This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Patricia Marie Boyd, petitioner,


State of Minnesota,

Filed April 6, 1999
Halbrooks, Judge

Mower County District Court
File No. K495775

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

Mike Hatch, Attorney General, Hilary L. Caligiuri, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Patrick A. Oman, Mower County Attorney, 201 First Street Northeast, Austin, MN 55912 (for respondent)

Considered and decided by Davies, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Patricia Boyd appeals from the district court's denial of her petition for postconviction relief, alleging there was insufficient evidence to show her child was "born alive"; the trial court erred by failing to instruct that whether the child was "born alive" was an element the state had to prove; trial counsel was ineffective for failing to raise the issue of whether the child was "born alive" and failing to request a jury instruction on this issue; the trial court abused its discretion by excluding testimony of Boyd's low IQ and admitting evidence of Boyd's husband's felony convictions; and the trial court abused its discretion when it failed to depart downwardly in sentencing Boyd. We affirm the denial of the petition for postconviction relief.


On May 23, 1995, Boyd lived in Rose Creek, Minnesota, with her husband, Steven Boyd. At that time, she believed she was four or five months pregnant. Boyd never visited a physician during her pregnancy. On the morning of May 24, 1995, Boyd felt like she had to go to the bathroom. The sensation became painful. Eventually, she went into the bathroom, crouched over the toilet, and delivered a child directly into the toilet. Boyd looked into the toilet and could see the child's feet and that blood had discolored the water. She did not hear any noise and did not believe she had delivered a living child. She did not pull the child out of the toilet. Her later testimony to the police was contradictory as to whether she touched the child.

Boyd wiped herself off and put on pants. Because the Boyds did not have telephone service, she walked to her neighbor's house. Boyd told her neighbor she had an emergency and asked her to pick up Boyd's husband from work.

When Boyd's husband arrived, he removed the child from the toilet and put it in a plastic bag held open by Boyd. Boyd asked her husband to take her to the hospital, but he refused, stating he had to return to work.

When Boyd's husband returned home that evening, he took Boyd to the hospital. On the hospital's instructions, they brought the child with them. When the physician who examined Boyd viewed the child, he was stunned to see what appeared to be a nearly full-term infant, and he called an OB/GYN surgeon to the hospital.

After being contacted by the county coroner, law enforcement officers went to Boyd's house at about midnight, interviewed her, and inspected the house. Over the course of the investigation, law enforcement officers interviewed Boyd four times. During the final interview, Boyd contradicted herself as to whether she had ever touched the child. At the conclusion of the final interview, Boyd was arrested for the murder of her child. Boyd was charged with and tried for murder in the second degree, manslaughter in the second degree, and interference with a dead body, in violation of Minn. Stat. §§ 609.19(1), 609.205, and 609.502, subd. 1 (1994).

Assistant Ramsey County Medical Examiner Susan Roe, M.D., performed an autopsy on the child. She estimated the child had a gestational age of 36 weeks and was viable. She also performed the "float test" on the child's lungs and determined the child had taken breaths. Dr. Roe found a significant amount of air in the child's gastrointestinal tract, indicating the child had also swallowed air. Dr. Roe opined the amount of air in the GI tract was inconsistent with Boyd's story that the child dropped directly from the birth canal into the toilet. Dr. Roe concluded the child died from drowning.

Boyd's expert, John Plunkett, M.D., concluded the child had a gestational age of 28 to 31 weeks. He agreed that the air in the child's lungs and intestinal tract meant the child had breathed and swallowed air. He also found no signs of abnormalities of the internal organs, congenital defects, or trauma that would have caused the child to die naturally. Dr. Plunkett, however, believed the child could have breathed between emerging from the birth canal and being submerged in the toilet water.

During the state's case, the prosecution called Steven Boyd and impeached him with his prior felony convictions. The defense objected that eliciting the husband's criminal record was prejudicial to Boyd and not relevant. The court ruled the crimes were admissible regarding Steven Boyd's credibility, issued a cautionary instruction, and allowed the testimony.

The defense sought to introduce the testimony and report of psychologist James Alsdurf, Ph.D., regarding Boyd's low IQ and limited mental functioning. Boyd claimed Dr. Alsdurf's testimony was necessary to explain the alleged inconsistencies in her statements to the police, to show Boyd would not have known what to do in a crisis situation, and to rebut the state's theory that Boyd had a motive to injure the child.

