State of Minnesota, Respondent, vs. Darryl Donail Walker, Appellant.

State of Minnesota, Respondent, vs. Darryl Donail Walker, Appellant. A06-522, Court of Appeals Unpublished, July 3, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-522

 

State of Minnesota,
Respondent,
 
vs.
 
Darryl Donail Walker,
Appellant.

 

Filed July 3, 2007

Reversed and remanded

Collins, Judge*

 

Hennepin County District Court

File No. 05054502

 

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

 

Michael O. 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, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Toussaint, Chief Judge; and Collins, Judge.

U N P U B L I S H E D   O P I N I O N

COLLINS, Judge

            In this appeal from his convictions of second-degree assault and drive-by shooting, appellant Darryl Donail Walker argues that the district court abused its discretion (a) in ruling that he could be impeached with his five-year-old conviction for second-degree assault; (b) in responding to jurors' questions before deliberations began by stating the jurors would have to rely on the evidence and could only ask procedural questions; and (c) by admitting evidence of a firearm.  We reverse and remand.

FACTS

            Ockman Brown moved in with appellant and his family in Minneapolis in June 2005.  Appellant and Brown were members of the Black Peace Stones.[1] Brown began dating Yolanda Grey, the mother of two of appellant's children.  Grey wanted Brown to get out of the Black Peace Stones.  By August 12 or 13, 2005, appellant concluded that he was being disrespected in his home and made Brown and Grey move out. 

            On August 15, when he returned to the neighborhood to visit a friend, Brown encountered appellant, and the two almost fought before others kept them apart.  Brown later claimed that the disagreement arose over his relationship with Grey.  Brown left the scene and went to a nearby convenience store.

            As Brown was returning toward his friend's apartment, appellant pulled up in his blue minivan with Corey Fogg, said to be Brown's best friend and a member of the Black Peace Stones, in the passenger seat.  As Brown walked along, he and Fogg engaged in conversation until the minivan stopped and Fogg got out with a 12-gauge shotgun.  Brown recognized the shotgun from appellant's house.  Brown said, "Do what you got to do" and turned to walk away.  Fogg fired once, spraying shotgun pellets into Brown's back and hand.  Fogg fired a second time, hitting Brown with a slug in the right calf.  After the third shot, Brown ran to a nearby shop and called 911. 

When police officers arrived they observed a palm-size wound in Brown's leg.  At the scene of the shooting, the police found two expended 12-gauge shotgun-shell casings, one a green Remington brand and the other a red Federal brand. 

            Brown was initially uncooperative with the police, saying that the person who shot him was wearing a mask and he was unsure who shot him or why.  Later that day, in his formal statement, Brown cooperated and provided the police with details of the incident. 

            Brown was released from the hospital on August 17, 2005, and called appellant.  Brown accused appellant of violating "gang law."  Appellant refused to respond.  Later in the day, appellant drove slowly past Brown in a maroon minivan with a revolver in his hands.  Appellant said, "I'm not going to do nothing to you," but Brown perceived this as a threat. 

            The police executed a search warrant at appellant's house on August 24.  They found several boxes of green Remington 12-gauge shotgun slugs and two red Federal 12-gauge shotgun shells in appellant's bedroom.  The police also seized a .22 caliber revolver and ammunition. 

            Appellant was arrested and given a Miranda warning.  In his statement to the police, which was presented to the jury at trial, appellant denied gang membership, admitted knowing Brown, but denied his involvement in the shooting.  Appellant denied ownership of any guns, including the one found at his residence, but admitted owning the shotgun shells and other ammunition as a collector.  He admitted owning a blue minivan, claimed it was inoperable, and stated that a recent surgery prevented him from driving. 

Appellant was charged with aiding and abetting drive-by-shooting in violation of Minn. Stat. § 609.66, subd. 1e (2004), aiding and abetting second-degree assault in violation of Minn. Stat. § 609.222, subd. 2 (2004), and prohibited person in possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b) (2004).  Appellant's first trial ended in a mistrial because the firearm possession charge was not properly joined with the other charges.  The second jury trial was held on November 15-22, 2005, and appellant was found guilty of the charges of both drive-by-shooting and second-degree assault.  This appeal follows. 

D E C I S I O N

1.         Prior convictions

            Appellant argues that the district court abused its discretion in ruling that the state could impeach him with a prior conviction for second-degree assault, the same crime as one of the current charges.  Admission of a felony conviction for impeachment purposes is permitted if ten or fewer years have elapsed since the later of the dates of conviction or release from confinement for that conviction and the probative value of the evidence outweighs its prejudicial effect.  Minn. R. Evid. 609(a), (b).  Prior to trial, the state sought leave to impeach appellant, if he testified, with three prior felony convictions: second-degree assault in 2000; fifth-degree controlled-substance crime in 1999; and third-degree assault in 1995.  Appellant did not challenge the admissibility of the controlled-substance conviction for impeachment, but objected to impeachment by the prior assault convictionsparticularly the second-degree assaultbecause of the similarity of their elements to the elements of the current second-degree-assault charge.  The district court ruled against the use of the third-degree-assault conviction, but allowed that, if he testified, appellant could be impeached by his prior convictions of second-degree assault and controlled-substance crime. 

