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STATE OF MINNESOTA
IN SUPREME COURT
State of Minnesota,
Filed: April 24, 2013
Office of Appellate Courts
Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, Saint Paul,
Peter Orput, Washington County Attorney, Stillwater, Minnesota, for respondent.
David W. Merchant, Chief Appellate Public Defender, Davi E. Axelson, Assistant State
Public Defender, Saint Paul, Minnesota, for appellant.
The district court properly admitted a medical examiner’s expert testimony
that, based on his autopsy of the victim, the victim’s manner of death was homicide.
A firearms examiner’s expert testimony that the gun used to shoot the
victim could not be discharged without pulling the trigger was properly admitted by the
district court because the testimony was based on tests that the firearms examiner
performed on the gun used to shoot the victim and the testimony was relevant to a
contested issue of fact.
Appellant Dao Xiong was found guilty by a jury of first-degree premeditated
murder, Minn. Stat. § 609.185(a)(1) (2012), second-degree intentional murder, Minn.
Stat. § 609.19, subd. 1(1) (2012), and second-degree unintentional murder while
committing a felony, Minn. Stat. § 609.19, subd. 2(1) (2012), arising out of the death of
Youa Ty Lor. On appeal, Xiong seeks reversal of his convictions and a new trial based
on the district court’s admission of expert testimony offered by a medical examiner and a
As to both, Xiong argues that the testimony was erroneously
admitted because it improperly intruded on the fact-finding role of the jury. Xiong, who
did not object to the testimony at trial, argues that admission of the testimony was plain
error affecting his substantial rights. Our careful review of the record establishes that the
district court did not err. We, therefore, affirm Xiong’s conviction.
Youa Ty Lor, a car enthusiast who had recently moved with his family from
Pennsylvania to Minnesota, decided to sell his Nissan 350Z in order to obtain money to
start an auto-repair business. Lor asked his wife to post an advertisement on Craigslist
for the car, which he stored in a friend’s garage.
The advertisement listed several
modifications that had been made to the car and itemized the cost of each modification.
When Xiong saw the Craigslist advertisement, he decided to steal the car. The car’s twin
turbo engine was of particular interest to Xiong. Xiong planned to strip Lor’s car and use
the parts in a Nissan 350Z that Xiong already owned.
On September 6, 2010, Xiong sent several text messages to his friend, Keng Thao.
In those messages, Xiong asked about removing a twin turbo engine. After answering
Xiong’s questions, Thao inquired by text message, “y u asking, got somethin in mind?”
Xiong replied, “Yeah. Stealing a turboed z and stripping it and putting the stuff in
mines.” Thao asked, “lol, ha-ha where u gonna find a turbo z n how u gonna take it?”
“Dont worry bout that. U wanna help? lol,” Xiong responded. Thao’s reply stated: “after
we get me my winter tires lol.” The two men continued to exchange text messages about
when they planned to “do mines,” apparently referring to the two schemes—getting
winter tires for Thao and stealing and stripping the “turbo z” for Xiong.
Xiong purchased a prepaid cell phone on September 7, 2010. That same day, he
sent another message from his personal phone to Thao, asking “U wanna kill a guy with
me?” Thao responded, “just let me know lol.” Xiong called Lor that evening from the
prepaid cell phone. The next day, Xiong and Thao met Lor at the home of Lor’s friend.
They looked at Lor’s Nissan 350Z, which he stored at that location. That evening, Xiong
sent a text message to Thao advising, “Imma do it bro.”