The trial court ruled the evidence was an impermissible diminished-responsibility defense and did not allow Dr. Alsdurf to testify or his report to be placed in evidence. The court permitted Boyd and the state to elicit lay testimony regarding Boyd's mental functioning.

The case was submitted to the jury with instructions on second-degree murder, the lesser-included offense of second-degree manslaughter, and interference with a dead body. Neither party objected to the instructions. The next day, the jury found Boyd guilty on all three counts.

At the sentencing hearing, both parties moved for departures from the presumptive guidelines sentence. The trial court heard testimony from Dr. Alsdurf and court-appointed psychologist Charles Dawley. Dr. Alsdurf testified Boyd tested in the borderline range of intellectual functioning and fell in the sixth percentile for intelligence. Her decision-making capacity was impaired, particularly in situations of high stress and anxiety. Dr. Alsdurf concluded she suffered from mental impairment which affected her substantial capacity to exercise judgment during the birth process.

Dr. Dawley testified he agreed with Dr. Alsdurf's conclusions regarding Boyd's intellectual functioning and lack of decision-making capacity, but he concluded she was aware of the choices available to her when she gave birth to her child and did not lack substantial capacity for judgment. The trial court agreed Boyd did not lack a substantial capacity for judgment and sentenced her to the presumptive sentence of 306 months' incarceration.

Boyd petitioned the court for postconviction relief and received an evidentiary hearing. Boyd argued being "born alive" is an element of second-degree murder in cases involving the death of an infant, the state had not proved this element, and defense counsel was ineffective for not raising this issue.

Boyd called Dr. Roe and her trial counsel as witnesses. Dr. Roe testified that her opinion at trial that the child was "born alive" was not based on the common-law legal definition of that term, but was based on a medical definition of that phrase. Dr. Roe also conceded no evidence ruled out the possibility that the child breathed while in the process of being born, but then stopped breathing before the placenta was expelled from or detached from the mother's uterine lining. But Roe opined that based on the amount of air in the child's intestinal tract, the child breathed for more than a couple of minutes, possibly more than five minutes. Roe also stated she had been troubled by the amount of air in the baby, because it indicated the baby was alive longer than it would take to fall directly into the toilet from Boyd's body.

Boyd's appellate counsel then questioned Boyd's trial counsel about why he did not submit to the jury the question of whether the child was "born alive." Trial counsel testified that, at the time of trial, he was aware of the distinction between the medical and common-law definitions of "born alive." He had researched the issue before trial.

Additionally, trial counsel met with Dr. Plunkett to review the evidence and discuss the "live-birth" issue with him. Trial counsel discussed the common-law definition with Dr. Plunkett, and Dr. Plunkett believed "live birth" was not a viable defense in Boyd's case, given the autopsy results. Trial counsel relied on Dr. Plunkett's analysis that the child breathed and made the strategic decision to attack the intent element rather than submit the "live-birth" issue to the jury.

The postconviction court found the evidence was sufficient to sustain Boyd's conviction of second-degree murder and denied relief.


An appellate court's review of a postconviction proceeding is limited to determining "whether there is sufficient evidence to sustain the postconviction court's findings, and a postconviction court's decision will not be disturbed absent an abuse of discretion." Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995) (quoting Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992)). In postconviction proceedings, the petitioner bears the burden of establishing facts by a fair preponderance of the evidence. Russell v. State, 562 N.W.2d 670, 674 (Minn. 1997).

1. Sufficiency of the evidence

When reviewing a claim of insufficiency of the evidence, this court is

limited to ascertaining whether, given the facts in the record and the legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged.

State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). The reviewing court cannot retry the facts, but must view the evidence in the light "most favorable to the state and must assume that the jury believed the state's witnesses and disbelieved any contradictory evidence." Id. If, giving due regard to the presumption of innocence and the state's burden of proving the defendant's guilt beyond a reasonable doubt, the jury could reasonably have found the defendant guilty, this court will uphold the jury's verdict. Id. Minn. Stat. § 609.19 (1994) provides in part:

Whoever does either of the following is guilty of murder in the second degree * * *:
(1) causes the death of a human being with intent to effect the death of that person * * * .

Thus, only a "human being" may be the victim of murder. See State v. Soto, 378 N.W.2d 625, 628-30 (Minn. 1985).

