This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Darrell Johnson,


Filed August 12, 1997


Norton, Judge

Chisago County District Court

File No. K2-95-218

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

James T. Reuter, Chisago County Attorney, 313 North Main Street, Room 373, Center City, MN 55012 (for Respondent)

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Special Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414-3230 (for Appellant)

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



Appellant argues that the trial court abused its discretion in refusing to allow appellant to introduce character evidence regarding his co-defendant; in ruling that if appellant testified at trial, his prior criminal convictions were admissible; and in refusing to grant a mistrial due to a deputy's comment, made within the jury's hearing, that implied that appellant was in police custody. The trial court did not abuse its discretion: in refusing to admit character evidence regarding appellant's co-defendant because appellant did not lay a proper foundation for the evidence; in ruling that appellant could be impeached with his prior felony convictions because the probative value of the convictions outweighed the prejudicial effect; and in refusing to grant a mistrial because appellant demonstrated no actual prejudice from the deputy's comment. We affirm.


On December 6, 1994, appellant Darrell Johnson and Calvin Jones drove from the Twin Cities to visit Grand Casino in Hinckley, Minnesota. They stayed at the casino until after 8:00 p.m. At approximately 10:30 p.m., Bruce Lawrence saw them rummaging in the back seat of their car near the gas pumps at Tim's Country Cupboard in Stacy, Minnesota. When Lawrence entered Tim's Country Cupboard, he saw the store clerk, Richard Doyle, on the floor behind the counter in a pool of blood. Lawrence ran out of the store and saw appellant and Jones speeding away from the store. Lawrence went back in the store, called 911, and informed the operator that appellant and Jones were headed south on Highway 61 in a black Grand Am. Police caught up with appellant and Jones on southbound Interstate 35. Appellant, the driver, engaged the police in a 22-mile pursuit involving speeds in excess of 100 miles an hour before driving his car into a ditch.

Police arrested appellant and Jones and impounded the black Grand Am. In addition to discovering that the Grand Am was stolen, police recovered from the vehicle cash and Minnesota state lottery tickets, which matched the items missing from Tim's Country Cupboard. Police also found a .22-caliber pistol in the ditch. The pistol was later identified by its owner, Cynthia Eskandary, a woman with whom appellant had been living at the time of the murder.

A Chisago County grand jury returned an indictment against appellant charging him with: two counts of aiding and abetting first-degree murder; aiding and abetting second-degree murder; aiding and abetting first-degree aggravated robbery; aiding and abetting theft over $500; theft of a motor vehicle; and fleeing a police officer.

Appellant filed motions to dismiss the grand jury indictment and to change venue. The court denied both motions. Several months later, appellant renewed his motion for a change of venue after a private investigator's report revealed widespread public prejudice due to media coverage of the shooting. The court granted appellant's motion and ordered a change of venue to Ramsey County.

At trial, the state called Daniel Kramer to testify that appellant knew Jones was going to murder Doyle. Appellant had become acquainted with Kramer while both were being held in the Chisago County jail. Kramer testified that on the night of the murder, Jones was angry because he had lost money at the casino. Jones told appellant that he was going to stop in Stacy, Minnesota, to rob a store and get back the money he had lost at the casino. Jones took the gun that appellant had acquired from Eskandary, put it in his coat pocket, and told appellant that he was going to "pop this guy." Once in the store, Jones pulled out the gun and shot Doyle.

To refute Kramer's testimony, appellant sought to introduce character evidence regarding his co-defendant, Jones. He sought to prove that Jones acted alone in murdering Doyle. The trial court refused to admit the evidence. Appellant argued that he could not testify to refute Kramer's testimony due to the court's ruling that he could be impeached with his prior criminal convictions if he testified. Finally, at the end of the trial, appellant moved for a mistrial after a deputy said, "Watch him," referring to appellant within earshot of the jury. The trial court denied appellant's motion, stating that the incident was minimal and did not prejudice appellant.

Following the eight-day trial, the jury returned a verdict finding appellant guilty on all counts except first-degree murder in the course of an aggravated robbery and aiding and abetting premeditated first-degree murder. The court sentenced appellant to an executed term of 201 months in prison for the crime of second-degree murder.


