1. The trial court did not prejudicially err in excluding character evidence.
2. The trial court's evidentiary rulings did not deprive appellant of his right to testify.
3. The trial court did not abuse its discretion in the admission of witnesses' statements as excited utterances.
4. The trial court did not abuse its discretion in declining to submit lesser-included offenses.
5. One judgment of conviction and one sentence for first-degree murder of one victim must be vacated.
6. The trial court did not abuse its discretion in imposing consecutive sentences for the convictions of assault and kidnapping.
7. The trial court did not abuse its discretion in departing from the presumptive sentences for kidnapping, except the presence of separate aggravating circumstances justifying a durational departure on each first-degree assault were not made a part of the record at the time of sentencing and for each first-degree assault the duration of the prison term is reduced to 120 months, the mandatory minimum term.
8. The issues raised in appellant's pro so supplemental brief lack merit.
Heard, considered, and decided by the court en banc.
The opinion of the court was delivered by: Anderson, Russell A., Justice
Lake County Anderson, Russell A., J.
Dissenting, Meyer and Hanson, JJ.
Concurring in Part, Dissenting in Part, Hanson and Meyer, JJ.
Appellant Jamie Glenn Richardson was convicted of one count of first-degree (premeditated) murder and one count of first-degree (felony) murder for the shooting death of Robert Van Der Molen and was sentenced to concurrent life terms. Richardson was also convicted of two counts of first-degree assault against police officers who responded to the shooting and two counts of kidnapping his wife and her daughter during a standoff with police and was sentenced to 672 consecutive months for these offenses.*fn1
In this direct appeal, Richardson argues that he was denied his right to present a defense at trial and his right to testify on his own behalf. He also claims that the trial court erred by admitting hearsay into evidence, by refusing to instruct the jury on lesser-included offenses to the first-degree assault charges, by imposing two concurrent life sentences for the murder convictions of one victim, and by imposing sentences for the other offenses that unfairly exaggerated the seriousness of those offenses. We vacate one first-degree murder conviction, affirm the other convictions, and reduce the duration of Richardson's prison terms on the two first-degree assault convictions to 120 months on each, the mandatory minimum terms.
On Monday, January 8, 2001, Heather Nichols, Richardson's estranged wife, left Richardson and sought help from the local domestic violence shelter, which arranged for transitional housing in a Two Harbors apartment. Nichols obtained a restraining order against Richardson because he had threatened her life and called Robert Van Der Molen, her former husband, who said that he would come to get her and her three children. Van Der Molen, who lived in Iowa, arrived in Two Harbors between 3:30 and 4:00 p.m. on Wednesday, January 10. Nichols left a message at the domestic violence shelter stating that she would be leaving the apartment the next day. Sometime between 8:30 and 11:00áp.m., Richardson purchased two cases of 30-30 shells from a Two Harbors gas station.
In the early morning hours of January 11, Nichols and Van Der Molen awoke to banging and pounding noises coming from either the exterior or downstairs interior door to Nichols' apartment.*fn2 When the banging did not stop, Nichols herded her two sons, ages five and seven, into a closet. She then heard noises she later realized were shots and joined the boys in the closet. From the closet, Nichols heard Richardson say "daddy's home" as he climbed the stairs to Nichols' apartment. The way he said "daddy's home" reminded her of the movie, The Shining. She heard another shot and a body hitting the floor. Then Nichols heard Richardson say, "Bob's dead, you'll never call him again, come out. Kids, where are you?" Richardson pushed open the closet door, banging Nichols on the nose. At that point, Nichols heard a gurgling noise from Van Der Molen, who was lying on the apartment floor. She and the boys watched as Richardson walked over to Van Der Molen, put the gun against his head, and "blew his head apart."
Meanwhile, a tenant and his girlfriend in the downstairs apartment awoke to a man shouting, banging at the door, climbing the steps to Nichols' apartment, cackling like "an insane person," and yelling "here's Johnny." They fled the apartment after hearing gunshots. Before he left the building, the tenant heard Nichols' screams of "don't kill me" and "I have to be here for the kids." Once outside, the tenant's girlfriend called the police. Two Harbors police officers responded to the call.
When the officers began to open the exterior door to the apartment, they heard Richardson say, "you f__kers, you f__kers, don't come up here, officers, you best not come up here" and heard a gunshot they thought was fired toward them.*fn3 The officers fled the entry area, called for back-ups, and started a shouting dialogue with Richardson. As a back-up officer arrived, Nichols' two sons came out of the apartment building.
Both boys, "very excited" and talking "very fast," told law enforcement personnel that their "dad was dead upstairs and that he had been shot twice" by Richardson. An emergency medical technician (EMT) also spoke with the boys. She tried to calm them down by stating "maybe he'll be okay," but the boys repeated that Richardson shot their dad twice and that there were "brains all over."
Soon after the boys came out of the apartment, another police officer arrived and positioned himself behind a truck. From his position, he observed Richardson looking directly at him and yelling, "you there behind the truck, get back or I'm going to start shooting." The officer heard a shot and estimated that the bullet passed within five feet of his head.
