This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
CX-95-2729

Shanne Lavelle Pigue, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed July 2, 1996

Affirmed
Davies, Judge

Hennepin County District Court
File No. 93004977

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Considered and decided by Harten, Presiding Judge, Davies, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

DAVIES, Judge

Appellant was convicted of second-degree intentional murder. He now appeals the district court's denial of his petition for postconviction relief, arguing that the state's evidence was insufficient both to show intent and to rebut his self-defense claim, and that an error in the jury instructions warrants a new trial. We affirm.

FACTS

There is no dispute that on the night of January 18, 1993, appellant Shanne Lavelle Pigue shot and killed 16-year-old John Williams in an alley in north Minneapolis. A jury convicted Pigue of second-degree intentional murder, in violation of Minn. Stat. ' 609.19(1) (Supp. 1995).

Trial testimony indicated the following: Pigue had an argument with a man named Brian Williams in the weeks prior to the shooting; less than an hour before the shooting, Pigue stated that he would kill Brian Williams if he saw him on the street that night; and Pigue appeared angry, drunk, and high the evening of the shooting.

In Pigue's statement to police, which was received into evidence, Pigue admitted that he was carrying a loaded .25 caliber handgun when he encountered the victim. Pigue maintained that the victim brought up the dispute with Brian Williams, and then, while following Pigue closely, swore at him and talked about Brian Williams. Pigue said he was concerned that the victim was going to hit him and that, at one point, he turned around and saw the victim, only three feet behind, reaching for his waistband. Claiming to have been alarmed that he was about to be shot, Pigue pulled out his gun and shot the victim once.

The medical evidence indicated that the victim was shot from between two and three inches away. The bullet entered the side of the victim's head on a level plane in the ear area and killed him instantly.

Pigue's self-defense theory at trial was unsuccessful and the jury found him guilty of second-degree intentional murder.

D E C I S I O N

I. Sufficiency of the Evidence

Our review of the district court's denial of Pigue's postconviction petition on sufficiency of the evidence is limited to determining

whether there is sufficient evidence to sustain the postconviction court's findings, and a * * * decision will not be disturbed absent an abuse of discretion.

Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). We will not upset the jury's conclusion "if, on the basis of the evidence in the record, a jury could reasonably have found as it did." State v. Strimling, 265 N.W.2d 423, 428 (Minn. 1978). Determinations of the credibility and weight to be given to testimony are for the jury alone. State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980). We view the evidence in the light most favorable to the state and "assume that the jury believed the state's witnesses and disbelieved any contrary evidence." State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978).

A. Self-Defense

The elements of self-defense in a criminal case are (1) the absence of aggression or provocation on the part of the defendant; (2) the defendant's actual and honest belief that he or she was in imminent danger of death or great bodily harm and that the action taken was necessary to avert that danger; (3) the existence of reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat to avoid the danger. In addition, the amount of force used in self-defense must be limited to that which would appear to be necessary to a reasonable person under similar circumstances. Once self-defense is raised, the state has the burden of proving the nonexistence of one of those elements beyond a reasonable doubt.

State v. McKissic, 415 N.W.2d 341, 344 (Minn. App. 1987) (citations omitted). Circumstantial evidence may be used to rebut a claim of self-defense. See State v. Sanders, 376 N.W.2d 196, 199 (Minn. 1985) (jury is "free to consider and weigh all the evidence" when evaluating claim of self-defense).

The record amply supports the jury's finding that Pigue did not act in self-defense. The evidence that Pigue was angry, carrying a gun, and talking about killing someone supports the finding that he was the aggressor. Although Pigue claims he saw the victim reach toward his waistband, there is no suggestion that Pigue ever saw a gun or other weapon, or that a weapon was found on the victim. Furthermore, the medical evidence--indicating that Pigue fired his gun two to three inches from the side, rather than the front, of the victim's head--suggests that Pigue was the aggressor and not acting in self-defense.

The State's evidence was also sufficient to demonstrate that Pigue did not have a reasonable belief of peril. Pigue essentially relies on the argument that the conditions in the neighborhood were such that he reasonably believed that the victim was going to pull out a gun. That argument--suggesting vigilante conduct--was rejected by the jury and, for public policy reasons, we similarly reject it.

The evidence also supports a finding that, even if Pigue had a right to act in self-defense, the amount of force he used was excessive. Finally, the evidence supports a finding that, rather than shooting the victim, Pigue could have retreated.

B. Intent

A prosecution for second-degree murder requires proof that the defendant killed the victim "with intent to effect the death of that person * * * but without premeditation." Minn. Stat. ' 609.19(1) (Supp. 1995).

The evidence of intent in this case is sufficient to support the jury's finding. Some inference of intent may be drawn from the witnesses' testimony regarding Pigue's anger and statements about killing and from the medical evidence indicating that the victim was shot on a level plane at very close range. See State v. Thompson, 544 N.W.2d 8, 12 (Minn. 1996) (intent to cause death may be "shown by a single gunshot fired at close range"). Pigue's claim, in his one-page pro se supplemental brief, that he did not intend to kill the victim is unpersuasive.

II. Jury Instruction

After Pigue exercised his right not to testify, his counsel moved that the jury be given CRIMJIG 3.17, which explains that right and instructs the jury not to draw any inferences from its exercise. Neither his counsel nor the trial judge ever asked Pigue if he wanted that instruction read, and he claims that a new trial is therefore required by State v. Thompson, 430 N.W.2d 151 (Minn. 1988).

In Thompson, the record on appeal did not indicate whether the defendant's counsel had requested that CRIMJIG 3.17 be read to the jury. Id. at 153. The supreme court noted that the better practice is for a trial judge to obtain, on the record, a specific request for the instruction from the defendant. Id. The court went on to state, though, that

[i]t does not follow, of course, that the defendant is entitled to a new trial simply because the record on appeal is silent as to whether the defendant and his attorney wanted the instruction, and in this case we readily agree with the court of appeals' ultimate conclusion that the defendant is not entitled to a new trial on this ground.

Id.

There is clear evidence that Pigue's attorney requested the instruction and there is no indication that Pigue ever opposed that request. Indeed, even on appeal, Pigue does not argue that he would have opposed it, but rather simply states that he was not asked. Under these circumstances, we reject this basis for Pigue's postconviction petition.

Affirmed.