This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-663

State of Minnesota,

Respondent,

vs.

William Gumtow,

Appellant.

Filed April 8, 1997

Affirmed

Harten, Judge

Concurring Specially, Randall, Judge

St. Louis County District Court

File No. K9-94-600602

Heidi H. Chrissey, Attorney at Law, 310 W. St. Croix Avenue, Stillwater, MN 55082 (for Appellant)

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

Alan L. Mitchell, St. Louis County Attorney, 501 Courthouse, 100 N. 5th Avenue West, Duluth, MN 55802 (for Respondent)

Considered by Randall, Presiding Judge, Harten, Judge, and Willis, Judge.

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

HARTEN, Judge

Appellant challenges his second-degree intentional murder conviction, arguing that (1) the district court erred when it excluded evidence of the victim's prior bad acts, (2) insufficient evidence existed to support the jury verdict, (3) the district court abused its discretion when it denied a downward durational sentencing departure, and (4) refusal to hold a Schwartz hearing was an abuse of discretion. We affirm.

FACTS

In the early morning hours of July 27, 1994, appellant William Gumtow shot and killed Todd Goodwin in the hallway of the Duluth apartment building where both resided. In the week prior to the shooting, appellant and other residents had an argument with Goodwin about rent money allegedly stolen from the building's caretaker, William Sarazine. Appellant, Sarazine, and several others attempted to invade Goodwin's apartment to "take him down," but Goodwin kept them out. Eventually, Sarazine told everyone to leave and the crisis subsided.

Three days later, after spending the night drinking, Goodwin returned to the apartment building and walked the halls yelling and banging on doors. Awakened by the noise, Sarazine told appellant that he was going to investigate and asked appellant to help him if he needed it. Appellant testified that he dressed and took out his 9-millimeter semiautomatic handgun. Appellant's girlfriend, Marotta, started down the stairs and he followed with the gun tucked into the back waistband of his pants. Appellant saw Goodwin coming up the stairs towards them with a hunting knife raised in his right hand. Appellant testified that he and Marotta backed away from Goodwin, but found their apartment door locked, and that he shot Goodwin in self-defense as the latter continued to approach them with knife in hand.

Contrary testimony was received from a neighbor, Joseph Underdale, who testified that he looked out his apartment door peephole and saw appellant holding a gun. Underdale heard Goodwin's pleading voice from the stairs and heard appellant yell for Marotta to get out of the way as appellant aimed the gun. Underdale also saw appellant's hand on his apartment door, keeping it partially open. As he turned away to call the police, Underdale heard two shots a second or two apart.

A jury convicted appellant of second-degree intentional murder and second-degree felony murder. Appellant was sentenced to the presumptive sentence for second-degree intentional murder (366 months).

D E C I S I O N

1. Exclusion of Evidence

Appellant contends that the district court abused its discretion when it excluded evidence of Goodwin's three prior arrests for property damage, disorderly conduct, and assault. He claims that the prior arrests are admissible under Minn. R. Evid. 404(b) to establish Goodwin's intent and motive to attack appellant and his modus operandi.

A district court may allow a defendant's introduction of evidence of a prior crime, wrong, or act by the victim provided that the prerequisites to the admission of other-crime evidence are met. Minn. R. Evid. 404(b); State v. Robinson, 536 N.W.2d 1, 2 (Minn. 1995). Such evidence is commonly referred to as "reverse Spreigl" evidence because it is offered by the defense rather than the prosecution. The district court undertakes the same admissibility analysis that it uses when the state offers such evidence. Id.

Prior to admission of Spreigl evidence, the prosecutor must demonstrate that the evidence is relevant to an issue in the case, that it is offered for a proper purpose, and that there is clear and convincing evidence of the defendant's involvement in the previous incident. State v. Bolte, 530 N.W.2d 191, 197 (Minn. 1995); see also State v. Frisinger, 484 N.W.2d 27, 31 (Minn. 1992) (basing relevance of other-crime evidence pursuant to Rule 404(b) on close relationship between other crimes and charged crimes in terms of time, place, and modus operandi). The district court must then balance the relevance of the evidence, its probative value, the need for the evidence, the danger that the jury will use it for an improper purpose, and the possibility that the evidence will create unfair prejudice. Bolte, 530 N.W.2d at 197.

