A06-470

State of Minnesota,

Respondent,

vs.

John E. Walker,

Appellant.

Filed August 21, 2007

Affirmed in part, reversed in part, and remanded

Willis, Judge

Hennepin County District Court

File No. 05042063

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

Mike Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Klaphake, Presiding Judge; Randall, Judge; and Willis, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Appellant challenges his conviction of first-degree burglary and his sentence, arguing that the district court abused its discretion by admitting evidence of a past conviction, that the district court was not authorized to impanel a sentencing jury, and that the district court erred by not defining “particular cruelty” for the jury. We conclude that the district court did not abuse its discretion by admitting the prior-conviction evidence, and we affirm appellant’s conviction. But because we conclude that the district court erred by not providing to the sentencing jury a definition of particular cruelty, we reverse appellant’s sentence and remand for resentencing.

FACTS

At approximately midnight on June 30, 2005, appellant John E. Walker called the home of his ex-girlfriend, Lisa Ramirez. Ramirez’s employer and landlord, who also lived in the home, answered the phone and told Walker that Ramirez was not home. At about 3:30 a.m., Walker knocked on the back door of the house and asked to be let in. Ramirez told him to “just go away.” Walker then broke down the door, entered the house, and repeatedly punched and kicked Ramirez, threatening to kill her. As a result of the assault, Ramirez suffered multiple facial fractures, a black eye, skull abrasions, bruised ribs, and lost teeth.

Walker was charged with first-degree burglary. After a jury convicted him, the district court addressed the jury:

You have an additional question to answer and it will be put to you in the form of a question on a Special Verdict form.

The question is, “Did the defendant act with particular cruelty?” You will answer the question yes or no.

The State has the burden of proving this aggravating factor beyond a reasonable doubt. If you have a reasonable doubt as to the answer, you should answer no.

The district court gave counsel an opportunity to address the jury regarding the aggravating factor. The jury answered the question in the affirmative, and based on that aggravating factor, the district court departed upwardly from the presumptive sentence and sentenced Walker to 108 months’ imprisonment. Walker appeals from his conviction and his sentence.

D E C I S I O N

Walker did not testify at trial. The state sought to impeach him, if he had testified, with two prior convictions, and Walker moved in limine to exclude any evidence of those convictions. Concluding that use of both convictions would be “piling on,” the district court allowed the state to choose one; the state chose a 1985 conviction of second-degree murder. Walker argues that he is entitled to a new trial on the ground that the district court abused its discretion by not excluding evidence of that conviction. A district court’s ruling on the impeachment of a witness with a prior conviction is reviewed, as are other evidentiary rulings, under an abuse-of-discretion standard. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).

Minnesota Rule of Evidence 609 provides:

(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.

(b) Time 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.

Walker was convicted of second-degree murder in 1985, but he was released in December 2002 from imprisonment for the crime, so he does not dispute that his conviction is not barred by the time limit in rule 609(b) or that the conviction was punishable by more than one year’s imprisonment. Rather, he argues that the prior-conviction evidence was more prejudicial than probative.

To determine whether the prejudicial effect of prior-conviction evidence outweighs its probative value, courts consider: (1) the impeachment value of the prior crime, (2) the date of conviction and the defendant’s subsequent history, (3) the similarity of the past and charged crimes, (4) the importance of the defendant’s testimony, and (5) the centrality of the credibility issue. State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978). The district court acknowledged the Jones factors but did not apply them on the record, and this omission was error. But such an error is not reversible if the appellate court, applying the Jones factors itself, determines that the district court properly exercised its discretion. See State v. Swanson, 707 N.W.2d 645, 655 (Minn. 2006). And our review of the Jones factors leads us to conclude that the error was harmless.

Appellant argues that the first Jones factor has become an “anything goes” standard through the use of the “whole person” rationale. See State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979) (explaining that “impeachment by prior crime aids the jury by allowing it to see the whole person and thus to judge better the truth of his testimony”) (quoting City of St. Paul v. DiBucci, 304 Minn. 97, 100, 229 N.W.2d 507, 508 (1975)) (internal quotations omitted). But Walker concedes that an argument for discontinuing application of the “whole person” rationale is “more properly made” to the supreme court and simply argues that the first factor weighs against admission here. Because “murder is not a crime of moral turpitude,” he argues, the impeachment value of his prior conviction is low. In referring to a crime of moral turpitude, Walker apparently means the crimes described by Minnesota Rule of Evidence 609(a)(2)—crimes involving “dishonesty or false statement.”

