IN SUPREME COURT
Concurring, Gildea, J.
Filed: July 27, 2006
Office of Appellate Courts
Daniel James Valtierra,
S Y L L A B U S
1. The district court erred by instructing the jury that defendant’s guilty intent could be inferred if the jury determined that defendant fled. Beyond a reasonable doubt the district court’s instruction on flight had no significant impact on the verdict when the particular evidence of flight was partially supportive of defendant’s theory of the case, and when defendant’s guilt was independently supported by strong evidence.
the decision in the district court was prior to this court’s decision in State v. Earl, 702 N.W.2d 711 (
3. The district court erred by allowing expert police testimony on “triangulation,” but the error did not substantially influence the jury’s decision when the jury was well positioned to judge the expert testimony for its worth, and when defendant’s guilt was independently supported by strong evidence.
4. The district court erred by permitting inquiry into the underlying facts of defendant’s prior conviction, but the error did not substantially influence the jury’s decision.
5. Evidence that defendant intended to commit an aggravated drug robbery was sufficient to permit a jury to find that it was reasonably foreseeable to defendant that murder would be a probable consequence of that aggravated robbery under Minn. Stat. § 609.05, subd. 2 (2004).
Heard, considered, and decided by the court en banc.
O P I N I O N
Following a jury trial in January 2005, appellant Daniel James Valtierra was convicted of two counts of first-degree felony murder and one count of attempted first-degree felony murder for the shooting deaths of Ron Glasgow and Wayne Costilla, and for the shooting of Andria Crosby. In this direct appeal, Valtierra argues that the district court’s jury instructions were improper both because the jury was instructed that guilt could be inferred from the fact that Valtierra fled the state and because the jury instruction on accomplice liability described an improper objective standard. Valtierra contends that these improper instructions deprived him of his right to a fair trial. Valtierra also argues that the district court made evidentiary errors by allowing the state to introduce expert police testimony regarding “triangulation,” and by allowing the state to inquire into the underlying facts regarding Valtierra’s prior conviction. Finally, Valtierra argues that there was insufficient evidence to prove that the shootings of Glasgow, Costilla, and Crosby were reasonably foreseeable as a probable consequence of committing aggravated robbery. While we agree that the district court committed certain errors, we conclude that these errors did not deprive Valtierra of a fair trial, and that there was sufficient evidence to support Valtierra’s conviction. We therefore affirm.
Early in the
morning on January 12, 2004, Wayne Costilla, Ron Glasgow, and Andria Crosby
were all shot during a drug robbery in Costilla’s apartment in
about 1:30 a.m., the caller, who
Medal-Mendoza: “I am robbing you, * * *.”
Medal-Mendoza: “I will shoot you.”
sure the hell ain’t going to rob me.”
Medal-Mendoza then shot
At trial Valtierra testified in his own defense and presented a different account of the shooting. Valtierra testified that early on the morning of January 12, Green and Medal-Mendoza went out to buy methamphetamine, and he went with them to buy cigarettes. Before getting the methamphetamine or cigarettes, the group stopped at a Perkins restaurant. Valtierra did not want to eat, so he left the other two at Perkins, got cigarettes, and began walking back to his sister’s apartment, where he had been staying. As he walked back, Green and Medal-Mendoza pulled up alongside him in a car. Valtierra testified that Green insisted that Valtierra join them in the car instead of walking back in the cold, and after Valtierra obliged, Green explained that they were just going to make a brief 5- or 10-minute stop to get Medal-Mendoza some methamphetamine.
When the group arrived at Costilla’s apartment, Green went in alone, and then all three went into the apartment after Green came back to the car with a sample bag of methamphetamine. Valtierra testified that after the three left the apartment and returned to the car, Medal-Mendoza complained that the asking price for the methamphetamine was too high and suggested that they return to the apartment to attempt to negotiate a lower price. Valtierra testified that he did not think that Green and Medal-Mendoza intended for him to go with them, but since he had come into the apartment the previous time, Valtierra decided to join them again.
testified that Valtierra and Green came in right after Medal-Mendoza, Valtierra
testified that Green and Medal-Mendoza got a head start and that he entered the
apartment several seconds after they did, just in time to hear someone say “shoot
me” and to see Medal-Mendoza pointing a gun at Glasgow. Valtierra then saw Medal-Mendoza fire one
fleeing Costilla’s apartment, Valtierra ran to the home of Green and Green’s
girlfriend, Alison, and there rejoined Green.