1. Character evidence regarding appellant's co-defendant, Jones.

Appellant alleges that the trial court abused its discretion by refusing to allow him to introduce character evidence regarding his co-defendant, Jones. The decision to admit or exclude evidence rests within the broad discretion of the trial court; its ruling will not be disturbed unless the court abused its discretion or the ruling is based on an erroneous view of the law. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). Furthermore, entitlement to a new trial based on an alleged erroneous evidentiary ruling requires the complaining party to demonstrate prejudicial error. Id.

Appellant sought to introduce evidence of Jones's 11 prior felony convictions and other evidence showing Jones was a violent person who often wielded guns at others. Appellant claimed that it was essential to admit this character evidence because the issue in the case was whether Jones fired the gun impulsively in an act of violence consistent with his prior use of guns or whether he had a plan in which appellant was involved. Appellant contended this evidence would have raised a reasonable doubt that he participated in the robbery.

Based on Minn. R. Evid. 404(b), the trial court ruled that the evidence was inadmissible because "evidence of a person's character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion." The trial court found that appellant was trying to demonstrate that Jones' violent nature and prior criminal convictions proved that he murdered Doyle alone. Furthermore, the trial court ruled that the character evidence was not admissible as proof of a plan under Rule 404(b) because appellant had not demonstrated evidence of a very specific, unique course of conduct that provided a connection to the conduct before the court.

Appellant alleges that the trial court erred by excluding this evidence because character evidence, including past criminal convictions, regarding a third party, here Jones, is admissible when a defendant argues that the third party committed the crime with which the defendant is charged. State v. Hawkins, 260 N.W.2d 150, 158 (Minn. 1977); State v. Bellaphant, 535 N.W.2d 667, 669 (Minn. App. 1995), review denied (Minn. Sept. 28, 1995). In Hawkins, 260 N.W.2d at 152, the defendant was charged with first-degree murder. His defense was that a third party, one of the state's witnesses, committed the murder. Id. at 156. In support of his defense theory, he sought to introduce character evidence that the witness was violent and a heavy drinker. Id. at 158. The trial court refused to admit the evidence. Id. The defendant was convicted of first-degree murder. Id. at 152. On appeal, the court ruled that the trial court should have admitted the evidence because the witness's character was put into issue due to the defendant's allegation that the witness committed the murder. Id. at 158. Furthermore, the court observed that the proper evidentiary foundation was laid because the witness's testimony connected him to the crime scene and the witness's testimony was crucial to the defendant's conviction. Id. at 160.

In Bellaphant, 535 N.W.2d at 668, the defendant was charged with the murder of her three-month-old son, who died as a result of shaken baby syndrome. The defense argued the father of her other child killed her son. Id. at 670. The trial court refused to allow the evidence to support her theory of defense. Id. The defendant was found guilty of second-degree murder. Id. at 668. On appeal, this court held that the trial court abused its discretion by not admitting the character evidence. Id. at 671. The court stated that appellant had set forth a sufficient foundation to admit the evidence because she established that the man had been with her son during the time her son was injured and because the man had a negative attitude which scared the victim. Id. at 670-71.

As in Hawkins and Bellaphant, appellant has placed Jones' character in issue by alleging that Jones committed the murder without appellant's knowledge or aid. Hawkins and Bellaphant, however, not only require that a third party's character be put in issue, but also require that the defendant lay a proper evidentiary foundation. Hawkins, 260 N.W.2d at 160; Bellaphant, 535 N.W.2d at 670. Without a proper foundation, character evidence is not admissible. State v. Higgins, 422 N.W.2d 277, 280-81 (Minn. App. 1988). In Higgins, the defendant, who was convicted of assault, sought to introduce evidence at trial that a third party actually committed that assault. Id. at 280. The defendant sought to prove that the third party had committed a prior offense of assault and therefore committed the present assault. Id. The court held the character evidence was inadmissible because it rested on an inference or "bare suspicion" based solely on a prior conviction; the defendant had not established that the third party was at the crime scene. Id. at 281.

