State v. Richardson

HANSON, Justice

(concurring in part, dissenting in part).

Although I join in the dissent of Justice Meyer, I write separately because I conclude that it was also prejudicial error for the district court to exclude alternate-perpetrator evidence without conducting an evidentiary hearing to determine the sufficiency of that evidence. At a minimum, this case should be remanded to the district court to conduct such an evidentia-ry hearing.

A. Alternate-Perpetrator Evidence.

The majority opinion does not adequately distinguish between the two types of alternate-perpetrator evidence offered by Richardson: (1) his proposed testimony as an eyewitness that Nichols took the rifle from him and fired the second shot; and (2) character evidence that both Nichols and Van Der Molen committed other bad acts, offered to show Nichols’ motive and intent to fire the second shot. The former evidence is not properly considered “reverse-Spreigl ” evidence and its admissibility requires only that it meet the ordinary standard for relevance and foundation. State v. Bock, 229 Minn. 449, 458, 39 N.W.2d 887, 892 (Minn.1949); State v. Hawkins, 260 N.W.2d 150, 158 (Minn. 1977); State v. Flores, 595 N.W.2d 860, 868 (Minn.1999). The latter evidence is properly considered “reverse-Spreigl evidence” and is admissible only if it meets the heightened “clear-and-convincing evidence” standard. State v. Williams, 593 N.W.2d 227, 233 (Minn.1999); State v. Johnson, 568 N.W.2d 426, 433 (Minn.1997). Richardson’s proffered testimony as an eyewitness to the shooting would be based on first-hand knowledge and clearly satisfies any foundation requirements. It is relevant because of the dispute in the medical evidence about whether the second shot was fatal. Richardson’s proffered reverse-Spreigl evidence was relevant to show Nichol’s motive and intent.

1. Connecting a Third Party to the Offense.

The majority acknowledges that Nichols was present at the scene of the crime at the time the second shot was fired, but implies that some evidence beyond Richardson’s proffered eyewitness testimony *290would be necessary to connect Nichols to the shooting. I disagree. First, we have held that the acknowledgement of the third person that she was present at the scene of the crime provides adequate foundation. See, e.g., Hawkins, 260 N.W.2d at 160; Flores, 595 N.W.2d at 868 (“We have held that sufficient evidence is offered when the third party was a key witness for the state and was by his own testimony connected to the scene of the crime.”). Thus, Nichols’ testimony alone would supply the needed foundation. Second, Richardson’s proffered testimony not only places Nichols at the scene, it describes her direct participation in the offense.11

2. Reverse-Spreigl Evidence.

Based on Richardson’s proffered evidence connecting Nichols to the scene, Richardson satisfied the foundational requirements for the admission of reverse-Spreigl evidence. The revers e-Spreigl evidence was relevant to Richardson’s claim that Nichols fired the second shot because it showed that an abusive relationship had existed between Nichols and Van Der Molen and that Nichols had previously assaulted him, attempted to poison him, made death threats to him and solicited someone to kill him.

Because the district court focused exclusively on issues relating to the defense of others and not the revers e-Spreigl issue, the court did not determine whether Richardson’s proffered evidence could meet the clear-and-convincing standard required for revers e-Spreigl evidence. Some of Richardson’s evidence was based on court records that presumably would be regarded as clear and convincing. Other evidence involved statements by Van Der Molen or Nichols to third persons who, Richardson represented, were prepared to testify. The appropriate process for the district court to employ to evaluate the offer of proof of this revers e-Spreigl evidence would be to conduct an evidentiary hearing, out of the presence of the jury, to determine whether the proffered evidence was “clear and convincing.” State v. De-Wald, 464 N.W.2d 500, 505 (Minn.1991) (stating “the trial court should consider, in a close case, requiring an evidentiary hearing to determine the admissibility of Spreigl evidence rather than relying on the offer of proof procedure”). See also, 8 Henry McCarr & Jack Nordby, Minnesota Practice — Criminal Law and Procedure § 32.20(C), n. 21 (3d ed.2001) (suggesting “[m]uch can be said for a rule that would require testimony upon the request of the defendant. Without it, it is difficult in many cases to see how the elear-and-con-vineing determination can be made.”).

