State of Minnesota, Respondent, vs. Dennis Louis Babcock, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-03-131

 

 

State of Minnesota,

Respondent,

 

vs.

 

Dennis Louis Babcock,

Appellant.

 

 

Filed December 9, 2003

Affirmed

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. 02047582

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

Stephen V. Grigsby, 50 Whitney Square, 210 North Second Street, Minneapolis, MN 55401; and

 

John M. Stuart, State Public Defender, Mark F. Anderson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Peterson, Presiding Judge; Schumacher, Judge; and Hudson, Judge.

U N P U B L I S H E D  O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Dennis Louis Babcock challenges his convictions of first-degree assault of a police officer under Minn. Stat. § 609.221, subd. 2 (2000), two counts of fourth-degree assault of a police officer under Minn. Stat. § 609.2231, subd. 1 (2000), obstructing the legal process or arrest under Minn. Stat. § 609.50, subd. 1 (2000), and third-degree riot under Minn. Stat. § 609.71, subd. 3 (2000).  He argues the district court erred by removing a potential juror for cause, admitting Spreigl evidence, and denying his right to a unanimous verdict by refusing to give requested jury instructions.  We affirm.

FACTS

As a result of his conduct in June 2002, Babcock was charged with attempted second-degree murder under Minn. Stat. §§ 609.19, subd. 1(1), .17, subd. 1 (2000), two counts of fourth-degree assault of a police officerone count for each officerunder Minn. Stat. § 609.2231, subd. 1 (2000), obstructing the legal process or arrest under Minn. Stat. § 609.50, subd. 1 (2000), and third-degree riot under Minn. Stat. § 609.71, subd. 3 (2000).

            In mid-October, the case proceeded to trial.  As the jury selection began, an issue arose over one of the prospective jurors.  When the court questioned the prospective juror, he responded, "[I]t would be difficult for me to be fair and impartial . . . ."  During the state's voir dire, however, the prospective juror stated he "wouldn't have any problem with sitting through the case and given the evidence given to me make a final decision after hearing it all." 

The state requested the prospective juror be removed for cause.  After hearing arguments from both sides, the court stated, "There isn't a shadow of a doubt in my mind that the State has established a challenge for cause . . . [the prospective juror] exhibits a state of mind in reference to the likelihood of a number of Minneapolis police being called which satisfies me that he cannot try the case impartially and without prejudice to the rights of the State.  So I'm going to grant the challenge."  Addressing the prospective juror, the court stated, "I just want to tell you there is no doubt in my mind that you're sincere in your belief of your ability to be a fair and impartial juror in this case, but . . . I don't think this is the right case for you." 

At the close of the state's case, the court addressed the admissibility of Babcock's prior conviction of obstructing legal process.  The prior conviction resulted from Babcock's violent reaction on January 10, 2002, to a police officer's request for proof of insurance after a traffic stop.  When one of the officers returned to his squad car, Babcock followed the officer, reached in the car through the window, and tore the officer's badge off of his shirt.  The court admitted the evidence because Babcock's participation in the prior bad act was clearly and convincingly shown by the conviction, the prior conviction was relevant to show modus operandi and absence of mistake, and the evidence's probative value outweighed its potential for unfair prejudice.

At the end of the trial, the court instructed the jury regarding Babcock's defenses.  Regarding each defense, the court instructed the jury, "This defense is not available to a person if he knew or a reasonable person would have known that the other person or persons were peace officers engaged in the performance of a duty imposed by law unless the peace officers were engaged in an unjustified physical assault."  Babcock objected, arguing "unjustified physical assault" must be defined or he would be denied his right to a unanimous verdict.  The court also instructed the jury, "In order for you to return a verdict in a criminal case, whether guilty or not guilty, each juror must agree with the verdict.  In other words, your verdict must be unanimous." 

The jury found Babcock guilty of first-degree assault, two counts of fourth-degree assault, obstructing legal process or arrest, and third-degree riot. 

D E C I S I O N

1.         Babcock argues the district court erred by removing the prospective juror for cause.  On review of a district court's decision to remove a juror, this court will not lightly substitute its own judgment for that of the trial judge because the trial judge is in the best position to evaluate the testimony and demeanor of potential jurors.  State v. Drieman, 457 N.W.2d 703, 708-09 (Minn. 1990). The district court's resolution of the question whether a prospective juror's protestation of impartiality is credible is entitled to special deference because it is essentially a determination of credibility and of demeanor.  State v. Logan, 535 N.W.2d 320, 323 (Minn. 1995).  The district court "is free to believe 'those statements that were the most fully articulated.'"  Id. at 324 (citation omitted).

            It is within the district court's discretion to find a prospective juror's statement that he would have trouble being impartial more credible than his statement that he "wouldn't have any problem with sitting through the case and given the evidence given to me make a final decision after hearing it all."  The court may remove a juror when the court has doubts the potential juror will be fair and impartial.  Minn. R. Crim. P. 26.02, subd. 5(1)1.  The district court was within its discretion in removing the prospective juror for cause.

2.         Babcock also argues the district court erred in admitting Spreigl evidence because it was actually introduced solely to show Babcock's "propensity" to assault police officers and because this was not the type of "weak case" that justifies admission of Spreigl evidence.  The district court admitted the evidence to show modus operandi and absence of mistake.  A reviewing court should not reverse the district court's admission of Spreigl evidence unless an abuse of discretion is clearly shown.  State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996).  Further, to prevail, an appellant must show error and the prejudice resulting from the error.  State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981). 

