scene and ruled that Gilbertson “may be entitled to claim temporary mental deficiency/insanity due to a post-traumatic mental/physical shock condition, only if the jury first finds that the State has failed to prove beyond a reasonable doubt that he is guilty of Count 1 of the Complaint (criminal vehicular homicide—gross negligence).”  The court included with its order and memorandum proposed jury instructions describing the defense and the limitation.  The state appeals from the denial of its pretrial motion.


In a pretrial appeal, the state must demonstrate “clearly and unequivocally” that (1) the district court erred in its judgment, and (2) that the error will have a “critical impact” on the trial’s outcome unless reversed.  State v. Martin, 591 N.W.2d 481, 484 (Minn. 1999).


            The state argues that the district court erred by denying its motion to prohibit Gilbertson from presenting, as a defense to the charge of criminal vehicular homicide (leaving the scene), that he suffered from a mental illness or deficiency due to post-traumatic shock after the accident.

            Minnesota law provides that

[a] person shall not be excused from criminal liability             except upon proof that at the time of committing the alleged criminal act the person was laboring under such a defect of reason, from one of these causes, as not to know the nature of the act, or that it was wrong.


Minn. Stat. § 611.026 (2006).  The statute codifies the common-law M’Naughten standard for criminal responsibility.  State v. Rawland, 294 Minn. 17, 29, 199 N.W.2d 774, 781 (1972).

            Gilbertson, who was allowed to withdraw his guilty plea, gave notice of his intent to present a defense of mental illness or deficiency.  His attorney conceded that Gilbertson’s claim of post-traumatic shock would not be an “absolute defense” but claimed that evidence of that condition would be relevant in determining whether Gilbertson left the scene of the accident with the mental state required for that offense.

When the mental-illness issue was discussed at the pretrial hearing, this court had recently held that a driver, to be convicted of leaving the scene, had to “[know] or [have] reason to know that the accident caused bodily injury to or death of a person.”  State v. Al-Naseer, 721 N.W.2d 623, 627 (Minn. App. 2006), aff’d and remanded 734 N.W.2d 679, 681 (Minn. 2007) (adopting, however, a different mens rea standard).  The statute prohibits driving conduct that causes the death of another person “where the driver who causes the accident leaves the scene of the accident in violation of section 169.09, subdivision 1 or 6.”  Minn. Stat. § 609.21, subd. 1(7) (2004).  The supreme court, in its review of Al-Nasser, held that the offense requires knowledge only that the driver’s vehicle was in an accident “involving a person or another vehicle.”  Al-Naseer, 734 N.W.2d at 687.

            The district court, evidently with this court’s Al-Naseer mental-state requirement in mind, denied the state’s motion in limine to exclude evidence of post-traumatic shock.  The court ruled that it would allow medical opinion testimony on post-traumatic shock, including an opinion that Gilbertson’s symptoms, as they were described by Gilbertson, “fall within the definition of temporary shock as I know it.”  The district court also ruled that it would give an instruction that the jury could determine whether the condition prevented Gilbertson from knowing that what he was doing was wrong.  We note that, although Gilbertson was apparently seeking to admit the post-traumatic-shock evidence to rebut the state’s evidence on the Al-Naseer mental state, the district court indicated it would give an instruction incorporating the Minn. Stat. § 611.026, or M’Naughten, standard.  But it is not clear that Gilbertson was seeking to present post-traumatic shock as a mental condition that would meet the M’Naughten standard.

            The general rule is that psychiatric opinion testimony is not admissible in the trial of a defendant’s guilt or innocence on the question whether the defendant had the capacity to form the required mental state.  State v. Provost, 490 N.W.2d 93, 101 (Minn. 1992).  There is no indication in the record that the medical testimony that the district court has allowed would come from a psychiatrist.  But the district court indicated that it would allow medical testimony that Gilbertson’s mental condition on the night of the accident, at least as it was described by Gilbertson, met the definition of post-traumatic shock.  And this testimony would be offered by the defense to prove that Gilbertson had a diminished capacity to form the mental state required for the offense.  The supreme court has rejected the doctrine of diminished capacity.  Id. at 100.  We conclude that the district court’s ruling would improperly allow a diminished-capacity defense on the issue of mental state, in violation of Provost.

We recognize that a criminal defendant has a due-process right to explain his conduct to a jury.  State v. Brechon, 352 N.W.2d 745, 751 (Minn. 1984).  But this right does not extend to the presentation of expert testimony to support the defendant’s explanation.  See id.  And although a defendant also has a due-process right to assert a mental-illness defense, that does not allow the presentation of any expert testimony the defendant might wish.  See generally Martin, 591 N.W.2d at 486 (noting defendant’s due-process right to assert a mental-illness defense).  Here, the record does not indicate that Gilbertson entered a plea of not guilty by reason of mental illness.  The district court did not order a mental examination of Gilbertson, as provided in Minn. R. Crim. P. 20.02, subd. 1, when such a plea is entered.  And defense counsel has not indicated that he can present expert testimony that Gilbertson’s post-traumatic shock meets the mental-incapacity standard in Minn. Stat. § 611.026, which incorporates the M’Naughten standard.