The homicide statutes do not define "human being." The Minnesota Supreme Court has, however, twice acknowledged the common-law rule that to be a "human being," a child must be "born alive" and have an existence independent of and separate from its mother. Id. at 630 (holding the words "human being" in the vehicular homicide statute do not encompass a viable fetus capable of sustained life outside the womb of the mother); State v. Kinsky, 348 N.W.2d 319, 324-25 (Minn. 1984) (affirming the conviction of a mother for the murder of her infant where evidence showed the infant was "born alive and had an independent and separate existence from its mother").

In the present case, Boyd argues the evidence at trial was insufficient as a matter of law to prove her guilt beyond a reasonable doubt because a premature child, who breathed during the birthing process but stopped breathing before the process was complete, was not born alive with a separate and independent existence from the mother. The state recognizes Minnesota has acknowledged the common-law rule that to be a "human being," one must be "born alive." The state, however, argues it presented sufficient evidence to prove beyond a reasonable doubt that Boyd's child was born alive.

Numerous courts have struggled to define "born alive" and the parameters of its corollary, "independent and separate existence." See Peter G. Guthrie, Annotation, Proof of Live Birth in Prosecution for Killing Newborn Child, 65 A.L.R.3d 413, 415, 417-19 (1975). Our supreme court has not directly addressed this question.

Under the circumstances of the present case, we need not untangle the knotty issue of what it means to be "born alive" with a "separate and independent existence." The child's status as a human being was never brought into issue. Both parties presumed the child was born alive. Based on consultation with Dr. Plunkett, defense counsel believed the child was a viable human being, born alive from both the medical and the legal standpoints. He, therefore, chose not to raise the issue. Neither party made pretrial disclosures or presented evidence to the jury on this issue. See generally Minn. R. Crim. P. 9.01, subd. 1, 9.02, subd. 1 (prosecutors and defendants must disclose reports of examinations and tests, notice of defense witnesses, and notice of defenses). We conclude the postconviction court did not err in finding there was sufficient evidence to determine Boyd was guilty of second-degree murder.

2. Failure to provide jury instruction

On appeal, Boyd argues the trial court failed to instruct the jury on a fundamental point of law, and denied her constitutional right that all charges against her be proved beyond a reasonable doubt when it failed to instruct the jury to find whether the child was "born alive." Boyd's trial counsel did not object to the trial court's instruction on the elements of second-degree murder or request an instruction on live birth.

A defendant's failure to propose specific jury instructions or to object to instructions before they are given to the jury generally constitutes a waiver of the right to appeal. State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998). Nevertheless, appellate courts have discretion to consider the issue if the instructions contain plain error affecting substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998); see also Minn. R. Crim. P. 31.02 ("Plain errors or defects affecting substantial rights may be considered by the court upon * * * appeal although they were not brought to the attention of the trial court.").

The three-prong test for plain error established by the United States Supreme Court requires appellate courts to determine whether: (1) there was error; (2) it was plain; and (3) the error affected substantial rights. Id. (citing Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 1549 (1997)). Under the first prong of the test, deviation from a legal rule is "error," unless the rule has been waived by the defendant. United States v. Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 1777 (1993). Mere forfeiture, as opposed to waiver, does not extinguish an "error." Id.

The second prong requires the error to be "plain." "Plain" is synonymous with "clear" or "obvious." Id. at 734, 113 S. Ct. at 1777. "At a minimum, court of appeals cannot correct an error pursuant to Rule 52(b) [the federal rule equivalent to Minn. R. Crim. P. 31.02] unless the error is clear under current law." Id.

The third prong of the plain error test is satisfied if the error was prejudicial and affected the outcome of the case. Griller, 583 N.W.2d at 741. The defendant bears the "heavy" burden of persuasion on this prong. Id. Plain error is prejudicial if there is a "reasonable likelihood that [it] substantially affected the verdict." State v. Glidden, 455 N.W.2d 744, 747 (Minn. 1990).

If each of the three prongs are met, the appellate court then assesses whether it should address the error "to ensure fairness and the integrity of judicial proceedings." Griller, 583 N.W.2d at 742 (citing Johnson, 520 U.S. at 469-70, 117 S. Ct. at 1550); Olano, 507 U.S. at 736, 113 S. Ct. at 1779 (appellate courts "should correct a plain forfeited error affecting substantial rights if the error `seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" (citation omitted)). It is, therefore, appropriate to review Boyd's claims for plain error affecting substantial rights.

The trial court provided the following instruction to the jury:

The elements of the charge of Murder in the Second Degree are as follows:

First the death of Baby Girl Boyd must be proven.

Second, the Defendant caused the death of Baby Girl Boyd.