Nichols remained inside the apartment with Richardson and her 2-year-old daughter for approximately three hours after the boys left. During this time, Richardson punched her, held the rifle to her, and told her he planned to kill her. When Richardson asked Nichols to go downstairs to get his glasses, which were at the bottom of the stairs by the door, Nichols ran outside. She appeared "scared, frightened, and crying," according to law enforcement personnel.
At about this same time, around 5 a.m., an Emergency Response Team (ERT) hostage negotiator, and other ERT members, including a marksman, arrived. At about 6áa.m., Richardson yelled "I'm not coming out, I'm holding the child" which the negotiator assumed meant that Richardson was using Nichols' daughter as a shield. The marksman, who was in a storage shed with a view of the apartment, was given authorization to use deadly force but did not shoot because he believed Richardson was holding Nichols' daughter. When the marksman saw Richardson without the child, he fired a shot that wounded Richardson, who then surrendered.
Richardson was charged by grand jury indictment with first-degree premeditated murder, Minn. Stat. § 609.185(a)(1) (2002); first-degree felony murder, Minn. Stat. §á609.185(a)(3) (2002); two counts of attempted second-degree murder, Minn. Stat. §á609.19, subd. 1 (1) (2002); two counts of first-degree assault, Minn. Stat. § 609.221, subd. 2 (2002); two counts of kidnapping, Minn. Stat. § 609.25, subds. 1 and 2(2) (2002); and felon in possession of a firearm, Minn. Stat. § 624.713, subd. 1(b) (2002).
Before trial, the state brought a motion in limine, seeking to exclude evidence of the hostile and violent relationship of Van Der Molen and Nichols toward one another which Richardson argued was admissible under Minnesota Rules of Evidence 404(a)(2) and (b).*fn4 According to Richardson, evidence of the prior history of Van Der Molen and Nichols was admissible to show his state of mind in support of his claim that he was acting in defense of Nichols and the children and to establish Nichols' motive and intent for his assertion that she fired the second, fatal, shot to Van Der Molen's head.*fn5 The court did not rule on the admissibility of the evidence before trial nor did the court rule when asked again before the state's opening statement.*fn6
After the state rested its case and before Richardson's opening statement, the state requested that defense counsel not be permitted to refer to this character evidence because Richardson had not yet demonstrated its admissibility. Defense counsel responded, asking the court to rule on the admissibility of the character evidence in the context of Richardson's claim that he was relying upon a defense of others defense. Defense counsel made an offer of proof, indicating that Richardson would testify that he knew from Nichols that Van Der Molen had previously abused her and the children and had attempted to kill her; that Nichols told Richardson on January 10 that Van Der Molen had arrived in town with a gun; and that she was afraid he would hurt her and the children. According to defense counsel's verbal offer of proof, Nichols asked for Richardson's protection, brought a rifle to him, later went with him to buy ammunition for the gun, and helped plan his entry into the apartment to rescue her and the children. Richardson shot the locks off the door and entered, firing a shot when Van Der Molen threatened to throw Nichols' daughter over the banister.*fn7 Richardson indicated that counsel's recitation was "pretty accurate" and that he would add to it on the stand. The court ruled that, even if Richardson testified consistent with his offer of proof, the court would not instruct the jury on defense of others, and, thus, character evidence would not be admissible to support his defense of others claim. Defense counsel agreed not to use either Van Der Molen's or Nichols' character evidence in his opening statement.
The court and counsel addressed the admissibility of Van Der Molen's and Nichols' character evidence again before Richardson recalled Nichols to testify. Defense counsel argued that in order to show Richardson's state of mind at the time of the incident, he needed to ask Nichols about what she had told Richardson about Van Der Molen. At this point, the court made its definitive ruling on the admissibility of the character evidence. The court explained that he had not said that Richardson could not testify in accord with his offer of proof.*fn8 Nor had the court said that Richardson could not testify that Richardson met with Nichols twice that evening, that Nichols brought him a gun, that they went together to the store where Richardson bought ammunition, and that Richardson was at the apartment because Nichols told him she was afraid of Van Der Molen and wanted him to rescue her and the children. The court said that even if Richardson testified in accord with his offer of proof, he would not be entitled to a jury instruction on defense of others, but that did not preclude him from testifying as to his version of events. As for the theory that Nichols fired the second shot, the court repeated that it would not preclude Richardson from telling his version of the facts but that Richardson could not "get into what he may or may not have heard from [Nichols] concerning the basis for it."
Richardson did not testify.*fn9 In closing argument, the state characterized Van Der Molen as "the one steady reliable presence" in Nichols' life.