Here, Goodwin's arrests occurred in a three-year period prior to the shooting. The arrests did not involve the apartment building where Goodwin and appellant lived, nor did the incidents occur in Duluth. Although the arrests occurred when Goodwin was drunk and acting erratically (sometimes violently), we believe that such behavior was not sufficiently distinct or well-defined to constitute modus operandi. Accordingly, the evidence is irrelevant because Goodwin's prior conduct bore little resemblance to the events the night of the shooting. Moreover, the evidence held little, if any, probative value to establish Goodwin's intent or motive to attack appellant because the incidents did not involve appellant and occurred before the two even knew each other. Any probative value of the evidence was outweighed by the possibility of unfair prejudice. We conclude that the district court did not abuse its discretion in excluding evidence of Goodwin's prior arrests.

2. Sufficiency of the Evidence

Appellant claims that there was insufficient evidence of intent for the jury to convict him of second-degree intentional murder. Additionally, he maintains that the state did not present sufficient evidence to carry its burden of proving that appellant did not act in self-defense.

When reviewing a claim for insufficiency of the evidence, we must determine whether, given the facts in the record and any legitimate inferences that can be drawn from those facts, a jury could reasonably find the defendant guilty of the charged offense. State v. Pierson, 530 N.W.2d 784, 787 (Minn. 1995). In doing so, the evidence must be viewed in a light most favorable to the jury's verdict, and we must assume that the jury believed the state's witnesses and disbelieved any contrary evidence. Id. "[A]ll inconsistencies in the evidence are also resolved in favor of the state." State v. Bergeron, 452 N.W.2d 918, 924 (Minn. 1990) (citing State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980)).

A sufficiency of the evidence challenge warrants more strict scrutiny where the evidence is circumstantial. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). Despite this more strict review standard, we must recognize that a jury is in the best position to evaluate circumstantial evidence, and its verdict must be given due deference. Id.; State v. Orfi, 511 N.W.2d 464, 471 (Minn. App. 1994), review denied (Minn. Mar. 15, 1994). In cases based on circumstantial evidence, "[a]s in all cases, the jury determines the credibility and weight given to the testimony of individual witnesses." Bias, 419 N.W.2d at 484 (citing State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985)). The jury is free to question a defendant's credibility and may reject the defendant's explanation in its entirety. State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995).

a. Intent to Kill

Appellant argues that there was insufficient evidence for the jury to find that he intended to kill Goodwin. Appellant relies on the fact that (1) he only shot the victim twice rather than firing the gun's entire clip, and (2) he shot Goodwin in the left shoulder and upper abdomen rather than in the head.

A person commits second-degree intentional murder when he or she "causes the death of a human being with intent to effect the death of that person or another, but without premeditation * * *." Minn. Stat. § 609.19, subd. 1(1) (1996). The words "with intent to" mean that "the actor either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result." Minn. Stat. § 609.02, subd. 9(4) (1996). Intent is an inference drawn by the jury from the totality of the circumstances. State v. Raymond, 440 N.W.2d 425, 426 (Minn. 1989).

In the instant case, the argument outside Goodwin's apartment several nights before the shooting exhibited a possible motive. Appellant armed himself with a handgun before leaving his apartment, apparently before he knew Goodwin had a knife. Appellant chambered a round before shooting Goodwin at close range (approximately 18 to 24 inches). Significantly, on cross-examination appellant admitted that he intended to pull the trigger and that when he pulled the trigger, he intended to shoot Goodwin. From this evidence, the jury reasonably could find that appellant acted with intent to kill Goodwin. See State v. Amos, 347 N.W.2d 498, 501 (Minn. 1984) (defendant's admission that he deliberately armed himself and ran across street to shoot victim at close range was sufficient to establish intent to kill); see also 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). Moreover, the two facts relied on by appellant (number of shots and location of wounds) are insignificant. See Amos, 347 N.W.2d at 501 (rejecting defendant's claim that if he had intended to kill the victim he would have aimed for the head, but instead aimed for the shoulder and bullet struck victim's chest only because victim moved at last moment); State v. Bryant, 281 N.W.2d 712, 714 (Minn. 1979) (evidence on intent to kill issue sufficient where defendant fired three shots, last two at close range and with gun pointed at victim). Accordingly, we conclude that there was sufficient evidence to prove appellant's intent to kill Goodwin.

b. Self-defense

Appellant asserts that the state failed to produce sufficient evidence to disprove his self-defense claim. The following conditions must exist to justify the use of deadly force in self-defense:

(1) The killing must have been done in the belief that it was necessary to avert death or grievous bodily harm.

