STATE OF MINNESOTA
IN SUPREME COURT
State of Minnesota,
Filed: July 19, 2007
of Appellate Courts
Detroit Davis, Jr.,
S Y L L A B U S
1. Appellant’s argument, seeking to change
the analysis utilized by courts when determining the admissibility of a
defendant’s previous convictions for purposes of impeachment under Minn. R.
Evid. 609, will not be considered for the first time on appeal.
2. Absent evidence in the record giving rise
to an inference that a criminal defendant has tailored his or her testimony to
fit the evidence, a prosecutor commits misconduct by questioning the defendant
in a manner that implies the defendant’s testimony is not credible because the
defendant was present at trial and had the opportunity to see the evidence
before testifying. Under the
circumstances of this case, however, the misconduct was not prejudicial.
3. The prosecutor did not belittle the
defendant’s self-defense claim by making permissible arguments about the merits
of the claim and about what the law requires to establish a self-defense claim.
O P I N I O N
jury found appellant Detroit Davis, Jr., guilty of first- and second-degree
murder in violation of Minn. Stat. §§ 609.185(a)(3) and 609.19, subd. 2(1)
(2006), respectively, for the shooting death of Richard Allan; second-degree
murder in violation of Minn. Stat. § 609.19, subd. 2(1), for the shooting
death of Pablo Morocho; and attempted aggravated robbery in violation of Minn.
Stat. § 609.245, subd. 1 (2006). The jury returned a not-guilty verdict on the
charge of first-degree murder in the death of Morocho.
In this direct appeal,
Davis first argues that the
district court erred when it admitted evidence of five of his previous felony
convictions for impeachment purposes pursuant to Minn. R. Evid. 609. In making this argument, Davis asks that we alter
the analysis we set out in State v. Jones,
271 N.W.2d 534 (Minn. 1978), for determining the admissibility of evidence of a
defendant’s previous convictions and consider only the similarity of the past
crime with the charged crime, the importance of the defendant’s testimony, and the
centrality of the credibility issue. He
contends that under this altered analysis, it is clear that the probative value
of the evidence of his previous convictions was outweighed by its prejudicial
also argues that the prosecutor committed prejudicial misconduct by
cross-examining Davis in such a way as to
suggest that Davis’s
testimony was suspect because he had exercised his right to be present at
trial. Finally, Davis argues that the prosecutor committed
prejudicial misconduct by improperly belittling his self-defense claim. While we conclude that the prosecutor’s
cross-examination of Davis, which suggested that
Davis’s presence at trial allowed Davis to tailor his testimony to fit the evidence, constituted
misconduct, we also conclude that the misconduct did not affect Davis’s substantial
rights. We further conclude that the
evidence of Davis’s previous convictions was
properly admitted and that the prosecutor’s closing argument did not belittle
claim. Therefore, we affirm Davis’s convictions.
The record indicates that the police,
responding to a 911 call on the morning of August 8, 2005, discovered the
bodies of Allan and Morocho face down on the floor of Allan’s office in south
Minneapolis. Blood, some of which was eventually
determined to match Davis’s
DNA profile, had been dripped and smeared in various places throughout the
room. A metal pipe was discovered near
the body of Morocho. A bag containing
about $11,000 was found near Allan’s head.
An autopsy revealed that Allan had
been shot in the upper left chest and that this wound caused his death. Burn marks at the site of the wound indicated
that the shot was fired at a distance of a few inches to a few feet. The autopsy also indicated that Allan had
suffered a number of injuries consistent with a struggle before his death. Those injuries included a series of scalp
lacerations and a skull fracture, all of which appeared to be the result of blunt
force trauma, possibly from being struck with the muzzle of a gun. Allan also had a bruise on the right side of
his chest, contusions on his arms, and superficial abrasions on his knees.
Morocho’s death was caused by a gunshot
wound to the right chest. Burn marks
around the chest wound indicated that the shot was fired at a distance of a few
inches to no more than three feet. A second
bullet had passed through Morocho’s shoulder.
testified on his own behalf and asserted a claim of self-defense. In his testimony,
Davis admitted that he shot and killed Allan
and Morocho during a botched attempt to rob Allan, who was known to keep large
sums of cash at his office. An
accomplice suggested the robbery and agreed to ensure that the door to Allan’s
construction business would be unlocked when Davis arrived.
planned to enter the building, quickly get Allan to give him money from the
business’s safe, and exit the building.
Another accomplice was to act as a lookout.
