This opinion will be unpublished and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
C6-97-1887

State of Minnesota,
Respondent,

vs.

Cedric O'Brien Naylor,
Appellant.

Filed August 25, 1998
Affirmed
Huspeni, Judge

Hennepin County District Court
File No. 96103699

Melissa Sheridan, Asst. State Public Defender, 875 Summit Ave., Room 371, St. Paul, MN 55105 (for appellant)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Asst. County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Willis, Presiding Judge, Huspeni, Judge, and Short, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

A jury found appellant guilty of second-degree murder. Appellant challenges the jury instruction on self-defense, alleges prosecutorial misconduct, and claims the trial court erred in not considering mitigating reasons for departure from the presumptive sentence. Because we see no abuse of discretion or material prejudice to appellant, we affirm.

FACTS

Appellant Cedric Naylor and his girlfriend Katie Warnack drove to a friend's house in the early morning hours. While Warnack visited with her friend in the back of the home, appellant and three men he had never met waited in the living room. One of the three, Kevin Alston, confronted appellant and asked what he was doing there, what he wanted, and why he kept his hand in his pocket. Alston also asked appellant if he had a gun. Appellant then called for Warnack and the two left. The three men followed them. Alston again confronted appellant and the two argued.

At this point, the facts are disputed. Appellant claims that Alston unzipped his jacket and reached behind to grab a gun, appellant grabbed Alston's hand and wrestled over the gun, and the gun went off in the ensuing struggle. The state, on the other hand, claims that appellant pulled a gun from his right pocket and fired at Alston. There is no dispute that Alston was fatally shot at close range with one bullet. Appellant was charged with and convicted of second-degree murder. This appeal followed.

D E C I S I O N

1. Jury instructions

Trial courts are allowed considerable latitude in selecting the language in jury instructions. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). An appellate court will not reverse a trial court's decision unless the instructions constituted an abuse of discretion. Id. Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explained the law. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). When instructing on self-defense, courts must use "analytic precision." State v. Sanders, 376 N.W.2d 196, 201 (Minn. 1985).

Appellant claims he acted in self-defense and also that the death was accidental. The trial court instructed the jury on self-defense and modified CRIMJIG 7.05 in relevant part by removing the word "killing" and substituting the words "defendant's act" in the instruction. (1)

Appellant argues the trial court should have instructed the jury according to CRIMJIG 7.06 because CRIMJIG 7.05 requires the killing to have occurred in order to avert "death or great bodily harm," whereas CRIMJIG 7.06 provides only that the defendant's action was necessary to prevent "bodily injury." Appellant urges that had the proper instruction been given, the jury could have determined from the evidence that appellant's actions were justified even though the killing was not necessary to avert death or great bodily harm.

The Minnesota Supreme Court addressed this issue in a case released after trial in this matter. In State v. Hare, 575 N.W.2d 828 (Minn. 1998), the defendant was charged with second-degree murder and claimed he acted in self-defense. The trial court gave CRIMJIG 7.05 unmodified, and the jury found the defendant guilty. The supreme court stated:

We have repeatedly cautioned trial courts that when a defendant, asserting self-defense, claims that the resulting death was unintentional, CRIMJIG 7.05 is inappropriate and that CRIMJIG 7.06 is likely to better fit the facts of the case.

Id. at 833. Appellant here, in asserting self-defense, claimed that the resulting death was unintentional.

We recognize the trial court in this case did not have the benefit of Hare. We also share the trial court's frustration with the somewhat confused state of case law prior to Hare. The mandate of Hare, however, appears unequivocal. When a defendant asserts self-defense combined with no intent to kill, a trial court must charge the jury according to CRIMJIG 7.06. Id.

Even though the trial court here commendably modified CRIMJIG 7.05, it did not modify the language most objectionable to appellant: the reference to "death or great bodily harm" remained. Appellant sought the "bodily injury" language of CRIMJIG 7.06.

Recognizing, as we believe we must pursuant to Hare, that the trial court erred in instructing the jury on self-defense, we cannot conclude our inquiry at that point because appellant did not object to the instruction as given. The general rule is that failure to object to a jury instruction at trial waives the right to appeal that issue unless the error is one of fundamental law or controlling principle and results in substantial and material prejudice to the appellant's rights. Minn. R. Crim. P. 26.03, subd. 18(3); State v. Gisege, 561 N.W.2d 152, 160 (Minn. 1997).

