This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1413

 

State of Minnesota,

Respondent,

 

vs.

 

Samuel James Anderson,

Appellant.

 

Filed August 30, 2005

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. 03070768

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Samuel James Anderson challenges his two convictions for felony murder, arguing that the district court erred (1) by ruling that if appellant called character witnesses the state would be allowed on rebuttal to question them concerning appellant’s prior conviction; (2) by excluding evidence of the victims’ prior assault convictions; (3) by denying appellant’s jury-instruction request; and (4) by denying appellant’s request for a Schwartz hearing.  Appellant also argues that the evidence was insufficient to support his convictions.  We affirm.

D E C I S I O N

 

I.

 

            “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted). 

            If the district court errs in admitting evidence, the reviewing court determines whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  If there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence, then the error is prejudicial.  Id.  If the district court errs in excluding defense evidence, the error is harmless only if this court is “satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, an average jury (i.e., a reasonable jury) would have reached the same verdict.”  Id. at 102 (footnote omitted).

            The accused has a state and federal constitutional due-process right to be “afforded a meaningful opportunity to present a complete defense.”  State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532 (1984)).  But the right to present a defense is not without limitations.  “[I]n exercising this right, both the accused and the state must comply with procedural and evidentiary rules designed to ensure both fairness and reliability in the ascertainment of guilt and innocence.”  State v. Richardson, 670 N.W.2d 267, 277 (Minn. 2003) (quotation omitted).

            “Evidence of a person’s character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.”  Minn. R. Evid. 404(a).  But the accused may offer evidence of a pertinent trait of character, and the prosecution may offer such evidence to rebut the same.  Id. 404(a)(1).  And in such cases, testimony as to reputation or opinion may be admitted, and on cross-examination, inquiry into relevant specific instances of conduct is permitted.  Id. 405(a).

            Appellant argues that he was deprived of his constitutional right to present a defense because he elected not to present character witnesses after the district court ruled that it would permit the state to question appellant’s character witnesses about appellant’s 1994 conviction for reckless discharge of a firearm.  The supreme court has stated that the prosecution may not attempt to establish the bad character of the defendant until the defendant has put that character in issue by offering evidence of good character.  State v. Sharich, 297 Minn. 19, 23, 209 N.W.2d 907, 911 (1973).  Thus, following Sharich, the district court was within its discretion in determining that the state would be allowed to inquire whether appellant’s character witnesses still believed appellant was peaceful in light of appellant’s 1994 conviction.  Moreover, rule 405(a) allows a party to inquire into “relevant specific instances of conduct” on cross-examination.  Minn. R. Evid. 405(a).  We conclude it was within the discretion of the district court to permit the prosecution to make a “limited inquiry” about appellant’s conviction if appellant introduced character witnesses.

            Appellant also argues that the district court improperly excluded rebuttal evidence he offered concerning the victims’ prior criminal histories after the state presented so-called “spark of life” evidence about the victims.  As long as the state does not attempt to avoid the evidentiary rules or “attempt to invoke any undue sympathy or inflame the jury’s passions,” the state may present biographical sketches of victims or “spark of life” evidence.  State v. Graham, 371 N.W.2d 204, 207 (Minn. 1985) (quoting State v. Plan, 316 N.W.2d 727, 728 (Minn. 1982)); State v. Hodgson, 512 N.W.2d 95, 97-98 (Minn. 1994) (holding that the district court properly admitted the state’s evidence, including a brief amount of information to identify the victims and a 45-second videotape of one victim playing basketball, which was relevant to rebut the defense theory of the case).

            But if the state attempts to exclude evidence that the defendant had a reasonable apprehension of harm from the victim and then attempts to elicit evidence of the victim’s good character, the supreme court has held that the state “opened the door” to the defense to rebut evidence of the victim’s good character.  Richardson, 670 N.W.2d at 278.  Here, a family member for each of the victims presented brief biographical sketches of the victims, and the prosecutor introduced one picture of each of the victims. The brief biographical sketches did not amount to evidence of the victims’ good character traits.  Moreover, the prosecutor openly acknowledged during closing arguments that the victims were “intruders” and that “[t]heir behavior was completely unjustified.”  And appellant was allowed to present opinion and reputation evidence concerning one of the victims’ character trait of nonpeacefulness pursuant to rule 404(a)(2).  We conclude that the district court properly excluded evidence of the victims’ prior criminal histories because the prosecution did not “open the door” to rebuttal evidence by presenting brief biographical sketches of the victims. 