Richardson’s offer of proof described several items of evidence which, on their face, appear adequate to prove Van Der Molen’s or Nichol’s participation in each of the alleged incidents. There does not appear to be any reasonable basis to determine that the evidence is not clear and convincing without an evidentiary hearing.

3. The State’s Character Evidence.

Although the state’s motion in limine to preclude the revers e-Spreigl evidence concerning Van Der Molen and Nichols was *291made prior to trial, the district court did not rule on it until the state had already elicited positive character evidence regarding Van Der Molen and Nichols through the testimony of Nichols. Thus, in addition to the normal revers e-Spreigl analysis, the district court was obliged to consider whether the state had opened the door to Richardson’s proffered character evidence regarding Van Der Molen and Nichols by eliciting testimony that painted a positive, and perhaps false, picture of the relationship between Van Der Molen and Nichols. Defense counsel alerted the district court to this additional ground for the admission of the revers e-Spreigl evidence, stating:

We also want to point out the credibility question, judge, because she has testified that Mr. Van Der Molen is her protector. And we believe that that also opens up the box that we should be able to go behind. Because every bit of information that my client has about Mr. Van Der Molen comes from her. And now she’s claiming, and she claimed that he’s been her protector, and I’m boxed out of being able to use any information about her prior involvement with Mr. Van Der Molen and I can’t even do it on a credibility issue.

In addition to the positive character evidence recited in the dissent of Justice Meyer, I would note that Nichols also testified that she had stayed in close contact with Van Der Molen after their divorce, that he had always provided support for their children, and they had a joyful reunion when Van Der Molen arrived at the Two Harbors’ apartment. Richardson was precluded from presenting evidence of a different, hostile relationship between Van Der Molen and Nichols. He was even precluded from asking Nichols, on cross-examination, why she had left Van Der Molen if he was such a wonderful protector.

For all of these reasons, I would conclude that the district court erred in excluding the revers e-Spreigl evidence described in Richardson’s offer of proof ■without conducting an evidentiary hearing to determine if it was clear and convincing.

B. Harmless-Error Analysis.

It is difficult to apply a harmless-error analysis to alternate-perpetrator evidence without the benefit of a determination by the district court of what evidence meets the clear-and-convincing standard. Thus, I would refer the harmless-error question to the district court as part of a remand.

If the bulk of the revers e-Spreigl evidence is determined to be admissible as being clear and convincing, then the error in excluding it would be prejudicial, even under the lesser harmless-error standard applicable to evidentiary rulings that do not amount to constitutional violations. That standard requires reversal if there is a reasonable possibility that the verdict would have been more favorable to the defendant had the erroneously excluded evidence been admitted. State v. Blasus, 445 N.W.2d 535, 540 (Minn.1989); State v. Post, 512 N.W.2d 99, 102 (Minn.1994). I would conclude that there is a reasonable possibility that the verdict would have been more favorable to Richardson on the two murder charges if the bulk of the revers e-Spreigl evidence had been admitted.12

*292Accordingly, if Richardson’s murder convictions are not reversed on the grounds set forth in the dissent of Justice Meyer, I would remand for an evidentiary hearing on Richardson’s revers e-Spreigl evidence to determine, first, which items of evidence should have been admitted because they satisfied the clear-and-convincing standard and, second, whether the exclusion of the admissible evidence was prejudicial error, necessitating a new trial.

. It is true that the district court did not preclude Richardson from testifying as an eyewitness that Nichols fired the second shot. But, I agree with Richardson that the exclusion of the revers&-Spreigl evidence had the practical effect of preventing his testimony as an eyewitness. His claimed observations would carry no weight if he could not provide background information to support the motive and intent of Nichols to fire the second shot. Thus, I would conclude that any error of the district court in excluding the reverse-Spreigl testimony had the prejudicial effect of preventing Richardson’s testimony as an eyewitness to the event.

. I recognize the partial validity of the majority’s rejoinder that Richardson's proffered evidence was “neither crucial nor exculpatory” because it would have provided evidence to convict him of first-degree murder as an accomplice to the acts of Nichols. But this hypothetical requires far greater speculation *292than is appropriate for a harmless error analysis.