(2) The judgment of the defendant as to the gravity of the peril to which he was exposed must have been reasonable under the circumstances.

(3) The defendant's election to kill must have been such as a reasonable man would have made in light of the danger to be apprehended.

State v. Gray, 456 N.W.2d 251, 257 (Minn. 1990) (quoting State v. Boyce, 284 Minn. 242, 254, 170 N.W.2d 104, 112 (1969)). Once a defendant raises the issue of self-defense, the state has the burden to prove beyond a reasonable doubt that the killing was not justifiable. State v. Austin, 332 N.W.2d 21, 23 (Minn. 1983). Thus, the state must disprove the defendant's self-defense claim. And the state may do this by proving the nonexistence of any one of the three Boyce elements. State v. Buchanan, 431 N.W.2d 542, 548 (Minn. 1988).

Here, appellant's self-defense argument is focused on discrediting the trial testimony of Underdale, the neighbor who observed the events leading up to the shooting through his apartment door peephole. Pointing to discrepancies between Underdale's trial testimony and his prior statement to the police, appellant asks this court to review the credibility of Underdale's testimony. We must assume, however, that the jury believed the state's witnesses and disbelieved any contrary evidence, including the defendant's own account. See Pierson, 530 N.W.2d at 787 (appellate courts assume jury believed state's witnesses and disbelieved evidence to contrary).

This is especially true where resolution of the case depends on conflicting testimony, because weighing the credibility of witnesses is the exclusive function of the jury.

State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980) (citing State v. Poganski, 257 N.W.2d 578, 581 (Minn. 1977)); see also State v. McAdory, 543 N.W.2d 692, 696 (Minn. App. 1996) ("The weighing of the credibility of witnesses, including eyewitness testimony, lies within the exclusive province of the jury."). Accordingly, appellant's attempt to discredit Underdale's testimony is unpersuasive.

Assuming that the jury believed Underdale, there is sufficient evidence to carry the state's burden of proving that the killing was unjustified. Underdale testified: (1) Goodwin was pleading with appellant not to shoot; (2) appellant yelled at Marotta to get out of the way as he aimed at Goodwin; and (3) appellant was holding his own apartment door open. Given this testimony, the jury could reasonably conclude that the killing was unjustified because appellant trained his gun on a pleading Goodwin and both appellant and Marotta had a reasonable means of escape into their apartment. See Buchanan, 431 N.W.2d at 548 (one has duty to retreat to avoid danger if reasonably possible); See e.g., State v. Soine, 348 N.W.2d 824, 826 (Minn. App. 1984) (defendant's right of self-defense ended when aggressors withdrew leaving opportunity to escape), review denied (Minn. Sept. 12, 1984). We conclude that the evidence supports a finding that appellant intended to kill Goodwin and did not act in self-defense.

3. Sentencing

Appellant challenges the 366-month sentence he received for the second-degree intentional murder conviction. He claims that the district court abused its discretion by denying his motion for a downward departure from the sentencing guidelines presumptive sentence.

The supreme court has stated the applicable standard of review:

[W]e do not intend entirely to close the door on appeals from refusals to depart [from the presumptive sentence]. However, we believe that it would be a rare case which would warrant reversal of the refusal to depart. * * * [T]he Guidelines state that when substantial and compelling circumstances are present, the judge "may" depart. This means that the trial court has broad discretion and that we generally will not interfere with the exercise of that discretion.

State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981) (citing State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981)). Even in cases where mitigating factors are present, appellate courts generally will not interfere with the district court's discretion. See State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984) (clear presence of a mitigating factor did not obligate district court to depart); State v. Back, 341 N.W.2d 273, 275 (Minn. 1983) (reviewing court ordinarily will not interfere with sentence in presumptive range even when there are grounds to justify departure).

Here, we believe the district court was within its discretion to credit Underdale's testimony that Goodwin abandoned any aggressiveness and was pleading to be spared. But even if the mitigating factor of Goodwin's aggression was present and justified departure, the district court was not obligated to depart from the presumptive sentence. This is not the "rare case" that warrants reversal of the district court's refusal to a durational departure.

