IN SUPREME COURT
Filed: July 12, 2007
Office of Appellate Courts
Kurt Thomas Bird,
S Y L L A B U S
District court did not abuse its discretion when it excluded expert psychiatric testimony concerning defendant’s mental illness at the time defendant shot his wife, when the testimony was offered regarding whether (1) defendant acted in the heat of passion; (2) a person of ordinary self-control who experienced mental illness symptoms similar to the defendant’s mental illness symptoms would have been provoked to a heat of passion under like circumstances; and (3) defendant acted “under circumstances manifesting an extreme indifference to human life” for the purposes of the domestic abuse murder statute, Minn. Stat. § 609.185(a)(6) (2006).
Heard, considered, and decided by the court en banc.
O P I N I O N
ANDERSON, Paul H., Justice.
At approximately noon on Tuesday, August
2, 2005, the police responded to a 911 call concerning an apparent suicide at
an apartment building in
Bird’s Interrogation, Arrest, and Pre-Trial Proceedings
took Bird to a
In the first part of the interview, Bird told the officers that during the early morning hours on August 2, he and his wife were “bickering back and forth” again regarding Bird’s daughters. He said that when he walked from the living room into the bedroom, he saw his wife sitting on the bed, holding one of his guns. He stated that she “kept fooling at her head with [the gun]” and that he did not think the gun was loaded. Later in the interview, Bird said that when he walked from the living room to the bedroom he initially thought his wife was asleep, but he found her sitting on the bed with the gun. He said his wife told him she wished she were dead and that she was “dead already” because she was HIV-positive. He said that his wife told him she was in love with another man and that she was going to leave Bird. Bird told the officers that he thought his wife was involved in more than one extramarital affair and that he must be HIV-positive because of her.
Bird stated that after seeing his wife with the gun, he worked his way behind her in order to take the gun from her. He said that in his effort to get the gun, he “pushed her down and she had the gun and [he] had the gun and the next thing you know it went off.” At one point in the interview, Bird said that his wife’s hands might have been on the gun when it discharged, but he later told the officers that he was the only person holding the gun at the time of the shooting. He admitted shooting his wife, but said he did not pull the trigger. He said that after the shot was fired, he dropped the gun and it fell onto his wife’s hand. He denied pointing the gun at his wife, and he said he did not remember placing the gun in her hand after she was shot. Bird vehemently denied shooting his wife on purpose and denied shooting her out of anger. But he did acknowledge that he was angry at her, that he felt “a little” betrayed and disappointed by her, and that both he and his wife were mad at the time they struggled over the gun.
his interview with the police, Bird was charged with the murder of his wife. A
Bird pleaded not guilty to all three counts and gave notice to the state that he intended to assert a mental illness defense. The court then ordered Bird to undergo a Rule 20 evaluation, which resulted in an opinion by Dr. Kristine Kienlen that Bird was competent to stand trial and that he did not qualify for a mental illness defense. Bird did not challenge Dr. Kienlen’s findings and did not interpose a plea of not guilty by reason of mental illness. But he moved the court to allow expert psychiatric testimony that he was experiencing psychotic symptoms from approximately July 27 through August 3 and that he was “acutely psychotic” at the time of the shooting. The court allowed Bird’s expert to testify, but only about Bird’s mental state at the time of his on-scene statements to the police and the subsequent custodial interview.
Forensic and Police Testimony
Bird’s jury trial began on February 2, 2006. One of the state’s first witnesses was Gary Gendron, a crime lab technician for the Hennepin County Sheriff’s Department. Gendron testified that the bullet that killed Laurie Bird entered the mattress on which her body was found at approximately a 45-degree angle. He said that the bullet moved on a trajectory from the foot of the bed toward the head of the bed, ultimately lodging in the bottom layer of the mattress. He stated that Laurie Bird’s hand was “kind of folded around the weapon” when he removed the gun from the scene.
Dr. Daniel Davis, a forensic
pathologist with the Hennepin County Medical Examiner’s Office, testified that
the cause of Laurie Bird’s death was a contact wound to the head. As to the manner of Laurie Bird’s death,
Kurt Moline, a forensic scientist
and firearms examiner with the Minnesota Bureau of Criminal Apprehension, told
the jury that the gun had three separate safety mechanisms designed to prevent
accidental firings and that all three mechanisms were functional when he tested
Detective Kevin Wagman testified about the events leading up to Bird’s interview with the police. The state then played a videotape of the interview for the jury. After playing the videotape, the state resumed its questioning of Wagman, who testified that after the interview, the police investigated some of Bird’s statements. Based on their investigations, the police determined that Bird’s wife had not molested his daughters, was not having any extramarital affair, and was not HIV-positive. Wagman also testified that Bird had two prior domestic assault-related convictions, including one in 1995 for assaulting his wife.
