State v. Pollard

• Decision Date: 10 July 2017
• Docket Number: A16-1005
• Citation: 900 N.W.2d 175
• Parties: STATE of Minnesota, Respondent, v. Natalie Jonelle POLLARD, Appellant.
• Court: Minnesota Court of Appeals

900 N.W.2d 175

STATE of Minnesota, Respondent,

v.Natalie Jonelle POLLARD, Appellant.

A16-1005

Court of Appeals of Minnesota.

Filed July 10, 2017

Lori Swanson, Attorney General, St. Paul, Minnesota; and John Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St. Paul, Minnesota (for respondent).

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public Defender, St. Paul, Minnesota (for appellant).

Considered and decided by Jesson, Presiding Judge; Bratvold, Judge; and Smith, John, Judge.^*

SMITH, JOHN, Judge

OPINION

Appellant was found guilty of second-degree felony murder for acts that resulted in her boyfriend's death. On appeal, she argues that the trial resulting in her conviction was unfair and that she should be given a new trial. Specifically, she argues that the district court erred in its instruction on self-defense. Appellant also argues that she is entitled to a new trial based on misconduct by the prosecution and evidentiary errors. We reverse appellant's conviction and remand to the district court for a new trial. In addition, we deny the state's motion to strike arguments from appellant's reply brief.¹

FACTS

Police arrested appellant Natalie Pollard after responding to an emergency call she made on July 2, 2015. In her call to police, appellant reported that her boyfriend, O.N., had broken into her house and was in her basement. Appellant reported that O.N. needed medical attention because he had been cut in a fight. Upon arrival, police found O.N. unconscious in the basement with a puncture wound in his chest

.

Appellant initially told the police that O.N. had produced a knife during a fight in the basement of her townhome. Appellant told an investigator that she had discovered O.N. attempting to enter her townhome. Appellant let O.N. into the townhome, and the two went to the basement for O.N. to retrieve his things. She told the investigator that O.N. attempted to strike her and the two began to fight. She told the investigator that O.N. had a knife in his hand and that she attempted to turn O.N.'s wrist away from her and toward O.N. during the fight. Appellant told the investigator that she fell and that O.N. got on top of her. She said that O.N. placed his knee on her chest and tried to strangle her. She said that she was able to move O.N. from on top of her, he fell, and she ran upstairs and called the police. Appellant told the investigator that O.N. pulled on her hair extensions during the fight, and that they came out as she was running away.

Appellant later admitted that although the knife belonged to O.N., she had brought it with her to the basement. Appellant said that she thought she needed the knife for protection because O.N. frequently came to her house angry. She told the investigator that she held the blade open and behind her back when they went to retrieve O.N.'s items from the basement. Appellant admitted that she was holding the knife when O.N. attempted to hit her, and that she swung the knife at him while they were fighting. She told the investigator that she was trying to protect herself from being hurt, because it was not the first time that O.N. had hit her. She told the investigator that she fell during the fight and O.N. got on top of her, at which point the knife flew from her hand. She was able to get up, grab the knife, and run up the stairs. She admitted to throwing the knife in the kitchen garbage. She told the investigator that she did not know if she cut or stabbed O.N., but, if she did, it was accidental because he would not stop attacking her.

Appellant was charged with intentional second-degree murder and second-degree felony murder. Appellant asserted self-defense and defense of dwelling. At trial, the state introduced evidence of the couple's strained relationship, including witnesses who testified about an incident from several weeks prior to O.N.'s death, in which appellant allegedly struck O.N. with her car and yelled that she was going to kill him. Appellant did not testify, but a recording of appellant's interview at the police station was played to the jury. Appellant introduced evidence demonstrating that O.N. had previously struck her in the face, and that she had sought medical treatment after being assaulted.

Appellant requested the general self-defense instruction provided in CRIMJIG 7.05. See 10 Minnesota Practice , CRIMJIG 7.05 (2015) (providing jury instruction for "self-defense—generally"). The state requested the self-defense instruction concerning the taking of a life, as provided in CRIMJIG 7.06. See 10 Minnesota Practice , CRIMJIG 7.06 (2015) (providing jury instruction for "self-defense—justifiable taking of life"). In arguing for CRIMJIG 7.06, the state cited comments to CRIMJIG 7.06 which indicate that it is the appropriate instruction for self-defense cases in which the defendant has not admitted to intentionally killing the decedent. Relying on State v. Hare , 575 N.W.2d 828, 828 (Minn. 1998), the district court agreed with the state and ruled that CRIMJIG 7.06 would be provided to the jury, because, "for focusing on death as a result of defense, ... the more general instruction of 7.06 is likely to better fit the case."