4. Schwartz Hearing

Finally, appellant contends that the district court abused its discretion when it denied his posttrial motion for a Schwartz hearing. Following the trial, a local news source interviewed a juror. The juror said that some of the jurors inferred that the defense did not call Marotta because she would have hurt more than helped the defense case. Based on this news report, appellant claims he is entitled to a hearing on potential jury misconduct.

Minn. R. Evid. 606(b) governs the admissibility of evidence at a Schwartz hearing. Minn. R. Crim. P. 26.03, subd. 19(6). This rule prohibits juror testimony

as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict * * * or concerning the juror's mental processes in connection therewith * * *.

Minn. R. Evid. 606(b). The rule is designed to protect a juror's thought processes from later scrutiny. State v. Cox, 322 N.W.2d 555, 559 (Minn. 1982).

Here, the district court reasoned that "a Schwartz hearing on the Jury's alleged speculation would result in the Court improperly examining the Jury's deliberative process." We agree. Accordingly, the district court did not abuse its discretion in denying a hearing.

Affirmed.

RANDALL, Judge (concurring specially).

I concur in the result, but write specially to suggest that the narrow, constricted analysis the trial court gave to appellant's "reverse Spreigl" evidence in rejecting it, should be, fairly and honestly, the exact model for trial courts when Spreigl evidence is offered by the prosecution. See State v. Robinson, 536 N.W.2d 1, 2 (Minn. 1995). A defendant may seek to introduce evidence of a prior crime, wrong, or act by the victim pursuant to Rule 404(b) provided that the prerequisites to the admission of other-crime evidence are met. Id. Such evidence is commonly referred to as "reverse Spreigl" evidence since it is offered by the defense rather than the prosecution. The district court engages in the same admissibility analysis that it uses when the state offers the evidence.

Appellant was charged with second-degree intentional murder. Appellant had at least a colorable defense of self-defense. Within the eleven days prior to the shooting, appellant and others and the victim had been involved in a series of disputes, including claims of theft, that culminated in an invitation by the victim to come outside the apartment building he shared with appellant and fight. The challenge went from the victim, Goodwin, to the building's caretaker, William Sarazine, but Sarazine and others, including Goodwin and appellant, were involved in some fashion in this ongoing dispute. The record is clear that excessive amounts of alcohol lubricated and exacerbated everyone's feelings toward each other, and that physical assaults by one against the other were to be expected in the near future.

In one incident, appellant and others attempted to get into Goodwin's apartment through a window and they heard Goodwin inside call to a girlfriend to "get the shotgun." It later turned out that he did not have one, but appellant and the others did not know that at the time.

Just a few days later, the victim, Goodwin, again intoxicated, caused a scene at a local hospital and then returned to the apartment building where he and appellant lived, and started banging on doors, swearing, and waking people up.

A little bit later, appellant put a gun in his pants and went downstairs and saw his girlfriend moving down the stairs as Goodwin came up the stairs with a hunting knife raised in his right hand. That was appellant's testimony. Appellant claims that as Goodwin advanced toward him with the knife outstretched, he shot Goodwin twice.

Another apartment dweller, Underdale, with no individual agenda for either appellant or the victim, testified that out of his apartment door's peephole, he saw appellant holding a gun and did not see Goodwin and so did not know whether Goodwin had a knife or not. He testified that he heard Goodwin state: "Don't shoot Bill, I got kids." And then state to appellant: "Go ahead and shoot me, go ahead and shoot me, Bill. I don't care." Seconds later, Underdale heard the two shots. Thus, while there is sufficient evidence to support the jury's verdict, and it appears from the record that Underdale's testimony was found credible, it is also true that both appellant and the victim had a recent history of extremely bad blood.

As reverse Spreigl, appellant moved to admit three specific incidents of Goodwin's prior bad acts to show his propensity to be violent and use physical force when angry. Appellant offered proof of: (1) a 1992 incident involving criminal damage to property and disorderly conduct in Superior, Wisconsin for allegedly being intoxicated and wrecking an apartment; (2) a 1991 misdemeanor assault in Hennepin County for allegedly punching his girlfriend in the face; and (3) a 1990 disorderly conduct in Hennepin County for allegedly being intoxicated and fighting everyone at a party.

The district court determined none of the exceptions in Rule 404(b) applied and noted that appellant was not involved in the three incidents.