Minnesota Rule of Evidence 404(b) allows a district court to admit Spreigl evidence if it finds that (1) the evidence is clear and convincing that the defendant participated in the Spreigl incident, (2) the Spreigl evidence is relevant and material to the state's case, and (3) the probative value of the Spreigl evidence is not outweighed by its potential for unfair prejudice.  Pierson v. State, 637 N.W.2d 571, 580 (Minn. 2002).  The first prong of this test is not at issue in this case. 

Babcock argues the district court erred in finding the evidence relevant because "the court received the other crimes evidence not for any other purpose than propensity, namely the propensity of Mr. Babcock to assault police."  Spreigl evidence is proper where the previous offense and the charged crime are sufficiently similar to demonstrate a common scheme or plan, a pattern of behavior, or modus operandi.  See State v. Kennedy, 585 N.W.2d 385, 391 (Minn. 1998) (stating Spreigl evidence "can be used to show a link between the bad act and the charged offense in order to establish a modus operandi"); State v. Wermerskirchen, 497 N.W.2d 235, 242 (Minn. 1993) (stating "our cases do not preclude the use of other-crime evidence to establish common scheme or plan, i.e., to establish that the act occurred" and "the evidence conveyed to the mind, according to the ordinary logical instincts, a clear indication of . . . a design or pattern of behavior") (quotation omitted).

Further, in evaluating the relevance of the evidence, the district court should consider "the reasons and need for the evidence, and whether there is a sufficiently close relationship between the charged offense and the Spreigl offense in time, place, or modus operandi."  Pierson, 637 N.W.2d at 580. (quotations omitted).  Here the district court concluded:

As far as the relevance, the Court is satisfied that it comes in not to show the probability of Mr. Babcock committing this crime but for modus operandi and absence of mistake, both of which are recognized under 404(b).  It is reasonably close in time and the Court feels that balancing all of these factors entitles the state to put the evidence in.

 

Babcock's prior violent reaction to a routine traffic stop conveys to the mind, according to the ordinary logical instincts, a clear indication of Babcock's pattern of behavior to attack police officers when they confront him.  This evidence not only demonstrates his pattern of behavior, but it is also relevant because Babcock planned to claim mistake of fact as a defense. Furthermore, Babcock's prior assault of a uniformed police officer occurred approximately 6 months before his current offense.  The Spreigl evidence is reasonably close in time.  The supreme court has explicitly stated such use of prior bad acts is permissible.  See Wermerskirchen, 497 N.W.2d at 240-42. We conclude the district court was within its discretion in finding the Spreigl evidence relevant to Babcock's current offense.

Babcock also argues Spreigl evidence "should be excluded unless necessary to support a weakness on a particular issue." The strength or weakness of the state's case is a consideration used to determine whether the Spreigl evidence's probative value outweighs its likelihood for unfair prejudice.  Pierson, 637 N.W.2d at 580.  Contrary to Babcock's argument, when identity is not at issue, the district court must consider the overall strength of the state's case and not just the strength of the particular issue the Spreigl evidence is offered to address.  Kennedy, 585 N.W.2d at 392.  Furthermore, the closer the relationship between the charged offense and the Spreigl evidence the lesser the likelihood it will be unfairly prejudicial.  Wermerskirchen, 497 N.W.2d at 240.   

Here, the Spreigl evidence was admitted to show modus operandi and absence of mistake, not identity.  The district court found that the probative value of the Spreigl evidence outweighed its potential for unfair potential, concluding this was "a severely challenged case, the strength of which is questionable."  Babcock's incorrect reading of unambiguous supreme court decisions does not show that the district court clearly abused its discretion.  Furthermore, the Spreigl evidence had a very close relationship in time and manner to the current offense.  The district court did not abuse its discretion in finding the evidence was more probative than prejudicial.  We conclude the district court properly found (1) clear and convincing evidence Babcock participated in the Spreigl incident, (2) the Spreigl evidence is relevant and material to the state's case, and (3) the probative value of the Spreigl evidence is not outweighed by its potential for unfair prejudice.   

3.         Babcock argues the district court's refusal to give a requested jury instruction defining the phrase "unjustified physical assault" violated his right to a unanimous verdict.  According to Babcock, each juror may have had a "different notion of what is justified" and therefore the jurors could disagree as to what the police actually did but yet find that they did not do 'wrong' and then convict [him] by denying him the instructed defenses." 

            In all criminal cases a unanimous verdict is required.  Minn. R. Crim. P. 26.01, subd. 1(5).  In order for a verdict to be unanimous the jury must collectively agree the defendant committed the acts that constitute the elements of the crime.  State v. Stempf, 627 N.W.2d 352, 355 (Minn. App. 2001) (citing Richardson v. United States, 526 U.S. 813, 824, 119 S. Ct. 1707, 1713 (1999)).  But "there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict."  State v. Crowbreast, 629 N.W.2d  433, 439 (Minn. 2001) (quoting Schad v. Arizona, 501 U.S. 624, 632, 111 S. Ct. 2491, 2497 (1991).  Here, the jurors all had to agree that the police officers were not engaged in "unjustified physical assault" in order to deny Babcock's asserted defenses, but they did not have to agree on why the police officers' actions were not "unjustified physical assault."  And because the jury did not need to agree what actions would constitute "unjustified physical assault," the district court did not abuse its discretion in denying Babcock's request.  

Affirmed.