In this case, appellant presented facts linking Jones to the murder scene. The difficulty lies in the fact that appellant wishes to show not only that Jones committed the murder, but also that he committed it alone. Appellant argues that the jury could have concluded that Jones committed the murder alone due to the prior convictions and Jones's violent nature and use of guns. Jones' prior criminal convictions and violent nature can not, by themselves, establish that Jones acted alone in murdering Doyle. The jury would have had to make an inference that Jones committed this murder alone based solely on his prior behavior. This type of character evidence is what the Higgins court refused to admit. Therefore, the trial court did not abuse its discretion by refusing to admit character evidence regarding Jones.[1]

2. Evidence of appellant's prior criminal convictions.

Appellant alleges that the trial court abused its discretion in ruling that, if he testified, he could be impeached with evidence of: a 1991 felony conviction for the distribution of cocaine; a 1989 gross misdemeanor conviction for distribution of marijuana; and a 1988 felony conviction for simple burglary. Under Minn. R. Evid. 609(a), credibility of a witness may be attacked with evidence that the witness has been convicted of a crime that is less than ten years old and punishable by imprisonment in excess of one year, if the court determines the probative value of admitting the evidence outweighs its prejudicial effect.

Appellant alleges that the trial court abused its discretion by ruling that he could be impeached with his conviction for distribution of marijuana because it was a gross misdemeanor punishable by less than one year in prison. We agree that the trial court erred in ruling that appellant could be impeached with the marijuana distribution conviction. The error, however, is harmless in view of the fact that the two felony convictions are indisputably admissible for impeachment. See State v. Sims, 526 N.W.2d 201, 202 (Minn. 1994) (holding that even if trial court erred by ruling that defendant could be impeached with gross misdemeanor theft conviction, error was harmless because other prior convictions were independently and properly admissible); State v. Ross, 491 N.W.2d 658, 660 (Minn. 1992) (erroneous admission of one prior conviction was harmless error in light of admissibility of two other convictions).

Next, appellant argues that the trial court abused its discretion by ruling that he could be impeached with the cocaine and burglary convictions because the prejudicial effect of those convictions is greater than the probative value. We disagree. Determination of whether the probative value of a prior conviction outweighs its prejudicial effect depends on evaluation of the following factors: (1) the impeachment value of the prior conviction; (2) the date of the conviction and the defendant's subsequent history; (3) the similarity of the past crimes with the charged crime; (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue. State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978). In addition, the court should consider whether admission of the evidence will cause the defendant not to testify. State v. Gassler, 505 N.W.2d 62, 66 (Minn. 1993).

First, appellant alleges that his prior convictions for burglary and distribution of cocaine lack impeachment value because they do not bear on his credibility and portray him as a convicted felon. See Jones, 271 N.W.2d at 537-38 (listing impeachment value of prior conviction as factor to consider). A prior conviction does not lack impeachment value simply because it does not involve truth or falsity. Gassler, 505 N.W.2d at 67. The purpose of impeachment by prior crime is to aid the jury by allowing it to see "the whole person" and to determine if that person is trustworthy. State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979) (quoting St. Paul v. DiBucci, 304 Minn. 97, 100, 229 N.W.2d 507, 508 (1975)). Thus, the object of a trial is not solely to surround an accused with legal safeguards, but also to discover the truth. Id. Therefore, appellant's prior convictions for burglary and distribution of cocaine do have impeachment value as "[l]ack of trustworthiness may be evinced by [a defendant's] abiding and repeated contempt for laws which he is legally and morally bound to obey." Id. (quoting State v. Duke, 123 A.2d 745, 746 (N.H. 1956).

Second, appellant contends the prejudice of admitting his prior convictions outweighs the probative value because his prior conviction for burglary occurred six years ago, his prior conviction for distribution of cocaine four years ago, and both convictions occurred in Louisiana. See Jones, 271 N.W.2d at 637-38 (date of prior conviction is factor to consider when determining admissibility). Minn. R. Evid. 609(b) places a ten-year limit on the admissibility of convictions for impeachment. Both of these convictions are less than ten years old. Furthermore, appellant could have dispelled any alleged prejudice on cross-examination by explaining the limitations of these crimes to the jury.

Third, appellant contends that admitting his prior convictions was error because they are similar to his aiding and abetting murder charge; thus, the jury would use the evidence of his prior convictions substantively. See Gassler, 505 N.W.2d at 67 (stating that, if prior conviction is similar to charged crime, there is heightened danger that jury will use evidence not only for impeachment purposes, but also substantively). Appellant's prior burglary and cocaine distribution convictions are not similar to the aiding and abetting murder charge against him in this case. Therefore, the danger that the jury would use the evidence of those repetitive convictions substantively is low. Furthermore, "Minnesota courts have been liberal in admitting prior convictions for impeachment even when the crime is the same as the crime charged." State v. Stanifer, 382 N.W.2d 213, 218 (Minn. App. 1986).