            And we reject appellant’s alternative argument that the criminal histories of the victims were relevant to show the victims’ intent under a defense-of-dwelling theory.  The record indicates that appellant did not know the victims and therefore, could not have shown a “reasonable apprehension” of the victims based on their prior convictions as was the case in State v. Bland, 337 N.W.2d 378, 383 (Minn. 1983).  We thus conclude that the district court properly determined that the evidence was irrelevant under a defense-of-dwelling theory.

II.

 

            The refusal to give a requested jury instruction lies within the discretion of the district court and will not be reversed absent an abuse of discretion.  State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).  The focus of the analysis is on whether the refusal resulted in error.  State v. Kuhnau, 622 N.W.2d 552, 555 (Minn. 2001).  When faced with an erroneous refusal to give jury instructions, the reviewing court must “examine all relevant factors to determine whether, beyond a reasonable doubt, the error did not have a significant impact on the verdict.”  State v. Shoop, 441 N.W.2d 475, 481 (Minn. 1989).  If the error might have prompted the jury to reach a harsher verdict than it might otherwise have reached, the defendant is entitled to a new trial.  Id. 

            During trial and prior to playing the police interview tape to the jury, appellant requested a limiting instruction to the jury that questions from the police are not evidence.  We agree with appellant that the district court erred in denying the request.    Our review of the transcript indicates that the court may have based its denial on its interpretation of appellant’s request as a request to edit the tape and remove the police officer’s questions.  We also note that the record indicates that appellant did not renew his request for the jury instruction at the close of trial when the case was submitted to the jury. 

            Appellant argues that the court’s error requires reversal citing a case in which the supreme court found plain error when the district court allowed to be played to the jury a police interview in which the officer lied to the defendant to coerce him to confess, without informing the jury that the officer’s statements were false.  Bernhardt v. State, 684 N.W.2d 465, 474-76 (Minn. 2004).  But in Bernhardt, the supreme court limited its holding to the officer’s statements and questions that included false information:

            Further, and important to our analysis, while the law enforcement agent in Tovar admitted that he exaggerated his knowledge of facts regarding the crime during the interrogation, the exaggerated facts turned out to be true.  [But in] this case, a tape was played in which [the agent] made a false statement that others implicated appellant in the murder.  The jury was never told that this statement was not true—not on cross-examination, not in a limiting instruction, and not in closing arguments.  Therefore, Tovar is distinguishable from this case in important respects, and our plain error analysis should control the determination of this issue.

 

Id. at 476 (citation omitted).

            The Bernhardt court was concerned that the jury never heard that the officer’s statements were not true.  But here, during closing arguments, defense counsel advised the jury that the officer’s comments in the tape were not evidence.  And, importantly, appellant did not claim that he did not shoot the victims.  Rather his defense was that the shooting was justified.  Thus, because the issue before the jury was appellant’s intent, we conclude beyond a reasonable doubt that the relatively minor misstatements by the officer, none of which went to the issue of intent, did not affect the verdict.  Therefore, the district court’s failure to give the instruction was harmless error because the statements were not unduly prejudicial, the officer’s questions put appellant’s answers in context, and the concerns of Bernhardt were not implicated.

III.

 

            “The standard of review for denial of a Schwartz hearing is abuse of discretion.”  State v. Church, 577 N.W.2d 715, 721 (Minn. 1998).  “The granting of a Schwartz hearing is generally a matter of discretion for the trial court.”  State v. Rainer, 411 N.W.2d 490, 498 (Minn. 1987).  The trial court should be liberal in granting a hearing, but the defendant must first present evidence that—if unchallenged—would warrant the conclusion that jury misconduct occurred.  Id.

