may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Thomas Henry Jackson,
Filed July 27, 1999
Ramsey County District Court
File No. K3-98-2517
John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, 2829 University Avenue S.E., #600, Minneapolis, MN 55414 (for respondent)
Mike Hatch, Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, Ramsey County Government Center W., 50 W. Kellogg Blvd, Suite 315, St. Paul, MN 55102 (for respondent)
Considered and decided by Willis, Presiding Judge, Schumacher, Judge, and Harten, Judge.
Appellant Thomas Henry Jackson challenges his conviction for controlled substance crime in the third degree, arguing that the district court erroneously ruled that two prior convictions were admissible for purposes of impeachment, that testimony referring to his prior criminal record was improperly presented to the jury, and that a police officer gave improper opinion testimony. We affirm.
After Officers McRae and Williams completed the transaction with Jackson, the arrest team apprehended Jackson, who was carrying neither drugs nor money, and another man, who was carrying the twenty-dollar bill that Officer McRae had used to purchase the crack cocaine.
At trial, several officers involved testified about the July 7th incident. Although Officer James Gray did not personally observe the transaction, he testified that it is common for one individual to complete a drug transaction and then give the money to another individual. Over defense counsel's objection, Officer Gray testified that he believed Jackson to be the middleman, the courier.
On cross-examination, defense counsel asked Officer Gray if he told Jackson that he would speak to the prosecutor on Jackson's behalf. Officer Gray answered affirmatively. Defense counsel then asked Officer Gray if he did, "in fact, do that." Officer Gray responded with these words:
I attempted to first speak with the charging officer with the St. Paul police department, Tom Schmidt, but--you'll have to give me a chance to speak here--due to your client's illustrious history--
The district court immediately interrupted, stating, "Just a moment." Defense counsel later moved for a new trial based on Officer Gray's reference to Jackson's "illustrious history." The district court denied the motion.
Before the close of its case-in-chief, the state moved the district court to admit for impeachment purposes three of Jackson's prior felony convictions in the event Jackson chose to testify. The district court denied the state's motion with regard to Jackson's recent controlled substance conviction, noting that the prejudicial effect of such a closely related offense outweighs its probative value. The court ruled that evidence of Jackson's 1993 attempted criminal sexual conduct conviction and his 1996 terroristic threats conviction would be admissible. Jackson chose not to testify and the evidence was not admitted. The jury returned a verdict of guilty of controlled substance crime in the third degree. Jackson appeals.
Jackson argues that the district court erred in ruling that two of his convictions were admissible for impeachment purposes. The district court's ruling on the use of prior convictions for impeachment must be upheld "'unless a clear abuse of discretion is shown.'" State v. Lloyd, 345 N.W.2d 240, 246 (Minn. 1984) (quoting State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979)).
Minn. R. Evid. 609 allows felony convictions to be admitted for purposes of impeachment if 10 or fewer years have elapsed since the conviction and if the probative value of the evidence outweighs its prejudicial effect. The evaluating factors include (1) the prior crime's impeachment value, (2) the date of the conviction and the intervening conduct, (3) the similarity or dissimilarity of the prior crime to the present charge, (4) the importance of defendant's testimony, and (5) the importance of the credibility issue. State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978).
Jackson argues that the prior offenses have little impeachment value because neither is directly related to credibility. But a prior offense need not relate to credibility in order to be admissible for purposes of impeachment. Brouillette, 286 N.W.2d at 707. Rather, prior convictions have legitimate impeachment value because they allow the factfinder to see "the whole person" and thereby better determine the truth of the defendant's statements. State v. Skinner, 450 N.W.2d 648, 653 (Minn. App. 1990), review denied (Minn. Feb. 28, 1990). Although Jackson's previous convictions do not relate to credibility, the "impeachment value" factor weighs in favor of admissibility.
Jackson also contends that evidence of his prior convictions is more prejudicial than probative because he committed those two offenses in the relatively recent past and "the jury might have felt he had been sentenced too leniently in the prior cases." No relevant precedent supports this argument. See, e.g., State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (explaining that prior convictions used for impeachment are no more prejudicial if they are recent than if they are stale). Jackson's argument that the two convictions were prejudicial because they were too recent is unpersuasive, and the timeliness factor weighs in favor of admissibility.