Appellant claims that he incurred substantial and material prejudice because the jury could not have understood that it should acquit him even if he struggled with Alston to prevent an injury less than death or great bodily harm. While there may be some situations in which the distinction between "death or great bodily harm" and the less onerous "bodily injury" may be critical, such is not the case here. If Alston had a gun, as appellant claims, no reasonable jury could conclude that appellant feared anything less than "death or great bodily harm."

Of importance here is the fact that appellant never conceded that he intended to act in any way to injure or kill the victim. Appellant claimed consistently that death was accidental. Therefore, if the jury had believed appellant's version of the facts (accidental death while attempting to restrain the victim who possessed a gun), the challenged language in the instruction would have been irrelevant. The jury, in returning a verdict of guilty on the second-degree murder charge found, in fact, that appellant had intended to kill. The jury rejected appellant's claim of accident.

We conclude, as did the Hare court, that the jury was not misled by the error in the instruction and that the error was harmless.

2. Prosecutorial misconduct

Whether a new trial should be granted because of prosecutorial misconduct rests within the discretion of the trial judge, who is in the best position to appraise its effect. State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980). By failing to object at trial to any of the statements or to seek specific cautionary instructions, appellant is deemed to have forfeited his right to have the issue considered on appeal. State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980).

Even if we addressed the issue of prosecutorial misconduct on its merits, we would conclude that the challenged questions of the prosecutor were proper. The prosecutor cross-examined a police officer with the Minneapolis gang unit regarding his responsibility and ability to monitor gang members in the Minneapolis area. The officer testified that it usually takes some time before he is able to identify newly arrived gang members. Appellant argues that the "clear implication" of these questions was that appellant was a dangerous gang member. We disagree. In this case, appellant stressed the fact that the victim was a reputed gang member. The state responded by demonstrating that appellant was new to the area and the police did not know much about him. The prosecutor never presented evidence nor made express statements that appellant was a gang member. Further, appellant, in his redirect examination, was given the opportunity to rehabilitate the officer's testimony.

Appellant also alleges the prosecutor committed misconduct during his closing argument by making prejudicial comparisons between this case and the O.J. Simpson trial. Again, appellant did not object to this argument. Even reaching the issue on its merit, we note that the state referred to the Simpson trial only twice in closing argument and noted at oral argument that it was responding to appellant's mention of the Simpson trial 25 times in voir dire. We find no prejudicial error.

3. Downward departure from the presumptive sentence

The decision to depart from the sentencing guidelines rests within the trial court's discretion and will not be reversed absent a clear abuse of that discretion. See State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). The trial court must order the presumptive sentence unless the case involves "substantial and compelling circumstances" to warrant a downward departure. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). The threshold issue is whether the case involves compelling circumstances for departure. State v. Curtiss, 353 N.W.2d 262, 263 (Minn. App. 1984).

In State v. Hennum, 441 N.W.2d 793 (Minn. 1989), a wife who allegedly suffered from battered women's syndrome shot her husband while he slept. At trial she argued she was acting in self-defense (it was proven that her husband had been violently abusive to her for more than ten years). A jury found her guilty of second-degree murder, and the trial court sentenced her to the minimum presumptive sentence of 102 months. The supreme court found compelling circumstances surrounding the death that justified reducing the presumptive sentence by half.

Appellant asserts that, similar to the victim in Hennum, Alston's violent nature was a mitigating factor. Here, however, appellant had never met Alston and did not know his reputation, and Alston had never inflicted physical violence on appellant. The circumstances in this case do not rise to the level of substantial and compelling circumstances, as in Hennum, to warrant a downward departure from the presumptive sentence.

The trial court indicated that it had carefully reviewed defendant's motion, supporting memoranda, and counsel's argument before denying the motion. Accordingly, the trial court, in its discretion, did not err in refusing to consider mitigating factors for downward departure.

Affirmed.

(1) Thus, the jury was instructed: "In order for Defendant's act * * * to be justified * * *, three conditions must be met."