Fourth, appellant argues that allowing him to be impeached with his prior convictions was error because his testimony was critical to refute the charge that he aided and abetted Jones in this crime. See Jones, 271 N.W.2d at 237-38 (court considers importance of defendant's testimony). The importance of the jury hearing the defendant's version of the facts tends to support exclusion of prior convictions as impeachment evidence. Gassler, 505 N.W.2d at 67 (citing Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967) (stating that judge may exclude irrelevant prior conviction if judge determines its admission for impeachment will cause defendant not to testify and if it is more important in case to have jury hear defendant's version of case)). Appellant sought to testify that he was a peaceful man, that he did not know Jones was going to shoot Doyle, and that he fled from police after the murder because he feared that he might be harmed if apprehended. These facts, however, were presented to the jury by seven character witnesses and Cynthia Eskandary. Therefore, appellant's failure to testify is not necessarily prejudicial. Gassler, 505 N.W.2d at 67 (upholding trial court's decision to admit impeachment evidence where defendant's testimony was not critical because other witnesses presented his version of incident). Moreover, because appellant's credibility in presenting his defense to the jury would have been a main issue in the case, there would be a significant need for the admission of the impeachment evidence. Id.

3. Appellant's presumption of innocence.

At the close of trial, appellant moved for a mistrial after one deputy commented to another, "Watch him for a minute," referring to appellant, while the jury was present. Following a hearing regarding the incident, the trial court denied appellant's mistrial motion, stating that "the incident was sufficiently minimal in the context of both what was said and done so as not to affect the presumption of innocence or to prejudice the defendant in this case." Appellant asserts that the trial court abused its discretion because the damage to his presumption of innocence was great. Whether to declare a mistrial is a matter committed to the discretion of the trial court. State v. Moss, 262 N.W.2d 422, 423 (Minn. 1978).

A criminal defendant has a constitutional right to a fair trial by an impartial jury. State v. Bowles, 530 N.W.2d 521, 529 (Minn. 1995), cert. denied, 116 S. Ct. 1050 (1996). The presumption of innocence is a basic component of the right to a fair trial. Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 1692 (1976). When a defendant contends that a courtroom incident has eroded his presumption of innocence, the court must ask whether the incident presented an unacceptable risk that impermissible factors would come into play and render the incident inherently prejudicial. Bowles, 530 N.W.2d at 529. If not, the court must apply a case-by-case analysis to determine whether the incident actually prejudiced the defendant. Id.

Appellant contends that the deputy's comments were inherently prejudicial. Caselaw reveals, however, that security measures much more drastic than the deputy's comment have not been found sufficiently prejudicial to warrant a new trial in the absence of demonstrated prejudice. See, e.g., Holbrook v. Flynn, 475 U.S. 560, 569, 106 S. Ct. 1340, 1346 (1986) (defendant seated next to four uniformed state troopers not inherently prejudicial); United States v. Ford, 19 F.3d 1271, 1272 (8th Cir. 1994) (defendant did not meet burden of demonstrating that he was prejudiced after juror briefly viewed him in handcuffs and accompanied by marshals); United States v. McKnight, 17 F.3d 1139, 1141-42 n.2 (8th Cir. 1994) (district court did not abuse its discretion in determining that jurors' momentary sighting of defendant in handcuffs was not sufficiently prejudicial to warrant mistrial). These cases demonstrate that one comment is not inherently prejudicial when it simply reveals the custodial status of a defendant and when the jurors may not have heard it. Furthermore, appellant has failed to demonstrate, or allege, any actual prejudice due to the comment. Therefore, the trial court did not abuse its discretion in refusing to grant a mistrial.


[ ]1 The state argues that the trial court properly excluded the evidence regarding Jones because it is inadmissible "reverse Spreigl" evidence. In State v. Bock, 229 Minn. 449, 458, 39 N.W.2d 887, 892 (1949), the supreme court held that, in order to negate his own guilt, a criminal defendant may show other crimes of a similar nature have been committed about the same time by someone other than himself. These other offenses must be so closely connected in time and method of operation that they cast doubt on the identification of the defendant as the perpetrator of the charged offense. Id.; State v. Willis, 364 N.W.2d 498, 500 (Minn. App. 1985). In denying appellant's request to admit this evidence, the trial court erred by referring to the evidence as "reverse Spreigl" evidence. Appellant does not argue that the prior crimes by Jones were closely connected in time or so similar to the Doyle murder that it would directly link Jones to the murder.