But a prior conviction need not be for a “crime of moral turpitude” to have impeachment value. See State v. Darveaux, 318 N.W.2d 44, 48 (Minn. 1982) (noting that although an aggravated assault is not a crime involving dishonesty or false statement, such a conviction would nonetheless be admissible if its probative value outweighed its prejudicial effect, citing Jones). And we agree with the state that this court “is without authority to change Rule 609(a) or overrule a supreme court decision” and that Walker’s prior conviction is “reflective of the whole person.” Use of the “whole person” rationale is well established by our caselaw, and under that rationale, Walker’s prior conviction had impeachment value.

Walker concedes that the “timeliness factor technically weighs in favor of admission” because he was released from prison less than ten years ago. The state agrees and points out that in the two and a half years between Walker’s release and the offense of which he was convicted here, he was also convicted of fourth-degree burglary and served 180 days in the workhouse, which establishes “‘a pattern of lawlessness’ and demonstrates that the prior conviction ‘ha[s] not lost any relevance’ with the passage of time.” See Ihnot, 575 N.W.2d at 586. The second factor weighs in favor of admissibility.

Under the third factor, Walker argues that his prior conviction of second-degree murder is similar to the crime with which he is charged here because he committed an assault during the burglary, and, therefore, the jury would have been likely to use the prior conviction as evidence of a propensity toward violence. The state argues that the two crimes are dissimilar and that the district court would have given a limiting instruction to the jury had Walker testified, which would have minimized misuse of the evidence. Limiting instructions alleviate the concern that a jury will use a past conviction as substantive evidence of guilt. State v. Pendleton, 725 N.W.2d 717, 729 (Minn. 2007). But because Walker’s prior conviction of a violent crime is similar to the assault underlying the burglary charge here, we conclude that this factor weighs against admissibility. See Swanson, 707 N.W.2d at 655.

The fourth and fifth Jones factors are often combined. Walker argues that his “testimony was vitally important” because there was “no way, other than via direct testimony, for [him] to present his version of the offense to the jury.” And when the district court did not exclude the prior-conviction evidence, it “kept [Walker] off the stand.” Although Walker argues that his testimony was important, he contends that the state did not need the prior-conviction evidence to attack his credibility because the state could simply have pointed to the contrary testimony of Ramirez and her landlord. Walker’s argument is inconsistent with caselaw. Generally, “[i]f credibility is a central issue in the case, the fourth and fifth Jones factors weigh in favor of admission of the prior convictions.” Swanson, 707 N.W.2d at 655. And when credibility is a central issue in a case, it is often because there are witnesses with conflicting accounts of the events. Under Walker’s rationale, a party should simply point to the fact that the testimony conflicts rather than attempt to impeach a witness, but such a practice would obviate the need for rule 609 and the Jones analysis. The fourth and fifth factors support admission of the evidence.

Despite Walker’s criticism of the first Jones factor, that factor weighs in favor of admissibility here, as do the second, fourth, and fifth factors. Only the third factor weighs against admissibility. We conclude that it was not an abuse of the district court’s discretion to allow the prior-conviction evidence.

We also reject the argument that Walker makes in his pro se supplemental brief that he was denied effective assistance of counsel because his trial was delayed once due to a conflict in his attorney’s schedule. First, there is nothing in the record to support his assertions that his attorney “gave preference” to his conflicting “federal case” or that Walker was not informed of the delay in advance. Second, to succeed on a claim of ineffective assistance of counsel, an appellant “must affirmatively prove that his counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotations omitted). Walker asserts that the “outcome would have been ‘different’” but for the delay because his trial would have taken place as originally scheduled, but he does not claim that the verdict or the sentence would have been different. A delay in trial does not by itself constitute prejudice for purposes of a claim of ineffective assistance of counsel.

Because the district court did not abuse its discretion by denying Walker’s motion to exclude the evidence of his prior conviction and because none of the arguments in Walker’s pro se supplemental brief requires reversal of his conviction, we affirm the conviction.

II.

Walker argues next that the district court erred by asking the jury whether Walker acted with particular cruelty, thereby allowing the jury to determine whether an aggravating factor existed for sentencing purposes. He asserts both that the district court was not authorized to impanel a sentencing jury and that the question that the district court asked the jury was unconstitutionally vague, and, therefore, reversal of his sentence is required.

Determining whether the district court had the authority to impanel a sentencing jury involves a question of law, which this court reviews de novo. State v. Chauvin, 723 N.W.2d 20, 23 (2006). Walker argues that although the legislature amended state law in the wake of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), to authorize district courts to convene sentencing juries to make findings of fact relating to upward sentencing departures, the sentencing guidelines had not yet been modified to authorize district courts to use those jury findings to impose aggravated sentences. The modifications to the sentencing guidelines took effect on August 1, 2005, after Walker committed his offense. Therefore, Walker contends, the district court was not authorized by the sentencing guidelines to convene a sentencing jury or use a jury finding to support an enhanced sentence.