            A district court's ruling on the impeachment of a witness by prior conviction is reviewed under a clear-abuse-of-discretion standard.  State v. Ihnot,575 N.W.2d 581, 584 (Minn. 1998); State v. James, 638 N.W.2d 205, 210 (Minn. App. 2002), review denied (Minn. Mar. 27, 2002).  The district court's ruling that the probative value of admitting the conviction outweighs its prejudicial effect must be upheld ‘"unless a clear abuse of discretion is shown.'"  State v. Lloyd, 345 N.W.2d 240, 246 (Minn. 1984) (quoting State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979)).  Factors the district court must consider to determine whether the probative value of admitting the conviction outweighs its prejudicial effect are

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant's testimony, and (5) the centrality of the credibility issue. 

 

State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978). 

A.         Impeachment value

            Appellant argues that his prior conviction for second-degree assault does not involve dishonesty, and therefore, has little impeachment value.  But in Brouillette, the supreme court concluded that Minn. R. Evid. 609 "clearly sanctions the use of felonies which are not directly related to truth or falsity for purposes of impeachment, and thus necessarily recognizes that a prior conviction, though not specifically involving veracity, is nevertheless probative of credibility."  286 N.W.2d at 708.  The supreme court stated: "Just because a crime is not directly related to truth or falsity does not mean that evidence of the conviction has no impeachment value."  Id. at 707.  The court then explained "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.'"  Id. (quoting St. Paul v. DiBucci, 304 Minn. 97, 100, 229 N.W.2d 507, 508 (1975)).  The court then reiterated:

"The object of a trial is not solely to surround an accused with legal safeguards but also to discover the truth.  What a person is often determines whether he should be believed.  When a defendant voluntarily testifies in a criminal case, he asks the jury to accept his word.  No sufficient reason appears why the jury should not be informed what sort of person is asking them to take his word.  In transactions of everyday life this is probably the first thing that they would wish to know. . . . Lack of trustworthiness may be evinced by his abiding and repeated contempt for laws which he is legally and morally bound to obey . . . though the violations are not concerned solely with crimes involving ‘dishonesty and false statement.'"

 

 Id. (omissions in original) (quoting State v. Duke, 123 A.2d 745, 746 (1956)).  

 

            Appellant urges this court to reexamine the "whole person" rationale adopted in Brouillette, arguing that Minnesota courts have applied the Jones test in an unbalanced manner, and have essentially adopted an "anything goes" test, allowing nearly any prior conviction to be admitted regardless of whether it has any real bearing on credibility.  The supreme court has acknowledged the danger of prior-conviction evidence having an unfairly prejudicial effect.  Brouillette, 286 N.W.2d at 708.  But we note that the "whole person" rationale has recently again been applied by the Minnesota Supreme Court.  See State v. Swanson, 707 N.W.2d 645, 655 (Minn. 2006) (assigning impeachment value to prior convictions under a "whole person" analysis).  It is not our privilege to disregard established supreme court precedent.  State v. Ward, 580 N.W.2d 67, 74 (Minn. App. 1998).  Therefore, this factor weighs in favor of admitting the prior convictions because appellant's prior convictions have impeachment value under the "whole person" rationale.  But the "whole person" rationale is not determinative of the analysis.

B.         Date of conviction and subsequent history

Appellant concedes that the timeliness factor weighs in favor of admission because his conviction occurred within the ten-year time limitation.

C.        Similarity of crimes

            Appellant's prior conviction for second-degree assault is for the same offense as one of the charged offenses.  Appellant argues that this similarity should be weighed heavily against admission.  "The danger when the past crime is similar to the charged crime is that the likelihood is increased that the jury will use the evidence substantively rather than merely for impeachment purposes."  State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980).  The greater the similarity, the greater the reason for not permitting use of the prior crime to impeach.  Jones, 271 N.W.2d at 538.  Therefore, comparing it to the current charge, the similarity of the second-degree assault conviction weighs in favor of its exclusion. 

D.        Importance of appellant's testimony

            Courts must also "consider whether the admission of the evidence will cause the defendant not to testify."  State v. Gassler, 505 N.W.2d 62, 66 (Minn. 1993).  If the ruling on the admissibility of the prior conviction prevents a jury from hearing a defendant's version of events, this weighs in favor of excluding the prior conviction.  Id.at 67.  Here, the district court's decision to permit introduction of the prior second-degree-assault conviction discouraged appellant from testifying, thus, this factor weighs in favor of exclusion.  But if it was important for appellant to testify, it was also important for the jury to evaluate his credibility.  Therefore, this factor must be considered in conjunction with the final Jones factor.

