This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Bryan David Smith,


Filed June 10, 1997


Amundson, Judge

Aitkin County District Court

File No. K2-95-329

Hubert H. Humphrey III, Attorney General, Natalie E. Hudson, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103, Bradley C. Rhodes, Aitkin County Attorney, Aitkin County Courthouse, 209 Second Street N.W., Aitkin, MN 56431(for Respondent)

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414-3230 (for Appellant)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and Amundson, Judge.



Appellant Smith challenges his convictions for second-degree murder, second-degree felony murder, and first-degree manslaughter. He asserts that he is entitled to a new trial because: (1) without first getting Smith's permission, the district court instructed the jury not to draw an adverse inference from Smith's failure to testify; (2) the district court failed to instruct the jury on the elements of second-degree manslaughter; and (3) the district court abused its discretion by granting the statutory maximum sentence for second-degree murder. We affirm.


Appellant Bryan David Smith was victim Susan Peterson's boyfriend. Susan Peterson was still married to Jim Peterson, the biological father of her son, A.J., who was six years old at the time of her death. Susan Peterson and A.J., however, lived with Smith and A.J. referred to Smith as his father. They lived in a trailer in an area known locally as Canfield's Store. Jim Peterson lived in a trailer as their closest neighbor.

In the early morning of June 5, 1995, Smith shot Susan Peterson with a rifle. Medical examination of the body found that Susan Peterson had a blood alcohol level of almost three times the legal limit for intoxication at the time of her death. According to A.J.'s testimony, Susan Peterson and Smith got into an argument which involved A.J. being hugged by Susan Peterson and Smith calling him "a mama's boy." Susan Peterson stood up from the couch, and Smith repeatedly pushed her down. Smith then got a hunting rifle and ammunition. A.J. tried to leave the trailer, but Smith ordered him back into the trailer, where A.J. hid under the television stand. Smith told Susan Peterson that if she called the police, he'd kill her, and she said to go ahead. A.J. said that he heard two shots: the first missed Susan Peterson, then Smith reloaded the rifle and shot again. According to testimony by the Bureau of Criminal Apprehension and the medical examiner, Susan Peterson was likely killed instantly by a downward shot to her face from a range of 6 to 24 inches away.

Smith, who has no car, went to Jim Peterson's home to borrow his truck, saying that Susan Peterson was not feeling well and that he would take her to the hospital. Smith and A.J. drove to the home of friends, using the CB radio in the truck to radio for help. The friends were not home, so Smith broke in and cried for awhile before returning home. At around 1:30 a.m. on June 5, 1995, two deputies and an ambulance were dispatched to Canfield's Store. They were responding to distress calls by a child's voice made over a CB radio which reported that a woman had been shot in a green trailer. Neither of the two trailers at Canfield's Store were green; Jim Peterson was asked if there was a woman who lived in the next trailer. Jim Peterson replied that there was, but that she went to the hospital earlier because she wasn't feeling well. The deputies drove past the other trailer, but noticed nothing unusual and therefore decided that the call had been a prank. On his way home, one deputy passed a pickup truck; he pulled it over to do a license check. The truck was driven by Smith, and A.J. was in the passenger seat. The deputy asked Smith if he had heard anything about the incident over the truck's CB, and Smith answered that it had been quiet.

After returning to Canfield's store, Smith again woke Jim Peterson. Smith told him that he thought Susan Peterson was dead. Jim Peterson confirmed this, then went to another trailer to call 911. Smith was arrested and charged with second-degree murder, second-degree felony murder, and first-degree manslaughter. A jury found him guilty of all three counts. This appeal followed.


I. Right Not to Testify Instruction

The district court is typically given broad discretion in determining jury instructions. State Farm Fire and Cas. Co. v. Short, 459 N.W.2d 111, 113 (Minn. 1990). This court will not grant a new trial unless the jury instructions fail to fairly and correctly state the applicable law. Alevizos v. Metropolitan Airports Comm'n of Minneapolis and Saint Paul, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11, 1990).

Smith asserts that the district court erred by instructing jurors not to draw an adverse inference from his failure to testify without first receiving Smith's permission. The district court had read the following instruction:

Defendant has the privilege not to testify in the defendant's own defense. This privilege is guaranteed by the federal and state constitutions. You should not draw any inference from the fact that the defendant has not testified in this case.

The instruction was based on 10 Minnesota Practice, CRIMJIG 3.17 (1990), which was drafted to prevent unfair prejudice against defendants who exercise their constitutional right to remain silent.

The United States Supreme Court has held that such a cautionary instruction can be given over a defendant's objection. Lakeside v. Oregon, 435 U.S. 333, 98 S. Ct. 1091 (1978). The Court wrote that the instruction's

very purpose is to remove from the jury's deliberations any influence of unspoken adverse inferences. It would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect.

Id., at 339, 98 S. Ct. at 1095. However, the Court noted that

[i]t may be wise for a trial judge not to give such a cautionary instruction over a defendant's objection. And each State is, of course, free to forbid its trial judges from doing so as a matter of state law.

Id. at 340, 98 S. Ct. at 1095. Minnesota courts have spoken on the matter, stating that

the trial court generally should leave it up to the defendant and his attorney to decide whether they want such an instruction.