Xiong next contacted Lor on September 9, 2010, again using the prepaid cell
phone. Xiong met Lor at the location where the Nissan 350Z was stored. This time
Xiong went alone and brought a .40 caliber semi-automatic handgun. Xiong told Lor that
he wanted to buy the car, but he did not have the purchase money with him. Xiong
wanted to test drive the vehicle. If he liked it, Xiong proposed, they could go to his
house where he would retrieve the money and pay for the car. Lor first drove Xiong to
an auto shop where Lor worked so that Lor could show Xiong additional items available
for sale with the car. When Xiong and Lor left the auto shop in the 350Z, Xiong drove
east on Highway 36. After driving for some time, as a ploy to get Lor out of the car,
Xiong asked Lor if he heard a “rubbing noise.” Xiong pulled over and parked the car on
the right shoulder of the road, and the two men left the car to determine the source of the
After discussing the car, Xiong claimed he had to relieve himself.
fabricated this excuse to create the opportunity to move the gun from his jacket to his
pants pocket. Xiong next asked to use Lor’s cell phone and pretended to call Driver and
Vehicle Services about the title to the car. Then Xiong pulled the gun on Lor. In his later
statement to the police, Xiong gave two explanations—he fired the gun accidentally and
the gun just “went off.” Lor suffered a single gunshot wound to the abdomen.
Leaving Lor on the side of the road, Xiong drove Lor’s Nissan 350Z away from
the scene. Xiong discarded his prepaid cell phone and Lor’s cell phone on the road as he
fled. When Xiong reached his house, he pulled the car into the garage and, shortly
thereafter, stripped the car for parts with the help of Thao and another person. Xiong also
spray painted the unique features of the car to avoid detection.
Xiong and Thao
subsequently abandoned the car in Sunfish Lake Park where Xiong discarded the keys in
a wooded area. Xiong and Thao never removed the twin turbo engine from Lor’s 350Z,
because the engine was too hot to remove during the time available to work on the car.
Shortly after the shooting, Lor was discovered lying on the roadside by passersby, two of whom were off-duty Minneapolis police officers.
Officer Dennis Kreft
performed chest compressions on Lor while Officer Lance DuPaul called 911. Lor was
alive when he was placed in an ambulance to be transported to Regions Hospital. He
died shortly thereafter.
After investigators discovered evidence linking Xiong to the crime, Xiong was
arrested, advised of his constitutional rights with a Miranda warning, and interviewed by
Special Agent Scott Mueller and Detective Marc Lombardi. Xiong’s statements to Agent
Mueller and Detective Lombardi were inconsistent. First, Xiong said that he planned to
test drive the car on back roads so that he could steal it, and he decided to use the gun
only to scare Lor. Xiong explained that he pointed the gun near Lor’s abdomen and,
when he “looked up, it went off.” But Xiong also stated that he “didn’t want [to] point
[the gun],” and he “didn’t wanna shoot [Lor] in general.” Xiong admitted, however, that
he thought he had killed Lor. When asked the reason he thought that he had killed Lor,
Xiong replied “History.” He then explained that “stomach wounds are . . . hard to fix,
hard to heal.” But Xiong denied that he pointed the gun at Lor’s stomach for that reason.
He said he was thinking that “a safe spot was his legs. Maybe his upper thigh. But the
second [he] decided to do it, [he] got nervous. So [he] pointed the gun, [he] just pointed
it, whipped it out real fast, not sure where the bullet would go.”
On October 7, 2010, a Washington County grand jury returned an indictment,
charging Xiong with one count of first-degree premeditated murder, a violation of Minn.
Stat. § 609.185(a)(1), and one count of second-degree intentional murder, a violation of
Minn. Stat. § 609.19, subd. 1(1). The case proceeded to trial on both charges.
Ramsey County assistant medical examiner Dr. Victor Froloff, who had performed
an autopsy on Lor, testified at trial.
After describing his examination to the jury,
Dr. Froloff opined that the cause of Lor’s death was “exsanguination”—bleeding to
death—from the gunshot wound. Without objection, the prosecutor asked Dr. Froloff,
“What’s the manner of death?” Dr. Froloff responded that, in his opinion, the “manner of
death is homicide.” On cross-examination, Xiong’s counsel asked Dr. Froloff, “How
many different manners of death do you medical examiners use?” Dr. Froloff responded,
“We use, in general, four plus one manners of death. We classify death as a natural when
people die natural; accidents; next one suicide, homicide. When we don’t know, which
[it] could be, for example, accident versus suicide, we can use undetermined.
basically five manners of death.”
