This opinion will be unpublished and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

C8-96-228

State of Minnesota,

Respondent,

vs.

Frederick Robert Weiss,

Appellant.

Filed December 3, 1996

Affirmed

Davies, Judge

Hennepin County District Court

File No. 95039391

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55155 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Randall, Presiding Judge, Davies, Judge, and Forsberg, Judge.[*]

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

DAVIES, Judge

Appellant challenges, on numerous grounds, his conviction for second-degree intentional murder. He also challenges his sentence. We affirm.

FACTS

During the early morning hours of April 13, 1995, appellant Frederick Robert Weiss was at a party with some friends in a room at the Falls Motel in Minneapolis. A dispute arose with the victim in this case, Shane Smallwood, when appellant proposed charging Smallwood's girlfriend 50 cents to use the telephone in appellant's room. Smallwood, who was six feet tall and weighed 310 pounds, beat appellant badly.

When Smallwood left, appellant called two friends and asked for a ride home, explaining that he had been beaten. Appellant also asked if one of the friends still had appellant's pistol-grip shotgun in his car trunk. An important issue at trial was appellant's frame of mind when asking about his shotgun. Appellant testified that he asked about the shotgun because S.V., a 13-year-old friend, had told him that Smallwood and others in Smallwood's group were armed.

When the two friends arrived, appellant took his shotgun from the trunk and put it inside his sweatshirt sleeve. He testified that he intended to go back to the motel room to get his belongings before going home, and that he took the shotgun only to brandish if he were accosted. Witnesses indicated that they heard appellant say that he wanted the shotgun because he was going to shoot Smallwood, but appellant denied ever saying that he was going to shoot anyone and pointed out that Smallwood had earlier left the scene.

Appellant was persuaded to leave, and he got in the car with his two friends and S.V. About a block away, however, appellant decided to return to the motel to pick up his belongings. His friends suggested leaving the shotgun in the car, but appellant testified that he thought he needed it.

Smallwood arrived back at the motel as appellant and his friends walked toward the door, prompting S.V. to say, according to appellant's testimony, "There's that guy that kicked your ass." Appellant testified that he then turned and saw Smallwood leaning over in the car, as if for a gun. Appellant fired three shots through the windshield. He testified that he thought Smallwood would not be able to shoot him while being shot at. As appellant moved away, he fired two more shots through the passenger window. After the fifth shot, appellant and his three friends ran back to their car and drove off.

Smallwood died at the scene from multiple shotgun wounds. He had a blood-alcohol level of .25, cocaine and cocaine metabolites in his blood, and bruising on his knuckles consistent with having beaten appellant. No gun was found inside his vehicle.

Appellant was indicted on one count of first-degree premeditated murder. At trial, the judge also submitted, over appellant's objection, the lesser-included offense of second-degree intentional murder, and the jury convicted appellant of that offense. He was sentenced to the presumptive guidelines sentence of 306 months. He now appeals both the conviction and the sentence.

D E C I S I O N

I. Submission of Lesser-Included Offense

Appellant claims that the trial court, as a matter of law, could not, sua sponte and over appellant's objection, submit to the jury the lesser-included offense instruction. We disagree.

Our supreme court has addressed the precise issue raised by appellant:

Where the evidence will justify a verdict of a lesser degree of the crime than is charged in the indictment, defendant may not demand as a matter of right that the court submit only the degree of the crime charged in the indictment.

State v. Pankratz, 238 Minn. 517, 539, 57 N.W.2d 635, 647 (1953).

[I]n a murder case it is preeminently the trial court's duty in the exercise of its discretion to determine what lesser degrees of homicide to submit. * * * Neither the prosecution nor the defense can limit the submission of such lesser degrees as the trial court determines should be submitted. * * * [I]t is the duty of the trial court to submit such lesser degrees as it determines the evidence warrants in order that the jury may properly carry out its deliberations * * * .

State v. Leinweber, 303 Minn. 414, 421-22, 228 N.W.2d 120, 125-26 (1975); see also State v. Kobow, 466 N.W.2d 747, 752 (Minn. App. 1991) (if evidence supports conviction on lesser offense and finding of not guilty on greater offense, "trial court has a duty to submit such lesser offenses so the jury may properly carry out its deliberations"), review denied (Minn. Apr. 18, 1991).

Appellant, suggesting that two lines of cases on this issue exist, relies heavily on State v. Morris, 149 Minn. 41, 45, 182 N.W. 721, 723 (1921), which seems to approve of a trial court yielding to a defendant's tactical decision to request instruction only on a greater charged offense. However, in Pankratz, the supreme court made it clear that

the Morris case should not be construed to mean that the court is compelled to submit, at the request of defendant, only the degree of the crime charged in the indictment where the evidence will justify a verdict of guilty on a lesser degree of that crime.

238 Minn. at 539, 57 N.W.2d at 648. The other cases appellant cites simply do not stand for the proposition asserted.

II. Sufficiency of State's Evidence Rebutting Self-Defense

Appellant claims that the State failed to rebut his claim of self-defense.[1] The elements of self-defense 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.

State v. McKissic, 415 N.W.2d 341, 344 (Minn. App. 1987). Once a defendant meets the initial burden of production on a claim of self-defense, the State carries the burden of disproving, beyond a reasonable doubt, at least one of the above elements. Id.