Marriage Relationship Testimony
L.T., Laurie Bird’s sister, testified that her sister’s seven-year marriage to Bird was not always harmonious. She said that the couple separated in 2003 when Bird was drinking heavily and Laurie Bird was hospitalized following a suicide attempt. L.T. said that the couple reunited in 2004, but that at the time Laurie Bird died, she was in the process of moving out because Bird was drinking again. L.T. told the jury that Laurie Bird spent the weekend immediately before her death with L.T. and other family members at L.T.’s lake home. L.T. said that Bird, who was out of town on Friday, July 29, called Laurie Bird’s cell phone and argued with her that she should not travel to L.T.’s lake home on Saturday but should instead wait until Sunday. L.T. said she saw Bird when she returned from the lake on Sunday evening and that he appeared “normal.” On cross-examination, L.T. testified that in the early evening of Friday, July 29, Bird telephoned to tell her that she needed to go to the Birds’ apartment because Laurie Bird had overdosed and was having convulsions. L.T. said that she immediately started driving to the apartment and telephoned her sister en route, hoping that a paramedic would answer. L.T. told the jury that her sister answered the telephone and said that there had been no overdose or convulsions. L.T. said that Bird subsequently told her that someone he worked with had given him the information about his wife as a practical joke.
Bird’s friend A.D. testified that the Birds had a “very rocky” marriage. She said that Bird was verbally abusive to
his wife and had accused her of having extramarital affairs. A.D. told the jury that Laurie Bird planned
to move in with A.D. on the night of August 2.
A.D. also said that Bird left cell phone messages for Laurie Bird earlier
in the summer, saying that if she moved out, Bird would divorce or kill
her. A.D. said that Laurie Bird was
looking forward to attending a motorcycle rally in
Several other witnesses testified about the abusive nature of the Birds’ marriage. One witness told the jury that Laurie Bird called her for help in the summer of 2002 because Bird was choking her. A former community service officer testified that when he was on patrol in 1995, he saw Bird pull Laurie Bird’s hair and punch her “really fast and hard” while the two were seated in a parked car.
testified on his own behalf. He told the
jury that he had worked as a truck driver for approximately 30 years and that
he was often away from home for extended periods of time. He said that he met his wife in 1992 and that
they moved in together in 1995 and married in 1998. He said that she was taking medication for
mental health problems and that she had once tried to commit suicide, which
caused him to worry about her while he was on the road. He stated that he had three biological
children, including two teenaged daughters with his ex-girlfriend C.B. He said that these daughters lived with C.B.
morning, July 29, Bird arrived in
Bird testified that he could not fall asleep in the bedroom and that he went into the living room to watch television, ultimately falling asleep on the couch. At some point during the early morning while it was still dark, he walked back into the bedroom and saw his wife sitting on the bed with her back toward him, holding one of his guns. He testified that he had unloaded the same gun when he brought it in from his truck on Saturday and that he had left the bullets on top of a dresser in the bedroom. He stated that he did not believe the gun was loaded when he saw his wife holding it, but he wanted to take the gun away from her because he was afraid she would hurt herself.
Bird testified that he approached his wife from behind in an effort to get the gun. He said that by the time he got hold of the gun, he had pushed his wife such that she ended up face down in front of him, half on and half off the bed. He said that when he took hold of the gun, he believed his wife’s hand was also on it. He also said that he did not recall pulling the trigger, and he believed his wife’s hand was still on the gun when it discharged. Bird told the jury he knew his wife died because he could tell that she was not breathing. He said he did not know why he did not immediately call 911. He remembered leaving the apartment, returning, and leaving again, but he could not remember why he did so. He also remembered telephoning C.B. and C.B.’s brother, and speaking by telephone with his friend T.L.
