State v. Gassler

• Decision Date: 03 September 1993
• Docket Number: No. C7-92-888,C7-92-888
• Citation: 505 N.W.2d 62
• Parties: STATE of Minnesota, Respondent, v. Robert Daniel GASSLER, Appellant.
• Court: Minnesota Supreme Court

Page 62

505 N.W.2d 62

STATE of Minnesota, Respondent, v. Robert Daniel GASSLER, Appellant.

No. C7-92-888.

Supreme Court of Minnesota.

Sept. 3, 1993.

Syllabus by the Court

1. A defendant's constitutional right to testify in his own behalf is not violated when a trial court rules that evidence of past convictions is admissible for impeachment purposes unless there is an abuse of discretion under Minn.R.Evid. 609(a)(2).

2. A trial court is not required to instruct the jury that if it bases a guilty verdict on circumstantial evidence alone, it must rule out all other reasonable hypotheses but guilt.

3. A prosecutor does not shift the burden of proof to the defendant by commenting in closing argument on defendant's failure to produce evidence to support his rebuttal theory.

4. The imposition of consecutive sentences is not an abuse of discretion where the sentences do not unfairly exaggerate the criminality of defendant's conduct.

5. The granting of a continuance is within the discretion of the trial court.

6. Although a defendant has a right to court-appointed counsel, he has no right to choose a particular attorney.

7. In order to admit evidence that another person committed a crime for which the defendant stands accused, there must be a sufficient nexus between that other person and the crime.

8. In order for a trial court to admit a defendant's statement that he wanted someone to kill a witness for the state, the court must determine whether the probative value of the statement outweighs its prejudicial effect.

9. Improper admission of hearsay statements of a murder victim's fear of a defendant requires reversal only where the evidence substantially influences the jury to convict.

John M. Stuart, State Public Defender, Susan K. Maki, Asst. State Public Defender, Minneapolis, for appellant.

Hubert H. Humphrey III, Atty. Gen., John Docherty, Sp. Asst. Atty. Gen., St. Paul, Gaylord A. Saetre, Todd County Atty., Long Prairie, for respondent.

Heard, considered, and decided by the court en banc.

GARDEBRING, Justice.

This is an appeal of a conviction of first-degree murder for which appellant was sentenced to life in prison. Appellant alleges that the trial court erred by ruling that certain impeachment evidence was admissible, by not giving certain instructions to the jury, by allowing the state's closing argument without noting its impropriety to the jury, and by the imposition of a sentence to run consecutive to a prior federal conviction. We affirm.

Dale Yungk was murdered early in the morning of April 14, 1990. His body was found on the side of a rural roadway in Todd County at around 7 a.m. Yungk was shot three times with a shotgun in the head and back, and died from loss of blood. Events leading to Yungk's death began in January 1990.

On the night of January 14, 1990, police officers investigated a suspicious car outside a Roseville catering business, where it was later determined a burglary had been committed. Burglary tools, a sledgehammer, a large knife and a .25 caliber semi-automatic pistol were found in the car, which was driven by appellant with Yungk as the only passenger. Appellant was arrested at the time, but ultimately neither he nor Yungk were charged with the burglary.

At the time of this incident, Yungk was living at the residence of Gordon Beckman. Also living there was Dale Lessard, who testified at trial that appellant, who also lived at Beckman's house sporadically, seemed to be acquainted with James "Rusty" Scott. ¹ In late January, Yungk admitted to Lessard that he and appellant had burglarized a business in Roseville. There was also testimony at trial that in late January, appellant was seen in Beckman's garage sawing off a shotgun and applying surgical tape to the stock. One witness testified that appellant intended to kill Yungk with the shotgun because he believed Yungk was a "snitch" and because Yungk had not given him his share of the money from the burglary.

On the night of April 13, 1990, a friend of Yungk's attempted to contact him at Beckman's residence. The friend telephoned at around 9 p.m. and Yungk told him to call back. When he called back, Beckman told him that Yungk had left with appellant and Scott. The next morning, Yungk's body was discovered in Todd County.

That same morning, Veronica Yarbough, a close friend of appellant's, went to her mother's house and saw appellant and Scott, who both looked very tired. Appellant told Yarbough that he and Scott had killed Yungk and left his body on the side of the road "to prove a point." Appellant offered Yarbough a spent shot shell as a "souvenir," but then changed his mind.