Forensic firearms examiner Kurt Moline testified at trial about his examination of
the murder weapon. Moline testified that the gun was equipped with only a passive
safety mechanism in the form of a striker block, which prevents the gun’s firing pin from
moving until the trigger is pulled. Because a striker block is entirely internal, it cannot be
manually operated. Moline explained the testing that he performed on the firearm to
determine whether the striker block was functioning properly.
During this testing,
Moline administered various blows and jars to the gun to determine whether he could
cause the firearm to discharge without pulling the trigger. Moline’s testing did not cause
the firearm to discharge. Moline concluded from his testing that the striker block safety
mechanism was mechanically sound.
Moline also tested the gun’s “trigger pull,” which refers to the amount of force
required to pull the trigger and fire the gun. The standard trigger pull for the type of
firearm used in the shooting was 6.5 to 7.5 pounds. But Xiong’s firearm had a lower
trigger pull of approximately 5 to 5.5 pounds.
Near the end of Moline’s direct
examination, he testified that based on his examination of the firearm it could only be
discharged by pulling or pressing the trigger.
At the close of trial, the district court instructed the jury on the elements of firstdegree premeditated murder and second-degree intentional murder.
In response to
Xiong’s request for an instruction on the lesser-included offense, the district court also
instructed the jury on second-degree unintentional murder while committing a felony.
The jury returned a guilty verdict on each of the three offenses. The district court
imposed a sentence of life in prison without the possibility of parole for the first-degree
premeditated murder conviction.
For the first time on appeal, Xiong objects to aspects of Dr. Froloff’s testimony
and Moline’s testimony.
We apply the plain-error standard of review to claims of
unobjected-to error. Minn. R. Crim. P. 31.02; State v. Sontoya, 788 N.W.2d 868, 872
(Minn. 2010); State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). When the alleged
error does not implicate prosecutorial misconduct, an appellant has the burden of proving
(1) an error, (2) that the error is plain, and (3) that the plain error affects substantial
rights. Griller, 583 N.W.2d at 740 (citing Johnson v. United States, 520 U.S. 461, 46667 (1997)). If these three plain-error requirements are established, we assess whether the
error must be addressed to ensure the fairness and integrity of the judicial proceedings.
The alleged errors at issue here involve the admission of expert testimony. The
decision to admit expert testimony generally rests within the sound discretion of the
district court. State v. Bradford, 618 N.W.2d 782, 793 (Minn. 2000). An expert may
testify “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue.”
Minn. R. Evid. 702.
Testimony generally is admissible under Rule 702 if it is helpful to the trier of fact.
Bradford, 618 N.W.2d at 793. “An expert opinion is helpful if ‘the members of the jury,
having the knowledge and general experience common to every member of the
community, would be aided in the consideration of the issues by the offered testimony.’ ”
Id. (quoting Clark v. Rental Equip. Co., Inc., 300 Minn. 420, 428, 220 N.W.2d 507, 512
(1974)). The facts or information on which “an expert bases an opinion or inference may
be those perceived by or made known to the expert at or before the hearing.” Minn. R.
An expert may testify as to an opinion or inference even if it “embraces an
ultimate issue to be decided by the trier of fact.” Minn. R. Evid. 704. But an expert may
not offer an opinion as to a legal issue or a mixed question of law and fact. State v.
Chambers, 507 N.W.2d 237, 238 (Minn. 1993). An expert’s opinion as to a criminal
defendant’s intent involves a mixed question of law and fact and, therefore, is
inadmissible. Id. at 239.
We first consider Xiong’s claim of error regarding the testimony of Dr. Froloff.