We reject Walker’s argument because of the supreme court’s decision in Chauvin, which held that the district court had “inherent authority to impanel a jury on sentencing factors” although the legislature had not yet enacted legislation to specifically authorize the use of sentencing juries. 723 N.W.2d at 29. Here, the district court had inherent judicial authority to comply with Blakely by seeking a jury finding regarding whether an aggravating factor existed regardless of the fact that the sentencing guidelines had not yet been modified to provide for such a procedure.

Further,Walker’s argument that the modified sentencing guidelines do not apply here is based on his assertion that they went into effect after he committed the offense for which he was being sentenced. But in Chauvin, the supreme court considered the legislation that was in effect “[a]t the time the district court impaneled the sentencing jury,” not at the time the defendant committed his crime. Id.at 27. Here, the modifications to the sentencing guidelines were in effect by the time the district court tried and sentenced Walker after using a sentencing jury. The district court was authorized to allow a jury to determine whether the aggravating factor of particular cruelty was present here.

Walker argues next that the phrase “particular cruelty” is unconstitutionally vague when, as here, the district court provides no instruction to the jury regarding its meaning. The state contends that although Walker objected to jury consideration of sentencing factors generally, he failed to object to the particular-cruelty instruction, and we should therefore review it only for plain error affecting substantial rights. See State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). We note that Walker may have preserved an objection to the particular-cruelty instruction by objecting to the entire sentencing-jury procedure. When the district court discussed with Walker the question it intended to ask the jury regarding particular cruelty, it advised him, “If you want to chat with [your attorney] about any of that, now is the time to do it. You already preserved your objections to this whole procedure.”

But even if we agree with the state and determine that Walker failed to object to the particular-cruelty instruction and therefore review it only for plain error, we conclude that the instruction was plain error under our recent decision in State v. Weaver, 733 N.W.2d 793 (Minn. App. 2007), pet. for review filed (Minn. July 31, 2007).

As here, the district court in Weaver did not provide the jury with a definition of “particular cruelty” and merely read the special-verdict form, which instructed: “The first [aggravating factor] that’s being submitted to you is whether the victim . . . was treated with particular cruelty for which the defendant should be held responsible.” Id. at 802. On appeal, we determined that the instruction failed to provide sufficient guidance to the jury regarding particular cruelty. Id.

As we explained in Weaver, before the advent of sentencing juries, a determination of whether a crime had been committed with particular cruelty was made by a district-court judge who generally was able to rely on his or her experience and accumulated knowledge of “typical cases” to make the determination, so a precise definition of that term was unnecessary. See id. But when a sentencing jury determines whether aggravating factors are present, “particular cruelty” is a “relative term that requires a uniform meaning irrespective of the jurors’ lay understanding of the term.” Id.

A precise definition of the phrase “particular cruelty” must be given to the sentencing jury. And although we decline to provide such a definition of the phrase and leave the matter to the district court and attorneys on remand, we offer the following guidance: in general, to be particularly cruel, a defendant’s conduct must be significantly more cruel than that usually associated with the offense of which he was convicted. See, e.g., Holmes v. State, 437 N.W.2d 58, 59-60 (Minn. 1989) (holding that a departure was not justified because the defendant’s conduct was not significantly different from that typically involved in the crime); State v. Hanson, 405 N.W.2d 467, 469 (Minn. App. 1987) (holding that a departure was not warranted because the defendant did not commit manslaughter “in a manner significantly more serious than the typical manslaughter”). Defendants’ conduct has been deemed particularly cruel when it has involved threats, degradation of the victim, or the gratuitous infliction of pain. See, e.g., State v. Smith, 541 N.W.2d 584, 590 (Minn. 1996). Courts have also found that defendants acted with particular cruelty when they left a victim to die alone without notifying emergency personnel, set fire to a victim who was still alive, and attempted to conceal or destroy a victim’s body. See, e.g., State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998); State v. Jones, 328 N.W.2d 736, 738 (Minn. 1983); State v. Gurske, 424 N.W.2d 300, 305 (Minn. App. 1988); State v. Dircks, 412 N.W.2d 765, 767-68 (Minn. App. 1987), review denied (Minn. Nov. 24, 1987).

The district court’s omission of a definition of “particular cruelty” was plain error, and that error contributed to Walker receiving a sentence that was an upward departure from the presumptive sentence, thereby affecting his substantial rights. Because we conclude on this ground that Walker’s sentence must be reversed, we need not address his other argument against the upward departure. We remand for a new sentencing proceeding.

Affirmed in part, reversed in part, and remanded.