State v. Larson, 358 N.W.2d 668, 671 (Minn. 1984). Larson was clarified when the supreme court held that not only should the defendant's attorney be asked permission before reading CRIMJIG 3.17, but, supporting the comment to CRIMJIG 3.17, also the defendant himself. State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988); see also CRIMJIG 3.17, cmt. ("This instruction should not be given without the clear consent and insistence of the defendant himself. If such an instruction is requested by counsel for the defendant, the judge should require the defendant himself to state on the record that he wishes to have such an instruction given."). The court stated, however, 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 * * * .

Thompson, 430 N.W.2d at 153.

In this case, the district court did not explicitly ask Smith if he gave permission for the reading of CRIMJIG 3.17. However, CRIMJIG 3.17 was one of the jury instructions requested by Smith's attorney. Later, the district court submitted its proposed written instructions to both counsel for their review; while Smith's attorney objected to the instruction for a lesser included offense, there was no objection to CRIMJIG 3.17. Smith's attorney also did not object after the instructions were read to the jury. Though the CRIMJIG 3.17 comment does require express permission from the defendant, a jury instruction does not create law, but is a summary of the perceived state of the law. It would be unrealistic under these circumstances to expect the district court, after Smith's attorney did not object to the instruction, to ask Smith if he agrees with his attorney.

This court will not reverse a conviction for an improper jury instruction regarding the right not to testify unless there is evidence of prejudice. See State v. Sandve, 279 Minn. 229, 234, 156 N.W.2d 230, 233-34 (Minn. 1968). Smith argues that there was prejudice because the court made another allegedly erroneous instruction. This instruction is 10 Minnesota Practice, CRIMJIG 3.15 (1990), which states that the jury should use evidence of a witnesses' other convictions only for impeachment purposes. Smith argues that the jury would assume that Smith had prior convictions. As was the case with CRIMJIG 3.17, Smith's attorney requested CRIMJIG 3.15, and did not object to that instruction. Because both instructions were requested by and received no objection from Smith's attorney, and because both instructions were cautionary instructions which resulted in no prejudice, we conclude that the district court did not abuse its discretion.

II. Lesser Included Offense Instruction

It is within the discretion of the district court to refuse to give a requested jury instruction, and this court should not reverse absent an abuse of that discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).

Smith argues that the district court erred by not including instructions for the lesser included offense of second-degree manslaughter. Every lesser degree of homicide is intended to be characterized as a lesser included offense. Minn. Stat. § 609.04 (1994). The district court should submit a lesser degree of homicide to the jury if

the evidence would reasonably support a conviction of the lesser degree and at the same time is such that a finding of not guilty of the greater offense would be justified.

State v. Leinweber, 303 Minn. 414, 422, 228 N.W.2d 120, 125-26 (1975). The second portion of this test has been called the "rational basis" test. See Cole, 542 N.W.2d at 50.

Second-degree manslaughter includes a definition of homicide:

(1) by the person's culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another;

Minn. Stat. § 609.205 (1994). Smith claims that the jury could have found that he acted with culpable negligence. He argues that there are primarily four pieces of evidence to support this theory: (1) A.J. initially told the police that the shooting was an accident; (2) A.J. described one gunshot as a "blank shot," and described his father taking the shell out of the gun and putting it back in; (3) one cartridge shell had two dents in the primer area, possibly indicating that the rifle was fired once and didn't go off, and was then fired again; and (4) the position of the body was not consistent with self-protection or struggle. Smith argues that the jury could conclude that Smith was attempting to frighten Susan Peterson by firing the gun, but that the gun did not fire. The defense theory is that Smith thought that the gun was defective and pointed the gun at Susan Peterson's face, not expecting it to fire when he pulled the trigger.

Even assuming that there was enough evidence to support a conviction of the lesser included offense, given the "rational basis" portion of the test, the district court did not abuse its discretion in refusing to submit second degree manslaughter instructions to the jury. See Leinweber, 303 Minn. at 422, 228 N.W.2d at 125-26. The above evidence points more clearly to Smith's deliberation in the death of Susan Peterson than to his culpable negligence.

III. Sentencing

The decision to depart from sentencing guidelines rests within the district court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Bates, 507 N.W.2d 847, 853 (Minn. App. 1983), review denied (Minn. Dec. 27, 1993). Generally, the issue in deciding to depart is whether "the defendant's conduct was significantly more or less than typically involved in the commission of the crime in question." State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984).

The district court imposed a sentence of 480 months, the statutory maximum sentence for second- degree murder, which represented an upward departure from the presumptive sentence of 326 months. In support of its departure, the district court stated that the crime was "committed with particular cruelty." The court listed supporting factors: (1) Susan Peterson was shot at point blank range; (2) her six-year-old son, A.J., was present, against his will, during the killing; (3) A.J. was left alone with his mother's body after the shooting; (4) Smith tried to persuade A.J. to lie to police about what had happened; (5) the crime represented "an abuse of a trust relationship"; (6) Susan Peterson was particularly vulnerable because she was with her young child and she was highly intoxicated; and (7) there was little effort to obtain emergency medical treatment for Susan Peterson.

Smith argues that the facts of the case, while tragic, are not atypical, and cites another second-degree murder case in which the presumptive sentence was imposed. See Holmes v. State, 437 N.W.2d 58 (Minn. 1989). Smith asserts that Holmes was similar to the instant case, classifying both as "a drunken quarrel that becomes deadly." However, the factors that the district court relied upon here were not present in Holmes. The district court's discretion to grant a departure was not abused.