E.         The centrality of appellant's credibility

            "If 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; see also Ihnot, 575 N.W.2d at 587 (stating that the fourth and fifth Jones factors are satisfied when the defendant chooses to testify because credibility becomes the central issue in the case).  Appellant concedes that his credibility was crucial to his case and thus, this factor weighs in favor of granting the state reasonable latitude for impeachment by prior conviction.  However, he argues that the state could have adequately challenged his credibility with the prior conviction for fifth-degree controlled-substance crime, without resort to the unfairly prejudicial introduction of the prior second-degree-assault conviction.  We agree.

            Here, in applying the Jones factors, the district court accorded virtually dispositive weight to the "whole person" rationale, as revealed by this statement:

I think that under this concept of the whole person, in my mind it is a significantly greater comment on someone's trustworthiness that they've taken a gun and assaulted somebody than just physically assaulted them.

 

            . . . I think it is so [i]ngrained in our morality that to use a gun to assault somebody is wrong and someone who does that I think that's a greater it says more about the whole person, it says more about their lack of willingness to obey a very clear requirement of the law.

 

            We conclude that in its balancing of the Jones factors and ruling in favor of admissibility of the prior second-degree assault conviction for impeachment, the district court abused its discretion.  Appellant's trial counsel made it clear that he would have to advise appellant not to testify if the district court were to allow impeachment by the prior conviction for second-degree assault.  The district court accorded inordinate weight to the factor of impeachment value, based on the "whole person" analysis, and undervalued the factor of importance of appellant's testimony.  Moreover, the case did not turn solely on appellant's credibility because the state had independent evidence supporting Brown's testimony, such as the shotgun-shell casings from the scene and the comparable shells and slugs seized from appellant's house, the revolver and ammunition seized from his house, and appellant's admitted ownership of the blue minivan. 

            The district court concluded that it would not be "fair to the jury that [appellant] be able to testify without the jury having some sense of what kind of person he is, and I think that an assault two conviction shows something about what kind of person he is."  But that point could have been made as well by the prior felony drug conviction, which would have also provided the jury with a picture of what kind of person appellant is.  To allow introduction of the prior conviction for second-degree assault was unduly and unfairly prejudicial.  The risk that the jury would use it substantively as evidence of bad character rather than for impeachment only was too great to be taken.

            We conclude that an objective analysis and application of the Jones factors compels exclusion of the second-degree-assault conviction.  When the elements of the prior conviction and the current charge coincide, the risk of substantive use of the evidence is inherent and undeniable.  An opportunity for the jury to assess appellant's credibility by hearing his testimony of the events, tested by cross-examination, is no less important an element of the "whole person" rationale than a prior conviction.  The district court abused its discretion in deciding to allow introduction of appellant's prior second-degree-assault conviction.

            We must also consider whether the district court's ruling was prejudicial so as to require reversal.  If there "is a reasonable possibility that the verdict might have been more favorable to the defendant" in the absence of the error, then that error is prejudicial.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  The analysis is based on a review of the entire record.  State v. Bolte, 530 N.W.2d 191, 198 (Minn. 1995).

            What is known of the substance of appellant's version of events was presented to the jury by way of his statement to the police.  However, as we have noted, an opportunity for the jury to assess a defendant's credibility by hearing his testimony, tested by cross-examination, while observing his demeanor as a witness is an important element of a trial.  Having reviewed the entire record, we conclude that the district court's decision to allow appellant to be impeached by his prior conviction of second-degree assault reasonably discouraged appellant from testifying, and there is a reasonable possibility that the ruling affected the outcome of the trial.

            We reverse on this issue, and remand for further proceedings.

2.         Juror's ability to ask questions

            Appellant claims that his conviction should be reversed because the district court impermissibly prohibited the jury from asking non-procedural questions during deliberations.  The manner in which a district court responds to a jury request to rehear testimony is within the district court's discretion and will not be reversed absent an abuse of that discretion.  State v. Rean, 421 N.W.2d 303, 306 (Minn. 1988) (citing State v. Daniels, 332 N.W.2d 172 (Minn. 1983); State v. Spaulding, 296 N.W.2d 870 (Minn. 1980)).

            We are concerned with the district court's handling of questions from the jury.  The Minnesota Supreme Court has specifically prohibited limiting the scope of the jurors' ability to ask questions.  Spaulding, 296 N.W.2d at 877-78.  However, because we cannot determine that the district court's comments to the jury affected the outcome of the case, we conclude that it was not reversible error.

Appellant also argues in his supplemental pro se brief that the district court erred when it allowed the state to introduce evidence of a firearm.  Because we reverse on other grounds, there is no need to reach this issue.

            Reversed and remanded.

*   Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Brown testified that although some viewed the Black Peace Stones as a gang, he considered it a peaceful Muslim organization.  A police officer testified that the Black P. Stones is a gang.