Davis testified that on the morning of
August 8, 2005, he entered Allan’s office carrying a loaded handgun. Davis
said that, when Allan saw him enter, Allan jumped up from his desk and attacked
him. A struggle ensued, and Davis struck Allan a
number of times with the gun. At some
left Allan and went to the room where the safe, which was open, was located.
testified that he picked up a bag that felt as if it had money in it and
stepped out of the safe room, at which point Allan attacked him again. According to
Davis, he threw the money down, intending to
escape, and said “you got your money. Just
let me go.” Allan would not release him,
however, and Morocho then came to Allan’s aid.
testified that Morocho started hitting him in the head with a metal pipe, causing
both Davis and Allan to fall to the floor.
stated that Morocho continued to hit him with the pipe while he tried to block
the blows and while Allan urged Morocho to “kill him.” Davis
claimed that he shot both men in order to end the assault and save his own
life. Davis then fled the building, leaving the bag
of money behind.
During trial, the court heard arguments
regarding whether evidence of nine felony offenses for which Davis had been convicted was admissible for
impeachment purposes pursuant to Minn. R. Evid. 609. Defense counsel objected to the admission of
the evidence, arguing that some of the nine convictions were outside the ten-year
period set out in the rule, that the offenses had limited impeachment value,
that the evidence was more prejudicial than probative, and that, if the
evidence of the offenses was found to be admissible, that finding would have a
chilling effect on Davis’s willingness to testify on his own behalf. The district court found that five of the
convictions were admissible under Rule 609 and that the probative value of the
evidence outweighed its potential for prejudice. The district court made it clear that the
jury would be instructed on the proper use of the evidence.
In his direct testimony, Davis testified to having
been convicted of the five offenses the district court found admissible: third-degree burglary in 1993, third-degree
attempted burglary in 1998, fleeing a peace officer in 1999, third-degree
burglary in 2001, and attempted fifth-degree drug possession in 2004. At the close of trial, the district court
gave the appropriate cautionary instruction limiting the jury’s use of these
During cross-examination, the
prosecutor asked Davis a series of questions
that suggested that Davis’s testimony was not
credible because he had access to the discovery materials in his case and had heard
all the evidence presented against him during the trial, which gave Davis an opportunity to
tailor his story to that evidence. That
exchange took place as follows:
Q: You, as
part of the discovery in this case, had all the police reports and all the
information pertaining to this case provided to you, correct?
A: Yes, I did.
Q: And you had an opportunity to read all
of that material, correct?
Q: And you sat in court here throughout
these proceedings, correct?
listened to all the testimony?
Q: And all the other witnesses were what
was called sequestered. They
couldn’t listen to each other, correct?
you’ve had ample opportunity to think about this matter
and review all the reports since August 8th of 2005,
Davis did not object to these questions.
During closing argument, the
prosecutor attacked the veracity of Davis’s
testimony and in doing so twice called Davis’s
account of the killings “preposterous.”
The prosecutor also argued that a self-defense claim was not available
to an armed robber who encounters resistance from his victims. Specifically, the prosecutor argued that
“[t]he law does not encompass th[e] kind of anarchy” that “Davis [was] attempting to sell.”
did not object during the prosecutor’s closing.
During his own closing argument, Davis
claimed he killed Morocho and Allan in self-defense, and the court gave the
jury a self-defense instruction.
We review a district court’s decision
to admit evidence of a witness’s previous convictions for impeachment purposes for
an abuse of discretion. State v. Swanson, 707 N.W.2d 645, 654 (Minn. 2006). Minnesota Rule of Evidence 609 reads in part:
(a) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.
limit. Evidence of a conviction under
this rule is not admissible if a period of more than ten years has elapsed
since the date of the conviction or of the release of the witness from the
confinement imposed for that conviction, whichever is the later date, unless
the court determines, in the interests of justice, that the probative value of
the conviction supported by specific facts and circumstances substantially
outweighs its prejudicial effect.
When considering whether the
probative value of admitting evidence of a conviction outweighs its prejudicial
effect, we have indicated that it is appropriate to consider five factors:
(1) the impeachment value of the prior crime, (2) the
date of the conviction and the defendant’s subsequent history, (3) the
similarity of the past crime with the charged crime (the greater the
similarity, the greater the reason for not permitting use of the prior crime to
impeach [because there is a greater potential for prejudice]), (4) the
importance of defendant’s testimony, and (5) the centrality of the credibility
N.W.2d at 537-38; see also State v. Ihnot, 575 N.W.2d 581, 586 (Minn.