Testimony Regarding Bird’s Unusual Behavior
testified that at approximately 1 a.m. on Saturday, July 30, Bird called her in
testified that Bird telephoned again on the morning of August 2, the day of the
shooting. Bird asked C.B. if she
remembered the previous night when she and their daughters were with him. When C.B. insisted that she and the girls had
Bird’s friend T.L. testified that Bird telephoned her on the evening of Sunday, July 31, and told her that his boss, using a satellite, Bird’s computer, and a chip in Bird’s head, was telling Bird what to do. T.L. said Bird also telephoned her at on Monday, August 1, and told her that he had been poisoned by food at his apartment and that if he ate anything from home he would get sick. T.L. described Bird as “dead calm” during the August 1 conversation and not wild or excited as he would “normally sound when he was on drugs.” T.L. said that she and Bird had another telephone conversation early in the morning on the day Laurie Bird died. Sometime later that morning, Bird telephoned T.L. from a payphone saying he thought his wife was dead “by gunshot.” When T.L. asked what had happened, Bird said he did not know. She then asked him whether Laurie Bird had committed suicide, and he said he thought so.
Bird’s boss K.B. testified that on
Friday, July 29, Bird arrived in
Expert Psychiatric Testimony
The district court allowed certain testimony from expert psychiatric witnesses. Bird’s expert witness was Dr. Thomas Gratzer, a psychiatrist whom the defense retained to evaluate his psychiatric condition at the time of the shooting. Immediately before Gratzer took the witness stand, the court told the jury that it could use Gratzer’s testimony only to evaluate Bird’s “demeanor and conduct, as well as the content of what [Bird] said during the [police] interview. You may not use this testimony in deciding [Bird’s] state of mind at the time of the alleged offense.”
Gratzer testified that in his opinion, Bird was suffering from an unspecified psychotic disorder at the time the police interviewed him on August 2. Gratzer explained that psychosis can cause persons to be paranoid, to suffer from disorganized thinking, and to have delusions—that is, beliefs that are false, irrational, illogical, and not based in reality. Gratzer said that Bird’s delusions included beliefs that Laurie Bird was molesting Bird’s daughters, was having extramarital affairs, and was HIV-positive, and the belief that Bird’s boss was running computer programs that caused his wife to have a seizure. Gratzer explained that Bird suffered from paranoid psychosis, which caused him to look less ill and more composed in the videotaped interview than other mentally ill persons might appear because, among other reasons, paranoid psychotics do not volunteer information about their thinking.
On cross-examination, the state asked Gratzer about Bird’s history of drug use and its potential impact on Bird’s mental health. Gratzer acknowledged that Bird’s psychiatric history included a methamphetamine-induced psychosis for which Bird was hospitalized in 2001. Gratzer also said that Bird evidenced psychotic symptoms in March 2005, four months before the shooting. Gratzer said he was not aware of any hospitalization for the March 2005 symptoms or any diagnosis of those symptoms as being drug-induced. Further, Gratzer said that two facts were inconsistent with a conclusion that Bird suffered from methamphetamine-induced psychosis at the time he spoke to the police: (1) Bird’s blood did not test positive for methamphetamine at the time he made the statements; and (2) drug-induced psychosis typically follows a person’s use of large amounts of methamphetamine, and it was unlikely that Bird could be using sufficiently large amounts without people around him being aware of his use.
The state called Dr. Karen Bruggemeyer, a forensic psychiatrist, to rebut Gratzer’s testimony. Bruggemeyer testified that in her opinion, Bird suffered from a methamphetamine-induced psychosis with delusions and hallucinations that “had now fully resolved.” She explained that five days is the maximum length of time that methamphetamine use will be discernable through a blood test, but that methamphetamine-induced psychotic symptoms can continue for days, weeks, and in some cases, months after use ends. Bruggemeyer explained that despite the psychotic thoughts Bird had at the time of the police interview, it was possible for him to think and act rationally.
Jury Verdict and Bird’s Appeal
The district court instructed the jury on first-degree premeditated murder, first-degree heat-of-passion manslaughter, intentional second-degree murder, and first-degree domestic abuse murder. The jury found Bird guilty of first-degree premeditated murder and first-degree domestic abuse murder. After concluding that the two counts merged for sentencing purposes, the court sentenced Bird to life in prison. Bird appealed his conviction to our court, arguing that the district court abused its discretion when it excluded expert psychiatric testimony regarding the nature of psychosis in general and the fact that Bird was psychotic at the time he shot his wife.
We review a district
court’s exclusion of expert testimony for abuse of discretion, State v. Griese, 565 N.W.2d 419, 425 (
Finally, we have also stated that
expert testimony is generally not admissible during the guilt phase of a trial
to inform the fact-finder about the general effects of a mental illness, but
“[t]here may be a few exceptions.”
