State v. Brown, No. A07-0599.

• Decision Date: 16 December 2008
• Docket Number: No. A07-0599.
• Citation: 758 N.W.2d 594
• Parties: STATE of Minnesota, Respondent, v. Adolphus BROWN, Appellant.
• Court: Minnesota Court of Appeals

758 N.W.2d 594

STATE of Minnesota, Respondent, v. Adolphus BROWN, Appellant.

No. A07-0599.

Court of Appeals of Minnesota.

December 16, 2008.

Lori Swanson, Attorney General, St. Paul, MN; and Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant County Attorney, Minneapolis, MN, for respondent.

Lawrence Hammerling, Chief Appellate Public Defender, Theodora Gaïtas, Assistant Public Defender, St. Paul, MN, for appellant.

Considered and decided by HUDSON, Presiding Judge; LARKIN, Judge; and COLLINS, Judge.^*

OPINION

LARKIN, Judge.

Appellant challenges his conviction for attempted second-degree murder, arguing that (1) the admission at trial of statements made by appellant at his omnibus hearing in response to a plea offer tendered by the state violated Minn. R. Evid. 410 and (2) the evidence was insufficient to support appellant's conviction. Appellant also raises a pro se claim regarding the prosecutor's failure to submit a lesser-included offense to the jury. We hold that statements made by a defendant that are not part of a guilty plea or an offer to plead guilty are admissible under Minn. R. Evid. 410 unless the defendant exhibited an actual subjective expectation to negotiate a plea when the statements were made and the expectation was reasonable given the totality of the objective circumstances. Because appellant did not exhibit an actual subjective expectation to negotiate a plea when he made his omnibus-hearing statements, we conclude that the district court did not err by admitting evidence of the statements at trial. We also conclude that the evidence was sufficient to support appellant's conviction and that appellant waived his pro se claim regarding lesser-included jury instructions. We therefore affirm.

FACTS

Appellant Adolphus Brown previously resided with F.V. and her two children. M.L. is the biological father of one of the children, M. On June 14, 2006, M.L. went to appellant's residence to visit M. While M.L. and M. were visiting in the parking lot outside of appellant's residence, F.V. interrupted their visit and took M. and three other children to Jeannine's Foods. M.L. followed F.V. to Jeannine's Foods and tried to convince her to allow him to take M. F.V. refused and called appellant, who then drove to Jeannine's Foods.

Appellant entered Jeannine's Foods and encountered F.V., the children, and M.L. Appellant informed F.V. that he would be waiting outside. As appellant was leaving the store, M.L. pushed appellant out of the store and closed the door behind him. Appellant testified that M.L. had a knife, seemed out of control, smelled of alcohol, and spit as he spoke. Appellant re-entered the store and told F.V. to leave. Appellant and F.V. left the store with the children. M.L. followed. Once outside, M.L. grabbed M.'s arm. When M. began to protest, appellant embraced M., and M.L. released his grip.

Appellant and F.V. hurried to put the children in the back seat of appellant's vehicle. Appellant got in the driver's seat. F.V. was standing by the passenger side of the vehicle when M.L. opened the rear passenger door and began grabbing for the children and F.V. Appellant opened his locked glove compartment and retrieved a loaded revolver. Appellant testified that he exited the vehicle and yelled at M.L. to stop, but M.L. charged at him. Appellant fired at M.L. when M.L. was between six and eight feet away. Three shots penetrated M.L.'s abdomen, back, and arm.

The Omnibus Hearing

The state charged appellant with attempted second-degree murder in violation of Minn.Stat. §§ 609.19, subd. 1(1) (intentional) and 609.17, subd. 1 (attempt) (2004) and possession of a pistol without a permit under Minn.Stat. § 624.714, subd. 1a (2004).

At appellant's omnibus hearing, the following exchange ensued:

THE COURT: Mr. Brown, you're charged with attempted murder, I believe.

PROSECUTOR: Attempted 2nd-degree murder, Your Honor, yes.

THE COURT: And we're here for a pretrial today. I've had the opportunity to talk this over in chambers and it's my understanding that the State has made an offer of—I can't remember what it was—one—

PROSECUTOR: Your Honor, 130 months—130.5 months, bottom of the box.

THE COURT: OK. And is there a response by the Defendant? Does he—

APPELLANT: If it please the Court, I would like to say they offered me something but how can I accept that for—for trying—trying to take care of my family, my kids and my wife? I don't understand that.

THE COURT: The allegation is that you took a pistol and put five bullets in somebody. That isn't—

APPELLANT: That's not true, though.