Finally, Jackson contends that the state did not need to present impeachment evidence because "a jury would have already known of appellant's self-interest in avoiding conviction and thus already viewed his testimony critically." However, Jackson cites no authority to support this claim. Every criminal defendant has a self-interest in avoiding conviction and every testifying criminal defendant is subject to cross-examination. When the supreme court enacted Rule 609, it clearly did not believe that the impeachment value of previous convictions would be unnecessary in every case simply because all criminal defendants have an interest in avoiding conviction. For this reason, and because Jackson has not otherwise indicated that credibility was unimportant, the "importance of credibility" factor does not weigh against the admissibility of the two previous convictions.
We conclude that the district court did not abuse its discretion in ruling that two of Jackson's prior convictions were admissible for purposes of impeachment.
2. Reference to Jackson's "Illustrious History"
Jackson argues that Officer Gray's reference to Jackson's "illustrious history" denied his constitutional right to a fair trial and constituted reversible error. The constitutional right to a fair criminal trial does not guarantee a perfect trial. State v. Clark, 486 N.W.2d 166, 170 (Minn. App. 1992). An indirect reference to a defendant's prior criminal activity is reversible error when contained in a witness's answer. State ex. rel. Black v. Tahash, 280 Minn. 155, 157-58, 158 N.W.2d 504, 506 (1968). However, when a witness's reference to a defendant's criminal history is of a passing nature, or the evidence of guilt is overwhelming, a new trial is not warranted because it is extremely unlikely that the reference played a significant role in persuading the jury to convict. See State v. Haglund, 267 N.W.2d 503, 506 (Minn. 1978).
Here, when Officer Gray was interrupted by the district court, he was in the process of stating that Jackson's "illustrious history" prevented the officer from protecting Jackson from being charged. Officer Gray made this comment after defense counsel asked him if he attempted to prevent the prosecutor from charging Jackson, as he had promised to do. Because Officer Gray's short comment was vague and was made in response to defense counsel's cross-examination, the officer's reference to Jackson's "illustrious history" was the type of passing comment described in Black and Haglund.
Furthermore, the evidence against Jackson was overwhelming. Seven officers testified on behalf of the state. The testimony of the two officers who purchased the crack cocaine from Jackson was consistent and each officer clearly identified Jackson as the individual from whom the drugs were purchased. In addition, the testimony of the officers in the "eyes-on" team corroborated the testimony of Officers McRae and Williams, and the officers in the arrest team apprehended the two individuals described by Officer McRae. This evidence painted an overwhelming picture of Jackson's guilt.
For each of the foregoing reasons, the district court's failure to grant Jackson's motion for a new trial was not reversible error. 3. Officer Gray's Opinion Testimony Finally, Jackson contends that the district court erroneously permitted the state to present opinion evidence that Jackson was the middleman in the crack cocaine transaction. The admissibility of opinion testimony is within the district court's discretion, and the district court's evidentiary rulings will be reversed only if this discretion is clearly abused. State v. Miles, 585 N.W.2d 368, 371 (Minn. 1998).
Minn. R. Evid. 704 provides that testimony in the form of an opinion that is not otherwise admissible "is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." However, district courts must distinguish "between opinions as to factual matters, and opinions involving a legal analysis or mixed questions of law and fact." State v. Chambers, 507 N.W.2d 237, 238 (Minn. 1993). "Opinions of the latter nature are not deemed to be of any use to the trier of fact." Id.
Officer Gray testified without objection that he learned from experience that money used to purchase drugs commonly changes hands before officers apprehend suspects. Officer Gray later testified that he believed Jackson was the "middleman" or "courier".
Officer Gray was part of the arrest team that did not witness the transaction. Accordingly, the officer's description of Jackson's role in the transaction could only be admissible as an opinion. The relevant portion of the trial record, however, does not indicate that the officer was asked to give a legal opinion. Rather, Officer Gray was simply asked to describe Jackson's role in the transaction. The words "middleman" and "courier" were used in a sense that a lay person would use them; they were not used to render a legal opinion on the issue of Jackson's criminal liability. See State v. Salazar, 289 N.W.2d 753, 755 (Minn. 1980) (distinguishing the term "defending" as a factual description from the legal concept of self-defense). Because Officer Gray's description of Jackson's role was based entirely on fact, the officer's testimony was not admitted in violation of Minn. R. Evid. 704.