The district court instructed the jury, in accordance with the justifiable-taking-of-life instruction, that "[n]o crime is committed when a person takes the life of another, even intentionally, if the person's action was taken in resisting or preventing an offense the person reasonably believed exposed her to death or great bodily harm." The jury was instructed that (1) appellant had to have acted "in the belief that it was necessary to avert death or great bodily harm"; (2) appellant's judgment as to the gravity of the peril had to be reasonable; and (3) appellant's election to defend herself had to be "such as a reasonable person would have made in light of the danger perceived and the existence of any alternative way of avoiding the peril." The jury was instructed that all elements of self-defense must be met in order for the defense to apply and that the burden was on the state to prove beyond a reasonable doubt that appellant did not act in self-defense. The district court also instructed the jury on defense of dwelling.

The jury returned a guilty verdict on the charge of second-degree felony murder. Appellant was acquitted of intentional second-degree murder.

This appeal followed.

ISSUE

Did the district court commit reversible error when it instructed the jury using the justifiable-taking-of-life instruction instead of the general self-defense instruction?

ANALYSIS

"We review a district court's jury instructions for an abuse of discretion," and recognize that the district court has "considerable latitude in selecting jury instructions." State v. Peltier , 874 N.W.2d 792, 797 (Minn. 2016). We review the jury instructions in their entirety to determine if they "fairly and adequately explain the law." Id . ; State v. Kuhnau , 622 N.W.2d 552, 555-56 (Minn. 2001). An instruction is in error if it materially misstates the law, or confuses or misleads the jury on fundamental points of law. State v. Larson , 787 N.W.2d 592, 601 (Minn. 2010) ; State v. Ihle , 640 N.W.2d 910, 916 (Minn. 2002).

Minnesota law permits the use of reasonable force against another in certain circumstances. Minn. Stat. § 609.06, subd. 1 (2014). A person may use reasonable force when it is "used ... in resisting or aiding another to resist an offense against the person." Minn. Stat. § 609.06, subd. 1(3). The elements of self-defense under section 609.06, subdivision 1(3), are

(1) the absence of aggression or provocation on the part of the defendant; (2) the defendant's actual and honest belief that he or she was in imminent danger of ... bodily harm; (3) the existence of reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat to avoid the danger.

State v. Devens , 852 N.W.2d 255, 258 (Minn. 2014) (quotation omitted). The defense of self or another under section 609.06, subdivision 1(3), is currently reflected in the jury instruction in CRIMJIG 7.05.

Section 609.06 does not permit a person to intentionally take a life of another unless certain conditions are met. Minn. Stat. § 609.065 (2014). A person may intentionally take a life when it is "necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor's place of abode."Id. The use of deadly force in self-defense is justified under sections 609.06 and 609.065, if the following factors are satisfied:

(1) The killing must have been done in the belief that it was necessary to avert death or grievous bodily harm. (2) The judgment of the defendant as to the gravity of the peril to which he was exposed must have been reasonable under the circumstances. (3) The defendant's election to kill must have been such as a reasonable man would have made in light of the danger to be apprehended.

State v. Edwards , 717 N.W.2d 405, 413 (Minn. 2006) (citing State v. Austin , 332 N.W.2d 21, 24 (Minn. 1983) ); see also State v. Johnson , 719 N.W.2d 619, 629 (Minn. 2006) (describing the four elements of self-defense in a homicide case as (1) the absence of aggression or provocation; (2) an actual and honest belief of imminent danger of death or great bodily harm; (3) reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat). The justifiable-taking-of-life defense under section 609.065 is currently reflected in CRIMJIG 7.06.

The Minnesota Supreme Court has repeatedly stated that it is error to provide the justifiable-taking-of-life instruction, instead of the general self-defense instruction, when the defendant asserts self-defense but claims that the death was not the intended result. See State v. Carridine , 812 N.W.2d 130, 143-44 (Minn. 2012) (concluding that the...