Richardson pled guilty to the firearm charge, and the jury acquitted him of the attempted murder charges. The jury found Richardson guilty of the remaining charges. The court entered judgments of conviction and sentenced Richardson to two concurrent terms of life imprisonment for the murder offenses and a concurrent 60 months for the crime of possession of a firearm by a felon. The court sentenced him to consecutive terms for the assault and kidnapping offenses and departed upward from the sentencing guidelines to double the sentences for these offenses for a total of 672 consecutive months. The court indicated that several factors supported the upward departure: the invasion of a zone of privacy, the fact that children were present and terrorized, the duration of the incident, and the fact that Richardson did not give himself up until he was shot. The court did not identify the factors supporting an upward double durational departure for each sentence.
We first address Richardson's argument that the trial court violated Richardson's due process right to present a defense by not allowing him to introduce character evidence tending to prove that he was acting in defense of others, that he did not act with premeditation and that Nichols fired the second shot to Van Der Molen's head.
Due process requires that every defendant be "'afforded a meaningful opportunity to present a complete defense.'" State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)); accord U.S. Const. amend. XIV, § 1; Minn. Const. art I, § 7. This means that the defendant has the right to present the defendant's version of the facts through the testimony of witnesses. Richards, 495 N.W.2d at 194 (citing Washington v. Texas, 388 U.S. 14, 19 (1967)). The right to present a defense is not without limitations, however—in exercising this right, both the accused and the state must comply with procedural and evidentiary rules designed to ensure "both fairness and reliability in the ascertainment of guilt and innocence." Id. at 195 (citing Chambers v. Mississippi, 410 U.S. 284, 302 (1973)).
Where a defendant complains that the exclusion of evidence was error, an offer of proof provides the evidentiary basis for a trial court's decision. Santiago v. State, 644 N.W.2d 425, 442 (Minn. 2002). We will not reverse such rulings absent a clear abuse of discretion. State v. Nunn, 561 N.W.2d 902, 906-07 (Minn. 1997). Under this standard, "[r]eversal is warranted only when the error substantially influences the jury's decision." Id. at 907. In other words, we will reverse when there is a reasonable possibility that, had the erroneously excluded evidence been admitted, the verdict might have been more favorable to the defendant. State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).
If a trial court's evidentiary ruling is determined to be erroneous, and the error reaches the level of a constitutional error, such as denying the defendant the right to present a defense, our standard of review is whether the exclusion of evidence was "'harmless beyond a reasonable doubt.'" Id. at 102 (citing Delaware v. Van Arsdall, 475 U.S. 673, 683-84 (1986), for harmless error impact analysis); accord State v. Juarez, 572 N.W.2d 286, 291 (Minn. 1997) (citing Chapman v. California, 386 U.S. 18, 24 (1967)). The error cannot be said to be harmless beyond a reasonable doubt, and is therefore reversible, where "there is a reasonable possibility that the [error] complained of may have contributed to the conviction." Chapman, 386 U.S. at 24.
Richardson's argument that he was denied the right to present a defense is three-fold. He first argues that the trial court erred in excluding character evidence because this information was admissible and relevant to his defense of others defense—he came to the apartment to rescue Nichols and the children because they were in danger and fired the first shot, striking Van Der Molen in the head. Second, Richardson contends the excluded character evidence was relevant to the issue of premeditation. Additionally, Richardson contends that the trial court's ruling was error because it excluded character evidence that tended to establish Nichols' motive and intent to fire the second shot to Van Der Molen's head.
To excuse or justify homicide under Minn. Stat. §§ 609.06 and 609.065 (2002), the "killing must have been done in the belief that it was necessary to avert death or grievous bodily harm"; the "judgment of the defendant as to the gravity of the peril to which he was exposed must have been reasonable under the circumstances"; 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. Boyce, 284 Minn. 242, 254, 170 N.W.2d 104, 112 (1969); see 2 Wayne R. LaFave, Substantive Criminal Law § 10.5 (b) (2d ed. 2003) (even when defendant's beliefs as to the gravity of the peril and necessity of force are reasonable, "he may not use more force than he reasonably believes necessary to relieve the risk of harm."). "[J]ustification for homicide in defense of another parallels defense of self." State v. Granroth, 294 Minn. 491, 492, 200 N.W.2d 397, 399 n.2 (1972). Ordinarily, the one who is the aggressor, provoking the difficulty in which he finds it necessary to use deadly force, has no right to claim self-defense. Bellcourt v. State, 390 N.W.2d 269, 272 (Minn. 1986).
Here, the trial court considered Richardson's offer of proof and concluded that evidence of Van Der Molen's character was not admissible in support of any claim that Richardson was defending Nichols and her children. According to Richardson's offer of proof, he and Nichols purchased ammunition the evening of January 10; he arrived at Nichols' apartment in the early morning hours of January 11 with a loaded rifle; and pursuant to their plan, he shot the locks off the door. After Van Der Molen allegedly kicked Richardson down the stairs, causing Richardson to lose his glasses, Richardson started up the stairway; and as Van Der Molen was holding the two-year-old, Richardson fired at Van Der Molen, believing he had hit Van Der Molen in the chest. Not only was Richardson the aggressor, but ...