Bird argues that notwithstanding our decisions in Bouwman and subsequent cases, the district court abused its discretion when it excluded Gratzer’s testimony regarding Bird’s psychosis at the time he shot his wife. Bird asserts that Gratzer’s testimony was admissible because it was not offered on the issue of Bird’s mental state and was instead offered to help the jury decide whether Bird acted in the heat of passion and with extreme indifference to human life. Bird also argues that Gratzer’s testimony is admissible under both of the exceptions we articulated in Provost.
Minnesota Statutes § 609.20(1) (2006)
provides that anyone who “intentionally causes the death of another person in
the heat of passion provoked by such words or acts of another as would provoke
a person of ordinary self-control under like circumstances” is guilty of
manslaughter in the first degree.
Whether a defendant acted in the heat of passion is a subjective inquiry
that focuses on the defendant’s emotional state—that is, whether the defendant
was actually provoked. State v. Hannon, 703 N.W.2d 498, 510 (
Subjective Element of Provocation
Regarding the subjective element of the provocation defense, Bird asserts that a person in a psychotic state can have delusions and yet appear more rational than he actually is, and that Gratzer’s testimony would have helped the jury understand that Bird’s “dead calm” affect may have masked his true emotional state. In essence, Bird appears to be concerned that his psychosis eliminated or at least obscured key “cues” the jury could consider in determining whether he was actually provoked—cues such as expressions of anger toward Laurie Bird. The state argues that determining a defendant’s emotional state is no different from determining his mental state or mens rea and that accordingly, a jury must evaluate actual provocation based on what the defendant says and does, not on a psychiatrist’s opinion.
We agree that there is no meaningful
difference between an emotional state and a mental state with respect to the
subjective element of the provocation defense.
We do not dispute Bird’s contention that what a psychotic defendant
“says and does” may be an imperfect indicator of that defendant’s emotional
state. But what a psychotic defendant
says and does may be an equally imperfect indictor of what that defendant “has
in mind” with respect to intent and premeditation, and
Because the foregoing conclusion draws
substantial support from but is arguably not mandated by our holding in Provost, it is appropriate for us to revisit
and comment on Provost. We do so in the context of Bird’s assertion that
expert psychiatric testimony about his alleged psychosis at the time of the
shooting is relevant to the jury’s determination of whether he acted in the
heat of passion. In Provost, we acknowledged that under some circumstances, an expert’s
opinion that a defendant suffered from a particular mental illness could be relevant to determining whether that
defendant actually harbored a particular mental state. 490 N.W.2d at 99. We likewise accept Bird’s argument that under
some circumstances, psychiatric testimony on the existence and effects of a
mental illness may have some tendency to make the existence of an emotional
state such as heat of passion “more probable or less probable than it would be
without the [testimony].” See
490 N.W.2d at 99.
concluded in Provost that any
probative value expert psychiatric testimony might have to a jury in
determining whether a defendant actually formed a particular mens rea would be
substantially outweighed by the risk that “the jury [would] inevitably take the
testimony as an invitation to consider whether the defendant could or couldn’t [form] a guilty
After reexamining the foregoing conclusion in the context of the case before us today, we find no basis for limiting our holding in Provost in order to deem Gratzer’s testimony admissible. Assuming without deciding that Gratzer’s proposed testimony would have probative value in determining whether Bird acted in the heat of passion, we conclude that such value is substantially outweighed by the risk that the testimony would lead the jury to undertake an impermissible inquiry into Bird’s capacity to form the intent required for first-degree murder. Accordingly, we conclude that Gratzer’s testimony is inadmissible on the question of whether Bird acted in the heat of passion at the time of the shooting.
Objective Element of Provocation
Bird also argues that Gratzer’s testimony is relevant to the objective element of the provocation defense—that is, whether a person of ordinary self-control would have been provoked under like circumstances. In essence, Bird asserts that the “under like circumstances” language of Minn. Stat. § 609.20(1) should be read in conjunction with the “person of ordinary self-control” language to allow the factfinder to consider whether a delusional person of ordinary self-control would have been provoked by words or acts similar to those that provoked the defendant. The state argues that reading “under like circumstances” to encompass a defendant’s peculiar mental characteristics undermines the objective element of section 609.20(1) because under such a reading, a defendant’s conduct would no longer be measured by that of the “person of ordinary self-control.”