Another key witness for the state, Ricky Foster, testified that Scott and appellant arrived at his home on April 14, and that appellant had a sawed off shotgun which was wrapped in white surgical tape and which smelled of gunpowder. Foster said that appellant told him that he and Scott had pulled some burglaries in the country and that he had shot someone, although later he claimed to be joking.

Foster's mother, Beverly Munoz, who arrived home several days later, was asked by Scott and appellant to keep a suitcase in her room for them. She opened the suitcase and found the shotgun, ammunition and other items. The next day appellant said he wanted his shotgun back, but when Beverly Munoz directed him to the suitcase, he refused to take the gun away. At the time, appellant mentioned something about someone being murdered and that someone was trying to break into the house. Mrs. Munoz turned the suitcase and its contents over to the St. Paul Police.

After obtaining the suitcase from the St. Paul police, the Bureau of Criminal Apprehension ("BCA"), which was investigating Yungk's murder, determined that the contents were proceeds of burglaries, with the exception of the shotgun and ammunition. The BCA then asked Beverly Munoz to tape record several phone conversations with appellant in connection with returning the shotgun to him. As a result of these conversations, appellant was arrested by the St. Paul Police. When appellant was interrogated by the BCA, he denied any involvement in Yungk's murder. However, he also indicated that he believed Yungk was a "snitch" and that he would tell the police nothing about Yungk's murder even if he knew who had done it.

At trial, in addition to the circumstantial evidence discussed previously, the state relied on two scientific experts, one who testified regarding the similarities in the ammunition found in the suitcase and that found in Yungk's body, and one who testified on the evidence of the scratches on the shells themselves caused by being fired from the shotgun. The state also called Michael Olson, an inmate in the prison where appellant was held prior to trial. Olson testified that appellant asked him if he knew anyone who would kill Veronica Yarbough, who was testifying for the state.

Appellant called two inmates, who lived with him in the same cell unit. Both disputed Olson's testimony. They testified that because appellant feared that another inmate would fabricate a confession in order to secure better treatment, one or both of the inmates accompanied him at all times. They each testified that appellant made no such remarks to Olson.

Appellant's theory of the case was that other enemies of Yungk had killed him. The jury was exposed to appellant's version of events through the testimony of several witnesses. The tape recording between appellant and Beverly Munoz was played in which appellant denied killing Yungk. Also, BCA agents testified that appellant told them that he did not remember the weekend Yungk was killed, that Yungk was a "snitch" who had "heavyweight" enemies and that he was only trying to acquire a shotgun from the Munoz' to use for hunting.

The first issue we address is whether the trial court erred by admitting evidence of appellant's past crimes for purposes of impeachment. Defense counsel made a pre-trial motion to bar admission of appellant's prior convictions for (1) check forgery, (2) possession of a firearm by a felon, (3) attempted second degree murder, and (4) aggravated robbery. The trial court denied the motion and ruled that appellant could be impeached by evidence of all four prior convictions, if he chose to testify. Appellant did not testify. He argues on appeal that it was an abuse of discretion constituting reversible error to admit evidence of any of his prior convictions, with the exception of the one for forgery, and that the trial court's ruling effectively deprived him of his constitutional right to testify in his own behalf.

We first address appellant's contention that the court abused its discretion. The applicable rule is Minn.R.Evid. 609(a), which states:

(a) General rule. For the purpose of attacking the credibility of a witness, evidence that a 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.

Although the trial court did not specify under which part of the rule appellant's convictions were admissible, appellant's forgery conviction, a crimen falsi, clearly falls within Rule 609(a)(2). On the other hand, this court recently held that robbery is not an offense directly involving "dishonesty or false statement." State v. Ross, 491 N.W.2d 658, 659 (Minn.1992). As to the crimes of possession of a firearm by a felon and attempted second degree murder, we have not ruled on whether they come within the meaning of Rule 609(a)(2). The general rule was stated in State v. Darveaux, 318 N.W.2d 44 (Minn.1982), which held that aggravated assault was not a crime involving dishonesty or false statement, where we said that " '...