Our review of a claim of insufficient evidence

is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).

We hold there was sufficient evidence to rebut appellant's self-defense claim. The evidence as to whether appellant was told that Smallwood had a gun was conflicting, and the jury could thus have concluded that appellant did not actually believe that danger. Further, because appellant did not see a gun at the time of the shooting, the jury could have concluded that the alleged perception of danger at that point was either nonexistent or unreasonable. Finally, the jury could have concluded that appellant had a reasonable opportunity to retreat, either by not returning to the scene at all or by departing when Smallwood arrived in his car.

III. Prosecutorial Misconduct

When reviewing a claim of prosecutorial misconduct, we first determine whether there was misconduct and then consider, in light of the entire record, whether the misconduct was so prejudicial that the defendant was deprived of a fair trial. State v. Bright, 471 N.W.2d 708, 712-13 (Minn. App. 1991), review denied (Minn. Aug. 1, 1991).

A. Comments on Appellant's Failure to Ask Questions of Witness

In closing arguments, the prosecutor asked the jury to consider why appellant's counsel failed to ask 13-year-old S.V. whether he had told appellant that Smallwood and others had guns. Appellant's counsel did not object until the close of the argument, when he moved for a mistrial. The trial judge indicated that he would have sustained an objection had it been made during the argument, but denied the motion for a mistrial, stating that his instructions would cure any prejudice. Appellant now argues that denying a mistrial was error.

The prosecutor may not comment on a defendant's failure to call a witness; to do so may cause the jury to wrongly believe that the defendant has a duty to produce witnesses or that the defendant thought that the testimony would be unfavorable. State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974). We agree with appellant's assertion that this rule applies as well to a prosecutor's comments on the failure to ask a particular question and that the comments here constituted misconduct.

Nonetheless, we hold that the comments were not so prejudicial that appellant was denied a fair trial. The issue of whether appellant thought Smallwood was armed was obviously significant, and the jury was well aware of the absence of defense rebuttal evidence on the question.

B. Questioning Appellant's Credibility

1. Expression of Personal Opinion

During closing arguments, the prosecutor said: "[I]t seems to me that it's very doubtful that [appellant] was truthful with you." Appellant claims that this was an improper expression of personal opinion.

The prosecutor may not express a personal opinion about the truthfulness of testimony. State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984). We agree that the comment was error. The prosecutor, however, made the comment only once and in the middle of an analysis of why appellant should be found guilty even if the jury believed everything appellant said. Thus, the comment seemed more of a reminder that the prosecutor was not conceding the truth of appellant's story. As it was undoubtedly clear throughout trial that the prosecutor disputed appellant's self-defense claim, this single comment could not have unduly prejudiced the jury's deliberations.

2. Calling Appellant a "Liar"

The prosecutor, during closing arguments, described appellant as "one calm, cool and collected liar." This statement, without context, appears to be the prosecutor's personal opinion of appellant's truthfulness, but the statement was made as the prosecutor recalled appellant's videotaped interview. Appellant himself had testified that he had repeatedly lied in that interview and that he had tried to appear "calm and cool and collected." A "prosecutor may analyze the evidence and vigorously argue that defendant and his witnesses lack credibility." State v. Johnson, 359 N.W.2d 698, 702 (Minn. App. 1984). Certainly, it was appropriate for the prosecutor here to suggest the inference that, because appellant had admittedly and repeatedly lied before trial, he might do so again. Even if the prosecutor seemed to go too far by directly stating that appellant had lied on the stand, it was not prejudicial overreaching under the circumstances.

IV. Failure to Depart Downward at Sentencing

The trial court sentenced appellant to the presumptive guidelines term of 306 months. It noted Smallwood's initial aggression led to the shooting, but it also took into account the aggravating factors of particular cruelty (as demonstrated by the number of rounds fired), invasion of Smallwood's zone of privacy (the car), and Smallwood's vulnerability due to intoxication.

The trial court erred to the extent that it actually relied on the "zone of privacy" factor. See State v. Yanez, 469 N.W.2d 452, 457 (Minn. App. 1991) ("zone of privacy" concept does not extend to automobiles), review denied (Minn. June 19, 1991). However, we do not believe that the "zone of privacy" analysis was particularly significant to the trial court, for it only stated that "an argument could be made" that appellant invaded Smallwood's zone of privacy by shooting him while he was in the car.

We are also skeptical about the trial court's reliance on Smallwood's intoxication as demonstrating "vulnerability." Nonetheless, the trial court's ultimate decision not to depart was within its discretion. Only in a "rare" case may we reverse a trial court's refusal to depart from the sentencing guidelines. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). This is true even if there are grounds to depart. State v. Back, 341 N.W.2d 273, 275 (Minn. 1983). Because of this narrow standard of review, we do not reverse the trial court's sentencing decision.

Affirmed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, SS10.

[ ]1 Appellant also suggests in the alternative that, at worst, his conduct was based on a negligent mistake as to justification and thus that he was less culpable than is required for second-degree intentional murder. For this proposition he cites Paul H. Robinson, Criminal Law Defenses § 184(e)(3) (1984), and Model Penal Code § 3.09(2) (1974). He urges us to reduce his conviction to one for manslaughter. We decline, finding no other authority for that result.