1998) (“Although Jones was decided
before Rule 609 became effective, we conclude that these factors remain
suitable and we reaffirm their application in determining whether the probative
value outweighs the prejudice under the rule.”). Regarding impeachment value, we have held
that evidence of prior convictions generally has some impeachment value because
it allows the jury “to see the whole person and thus to judge better the truth
of [the witness’s] testimony.” Ihnot, 575 N.W.2d at 586 (internal citation
omitted). We consider recent convictions
to have more probative value than older ones, and recent convictions can
enhance the probative value of older convictions by placing them within a
pattern of lawlessness, indicating that the relevance of the older convictions has
not faded with time. See id.
In addition, it is error for a district court to fail to make a record
of its consideration of the Jones factors,
though the error is harmless if it is nonetheless clear that it was not an
abuse of discretion to admit evidence of the convictions. Swanson,
707 N.W.2d at 655.
In this case, the district court
heard extensive argument about application of the Jones factors to
nine previous felony convictions. The
court ultimately admitted evidence of five convictions that fell within the
preceding ten-year period and excluded evidence of four convictions that fell
outside that period. When the court made
its ruling, it noted the importance of Davis’s
credibility to the outcome of the case and specifically found that the
probative value of the five convictions outweighed the potential for unfair
Applying the Jones factors to the five convictions the district court found
admissible, we conclude that the district court did not abuse its discretion in
determining that the probative value of the convictions outweighed the
potential for unfair prejudice. As the district
court observed, the viability of Davis’s
self-defense claim turned largely on facts that only he could testify to, thus his
credibility was central to the case. Moreover,
we note that the court’s ruling on the admissibility of the evidence of
Davis’s previous convictions did not prevent Davis from
testifying. We also note that the
similarity between the past convictions and the charged offenses was not so
great as to preclude their admission. The
potential for prejudice was also reduced by the fact that Davis
admitted his involvement in the attempted robbery and the deaths of Allan and
Morocho, leaving for the jury only the question of Davis’s intent when he killed the two men. Further, each of the admitted convictions fell
within the ten-year time period set out in the rule, and, when viewed together,
they evidence a pattern of lawlessness that tends to mitigate the passage of time. Finally, under our case law it is clear that
evidence of Davis’s convictions would have been
helpful to the jury’s understanding of Davis’s
Davis argues that, even if the district
court did not abuse its discretion when it applied the Jones factors, we should reconsider those factors and alter our
Minn. R. Evid. 609 analysis. Specifically,
that it is improper to consider a conviction’s impeachment value as counting in
favor of admission under Rule 609 because we have already determined that all
convictions have some impeachment value.
In addition, he claims that, because Rule 609 already takes into account
timeliness by establishing that convictions more than ten years old are
presumptively inadmissible, it is improper to consider timeliness as an
additional factor in favor of admission.
argues that, when his convictions are analyzed without these two considerations,
it is clear that the district court abused its discretion because the
convictions are only “marginally probative of [his] truthfulness, but highly
probative of his bad character.” The
state, among other things, contends that Davis’s
argument that we should reconsider the Jones
factors and alter our Rule 609 analysis is not properly before us because
it was not raised at the district court and therefore cannot now be raised on
We agree with the state. In Swanson,
we declined to “revisit Minn. R. Evid. 609 and the use of prior convictions as
impeachment evidence[ b]ecause [the appellant] did not make this argument
before the district court.” 707 N.W.2d at
656. Here, as in Swanson, the argument is raised for the first time on appeal. As in Swanson,
we decline toconsider it in this
we address Davis’s
contention that the prosecutor committed prejudicial misconduct by asking him a
series of questions that attacked his credibility based on his presence at
trial. Davis claims that our decision in Swanson makes clear that such questions
are improper. The right to be present at
trial is protected by the Confrontation Clause of the Sixth Amendment to the
U.S. Constitution. Swanson, 707 N.W.2d at 657.
In Swanson,we held that, absent specific evidence
that a defendant has actually tailored his or her testimony to fit the
evidence, it is misconduct for a prosecutor to imply that a defendant is less
believable because he or she has exercised the right of confrontation.
657-58. The state contends that the
“prosecutor may have inferred in good faith that there was, in fact, evidence
to support an inference of fabrication,” i.e., it is not plausible that an
unarmed and injured Allan attacked Davis
despite an opportunity to escape. In the
alternative, the state argues that Davis
did not suffer any prejudice as a result of the questions.