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify [as to the internal deliberations of the jury], except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention, or whether any outside influence was improperly brought to bear upon any juror . . . .

 

Minn. R. Evid. 606(b).

            Appellant argues that the district court erred in not granting him a Schwartz hearing because:  (1) a juror alleged that the jury was pressured to convict by jurors who had travel plans; and (2) during deliberations one of the jurors allegedly offered extraneous prejudicial information by stating that appellant would only be sentenced to two years in prison if convicted.  We conclude the district court did not err.

            The record indicates that the district court informed counsel for both sides of the contents of a letter the court received from a juror containing these assertions after the verdict and sentencing.  Appellant argues that the district court abused its discretion in denying his request for the Schwartz hearing.  Specifically, appellant contends that the sentencing comment was extraneous prejudicial information improperly brought to the jury’s attention because sentencing is not a proper consideration for the jury.  See State v. Chambers, 589 N.W.2d 466, 474 (Minn. 1999) (holding that a defendant could not question potential jurors during voir dire on their sentencing beliefs as sentencing is not a role for the jury); State v. Greenleaf, 591 N.W.2d 488, 502 (Minn. 1999) (holding that a defendant did not have the right to cross-examine an accomplice on the number of months the accomplice’s sentence was reduced in exchange for his testimony at defendant’s trial because this line of questioning could lead the jury to improperly speculate on the length of sentence defendant could receive if he was convicted). 

            Even if the court had ordered a Schwartz hearing, the rules of evidence prohibit the district court from inquiring into a juror’s “mental processes.”  Pajunen v. Monson Trucking, Inc., 612 N.W.2d 173, 175 (Minn. App. 2000).  Although in certain limited circumstances, the supreme court has approved of additional questioning, such as when a juror is pressured by other jurors to change a vote because the juror shares the same race as the defendant.  See State v. Bowles, 530 N.W.2d 521, 536-37 (Minn. 1995) (remanding to supplement the record on the propriety of the jury’s deliberations and whether the verdicts rendered were Juror # 4’s “true and correct” verdicts).

            Here, the district court properly gave no credence to the allegation that the jurors were unduly pressured.  The court noted that by the time the jury reached its verdict, the “traveling” jurors had already missed their flights.  In addition, we conclude that the district court did not abuse its discretion in denying a Schwartz hearing based on a juror’s alleged comment telling other jurors not to worry about appellant’s sentence because “he probably won’t do any time or at worst he will do two years.”  An off-hand remark by a juror speculating concerning appellant’s sentence is not the kind of extraneous prejudicial information prohibited by rule 606(b).  Rather, as the district court properly noted, the complained of remarks are part of what goes on in the jury room “where people air their differences of opinion and reason the matter out.”

IV.

            In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).

            Appellant admitted that he shot the victims.  Appellant argued that he was justified under a theory of defense of dwelling because the victims, although initially repelled from appellant’s residence, were either turning back to reenter the residence with a gun or were retrieving weapons from their vehicle.  Although appellant attempted to present evidence that his decision to shoot both victims was reasonable, other evidence indicated that appellant shot both victims without warning shots as they were leaving because he believed they would return to come after him at a later time.  Thus the jury could properly find the victims were not an imminent threat to appellant or his friends.

            Moreover, while the medical examiners testified that the exact positions of the victims could not be determined, the examiners indicated that both victims were shot in the back.  And in the police interview played to the jury, appellant admitted that both victims were fleeing when he shot them.  Appellant also stated that rather than waiting for the victims to return at a later time, he wanted to “eliminate the threat right now; what was happening right then and what had happened earlier.”

            Finally, the prosecution introduced indirect evidence of appellant’s guilt.  After the shooting, appellant drove to Hudson, Wisconsin, with a friend and wiped down the gun and threw it into the river.  Appellant asked his friend not to tell police, waited several days to talk to police, and denied shooting the victims during the first half of the police interview.  We conclude that the evidence, when viewed in the light most favorable to the convictions, is sufficient to support the jury’s verdicts.

            Affirmed.