            Thus, there is no indication on this record that a bifurcated trial with a second phase addressing a mental-illness defense is intended.  Indeed, the district court stated that evidence of post-traumatic shock, not being “the type of mental illness that can be diagnosed by a psychiatrist or other medical expert,” would not require a bifurcated trial.  Thus, the district court’s order appears to be in violation of the general rule iterated in Provost.

            In its memorandum, the district court compared Gilbertson’s mental-illness defense to the involuntary-intoxication defense recognized in City of Minneapolis v. Altimus, 306 Minn. 462, 238 N.W.2d 851 (1976).  In Altimus, the court held that an involuntary-intoxication defense is allowed only when, at the time of the offense, the defendant was “laboring under such a defect of reason” because of the involuntary intoxication “as not to know the nature of his act, or that it was wrong.”  Id. at 472, 238 N.W.2d at 858.  Under the law as it has developed since Altimus, however, evidence to support such a defense could be presented only in the second phase of a bifurcated trial (unless the defendant pleads guilty to the offense and relies only on a mental-illness defense).  See State v. Bouwman, 328 N.W.2d 703, 705-06 (Minn. 1982).  The district court here applied Altimus to admit evidence of what it considered to be an analogous mental condition, post-traumatic shock, in the guilt-or-innocence phase of Gilbertson’s trial.

            The district court ruled that the defense of post-traumatic shock would be available to Gilbertson only as to the second count—criminal vehicular homicide (leaving the scene)—and then only if the jury acquitted him on the first count.  But the court did not restrict the presentation of post-traumatic-shock evidence to after the jury had made its guilt-or-innocence determination on the first count.  Nor did it prevent Gilbertson from presenting post-traumatic-shock evidence before the jury had determined his guilt or innocence on the second count.  Thus, the district court’s ruling did not remove the expert testimony relevant to mental state from the guilt-or-innocence phase of the trial, and, therefore, it violates the general rule established in Bouwman.

            The state also argues that Gilbertson should be prevented from asserting a mental-illness defense because he did not provide sufficient disclosure of any expert who would testify regarding the alleged condition.  We need not reach this issue, however, because we have determined that the court’s ruling was an improper injection of expert medical opinion testimony into the guilt-or-innocence phase of the trial.

            Finally, the state argues that mental illness due to post-traumatic shock is not an available defense under Minnesota law.  It asserts that the mental-illness-defense statute, Minn. Stat. § 611.026, contemplates only defenses that “involve actual mental illness which can be—and has been—identified and diagnosed.”  We need not fully address this issue.  But if Gilbertson can make a prima facie showing that his post-traumatic shock meets the standard set forth in Minn. Stat. § 611.026, he is entitled to a bifurcated trial at which he can present that defense in the second phase of the trial.  See generally Martin, 591 N.W.2d at 487.  Although Gilbertson has not made that showing to this point, he is not foreclosed from doing so on remand.  See id. at 486 (noting that defendants have a due-process right to assert a mental-illness defense). 



            As we have noted above, in a pretrial appeal, the state must demonstrate “clearly and unequivocally” not only that the district court erred in its judgment but also that the error will have a “critical impact” on the trial’s outcome unless reversed.  Martin, 591 N.W.2d at 484.

            The “critical impact” rule extends to orders refusing to exclude defense evidence.  State v. Renneke, 563 N.W.2d 335, 337 (Minn. App. 1997).  “[S]uch an order is still a ruling that directly impacts the evidence admissible at trial, and therefore can have a ‘critical impact’ on the outcome of trial.”  Id.

            We conclude that the district court’s order allowing Gilbertson to present expert testimony on post-traumatic shock in the guilt-or-innocence phase of his trial would have a “critical impact” on the trial’s outcome because the order does not substantially limit the extent of expert testimony to be allowed, or prevent its use to rebut the state’s evidence as to the element of mental state, or preclude the defense from arguing that Gilbertson had a diminished capacity to form that mental state.  Evidence of post-traumatic shock, a condition that followed the accident, would have no relevance other than on the issue of Gilbertson’s mental state.  Cf. State v. Barsness, 446 N.W.2d 666, 667-68 (Minn. App. 1989) (holding that pretrial order allowing testimony of the defendant’s IQ had a critical impact, while noting also that the theory that it was relevant to the circumstances of the defendant’s confession had not been raised in the district court), rev’d 473 N.W.2d 828 (Minn. 1990) (reversing critical-impact holding without analysis).  And although the jury would not be instructed on the relevance of post-traumatic-shock evidence unless it acquitted on the gross-negligence count, we note that gross negligence requires “very great negligence” or the absence of even slight care.  State v. Hegstrom, 543 N.W.2d 698, 702 (Minn. App. 1996) (quotation omitted), review denied (Minn. Apr. 16, 1996).  The evidence of Gilbertson’s degree of negligence, given that he apparently was able to reenter his own lane after passing before he lost control of his vehicle, is not so strong that we can discount the possibility that Gilbertson might be found not guilty on the first count against him.  Therefore, we also cannot discount the critical impact that evidence of post-traumatic shock would have on the jury’s consideration of the second count.

            Because we conclude that the state has shown clearly and unequivocally that the district court erred in its judgment and that the error will have a critical impact on the trial’s outcome unless reversed, we reverse and remand for further proceedings consistent with this opinion.

            Reversed and remanded.