Third, defendant acted with the intent to kill Baby Girl Boyd.

In order to find that the Defendant had an intent to kill, you must find Defendant acted with the purpose of causing death or believed that the act would have that result.

* * * *

If you find that each of these four elements has been proven beyond a reasonable doubt, Defendant is guilty of Murder in the Second Degree. If you find that any of these elements has not been so proved, Defendant is not guilty of Murder in the Second Degree.

The trial court followed the Minnesota Jury Instruction Guides (JIGS) when it instructed the jury on the elements of second-degree murder. The JIGS do not include an optional instruction on "born alive" for cases involving death of a newborn. But a trial court may tailor jury instructions to fit the facts and interpret criminal statutes in light of common-law. State v. McCuiston, 514 N.W.2d 802, 804 (Minn. App. 1994), review denied (Minn. June 15, 1994). The trial court must also "state all matters of law that are necessary for the jury's information in rendering a verdict * * *," Minn. R. Crim. P. 26.03, subd. 18(5), and has the ultimate obligation to clearly instruct the jury on precisely what the jury has to decide. State v. Carlson, 268 N.W.2d 553, 561 (Minn. 1978).

Thus, the question before us is whether it was plain error for the trial court not to instruct the jury sua sponte that it was required to determine the child was legally "born alive" in order to convict Boyd of second-degree murder. To be plain, the error must be clear under current law. Olano, 507 U.S. at 734, 113 S. Ct. at 1777. Presently, Minnesota law is not well defined on whether proof that a child is "born alive" is a fundamental element of the second-degree murder instruction in a case involving an infant death. Although the second-degree murder statute requires the state to prove the death of a human being, it does not define human being.

Moreover, Minnesota caselaw has never specifically addressed whether a jury must be instructed to decide whether a child was born alive. The Soto and Kinsky cases acknowledge the common-law rule that to be a human being a child must be "born alive," but they do not expressly state being "born alive" is an element of second-degree murder in cases involving infant death. These cases also fail to acknowledge and resolve the common-law discrepancies in the definition of "born alive." Under these circumstances, we conclude the trial court did not commit plain error by failing to give a "born-alive" instruction.

3. Ineffective assistance of counsel

Boyd argues her trial counsel was ineffective for failing to raise the issue of whether the fetus was born alive and for failing to request a jury instruction on the born-alive issue.

When reviewing an ineffective assistance of counsel claim, Minnesota has adopted the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984); Scruggs, 484 N.W.2d at 25. This standard requires the petitioner to demonstrate: (1) that trial counsel's representation "fell below an objective standard of reasonableness"; and (2) "there is a reasonable probability that, but for counsel's errors, the outcome of the proceedings would have been different." King v. State, 562 N.W.2d 791, 795 (Minn. 1997).

The reviewing court must be "`highly deferential' when scrutinizing defense counsel's performance." Tsipouras v. State, 567 N.W.2d 271, 275 (Minn. App. 1997) (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065), review denied (Minn. Sept. 18, 1997).

Which witnesses to call at trial and what information to present to the jury are questions that lie within the proper discretion of the trial counsel. Such trial tactics should not be reviewed by an appellate court, which, unlike the counsel, has the benefit of hindsight. Counsel must, after all, have the flexibility to represent a client to the fullest extent possible.

State v. Rainer, 502 N.W.2d 784, 788 (Minn. 1993) (quoting State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).

We conclude the representation provided by Boyd's counsel falls within the wide range of reasonable professional assistance. See Jones, 392 N.W.2d at 236. Trial counsel testified at the postconviction hearing that he was aware of the "born-alive" issue and researched it. He also consulted Dr. Plunkett, and Dr. Plunkett did not believe live birth was an issue in the Boyd case. Dr. Plunkett believed the child had a "separate and independent existence from the mother." Trial counsel, therefore, made the tactical determination not to present the "born-alive" issue to the jury. He concluded his best approach was to demonstrate his client lacked the intent to murder her child. The trial court's finding that defense counsel's trial strategy was reasonable is supported by the evidence and is, therefore, not an abuse of discretion. Rainer, 502 N.W.2d at 788.