Xiong argues that the district court committed plain error by permitting Dr. Froloff to
testify that the manner of Lor’s death was homicide because this testimony was not
helpful to the jury. In support of his argument, Xiong cites Hestad v. Pennsylvania Life
Ins. Co., 295 Minn. 306, 204 N.W.2d 433 (1973). In Hestad, we affirmed the district
court’s exclusion of a deputy coroner’s testimony that the decedent’s manner of death
was suicide and not an accident. Id. at 310, 204 N.W.2d at 436. We reasoned that
because the deputy coroner did not have any knowledge superior to that of the jury
regarding the decedent’s state of mind, the deputy coroner was not qualified to testify on
the subject. Id. Here, Xiong argues that, like the medical examiner in Hestad, Dr.
Froloff was not qualified to testify regarding Xiong’s state of mind. Because Dr. Froloff
had an incomplete “picture of the circumstances surrounding Lor’s death,” Xiong argues,
the jury was in the better position to decide whether he killed Lor intentionally or
Xiong also contends that Dr. Froloff’s testimony that Lor’s manner of death was
homicide was admitted erroneously because such testimony involved an expert’s
inference of intent. The error was “compounded,” Xiong asserts, by Dr. Froloff’s failure
to define the term “homicide” and by Dr. Froloff’s reference to another manner of death
as “accidental.” In support of his argument, Xiong relies on State v. Chambers, 507
N.W.2d 237 (Minn. 1993). In Chambers, the defendant challenged his conviction of
second-degree intentional murder after the pathologist testified, over defense counsel’s
objection, that he believed with “reasonable medical certainty” that the wounds inflicted
“ ‘were meant to cause the subject’s death.’ ” Id. at 238. We concluded that the
pathologist’s testimony did not prejudice the defendant. Id. at 239. But we emphasized it
is nonetheless error for an expert to testify regarding a mixed question of law and fact,
such as whether the defendant possessed the requisite mens rea for the charged offense.
Xiong’s argument challenging the admissibility of Dr. Froloff’s testimony that the
manner of Lor’s death was homicide is unavailing. Xiong concedes that because a
definition of homicide was not offered at trial, the jury was required to apply the common
usage of the term “homicide”—namely, “[t]he killing of one person by another.”
American Heritage Dictionary 841 (4th ed. 2000); Black’s Law Dictionary 802 (9th ed.
2009). The testimony that Lor’s manner of death was homicide, therefore, cannot be
construed to mean that Xiong committed intentional murder. Indeed, murder is a form of
criminal homicide that can be intentional or unintentional. Black’s Law Dictionary 80203 (9th ed. 2009) (defining criminal homicide as “[h]omicide prohibited and punishable
by law, such as murder or manslaughter” or “[t]he act of purposely, knowingly,
recklessly, or negligently causing the death of another human being.”); cf. Black’s Law
Dictionary 803 (9th ed. 2009) (defining “excusable homicide,” “innocent homicide,” and
In light of the common usage of the term “homicide,”
Dr. Froloff’s use of the term did not even imply that a crime had occurred, much less an
intentional crime, because the term “homicide” can describe both criminal and noncriminal conduct. See id.1
Likewise, the testimony elicited by defense counsel that another manner of death
is “accident” does not make Dr. Froloff’s use of the term “homicide” inadmissible. In
State v. Langley, we rejected a similar argument, stating that “[i]n Minnesota, the law has
long been that medical experts are permitted to give their opinions upon the very issue
which the jury will have to decide.” 354 N.W.2d 389, 401 (Minn. 1984), abrogated on
other grounds by State v. Her, 781 N.W.2d 869 (Minn. 2010). We reasoned that it is a
forensic pathologist’s professional responsibility “to determine cause and manner of
death based upon the condition of the body as well as the surrounding circumstances.”
Id. Similarly, in State v. Bradford, we concluded that no error was committed when the
district court admitted a medical examiner’s expert testimony that, based on his autopsy
of the victim’s body, the victim’s manner of death was homicide rather than suicide. 618
N.W.2d 782, 793 (Minn. 2000). Distinguishing the expert testimony in Chambers, we
concluded in Bradford that the medical examiner’s testimony was “helpful to the jury
because a lay juror may not be able to differentiate between a self-inflicted intraoral
gunshot wound and one inflicted by another.” Id.