THE COURT: That isn't exactly taking care of my family.

APPELLANT: That's not true, though.

THE COURT: I wasn't there. That's the allegation, that somebody ended up with five bullets in them.

APPELLANT: Nobody did, Your Honor.

THE COURT: What? Was it five bullets or—

PROSECUTOR: It was five bullets. I believe three actually penetrated. One in the shoulder, one in the stomach, and one in the chest.

APPELLANT: He was on PCP and alcohol when he talked to my daughter and my wife. I—I had a permit for it. I mean I don't know what—What was I supposed to do?

THE COURT: Maybe you—your daughter and your wife could take a walk or call the police?

APPELLANT: That's what I tried to do when he attacked my car. That's what I tried to do.

THE COURT: Then go to trial and find out.

APPELLANT: Right. That's the way I feel.

THE COURT: That's apparently what their offer is. It's not something you're interested in, apparently.

APPELLANT: I'm just interested in the truth coming out. That's the only thing I'm interested in. I thought that's what everybody is interested in, the truth.

THE COURT: That's what we're interested in.

APPELLANT: I'm looking forward to the truth coming out. That's why we're going to trial.

DEFENSE COUNSEL: Yep.

THE COURT: All right. What's the likely exposure—presumptive?

PROSECUTOR: Presumptive is 153.

THE COURT: OK.

PROSECUTOR: Your Honor, State is withdrawing that offer at this time and will likely file a motion for an upward departure.

THE COURT: What?

PROSECUTOR: State is withdrawing the offer of 130.5 months and will likely file a motion for an upward departure.

APPELLANT: If it please the Court, Your Honor, I would like to say that it don't matter. There is no—Whatever ya'll gonna do, just do it. I mean like I had to do—like I had to make a choice to do what I felt I had to do so ya'll go to—

PROSECUTOR: You understand we're setting this matter for trial?

APPELLANT: Right.

Appellant pleaded "not guilty," and the matter was set for trial.

The Jury Trial

At appellant's jury trial, appellant testified that he fired at M.L. to defend himself and others. On direct examination, appellant admitted that he did not have a permit for the gun. On cross-examination, the state questioned whether appellant recalled telling the district judge at the omnibus hearing that appellant had a permit for the gun. Following an objection by appellant's defense counsel, a discussion between the attorneys and the district judge occurred off the record, and then questioning on this issue resumed.¹ Appellant testified that he remembered telling the judge at the omnibus hearing that he had a permit to possess the gun. Appellant also testified that he thought he had applied for and received a permit. He admitted that he did not have a permit for the gun.

At the conclusion of the trial, the jury found appellant guilty of both charges. This appeal follows.

ISSUES

I. Did the admission of appellant's omnibus hearing statements at trial violate Minn. R. Evid. 410?

II. Was the evidence sufficient to support appellant's conviction for attempted second-degree murder?

ANALYSIS

I. Did the admission of appellant's omnibus hearing statements at trial violate Minn. R. Evid. 410?

Appellant claims that the district court erred by admitting evidence of his omnibus hearing statements regarding possession of a gun permit at trial because the statements were inadmissible under Minn. R. Evid. 410. The rule provides as follows:

Evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil, criminal, or administrative action, case, or proceeding whether offered for or against the person who made the plea or offer.²

See also Minn. R.Crim. P. 15.06 (when a guilty plea is not accepted or withdrawn, evidence regarding the plea is inadmissible). By its terms, Rule 410 prohibits admission of evidence of (1) a plea of guilty, later withdrawn; (2) an offer to plead guilty; and (3) statements made in connection with a plea of guilty or offer to plead guilty.

Appellant did not plead guilty or expressly offer to plead guilty. But appellant argues that his omnibus hearing statements regarding possession of a gun permit were made in connection with an offer to plead guilty. Appellant claims the statements occurred during the type of "frank discussion in plea bargaining negotiations" contemplated by Rule 410. State v. Blom, 682 N.W.2d 578, 616-17 (Minn. 2004). In support of his claim, he notes that his statements followed the state's recitation of its plea offer and the district court judge's inquiry regarding his response, and that the state rescinded the plea offer after his statements. Appellant therefore contends that his statements were made in connection with a plea offer and were inadmissible. Minn. R. Evid. 410.

"Whether a statement is `made in connection with' a plea or plea offer requires an inquiry as to the facts of each case." Blom, 682 N.W.2d at 616. Minn. R. Evid. 410 "gives a district court little discretion" to admit a statement that was made in connection with a plea offer. Id. We review the district court's "findings of fact under a clearly erroneous standard, but...