4. Evidentiary Rulings

Evidentiary rulings will not be reversed absent a clear abuse of the trial court's discretion. State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996). A defendant claiming erroneous admission of evidence has the burden of showing both error and resulting prejudice. Id. Reversal is warranted if reasonable doubt exists that the result would have been different had the evidence not been admitted. Id.

a. Impaired capacity evidence

Boyd argues her Sixth Amendment right to present a defense was violated when the trial court excluded psychological testimony regarding her IQ, borderline intelligence, and limited problem-solving ability. She asserts this evidence would have demonstrated she did not intend to harm her child, and would have explained inconsistencies in her statements to law enforcement.

(1) Motive to harm child

We agree with the trial court's conclusion that Boyd's argument for the admissibility of psychological testimony to demonstrate she did not intend to harm her child is an attempt to introduce evidence of a diminished capacity to form the necessary intent to murder her child. The trial court did not err in excluding the evidence. See State v. Bouwman, 328 N.W.2d 703, 706 (Minn. 1982) (holding expert psychiatric testimony of diminished capacity is inadmissible to negate the element of intent); State v. Barsness, 446 N.W.2d 666, 667 (Minn. App. 1989) (holding expert testimony on the IQ of a defendant was not admissible to show lack of intent or diminished capacity to murder the six-month-old child she left unattended for a week), rev'd on other grounds, 473 N.W.2d 828 (Minn. 1990); State v. Torkelson, 404 N.W.2d 352, 356 (Minn. App. 1987) (holding defendant charged with second-degree manslaughter of a newborn was properly prohibited from presenting evidence of low intelligence to reduce the standard of care), review denied (Minn. June 25, 1987).

(2) Inconsistencies in statements

Boyd also argues the psychological evidence should have been allowed to explain the alleged inconsistencies in her four interviews with the police. Boyd bases her argument on the United States Supreme Court case of Crane v. Kentucky, 476 U.S. 683, 106 S. Ct. 2142 (1986).

In Crane, the defendant, a minor, was interrogated by the police and confessed to committing a murder. Crane, 476 U.S. at 684, 106 S. Ct. at 2143. The defendant sought to introduce the length of a police interrogation and the manner in which it was conducted to show his confession was not credible. Id. at 685, 106 S. Ct. at 2144. The Supreme Court held exclusion of the defendant's testimony concerning the circumstances of his confession deprived him of his fundamental constitutional right to a fair opportunity to present a defense. Id. at 683, 106 S. Ct. 2143. The court stated the "physical and psychological environment" that yields a confession often bears on its credibility and may have substantial relevance to the defendant's guilt or innocence. Id. at 688-89, 106 S. Ct. at 2145-46.

We conclude Boyd's case is distinguishable from Crane. Boyd did not confess. Rather, she seeks to negate the impact of contradictory statements in her four interviews with law enforcement by introducing evidence of her low intelligence. This evidence is not related to the physical or psychological manner in which the interviews were conducted. It relates to her ability to understand and respond to the questions she was being asked. See Bixler v. State, 582 N.W.2d 252 (Minn. 1998) (upholding the exclusion of psychological expert testimony in assessing the credibility of a confession given by a mentally impaired defendant). We affirm the trial court's exercise of its broad discretion to exclude the psychological evidence. See id. at 255.

b. Felony convictions

Boyd argues the trial court exceeded its discretionary authority by allowing the state to call her husband as a witness and impeach him with his felony convictions for third-degree arson, motor vehicle theft, and third-degree criminal sexual conduct. Boyd argues the crimes were not related to veracity, were irrelevant, and prejudiced the jury.

Although we do not condone the prosecutor's tactic, we cannot conclude the admission of Steven Boyd's prior felony convictions was clear abuse of the trial court's discretion. See State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985) (stating whether the probative value of the convictions outweighs their prejudicial effect is a matter left to the discretion of the trial court); Minn. R. Evid. 609(a) (providing for discretionary admission of prior convictions for crimes not involving dishonesty or false statement if the crimes are felonies and if the trial court determines the probative value of the evidence outweighs the prejudicial effects).

5. Departure from sentencing guidelines

Boyd contends the trial court abused its discretion by not departing downwardly in sentencing her on the basis of expert testimony that she lacked substantial capacity for judgment. 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 record indicates the sentencing court heard and considered the testimony of both experts on the mitigating factor of a lack of substantial capacity for judgment and concluded a downward departure was not appropriate. We hold it was not an abuse of the court's discretion to impose the presumptive sentence on Boyd. See State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984) (holding the presence of a mitigating factor does not obligate the court to impose a prison term shorter than the presumptive sentence); see Kindem, 313 N.W.2d at 8 (holding the trial court has broad discretion, and we generally will not interfere with the exercise of that discretion).