IN SUPREME COURT
Anderson, Russell A., J.
Dissenting, Page, J.
Filed: August 4, 2005
Brian Alexander Clifton,
Office of Appellate Courts
S Y L L A B U S
1. Admission of evidence that a state’s witness had been threatened after testifying at an earlier trial, offered to explain inconsistencies in his testimony and accompanied by cautionary instructions, was not an abuse of discretion.
2. Failure to place appellant’s consent to an instruction on his right not to testify on the record does not entitle appellant to a new trial.
3. Improper comments made by prosecutor during closing argument do not warrant a new trial in the interests of justice.
4. Appellant’s pro se arguments have no merit.
Heard, considered and decided by the court en banc.
O P I N I O N
ANDERSON, Russell A., Justice.
Alexander Clifton was convicted, following a jury trial in Hennepin County
District Court, of premeditated first-degree murder for the shooting death of
Steven Earl Nix and sentenced to life imprisonment. On appeal,
2002, Steven Nix was charged with attempted murder in connection with the
his cousin Claudell Walker were also in the area, and as Walker approached
Clifton to ask if he could borrow Clifton’s car, Walker saw Clifton walk up to
the GMC Jimmy and shoot Nix in the head.
The gun jammed when
personnel took Nix into the stabilization room where he remained unconscious,
had no response to stimulation and was having difficulty breathing.
spoke with Neal at the hospital and at the Fourth Precinct. Neal identified
We review the district court’s evidentiary rulings under
an abuse of discretion standard. Bernhardt
v. State, 684 N.W.2d 465, 474 (
Relevant evidence is, of course, generally
Here, in ruling on the admission of the evidence of the
Ladies and gentlemen, testimony regarding [an] incident involving Mr. Walker and three other individuals will be received at this time for a limited purpose relating to the assessment of Mr. Walker’s credibility.
evidence is admitted for the purpose of assessing testimony regarding Mr.
Walker’s state of mind when he testified at a hearing on
A similar instruction was provided again during final jury instructions. Under these circumstances, we conclude the admission of the evidence was not an abuse of discretion.
without getting the defendant’s permission on the record and citing State v. Thompson, 430 N.W.2d 151, 153 (
In her closing
argument in which she urged the jury to find
In preparing these remarks I thought about you as jurors and how different your lives may be from the lives and the lifestyles of many of the people who testified before you and from the victim, Steven Nix.
And how could you transport yourself to the world of the streets in Tangletown, a world where people gather on the neighborhood block and hang out. They look for action. They recognize people by sight, know them only by nickname, [do] a little drinking, find some marijuana, smoke a little marijuana, see who is partying, see who’s hanging. I’m not saying that that’s the life of everybody in that area, of course. But there are some folks who do go there and hang out.
It’s a world, at least to some extent, where some people don’t trust the system and don’t call the police when they see somebody with a gun. They don’t run from trouble but almost seem to flirt with it or at least co‑exist with it.
* * * *
It may be a different lifestyle and different world, but it’s a world where many of the witnesses in this case reside. It’s their reality.
* * * *
The witnesses who saw Steven Nix get murdered * * * deserve the same consideration as any other person, the same standards, the same rules, the same consideration. They [may] look different, they may perhaps sound different. Their lifestyles may be perhaps different, it doesn’t matter.
For a moment they stepped out of their world where justice is dispensed on the street and came into this courtroom and they put their trust and they put their faith in this system because it was the right thing to do.
* * * *
You know, it would be nice when you’re preparing a case for trial, if you were able to call up a movie studio and call up central casting and say, “Say, I need a couple of witnesses for my trial and could there be a nun and could there be a firefighter and maybe a minister? Could you throw in some people that would be just so believable by who they are?” But that’s not reality.
The reality is you have to go to the people who are there at the time, who saw what they saw. Those are the people who are your witnesses, the people who were at this incident.
They may have different lifestyles and perhaps sometimes different ways of phrasing things and perhaps different reactions to events that some of you may have.
* * * *
So they came to the police in three different ways and there are three people who stepped out of their world, the world of perhaps street justice, if you will, and came in here and decided to participate in the system. Three people who showed by their actions in this case that they want the violence to stop.
were improper in at least three aspects.
First, the remarks bordered on injecting issues broader than the guilt
or innocence of the accused. See, e.g., State v. Clark,296 N.W.2d 372, 377 (
Our decision in Ray
was filed on April 17, 2003. Trial in
the instant case commenced on
The state argues that the prosecutor’s closing argument was not calculated to cause the jury to
decide the case on the basis of passion or prejudice rather than reason, and
the closing argument when read as a whole bears that out. Nevertheless, where
race is irrelevant, “racial considerations, in particular, can affect a juror’s
impartiality and must be removed from courtroom proceedings to the fullest
extent possible.” Varner, 643 N.W.2d at 304. Furthermore,
“[j]ustice is a process, not simply a result.
Where the prosecution persists in skirting our rules and disregarding
our admonitions, we are left with no option but to reverse.” State
v. Lefthand,488 N.W.2d 799, 802
By pro se
was ample evidence as to
D I S S E N T
PAGE, Justice (dissenting).
I respectfully dissent. Because the state was aware of our decision in Ray at the time of trial, and because we are looking at “the same kind of closing argument out of the same county attorney’s office,” I would, in the interests of justice, reverse and remand for a new trial.
 The pattern jury instruction on a defendant’s right not to testify provides:
The State must convince you by evidence beyond a reasonable doubt that the defendant is guilty of the crime charged. The defendant has no obligation to prove innocence. The defendant has the right not to testify. This right 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.
10 Minn. Dist. Judges Ass’n,
 In accord with Ray,the district court granted defense counsel’s motion to strike a question of an investigating officer that tended to implicate racial and socio-economic concerns and thereafter allowed only limited inquiry into the officer’s difficulty in locating witnesses.
 The instruction on jury unanimity provides:
In order for you to return a verdict, whether guilty or not guilty, each juror must agree with that verdict. Your verdict must be unanimous.
You should discuss the case with one another, and deliberate with a view toward reaching agreement, if you can do so without violating your individual judgment. You should decide the case for yourself, but only after you have discussed the case with your fellow jurors and have carefully considered their views. You should not hesitate to reexamine your views and change your opinion if you become convinced they are erroneous, but you should not surrender your honest opinion simply because other jurors disagree or merely to reach a verdict.