Generally, evidence of another crime, wrong, or act is not admissible to prove the character of a person and show action in conformity therewith on a particular occasion. Minn. R. Evid. 404(b). When the defendant offers the evidence not to show that the victim acted in conformity with bad character, however, but to show the victim's intent, knowledge, plan and so forth, the evidence may be admissible. State v. Bland, 337 N.W.2d 378, 383 (Minn. 1983); see Minn. R. Evid. 404(b).

The general approach * * * taken with respect to admission of other-crime evidence pursuant to [Rule 404(b)] is to require, among other things, that the other crime is relevant, that is, sufficiently similar to the charged crime in terms of time, place or modus operandi.

Robinson, 536 N.W.2d at 2 (citing State v. Frisinger, 484 N.W.2d 27, 31 (Minn. 1992)).

After researching, and after having been involved in not dozens, but a few hundred of cases involving offered Spreigl evidence by the prosecution, there is no question in my mind that had the state offered against appellant three recent Spreigl incidents involving criminal damage to property, disorderly conduct, misdemeanor assault for punching a woman, and another disorderly conduct count for being intoxicated and fighting a number of people, it likely would have been admitted.

Then, if admitted, it would have become a permanent part of the appellate landscape. I can find no case in Minnesota where, if the only issue on appeal from a conviction was a claim that the trial court erred in the admission of Spreigl evidence, there was ever a reversal.

From time to time claims of the improper admission of Spreigl evidence have been coupled with other claims by a defendant to warrant a reversal and a new trial, but Spreigl, standing by itself as the issue on a criminal appeal, like death and taxes, always survives.

The reverse Spreigl evidence in this case, consisting of acts showing a violent nature were in 1990, 1991, and 1992, and offered as evidence in a 1996 trial. When the prosecution offers Spreigl evidence to attack a defendant, incidents four to six years old are easily within the upper fiftieth percentile of what the prosecution calls "close to the instant case." With four to six-year-old Spreigl incidents, the state would argue vigorously that they are nowhere near "stale."

Spreigl cases arguing the issue of whether the incidents are "close enough to the charge at issue" to overcome the argument of staleness, generally result in rulings favorable to the prosecution. Spreigl evidence isn't even "hampered" by the normal rules surrounding the staleness of impeachment by criminal conviction. See Minn. R. Evid. Rule 609(b) (generally evidence of a conviction being used to impeach a witness is inadmissible if more than ten years has elapsed since the date of the conviction or the release of the witness from confinement).

Appellate courts have routinely affirmed trial courts that let in Spreigl evidence against defendants where the evidence comes from incidents 5, 10, 15, and 20 years ago. And there is no statute or case stating that 20 years, as a matter of law, is too stale. See State v. Wermerskirchen, 497 N.W.2d 235, 242 n.3 (Minn. 1993) (holding 19-year-old Spreigl evidence admissible); State v. Rainer, 411 N.W.2d 490, 498 (holding 16 to 19-year-old Spreigl evidence admissible).

We have never even surrounded Spreigl with the safeguard we give criminal defendants facing impeachment by prior conviction. At least with impeachment by prior conviction, the defendant has the option, troubling as it is, to avoid impeachment (as a witness) by prior conviction by giving up the right to take the stand.

Since Spreigl evidence, by definition, is inherently less credible than impeachment by conviction, it would seem that fairly and logically its admission would be even more controlled than the admission of impeachment by conviction rather than less controlled. Spreigl is inherently less credible because at least impeachment by conviction means that as a matter of law, the prosecutor has the certified copy of a prior conviction in a court of law. That certified copy is unimpeachable as to time, place, date, and the exact type of crime.

On the other hand, Spreigl evidence offered by a state can have its genesis in acts which were the basis of prior convictions; acts which were the basis of a prior arrest but not a conviction; acts which were the basis of a mere investigation and not even an arrest; and finally Spreigl evidence can have its genesis in acts that are admittedly noncriminal but are merely the reports of the defendant's neighbors or family or others that "he is not a nice person and these bad things he did proves it."

Spreigl evidence has long since been expanded far beyond its origins which were at one time simply the admission of "signature evidence." In O'Henry's famous short story "Jimmy Valentine," the alleged safecracker had a signature method of drilling safes, a method recognized by all law enforcement personnel as Valentine's and Valentine's alone. Today, generic thefts, check forgeries, burglaries, swindles, etc. are routinely offered and received as Spreigl evidence against defendants who 2, 4, 10, 15 years later are again charged with a generic forgery, burglary, theft, etc.