Under Minnesota law, there is no crime of “homicide.” The term “homicide” is
used in the headnote before the sections of chapter 609 governing first-, second-, and
third-degree murder, and first- and second-degree manslaughter. But use of the term
“homicide” in the headnote does not make it part of the statute. Minn. Stat. § 645.49
(2012). The term “homicide” is not used in the text of any of the statutes at issue here.
Here, the district court properly admitted Dr. Froloff’s testimony that the manner
of Lor’s death was homicide. The testimony was helpful to the jury; and it did not
constitute improper expert testimony regarding Xiong’s intent. Dr. Froloff’s testimony
assisted the jury’s understanding of the medical evidence offered at trial by explaining
that the autopsy results were consistent with homicide. Contrary to the expert’s opinion
in Hestad, in which the expert spoke only with the sheriff and performed a cursory
examination of the scene, 295 Minn. at 310, 204 N.W.2d at 436, Dr. Froloff’s testimony
as to Lor’s manner of death was based on Dr. Froloff’s examination of Lor’s body.
Moreover, the scope of Hestad’s holding is limited by our decisions in Bradford and
Langley, both of which establish that expert testimony regarding the victim’s manner of
death can be helpful to the jury. Bradford, 618 N.W.2d at 793; Langley, 354 N.W.2d at
In sum, Dr. Froloff’s testimony that Lor’s manner of death was “homicide” did not
involve an expert inference as to Xiong’s intent, and it was otherwise helpful to the jury.
Because we conclude that the admission of this testimony was not erroneous, we need not
address the other factors of the plain-error test. State v. Kuhlmann, 806 N.W.2d 844, 853
We next examine Xiong’s claim that aspects of firearms examiner Kurt Moline’s
testimony constitute reversible error. For the first time on appeal, Xiong objects to the
following portion of Moline’s testimony:
Q. Mr. Moline, based on the work that you did in this case, specifically the
work that you did on the firearm, your inspection, your analysis, in your
professional opinion is there anything about this firearm that would suggest
to you that it could be discharge[d] accidently?
Q. Is it fair to say that the only way that this firearm can be discharged is by
pulling the trigger?
A. Yes. By something, you know, a finger or something else pressing or
pulling the trigger.
Xiong argues that Moline “went too far when he concluded that [the gun] could never
accidently fire” for three reasons. First, Moline did not recreate the actions taken at the
scene of this crime. Second, “it is not possible for [Moline] to determine that a gun could
never accidentally fire.” Third, Moline’s testimony that the gun could not have been
“discharge[d] accidentally” is a legal conclusion that was not helpful to the jury.
We are not persuaded. First, although Xiong characterizes Moline’s testimony as
stating that Xiong’s gun could “never accidentally fire,” the record simply does not
support Xiong’s characterization of Moline’s testimony. In addition, Moline described
the tests he performed on the gun to determine whether the gun would fire in response to
a blow or a jar to it. Moline also described the trigger-pull testing he performed on the
murder weapon and the amount of force required to fire it. Moline’s conclusions were
based on the tests he conducted and the analysis he performed as contemplated in Minn.
R. Evid. 703(a). Moline never asserted that he was attempting to recreate the scene,2 and
the evidence was probative and helpful to the jury.
Xiong asserts that Moline’s statements amounted to legal analysis.
argument suggests that Moline’s testimony involved an expert inference regarding
Xiong’s intent. Xiong argues that his defense “was that he got nervous when he pulled
out the gun to rob Lor, the gun slipped, and he inadvertently pulled the trigger while
attempting to regain control of the gun.” But our review of Xiong’s statement to police,
which was videorecorded and shown to the jury, and our review of defense counsel’s
arguments at trial establish that Xiong’s recorded statements and his counsel’s arguments
present two different theories of the shooting.
The first defense theory was a trigger-pull theory in which Xiong unintentionally
pulled the trigger when fumbling with the gun. For example, when first describing the
Xiong cites State v. Nystrom, 596 N.W.2d 256 (Minn. 1999) to support his
argument. In Nystrom, we affirmed the district court’s exclusion of expert testimony that
high crime rates in north Minneapolis made it reasonable for young people in that
community to “make a preemptive strike and kill any person who caused him . . . fear.”