Valtierra decided to attempt to use a previously purchased plane ticket for
a flight back to his home in
At about 11:45
a.m. on the day of the shooting, Green, Valtierra, and Medal-Mendoza left
Green, and Medal-Mendoza then began driving back to
Valtierra, Green, and Medal-Mendoza left the scene of the accident and went to a nearby road where Medal-Mendoza flagged down the driver of a pickup truck. The pickup driver agreed to give Medal-Mendoza a ride, but was then surprised to see Valtierra and Green come out of the ditch and lay down in his pickup bed. The pickup driver looked around and, seeing people at the scene of the accident looking over, decided not to give the group a ride. Instead, he flagged down a passing police car.
Medal-Mendoza told the police officer his real name, admitted he had been driving, and was taken into custody for driving under the influence. Green at first claimed to be “Bobby Green,” and Valtierra claimed to be “Jason Andrew Castillo.” Both were treated at the hospital and then released from police custody.
testified that he returned to
The jury found Valtierra guilty on all charged counts, and the judge convicted and sentenced him on two counts of first-degree felony murder and one count of attempted first-degree felony murder, leading to this appeal.
argues that two of the district court’s jury instructions were improper. First, Valtierra argues that the district
court erred by instructing the jury that evidence showing that Valtierra fled
after the shooting could be used to infer that Valtierra possessed a guilty
mind. In a 1957 decision, this court cautiously
permitted a similar jury instruction. State v. McLaughlin, 250
Such instructions are undesirable in that they tend to inject argument into the judge’s charge and lengthen it unnecessarily. Such instructions also improperly influence the jury not only by isolating particular facts but also by giving a particular step of logic the official legal imprimatur of the state.
* * * *
Permissive inferences * * * permit juries to avoid assessing the myriad facts which make specific cases unique.
Litzau, 650 N.W.2d at 186 (second alteration in original) (internal citations and quotations omitted). Litzau also noted that
permissive-inference instructions are also unnecessary in that if the rational connection between facts presented and facts inferred is derived from common sense and experience, the matter can normally be left to the jury’s judgment upon general instructions.
Litzau and Olson both dealt with inferences relating to drug possession, but the state presents no compelling reason to treat a flight instruction any differently. Flight instructions are a species of permissive-inference instruction, and the factors leading us to reject such instructions in Litzau and Olson apply with equal force to flight instructions. Cf. Litzau, 650 N.W.2d at 186 & n.7, 187; Olson, 482 N.W.2d at 215-16; see also State v. Oates, 611 N.W.2d 580, 584 (Minn. App. 2000) (“There is no need to instruct the jury that a [suspect] fleeing the scene is displaying a ‘consciousness of guilt.’”). Therefore, we hold that the district court erred by instructing the jury on the permissive inference that may be drawn from evidence of flight.
instructions merit a new trial “if it cannot be said beyond a reasonable doubt
that the error had no significant impact on the verdict.” Olson,
482 N.W.2d at 216. In Olson, we held that an improper jury
instruction may have had a significant impact on the verdict, and therefore
reversal was warranted when the jury was instructed that “knowing possession” of
drugs could be inferred from the defendant’s proximity to drugs when the drugs
Unlike in Olson, the erroneous flight instruction in
this case was neither the only evidence of Valtierra’s guilt nor the most
compelling, and we conclude that the instruction did not have a significant
impact on the verdict. By far the most
powerful evidence of Valtierra’s guilt was Crosby’s testimony that Valtierra
came into Costilla’s apartment wielding a gun, and the supportive testimony by Sergeant
also argues that the district court erred by giving the standard jury
instruction on accomplice liability, which states that the underlying crime
must have been “reasonably foreseeable,” not “reasonably foreseeable by the person,” which is the language of
the accomplice liability statute.
turn to Valtierra’s two claims of evidentiary error. First, Valtierra argues that the district
court erred by allowing, over defense counsel’s objections, Sergeant Dunnom to
testify that Valtierra, Green, and Medal-Mendoza used “triangulation.” Dunnom, who testified primarily about her
When taking narcotics class to prepare to be an undercover agent, you are taught that * * * the most dangerous time of a drug deal is when the money and the drugs come together. If you are buying or selling, it doesn’t matter; but as an undercover police officer, the term triangulation referred to multiple sellers or buyers that—and the triangulation just simply means shape of a triangle. That means they split so that your attention can’t be on just one person, that they split and they are out of your line of sight.