In State v. Thunberg, we
held that a district court erred when it used the words “sober person of ordinary self-control” in a jury instruction for
heat-of-passion manslaughter. 492 N.W.2d
534, 536-37 (
Given the absence of
he reacted [to an external stimulus] because of his behavioral predisposition itself sets him at odds with the reasonable person standard. Thus, under the traditional approach to provocation, the defense operates through consideration of [stimuli] external to the psyche or behavioral propensities of the defendant, rendering his infirmities irrelevant to whether he was actually provoked, and at odds with the reasonableness inquiry that follows.
Nita A. Farahany & James E. Coleman, Jr., Genetics and Responsibility: To Know the Criminal from the Crime, 69 Law & Contemp. Probs., Winter/Spring 2006 at 115, 157.
In contrast to the traditional
formulation, the MPC approach, according to some observers, “introduc[es] the
actor’s actual state of mind into the previously rigidly applied provocation
defense by allowing the trier of fact to evaluate reasonableness from the
viewpoint of the actor.”
committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.
(Emphasis added.) Moreover, we have previously compared section
609.20(1) to the foregoing MPC language and concluded that
In light of the foregoing analysis, we agree with the state’s reasoning that interpreting the phrase “under like circumstances” in section 609.20(1) to encompass the unique mental characteristics of a particular defendant would too greatly infringe on the objective element of section 609.20(1). See Hannon, 703 N.W.2d at 510 (discussing the subjective and objective elements of the provocation defense under section 609.20(1)). Because the reasonableness of a defendant’s provocation is an objective determination, the jury must necessarily ask whether ordinary persons of reasonable self-control—not psychotic persons of reasonable self-control—would be provoked under similar circumstances. We therefore conclude that the district court did not abuse its discretion when it ruled that Gratzer’s testimony is inadmissible on the question of whether Bird was reasonably provoked to a heat of passion by words or acts preceding the shooting.
We next address Bird’s claim that expert psychiatric testimony is admissible on a particular element of domestic abuse murder as defined by Minn. Stat. § 609.185(a)(6). Section 609.185(a)(6) provides that a person is guilty of murder in the first degree if he
causes the death of a human being while committing domestic abuse, when [he] has engaged in a past pattern of domestic abuse upon the victim or upon another family or household member and the death occurs under circumstances manifesting an extreme indifference to human life.
(Emphasis added.) Bird argues that in determining whether he shot his wife under circumstances manifesting extreme indifference, the jury would have been helped by Gratzer’s testimony that Bird suffered from a condition causing hallucinations, delusions, and disorganized thinking. More specifically, Bird asserts that Gratzer’s testimony would have illuminated whether Bird “knew of and consciously disregarded the risk of causing his wife’s death.” The state argues that extreme indifference is a state of mind that the jury must infer from the circumstances surrounding the crime and that expert psychiatric testimony should not be admissible on the issue of extreme indifference when it is inadmissible on other states of mind, such as premeditation and intent.
We conclude that the phrase “circumstances manifesting an extreme indifference to human life” in section 609.185(a)(6) denotes recklessness or at minimum, gross negligence—both of which are mental states. See State v. Schmitz, 559 N.W.2d 701, 704 (Minn. App. 1997) (reasoning that the use of “indifference” in the state’s domestic abuse murder provision “suggests a lack of concern and is related to negligence or recklessness”), rev. denied (Minn. Apr. 15, 1997); see also Margaret C. Hobday, Note, A Constitutional Response to the Realities of Intimate Violence: Minnesota’s Domestic Homicide Statute, 78 Minn. L. Rev. 1285, 1292-93 (1994) (“Although the meaning of [the extreme indifference clause] invites some confusion, it appears to signify an aggravated form of recklessness.” (footnote omitted )).
Furthermore, we can identify no basis
for admitting expert testimony as to the effects of psychosis on a defendant’s
capacity for negligence or recklessness when we categorically exclude such testimony
as to the effects of psychosis on a defendant’s capacity for specific intent or
premeditation. Bird contends that a
person responding to psychotic stimuli cannot be acting with the extreme
indifference required for a domestic abuse homicide, but he fails to explain
why this is so, particularly in light of the well- settled principle that a
psychotic person can act with specific intent.
See State v. Wilson,539 N.W.2d 241, 245 (
As previously noted, we have
identified two exceptions to the rule that expert psychiatric testimony on the
general effects of a mental illness is inadmissible. Provost,
490 N.W.2d at 103-04. We stated in Provost that such testimony may be admitted: (1) under the “very
rare” circumstance when the defendant’s mental illness is “characterized by the
formation of a particular subjective state of mind inconsistent with the
pertinent mens rea”; or (2) when the defendant has a past history of mental
illness and that history helps to explain “the whole man” as he was before he
committed the alleged offense.