An egregious anomaly in our presently held view of Spreigl evidence is the requirement, observed only in the breach, never in the rule, that Spreigl evidence should only be allowed when the state's case as to identity is weak. The trial court is supposed to make a specific finding that that weakness in the state's case is a permissible reason to then begin to consider whether the always prejudicial effect of Spreigl evidence is, in this case, outweighed by its probative value.

State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965), and State v. Billstrom, 276 Minn. 174, 149 N.W.2d 281 (1967), are both the foundational law in the history of Spreigl and today still good law from which all Spreigl cases flow.

The Spreigl court took great pains to set out in detail that Spreigl evidence had to be surrounded with strict procedural safeguards to ensure that Minnesota citizens were not "oppressed with unfounded suspicions." The supreme court pointed out that it is not that Spreigl evidence may have little or no substantive value to a jury in weighing the accused's innocence, but rather that it often has too much.

The Spreigl court also made clear the general rule that penal statutes are to be construed strictly against the state and in favor of the defendant applies to Spreigl evidence. See State v. Olson, 325 N.W.2d 13, 19 (Minn. 1982) (stating general rule). The Spreigl court stated in part:

Where it is not clear to the court whether or not the evidence is admissible as an exception to the general exclusionary rule, "the accused is to be given the benefit of the doubt, and the evidence rejected." We have said, "the danger of it is that a jury may convict because, though guilt of the crime charged is not proved, it is satisfied to convict because of other crimes," * * * .

* * * *

We have noted:

"In the adjudication of sexual offenses, particular caution must be exercised lest the law in pursuing the guilty deprive the innocent of their rightful protection."

Dean Wigmore has stated the problem succinctly in terms we have expressly approved (1 Wigmore, Evidence [3 ed.] §§ 193, 194):

" * * * That such former misconduct is relevant, i.e. has probative value to persuade us of the general trait or disposition, cannot be doubted. The assumption of its probative value is made throughout the judicial opinions on this subject * * * ."

"It may almost be said that it is because of this indubitable relevancy of such evidence that it is excluded. It is objectionable, not because it has no appreciable probative value, but because it has too much. The natural and inevitable tendency of the tribunal--whether judge or jury--is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge." * * *

Spreigl, 272 Minn. at 495-96, 139 N.W.2d at 172 (footnotes omitted).

In the 32 years since Spreigl was written, its rule of law has not changed. But the interpretation of its rule of law has been watered down during the last three decades to no more than pabulum. Spreigl, when offered by the state, if it has any claimed remoteness to "time, place, or modus operandi," commonly comes in, and, as I have pointed out, once admitted, never by itself forms the basis for reversal of a criminal conviction on appellate review.

To bring together the necessity for strict procedural and due process safeguards to an accused's right to a fair trial, the Minnesota Supreme Court followed Spreigl in 1967 with State v. Billstrom, 276 Minn. 174, 149 N.W.2d 281. The procedural safeguards are that identity is a disputed crucial issue and the "direct or circumstantial evidence of defendant's identity is otherwise weak or inadequate." In Billstrom, there was a disputed crucial issue as to identity and the defendant claimed a strong alibi defense. Id. at 176, 149 N.W.2d at 283. After making those two findings, the Billstrom court said that with those facts in place, "the state has a right to fortify its position with evidence that the crime committed by defendant was a part of a series of similar, related offenses." Id. at 178, 149 N.W.2d at 284 (emphasis added).

The similar and related offenses were just that, similar and related. Billstrom was charged with armed robbery on September 15, 1964. Id. at 175, 149 N.W.2d at 282-83. The Spreigl incidents offered involved armed robberies in the same town on September 24, 1964, and September 26, 1964. Id. at 176, 149 N.W.2d at 283. Billstrom was charged with robbing a grocery store and the two Spreigl incidents involved a dairy store and another grocery store, all in the same general part of St. Paul. Id. at 175-76, 149 N.W.2d at 283. No Spreigl evidence was offered against Billstrom claiming that 8 to 20 years before he had been charged with credit card theft or misdemeanor theft. Today, stale acts like that would likely be proffered by the prosecution on an armed robbery charge to show that the accused had a prior history of stealing the property of another.

