Under Minn. R. Evid. 403, the danger of unfair prejudice refers to persuasion by illegitimate means. Accordingly, a recorded implied admission of guilt, though devastating to the defendant's case, is admissible at trial because it persuades by its legitimate probative force.
The opinion of the court was delivered by: Anderson, G. Barry, Justice.
Heard, considered and decided by the court en banc.
Appellant Morgan Michael Schulz was convicted of first-degree felony murder, second-degree intentional murder, and second-degree felony murder, under Minn. Stat. § 609.185(a)(3), Minn. Stat. § 609.19, subd. 1(1), and Minn Stat. § 609.19, subd. 2(1) (2000), respectively. He was acquitted of first-degree premeditated murder and sentenced to life-imprisonment for first-degree felony murder. No sentences were imposed for the second-degree murder convictions. Schulz now appeals from the judgment of conviction, arguing that the admission of evidence concerning his nickname "Kill" was unfairly prejudicial under Minn. R. Evid. 403. We affirm.
On Thursday, August 2, 2001, Schulz, his girlfriend, Megan Striemer, and Erica Boerner drove from Fairmont to Waseca to meet Tyler Janovsky and Janovsky's girlfriend Jamie Siem. These five individuals drove to Ricky Buker's apartment building. Although accounts of the witnesses varied, two individuals testified that Schulz wanted to purchase marijuana from Buker. Striemer testified that she heard Janovsky mention to Schulz that Buker might have a stack of money sitting on a table in his apartment (Buker had won a total of $200, paid in $1 bills, at bingo on the nights of July 25 and August 1). Janovsky noticed the stack of cash at Buker's apartment during a social visit on July 29.
Schulz entered Buker's apartment building alone. After approximately a half hour, wondering why Schulz was taking so long to return, Boerner and Striemer went into the apartment building and knocked on Buker's door. Buker answered, but according to Boerner's testimony, told them that Schulz was not there. After waiting a while longer in the car, Boerner, Striemer, Janovsky and Siem began driving around Waseca looking for Schulz. They found Schulz about a half hour later. Boerner testified that Schulz's hand was bleeding when he got back in the car.
Over the course of the next few hours, Schulz disclosed possession of a film canister containing a quantity of marijuana similar to a film canister previously used by Buker for this purpose, a pink metallic marijuana pipe resembling Buker's pipe, and a "bunch" of one dollar bills. Siem and Janovsky stayed with Schulz that evening, watching movies and drinking. Siem testified that as the evening progressed, Schulz began making admissions. Shulz told Siem and Janovsky that, after arriving at Buker's apartment, he had smoked marijuana at the kitchen table with Buker. Schulz then stated he went into the bathroom and retrieved a tie from a bathrobe. He then went back to Buker and wrapped the bathrobe tie around Buker's neck, demanding to know where the money was. When Buker said he had none, Schulz choked him until Buker fell to the ground. Schulz claimed that Buker attempted to get up, but Schulz punched him. Janovsky also testified that Schulz told him that he had tied Buker up with a piece from a bathrobe, punched him, and knocked him out.
On August 3, a regular marijuana customer went to Buker's apartment seeking to purchase marijuana. After several previous attempts, the customer knocked on the apartment door, opened the unlocked door, entered, and found Buker lying dead on the floor. When police arrived on the scene, they found Buker with a bathrobe tie wrapped twice around his neck and tied with a half-hitch knot. There was blood on the tie. A forensic pathologist from the Ramsey County Medical Examiner's office determined the cause of death to be asphyxia due to ligature strangulation. The forensic pathologist testified that a fair amount of force was used to strangle Buker, and that the attacker probably strangled him for at least thirty seconds and possibly up to a couple of minutes. The examiner also observed signs of blunt trauma consistent with injury sustained from a human fist.
Before his arrest, Schulz made further incriminating admissions to a number of persons, describing his robbery of and assault on Buker. Two of these persons reported these admissions to police. Several of these persons testified at Schulz's trial, but no witness testified that Schulz seriously admitted to killing Buker.
On about August 6, Schulz telephoned a friend incarcerated at the Martin County jail and left a voicemail message. On the recording, Schulz said, "Man, it's Kill. Remember that robbery that I was talkin' about? You know, where shit just gets crazy. Yeah, Kill lived up to his name. Ha!" Schulz also has a tattoo of the word "Kill" on his stomach. Schulz was arrested on August 9, 2001.
Prior to trial, the state sought the permission of the district court to introduce the message Schulz left on the Martin County Jail voicemail system. In order to provide context and explain the voicemail message, the state also sought to introduce a photograph of a tattoo on appellant's stomach of the word "Kill." The defense objected, arguing that the evidence was extremely prejudicial, ...