Id. at 260. The defendant sought to introduce the expert testimony to support his claim of
self-defense. We reasoned that “[t]he absence of some evidence tying the expert’s
proposed testimony to the appellant takes from the jury ‘responsibility for judging
credibility and the facts’ with respect to the determination of whether appellant’s actions
were reasonable.” Id. (quoting State v. Grecinger, 569 N.W.2d 189, 193 (Minn. 1997)).
We agreed with the district court’s conclusion that such evidence was irrelevant because
it provided a general theory, rather than one that properly reflected the law regarding selfdefense, and it did not directly address the appellant and the particular circumstances
involved. Id. Our reasoning in Nystrom was based in large part on the specific purpose
for which the evidence was offered in support of the defendant’s self-defense claim.
Xiong cites Nystrom without any explanation of its applicability to the case before us.
Our decision in Nystrom does not provide a basis to conclude that Moline’s testimony
events to the police, Xiong stated that he fired the gun but that he did not mean to shoot.
Xiong also stated that, when he pulled the gun, “the gun was falling then [his finger]
caught out [sic] the trigger.” The second defense theory was a misfire theory in which
the gun discharged or misfired when Xiong was fumbling with it. For example, during
the police questioning, Xiong also stated that he “pulled out the weapon. And then it
went off.” Xiong also maintained that he thought he pointed the gun near Lor’s abdomen
and when Xiong “looked up, it went off.”
Like Xiong’s statements to police, his counsel’s arguments at trial suggest both a
misfire theory and a trigger-pull theory. For example, early in his closing argument,
Xiong’s counsel described the course of events as follows: “When defendant pulled out
the gun, whipped out the gun, he lost grip of it and it went off because he was nervous.”
Xiong’s counsel paraphrased Xiong’s statements to police as: “I didn’t mean to shoot at
all. When I looked up the gun went off.” But during other parts of the closing argument,
Xiong’s counsel advanced a trigger-pull theory. For example, he argued that Xiong
“pulled the trigger” and that Xiong “got nervous and his hand got caught in the trigger of
the gun.” The State’s rebuttal to Xiong’s closing arguments addressed both theories
advanced by the defense.
When Moline’s expert testimony is considered in its entirety and in the context of
the two theories advanced by Xiong, it is evident that Moline’s professional opinion was
offered to address Xiong’s misfire theory. Moline’s testimony provided the jury with an
expert opinion about the gun’s condition that was based on his testing and analysis. In
Moline’s expert opinion, Xiong’s gun was mechanically sound and could not be
discharged accidentally or misfire because of jarring or a blow to the gun. Moline’s
testimony, which did not draw an objection, properly addressed an issue of fact rather
than one of law. Although Moline’s testimony was offered to support an inference that
Xiong acted with the requisite intent by countering Xiong’s misfire theory, this testimony
did not constitute an expert opinion as to Xiong’s intent. The district court’s admission
of Moline’s testimony, therefore, was legally sound. In light of this conclusion, we need
not address the other factors of the plain-error test. Kuhlmann, 806 N.W.2d at 853.
In sum, the district court properly admitted the expert testimony of the medical
examiner and the firearms examiner that Xiong challenges in this appeal.
After a jury trial, Defendant was convicted of first-degree premeditated murder, second-degree intentional murder, and second-degree unintentional murder while committing a felony. Defendant appealed, seeking a new trial based on the district court's allegedly erroneous admission of expert testimony offered by a medical examiner and a firearms examiner. Defendant argued that the testimony was improperly admitted because it intruded on the fact-finding role of the jury. Defendant did not object to the testimony at trial. The Supreme Court affirmed Defendant's convictions, holding that the district court properly admitted the expert testimony of the medical examiner and the firearms examiner.Receive FREE Daily Opinion Summaries by Email