Dunnom said that when there is triangulation, “at best, [the triangulators] are there to rob you,” and “[a]t worst, they are there to kill you and take the drugs and money.” Dunnom then testified that in her opinion triangulation was a part of Valtierra’s case. Valtierra argues that Dunnom’s testimony amounted to impermissible expert testimony on the ultimate issue of guilt since Dunnom testified (1) that triangulation occurred, and (2) that triangulation means that the triangulators are either going to rob or kill someone.
rulings “‘rest within the sound discretion of the trial court, and we will not
reverse such evidentiary rulings absent a clear abuse of discretion.’” State
v. Morton, 701 N.W.2d 225, 234 (
evidence of triangulation in this case was clearly not helpful to the jury. As the state admits on appeal, triangulation
did not, in fact, occur in the sense Dunnom described. Although
such as errors in admitting expert testimony, warrant a new trial “‘only when
the error substantially influences the jury’s decision.’” DeShay,
669 N.W.2d at 888 (quoting State v.
Chomnarith, 654 N.W.2d 660, 665 (
Valtierra also argues that the district court erred by allowing the state to ask him on cross-examination about the specific facts underlying his prior conviction for aggravated robbery. At trial, evidence of Valtierra’s prior conviction was introduced, without objection, as impeachment evidence under Minn. R. Evid. 609(a). Valtierra then objected to inquiry into the underlying facts of this prior crime, but the district court ruled that Valtierra’s own testimony had essentially “opened the door” to underlying-facts evidence.
A witness may be
impeached with evidence of a prior conviction only if the conviction was a
felony or if the conviction involved dishonesty.
But the underlying-facts
exclusion is not an iron-clad rule, and we have held that “‘the scope of * * * cross-examination
[regarding prior convictions] must be left largely to the discretion of the [trial]
court depending upon the circumstances.’”
State v. Griese, 565 N.W.2d
419, 426 (
In support of the district court’s ruling that Valtierra opened the door to cross-examination on a prior aggravated robbery conviction, the state points to two instances of trial testimony in which Valtierra “tak[es] full responsibility” for his prior crimes. First, Valtierra was asked on direct examination about his prior encounters with the law. He admitted to having committed aggravated robbery, third-degree burglary, and providing a false name to the police in 2000. Valtierra’s counsel then asked him, “You understand you are responsible for what you did, even though you took drugs [in 2000]?” Valtierra responded: “Yes. I am taking full responsibility for what I did.” Second, after testifying about his fear of retaliation for talking to the police, Valtierra’s counsel asked him, “[D]o you believe it was stupid [to not go] directly to the police [after the shooting]?” Valtierra answered, in part:
I believe it was very stupid, you know. I regret a lot of my decisions. I take full responsibility for everything I did, though, and I know that even though I didn’t know [Medal-Mendoza] had a gun, even though I didn’t know he was going to shoot no one * * * but I have to admit I made a conscious decision to get in the car that night * * * to go make this run for this guy to get him this methamphetamine[.]
According to the state’s argument and the district court’s ruling, this testimony opened the door for the state to pursue the following line of questioning on cross-examination:
Q [The state]:
When you were convicted of first
degree aggravated robbery in the year 2000, that was for robbing a
Yes. It was.
Q: What “aggravated” means is that you were armed with a dangerous weapon, right?
A: Yes. I take full responsibility for that.
Q: In this case, it was a gun that you were armed with?
[Valtierra’s counsel]: I am going to object on the grounds—I want to make a continuing objection.
The court: Overruled.
* * * *
Q: What you were convicted of is robbing a
A: All I can say is the jury found me guilty and I respect their decision.
Q: But you maintained that you were at the
A: I was convicted. I mean, I did my time and I put it behind me.
Q: That is not my question. What I am asking is if you have admitted to doing the robbery but not having a gun.
A: Yes. I did.
Q: Yes, you did have a gun?
A: No. I never had a gun I just—I am under oath. The only thing I can say is—I took some money out of the store but I never was armed.
Q: But you were convicted of being armed?
A: Yes. I was.
The state argues
that this exchange was proper because Valtierra’s claim that he took
responsibility for his past actions opened the door to it. We disagree.
First, it is not clear from the testimony cited by the state that
Valtierra did, in fact, take full responsibility for the prior crimes for which
he was convicted. But assuming he did, it
is not clear how taking responsibility for past actions would give Valtierra an
“unfair advantage” or allow him to present “a misleading or distorted
representation of reality” so as to overwhelm the baseline rule that underlying
facts are prohibited. McCarr &
Nordby, supra, § 32.54. This is particularly true because the
admission of underlying- crimes evidence against an accused presents a unique
opportunity for prejudice. See Griese, 565 N.W.2d at 426. We also believe that permitting the
underlying-facts inquiry at issue here—which creates a presumption that a defendant
who asserts his innocence and subsequently is convicted is impeachable for
being untruthful—would present the sort of “chilling effect on the accused’s
right to testify in his own defense” that this court cautioned against in Griese.
an evidentiary error not affecting constitutional rights, improperly admitted
underlying-facts evidence will not require reversal unless “‘the error
substantially influences the jury’s decision.’”
