No Error in Excluding Evidence of Past Bad Acts of Victim in Support of Self Defense Claim

State v. Zumberge, Minn.S.Ct., 1/4/2017.  Mr. Zumberge shot and killed his neighbor, Todd Stevens, and shot and wounded Mr. Steven's girlfriend, Jennifer Clevon.  Stevens and Clevon regularly fed deer who came into their yard, a practice that Mr. Zumberge didn't approve.  On the day of the shooting Mr. Zumberge's wife, Paula got into a yelling match with Clevon, who was in her yard across the street.  Stevens came over to Clevon.  Mr. Zumberge grabbed a shotgun, climbed out a basement window and from the back corner of his house shot Stevens and Clevon.  Mr. Zumberge claimed self defense; he claimed to have lip-read Stevens threaten to kill Paula, and he claimed that he saw Stevens reach for his belt. Stevens had a phone holder attached to his belt but was not otherwise armed.  A jury rejected the self defense claim and convicted Mr. Zumberge of the homicide and attempted homicide.

Mr. Zumberge complained on appeal that the trial court had denied him the right to present a complete defense by excluding testimony of a laundry list of past bad acts of either Stevens or Cleven, offered to prove that he had a reasonable fear of great bodily harm from Stevens.  Such evidence is admissible only if Mr. Zumberge proved that he knew of the specific acts at the time of the shooting, and the acts "could legitimately affect a defendant's apprehensions." State v. Matthews, 221 N.W.2d 563 (Minn. 1974).  Evidence of such acts must also be relevant and more probative and prejudicial.

Justice Lillehaug concludes that the excluded evidence was inadmissible for one of three reasons:  it was irrelevant, Mr. Zumberge was unaware of it at the time of the shooting, or it was inadmissible hearsay.  In large part, the Justice said that Mr. Zumberge simply was unaware of the various specific acts at the time of the shooting.  In addition, Mr. Zumberge, himself, testified about a lot of the events so anything else was cumulative.

Mr. Zumberge also complained that the trial court should have given an instruction on murder in the third degree.  Every lesser degree of murder is an included offense, so the real battle is whether a defendant is entitled to any of those lesser included offense instructions based on the evidence presented at trial:

A lesser-included-offense instruction must be given when (1) the lesser offense is included in the charged offense, (2) the evidence provides a rational basis for acquitting the defendant of the offense charged, and (3) the evidence provides a rational basis for convicting the defendant of the lesser-included offense. State v. Dahlin, 695 N.W.2d 588, 598 (Minn. 2005)

Third degree murder is "perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life ..." and so forth.  This offense only covers acts “committed without special regard to their effect on any particular person or persons; the act must be committed without a special design upon the particular person or persons with whose murder the accused is charged.” State v. Wahlberg, 296 N.W.2d 408, 417 (Minn. 1980). Third-degree murder “cannot occur where the defendant’s actions were focused on a specific person.” State v. Barnes, 713 N.W.2d 325, 331 (Minn. 2006).  

Well, Mr. Zumberge snuck out a basement window, peeked around the corner of his house and took aim at Mr. Stevens.  Justice Lillehaug thought that looked like Mr. Zumberge was "focused on a specific person."