Today, an examination of cases leads one to conclude that the prosecution takes the position that the defendant has placed identity in issue whenever he or she goes through the arraignment process and enters the generic plea of "not guilty." It is true that a simple plea of not guilty puts the state on notice that the defendant demands that all essential elements of the crime be proved. But nowhere in Billstrom or in its progeny is the proposition that having to prove that the defendant was the one who committed the crime, by definition, subsumes Billstrom and always makes all Spreigl evidence relevant all the time to the issue of identity.

In the present case, for instance, neither the identity of the defendant or the victim was an issue. Both prosecution and defense knew that the person who pulled the trigger was Gumtow and that the deceased was Goodwin. Here, like so many cases, who did what to whom, and whether there was a defense of self-defense came down to the credibility of witnesses with divergent stories.

" * * * It is the rule that where the identity of the accused is not definitely connected with the offense for which he is on trial, evidence of other offenses may be introduced to connect and identify him with that one, and where the sole issue in a case is the identity of defendant, the evidence on that issue may be properly permitted to take a wide range to the extent that, in a measure, the rigid rules of evidence will be relaxed."

Again, in State v. Sutton, 272 Minn. 399, 402, 138 N.W.2d 46, 47, we stated:

" * * * Evidence of other crimes closely connected in point of time and manner of commission is also admissible to establish identity."

* * * *

(d) Evidence of other crimes is admissible only if the trial court finds the direct or circumstantial evidence of defendant's identity is otherwise weak or inadequate, and that it is necessary to support the state's burden of proof. It should be excluded where it is merely cumulative and a subterfuge for impugning defendant's character or for indicating to the jury that he is a proper candidate for punishment.

Id. at 177-79, 149 N.W.2d at 283-85 (citations and footnotes omitted) (emphasis added).

The last anomaly is that when Spreigl evidence is an issue on appeal, the prosecution uniformly claims that even if the Spreigl evidence were erroneously admitted, it is harmless error "because the other remaining evidence against the defendant is overwhelming and more than supports the burden of proof beyond a reasonable doubt." One cannot find an appellate case either from this court or from the Minnesota Supreme Court wherein the state does not argue a harmless error analysis when the propriety of trial court Spreigl admitted evidence is an issue.

I agree it is settled law from the U.S. Supreme Court on down that a "harmless error" analysis can be applied to virtually all evidentiary rulings absent a few exceptions (not at issue here) wherein claimed error is of such constitutional magnitude that no error can be harmless. Such an error might be a trial court denying to a criminal defendant the right to a trial by a jury wherein the defendant has made a formal demand on the record for a trial by a jury and the trial court, because of a busy calendar, rules that it will have to be a bench trial to the court.

So there is a great body of law discussing the harmless error analysis and the almost universal circumstances in which it can be used. But I strongly suggest that one exception to the general rule should be the claimed erroneous admission of Spreigl evidence. You see, Spreigl/Billstrom points out that one essential requirement of Spreigl evidence is that the state's case as to identity is so otherwise weak that the volatile and never favored Spreigl evidence has to be allowed in to give the prosecution a chance to bear its burden of proof. Thus, if the Spreigl evidence went in erroneously, it is, by definition, semantically impossible that the "other evidence" the state got into the trial is absolutely overwhelming as to the defendant's guilt. Because if that were the case, then in 100 percent of the cases, the trial court should have made a finding on the record, either pretrial or during trial, that the state's case appears strong enough to go to the jury without the Spreigl evidence.

I concur with affirming the trial court on this set of facts because it can hardly be argued that the trial court abused its discretion in giving appellant's offered Spreigl evidence a narrow legal and literal interpretation of case law. Appellant might disagree with the trial court's inference that appellant only wanted his Spreigl evidence in to subtly impugn the character of the decedent. This is the attack lodged by criminal defense attorneys against the prosecution's offer of Spreigl evidence. That is an attack, although lodged in truth, but an attack that never succeeds. Appellant may well have had good and noble reasons to offer the Spreigl evidence. But for the trial court to draw the narrow legal conclusion that it did is within the boundaries of trial court discretion.

I can only strongly suggest that this trial court's narrow and literal reading of Spreigl, Billstrom, and its progeny, should be the role model and the standard for all trial courts in this state to test the Spreigl evidence routinely offered by prosecutors.