County District Court File No. 62-CR-15-4919
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
Considered and decided by Jesson, Presiding Judge; Bratvold,
Judge; and Smith, John, Judge.
error for a district court to use an unmodified CRIMJIG 7.06,
the justifiable-taking-of-life jury instruction, when the
defendant asserts self-defense and claims the resulting death
John, Judge. [*]
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.
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
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
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.
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.
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 ...