As to the first exception, Bird
asserts that psychosis—which is characterized by the formation of a mental
state that includes hallucinations and delusions—is inconsistent with the
mental state of “extreme indifference” that the state must prove to secure a
conviction for domestic abuse murder. In
its simplest terms, Bird’s argument appears to be that a person who is psychotic
is incapable of acting negligently or recklessly. We disagree because Bird’s argument is not
supported by our case law. We have long
accepted that a psychotic mental state is not inconsistent with specific intent,
As to the second Provost exception, Bird asserts that (1) his clinical mental health history includes a diagnosis of and treatment for psychosis; and (2) Gratzer’s testimony as to the general effects of psychosis would have helped the jury to put Bird’s bizarre conduct in context and thereby understand and appreciate him as he was before the shooting. The state argues that the second Provost exception does not apply because, among other reasons, Gratzer’s opinions were inconsistent with Bird’s pre-indictment clinical record and were therefore inadmissible under Griese, 565 N.W.2d 419, and State v. Persitz, 518 N.W.2d 843 (Minn. 1994).
In Griese and Persitz, we concluded that the second Provost exception does not include the testimony of an expert psychiatric witness whose evaluation of a defendant is based only on post-indictment clinical records. Griese, 565 N.W.2d at 426; Persitz, 518 N.W.2d at 848. But Gratzer’s evaluation of Bird was based partly on a clinical record, including a 2001 diagnosis of substance-induced psychosis, which preceded the offense. The state asserts that Griese and Persitz nonetheless prohibit Gratzer’s testimony because Gratzer diagnosed Bird as having, in the days before the shooting and at the time Bird gave his statements to the police, an unspecified psychotic disorder rather than a substance-induced psychosis. More specifically, the state asserts that because Gratzer’s testimony would have conflicted with the diagnosis in Bird’s pre-indictment mental health record, the testimony would not have helped to explain “the whole man.”
We conclude that Bird’s argument on the second Provost exception misses the mark because the expert psychiatric testimony that may be admitted under this exception concerns the defendant’s past history of mental illness as evidenced by a clinical mental health record. Therefore, to the extent that Bird cites Provost as a basis for Gratzer to testify about Bird’s psychosis at the time of the shooting, he overstates what Provost allows. See Griese, 565 N.W.2d at 426 (discussing Provost, 490 N.W.2d at 103-04).
Having concluded that Bird’s proffered expert psychiatric testimony is inadmissible under the second Provost exception for the reason set forth above, we need not and do not address the state’s argument that Gratzer’s testimony is inadmissible because it is inconsistent with Bird’s pre-indictment clinical record.
For all of the foregoing reasons, we hold that the district court did not abuse its discretion when it excluded some of Dr. Gratzer’s proposed testimony.
 See Minn. R. Crim. P. 20.01, 20.02 (setting forth procedures for court-ordered examinations to determine whether a defendant is competent to stand trial and whether he qualifies for a mental illness defense).
 Diane Nelson, a latent print examiner with the Hennepin County Sheriff’s Office crime lab, testified that there were no “useable” fingerprints on the gun taken from Laurie Bird’s hand or on the spent or live rounds in evidence.
was an over-the-road truck driver, and he left
 Provost sought to introduce expert psychiatric testimony on the general effects of schizophrenia and the fact that he suffered from the disease. 490 N.W.2d at 104.
 Bird told
police and testified at trial that the shooting was an accident. But the fact that Bird’s theory of the case
appears logically inconsistent with a heat-of-passion scenario does not
necessarily undermine his argument about the excluded testimony. In State
v. Leinweber, we held that a district court committed prejudicial error
when it refused to give a heat-of-passion manslaughter instruction to the jury,
despite the fact that the defendant maintained that he shot his wife by
accident while dislodging jammed shells from his rifle. 303
cites a single
 While we affirm Provost’s holding in the context of the case now before us, we acknowledge that in retrospect, some of our statements in Provost are not especially persuasive. For example, we stated rather unequivocally in Provost that “jurors understand and accept that mental illness is a real illness.” 490 N.W.2d at 99. Given the challenges our criminal justice system continues to confront in fairly addressing mental health issues, we believe this statement was more optimistic than circumstances warrant.