Because Davis did not object to any of the questions,
our review is for plain error. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). “An error is plain if it [is] clear or
obvious,” and “[u]sually this is shown if the error contravenes case law, a rule,
or a standard of conduct.” Id. (internal citation omitted). If plain error is proven, then, in the context
of prosecutorial misconduct, the burden shifts to the state to show that the
defendant’s substantial rights were not affected. Id. Prosecutorial misconduct affects
substantial rights if there is a reasonable likelihood that the absence of
misconduct would have had a significant effect on the jury’s verdict. Id. In assessing whether there is a
reasonable likelihood that the absence of the misconduct would have had a
significant effect on the jury’s verdict, we consider the strength of the
evidence against the defendant, the pervasiveness of the improper suggestions, and
whether the defendant had an opportunity to (or made efforts to) rebut the
improper suggestions. See, e.g., State v. Dobbins, 725 N.W.2d 492, 513 (Minn.
2006); State v. Mayhorn, 720 N.W.2d
776, 790-91 (Minn. 2006); Swanson, 707 N.W.2d at 658; State
v. Buggs, 581 N.W.2d 329, 341 (Minn.
1998). If the state fails to demonstrate
that substantial rights were not affected, “the appellate court then assesses
whether it should address the error to ensure fairness and the integrity of the
judicial proceedings.” State v.
Griller, 583 N.W.2d 736, 740 (Minn. 1998).
Clearly, the questions the prosecutor
asked Davis on
cross-examination, which are at issue here, implicate a criminal defendant’s
confrontation rights. Cf.
Swanson, 707 N.W.2d at 657-58. In
our view, they also implicate a defendant’s right to be present at every stage
of trial and the right to present a defense. Cf. id. Thus, absent evidence in the record from
which it can be inferred that Davis
tailored his testimony to fit the evidence, asking the questions constituted
prosecutorial misconduct. See id.
Based on our review of the record, we conclude that the record is devoid
of any evidence from which it could be inferred that Davis tailored his testimony to fit the
evidence. Thus, given our case law, we
also conclude that the prosecutor’s questions constituted plain error.
Notwithstanding our conclusion that
the prosecutor engaged in misconduct, we also conclude that the state has met
its burden, as set out in Ramey, of
showing that the misconduct did not affect Davis’s substantial rights. In this case, the evidence against
Davis was substantial and
compelling and included his admission that he had shot Allan and Morocho during
an attempt to rob them. Further, the prosecutor’s
improper suggestions were not pervasive, covering less than one of the 64 pages
of the transcript containing Davis’s
testimony. Moreover, the suggestion that
his testimony to fit the evidence was not repeated in the state’s closing
argument or elsewhere. Finally, our
conclusion that the misconduct did not affect Davis’s
substantial rights is supported by the fact that the jury apparently credited some
of Davis’s testimony with respect to the
shooting of Morocho and found Davis
not guilty of first-degree murder for Morocho’s death.
Davis also contends that the prosecutor
committed prejudicial misconduct in closing argument by “call[ing Davis’s] testimony ‘preposterous’ and [by arguing] that
the ‘law does not encompass [the] kind of anarchy’ [Davis] was ‘trying to sell’ with his self‑defense
contends these portions of the prosecutor’s closing argument improperly belittle
Davis’s defense. Because Davis
did not object to the prosecutor’s comments, our review is, as discussed
previously, for plain error. Ramey,
721 N.W.2d at 302.
state has a right to vigorously argue its case, and it may argue in individual
cases that the evidence does not support particular defenses. State
v. MacLennan, 702 N.W.2d 219, 236 (Minn.
2005). Further, the state’s argument is
not required to be colorless. State v. Bolstad, 686 N.W.2d 531, 544 (Minn. 2004). But the state “may not belittle the defense,
either in the abstract or by suggesting that the defendant raised the defense
because it was the only defense that may be successful.” MacLennan,
702 N.W.2d at 236. Moreover, we have
held that a prosecutor commits misconduct if he “call[s] a type of defense ‘soddy,’
or * * * suggest[s] that jurors would be ‘suckers’ if they believed
the defense.” State v. Johnson, 616 N.W.2d 720, 730 (Minn. 2000) (internal citations and emphasis
this case, the prosecutor did not belittle Davis’s
claim of self-defense generally or suggest that the self-defense claim was
raised only because Davis
had no other options. Instead, when the
statements are viewed in context, it is apparent that the prosecutor was making
arguments about the merits of Davis’s
self-defense claim in this case and about what the law requires to establish such
a claim. While the prosecutor’s
arguments were at times expressed in colorful terms, we conclude that the arguments
did not constitute error and thus did not involve misconduct.