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06/11/85 STATE MINNESOTA v. PAUL M. STEPHANI

June 11, 1985

STATE OF MINNESOTA, RESPONDENT,
v.
PAUL M. STEPHANI, APPELLANT.



Appeal from District Court, Hennepin Court, Hon. Robert G. Schiefelbein, Judge, Affirmed.

Heard, considered and decided by Wozniak, Presiding Judge, Nierengarten, Judge, and Crippen, Judge.

The opinion of the court was delivered by: Crippen

1. Where evidence did not show the victim was the aggressor, the trial court properly excluded evidence about her specific prior acts of violent conduct.

2. Evidence in the case did not demand use of a requested instruction on self-defense.

3. Contentions about prosecutorial misconduct in closing argument, many of them unfounded, dealt with harmless conduct.

4. Appellant's right to a fair trial was not violated by comments of prosecution witnesses.

5. Appellant was not prejudiced by claimed discovery violations, and some of these allegations are unfounded.

6. The record does not show a harmful conflict of interest of defense attorneys such as to justify pretrial withdrawal of counsel.

7. The trial court did not otherwise commit prejudicial errors at trial.

8. A double durational departure and consecutive sentence was justified.

CRIPPEN, Judge

Paul Stephani appeals from his convictions of attempted second degree murder and assault in the second degree. He contends a host of errors either individually or cumulatively denied him a fair trial or improperly enlarged his sentence. We affirm.

FACTS

On the evening of August 20, 1982, Paul Stephani approached Denise Williams on Hennepin Avenue in Minneapolis, offering her $100 to "have some fun" with him. Denise Williams was a 19 year old woman who had been a prostitute since she was 13 years old. They left in Stephani's car to his St. Paul apartment. Stephani gave her $40, promising to pay her another $60 later. Williams engaged in a sex act with Stephani. She accepted a ride back from Stephani, thinking he would drop her off in downtown Minneapolis. Instead of driving the freeway, Stephani took an indirect route through back roads.

During the drive, Stephani talked of his sexual fantasies. Williams testified she was getting "the creeps." She asked where they were and Stephani told her "Hennepin Avenue." Stephani drove for another two blocks and turned quickly into a dead end parking lot near East Hennepin and Coolidge Avenue in Minneapolis. After stopping, Stephani told her "some ass, grass or gas" and "no one rides for free." Williams tried to get out of the car but he grabbed her left hand and stabbed her in the stomach with a Phillips screwdriver.

Stephani continued stabbing her and Williams fell back in the seat. She felt a pop bottle on the floor of the car, grabbed it and hit him on the head. She tried to hit him in the eye and cut Stephani's cheek, head and hand. Stephani continued to stab her. He screamed in a high-pitched voice that Williams was "just like the rest of some other broads." Williams was scratching, biting and kicking Stephani in an effort to foil his attack.

Stephani then opened the passenger door and they fell out on the pavement, Stephani was on top of her, stabbing, and Williams decided to stop fighting and play dead. She said "I'm dying, I'm dying" and laid there, but Stephani continued stabbing her. Williams screamed for help.

Williams' screams were heard by Douglas Panning, a young man who lived nearby. Panning ran over to the parking lot and saw blood on the pavement and on Stephani and Williams. Panning observed Stephani on top of Williams stabbing her with the screwdriver at least five or six times. Panning heard the screwdriver make a "thud" when it hit bone. He saw Williams had the neck of a broken bottle in her hand. Panning grabbed Stephani's left arm. Stephani jumped up, stared at Panning, and then came at him with the screwdriver, taking a couple of swings at him. Stephani chased Panning to the end of the parking lot and Panning ran home and called the police. Stephani then went to his car and drove off. Panning went back to assist Williams.

When the police came, Williams gave her name as "Mary Gross," She was afraid to give her real name since there was a warrant out for her arrest. Williams had failed to appear at the workhouse in Minneapolis as required by a condition of probationary supervision which was imposed after she was convicted for aggravated forgery. Williams did not want to tell police she had engaged in an act of prostitution because of her prior brushes with the law as a prostitute. She told the police she had been hitchhiking to a party in White Bear Lake and Stephani picked her up. Her story was that Stephani pulled over, made advances, and then he began stabbing her after she resisted.

Williams was taken to a hospital where it was observed she had about 15 puncture wounds. The injuries were in her lower right chest, upper right abdomen, and right side of her head; one wound punctured her lung, another punctured her liver. Since she had puncture-type wounds, there was a minimum amount of external bleeding.

Meanwhile, Stephani returned home and requested an ambulance. He told the emergency dispatcher he had "got beat up." Stephani was taken to a hospital for treatment of cuts to his head, hand and cheek, and for an injury to his nose.

A few days later, Williams gave police her true name but continued her false story about hitchhiking. Just before trial, about two years later, Williams told the prosecutor she had lied about hitchhiking, had actually gone to Stephani's apartment the night of the stabbing, and had engaged in an act of prostitution with him.

At trial, Williams testified about the events. She admitted she had lied about hitchhiking. She admitted she lied in the past and often gave false names when arrested. Her history of prostitution arrests and her involvement with petty theft incidents were also brought out on cross-examination.

Stephani was convicted of attempted murder in the second degree, Minn. Stat. §§ 609.19(1), 609.17 (1982), for attacking Williams, and of assault in the second degree, Minn. Stat. § 609.222 (1982), for attacking Panning. He was sentenced to an executed sentence of 203 months for attempted murder, double the presumptive sentence, and to a consecutive executed sentence of 21 months for the assault.

ISSUES

1. Did the trial court erroneously exclude evidence about specific acts of violent conduct on the part of the victim?

2. Was it error to refuse a requested instruction on self-defense?

3. Was appellant denied a fair trial because of prosecutorial misconduct in closing argument?

4. Was fairness of the trial damaged by comments of two state's witnesses?

5. Was appellant prejudiced by discovery violations?

6. Did the trial court err in refusing to allow appellant's trial counsel to withdraw due to an alleged conflict of interest?

7. Did the trial court commit other errors at trial?

8. Does the record support the trial court's double durational departure and consecutive sentence?

ANALYSIS

I.

Appellant challenges the trial court rulings which excluded evidence about specific prior acts of violent conduct on the part of Williams. *fn1

The trial court allowed appellant to prove the victim's prior inconsistent statements, her felony convictions, her history of lying, her history of prostitution arrests, and her involvement with petty theft.

A. Minn. R. Evid. 404(b) provides:

Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

When excluding the evidence, the trial court stated that there was no present factual basis for admitting it, that the evidence was not clear and convincing, and that it was more prejudicial than helpful. We agree.

There was no evidence that Williams attempted to rob appellant. The only purpose the evidence would serve would be to show that Williams acted in conformity with her prior behavior and this is explicitly prohibited under Rule 404(b). The evidence cannot be used when its sole relevance is to show the victim's probable actions at the time of the alleged crime. State v. Bland, 337 N.W.2d 378, 383 (Minn. 1983), citing 2 D. Louisell and C. Mueller, Federal Evidence, § 139 (1978). Appellant's attempts to construe his offered evidence as proof of the victim's intent is not convincing. Proof ...


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