Chomnarith, 654 N.W.2d at 665
(quoting State v. Nunn, 561 N.W.2d
902, 907 (Minn. 1997)); see also Norgaard,
272 Minn. at 52, 136 N.W.2d at 631 (determining that it was error to inquire
into the age of a rape victim after the fact of the rape conviction was
properly admitted as impeachment, but that the error was not prejudicial enough
to merit reversal). In this case, it is
doubtful that any improper influence on the jury from the underlying-facts admission
would have gone far beyond the prejudice resulting from the undisputedly proper
admission of Valtierra’s aggravated robbery conviction. Further, as discussed above, the most
powerful evidence of Valtierra’s guilt in this case consists of
have established that in cases where the cumulative effect of various errors
operate to produce a biased jury, errors may require a new trial even though “‘none
of [the errors] alone might have been enough to tip the scales.’” State
v. Johnson, 441 N.W.2d 460, 466 (
Valtierra argues that even if evidence established that he was armed with a gun
and intended to commit robbery, there was not sufficient evidence to show that
it was “reasonably foreseeable” to him that murder would be a “probable
consequence” of that robbery, as required by the accomplice liability statute.
C O N C U R R E N C E
GILDEA, Justice (concurring).
I concur in the majority’s conclusion to affirm the conviction. I write separately to express my view on two issues. The first issue relates to the flight instruction. I agree that the district court erred in giving the flight instruction as worded in this case. But in my view our opinion should not be read as prohibiting a properly worded flight instruction in every case. See State v. McLaughlin, 250 Minn. 309, 319, 84 N.W.2d 664, 671-72 (1957) (“When the proof is sufficient the trial court may instruct the jury that inference of guilt from the evidence of flight, in connection with other proof, may form the basis from which guilt may be inferred, but this should be qualified by a general statement of the countervailing conditions incidental to a comprehensive view of the question.”); see also United States v. Clark, 45 F.3d 1247, 1250-51 (8th Cir. 1995); United States v. Roy, 843 F.2d 305, 310-11 (8th Cir. 1988).
The second issue relates to the majority’s conclusion that the district court erred in allowing the state to inquire on cross-examination about circumstances of Valtierra’s conviction in 2000 for aggravated robbery. I disagree with the conclusion that the district court erred. In my view, the district court did not abuse its discretion in finding that Valtierra “opened the door” to the state’s cross-examination as quoted in the majority opinion.
On direct examination, defense counsel established that Valtierra had been convicted of several prior felonies, one of which was an aggravated robbery conviction in 2000. The majority opinion discusses Valtierra’s statement that he was “taking full responsibility for what [he] did” in 2000. Also important to my view of this issue is what happened later in the direct examination. Specifically, when discussing the night of the murder, defense counsel asked Valtierra: “But you agree, though, that you put yourself in that situation so you had to accept – is that right?” Valtierra responded:
I guess when I look back at everything that happened, I am still in disbelief. I still can’t believe that I am on the stand or I am even in a trial for a murder case, you know. I know I would never, never murder nobody. I know I would never shoot nobody. I know I love life. I know if [the murder victims] were here, they would tell you guys that I didn’t have no gun. I know they would.
(Emphasis added.) At the conclusion of the direct testimony, defense counsel moved to preclude the prosecution from inquiring further into the facts of the prior aggravated robbery conviction. The district court denied the motion concluding that Valtierra had opened the door to the state asking questions regarding the 2000 offense. On this record, I would not conclude that the district court abused its broad discretion in allowing the limited cross-examination.
 At trial Valtierra denied that he had used drugs prior to the shooting.
 The trial judge instructed the jury:
It is for you alone to decide whether or not the defendant fled after the alleged crimes. If you determine that he did flee, then you may take such flight into consideration as an inference of guilty intention at the time of the incident giving rise to these charges.
Flight in itself is not conclusive evidence of a guilty intent; but if you find such flight existed, then you may consider it along with all of the other pertinent evidence in this case in determining whether or not the State has established that the defendant possessed the requisite intent at the time and place of the alleged crime.
 Valtierra also argues that the foundation for Dunnom’s expert status—which consisted of her testimony that she had done undercover narcotics work and had been taught about triangulation during her police training—was insufficient. Because we hold that Dunnom’s testimony on triangulation was otherwise improper, we do not reach the issue of whether the testimony was supported by sufficient foundation.
 For constitutional error, “the inquiry is whether the guilty verdict actually rendered was surely unattributable to the error.” Chomnarith, 654 N.W.2d at 665. Here, Valtierra does not argue that the error affected his constitutional rights, so we inquire only whether the verdict was substantially influenced by the error. See DeShay, 669 N.W.2d at 888.
State v. Thunberg, 492 N.W.2d 534, 538 (
 The state also argues that the
underlying-facts inquiry was permissible because the two crimes were so
similar. But evidence introduced for the
purpose of showing the similarity of prior crimes is inadmissible outside of a Spreigl context. See