State v. Galvan

368 N.W.2d 400, 1985 Minn. App. LEXIS 4236
CourtCourt of Appeals of Minnesota
DecidedJune 4, 1985
DocketNo. C7-84-1445
StatusPublished
Cited by1 cases

This text of 368 N.W.2d 400 (State v. Galvan) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Galvan, 368 N.W.2d 400, 1985 Minn. App. LEXIS 4236 (Mich. Ct. App. 1985).

Opinion

OPINION

POPOVICH, Chief Judge.

Appellant was convicted of second degree murder and two counts of second degree assault. Appellant claims numerous trial court errors. We affirm.

FACTS

On the evening of October 29, 1983, Gordon Strong, Kevin Strong, Ronald Andradde and Maria Garcia celebrated Andradde’s birthday. The group went to a bar in St. Paul and had a couple drinks. An hour later, they took a cab to the Horseshoe Bar where they danced and continued drinking. Appellant Jeffery Galvan was also at the bar with Eufracio Flores, John Ortiz and Russell Galvan.

Appellant was bothering some women at the bar. Gordon and Kevin Strong told appellant to leave the women alone. Appellant then left the bar with Flores, Ortiz and Russell Galvan. The Strongs, Andradde and Garcia left the bar and walked towards a nearby restaurant. Appellant’s group shouted at Strong’s group who turned their backs and kept walking.

Appellant’s group then confronted Strong’s group. Andradde and Garcia saw appellant draw a handgun and point it at them. A shot was fired. Andradde ducked, jumped up and grabbed appellant. [402]*402Kevin Strong did the same. Andradde was pulled away from appellant by Flores. After the first shot was fired, Garcia ran for help. During the scuffle, a rose-tinted lens from Ortiz’s glasses fell out. While Kevin Strong wrestled with appellant, a second shot was fired from appellant’s gun, leaving a powder burn on Kevin Strong’s wrist. Garcia turned and saw Gordon Strong laying on the ground and appellant waving a gun.

Garcia summoned Police Officer Brown who was parked near the rear of the bar. When Brown arrived at the scene, appellant’s group was gone. Gordon Strong was taken to a hospital where he died of a gunshot wound to the heart. Ortiz’s eyeglass lens, a spent .22 caliber casing, a live .22 caliber cartridge, and a metal pistol cylinder rod were found near the body. No gun was found at the scene.

Officer Brown took descriptions of the suspects and broadcast them on the police radio. Another officer heard the descriptions and picked up Flores who was walking near the scene. The officer returned Flores to the scene and Garcia said he was the man who had fired the shots. Another officer saw and stopped Ortiz. Kevin Strong identified Ortiz as being the one who shot Gordon Strong. After the shooting, Garcia and Andradde identified appellant in a photo lineup as the man who shot Gordon Strong.

A few days later, Kevin Strong, Andradde, Garcia and appellant’s attorney attended a lineup at which appellant was present. All identified appellant as the one who shot Gordon Strong. Appellant was the only person in the lineup who had been at the Horseshoe Bar on the night of the shooting. Appellant’s attorney did not object to the manner in which the lineup was conducted. In a subsequent search of appellant’s home, several .22, .25, .32 and .38 caliber bullets were found.

Appellant was charged with one count of murder in the second degree and two counts of assault in the second degree. Prior to trial, appellant’s counsel and the prosecutor had the opportunity to interview witnesses. Defense counsel moved for an in camera review or disclosure of the prosecutor’s notes taken during the witness interviews. The motion was denied.

At trial, St. Paul Police Criminalist Officer James Gag testified about ballistics reports he made using a pistol similar to the one described by all witnesses. The purpose of his testimony was to show what distance from Strong the gun was fired. A photograph of the pistol which Gag used was also introduced. A jury found appellant guilty of second degree murder and two counts of second degree assault, and he appealed.

ISSUES

1. Were the trial court’s reasonable doubt instructions improper?

2. Was defense counsel entitled to an in camera examination or discovery of the prosecutor’s notes from witness interviews?

3. Did the trial court erroneously permit evidence concerning the probable murder weapon and bullets found in appellant’s home?

4. Did the trial court err by not submitting the lesser included offense of manslaughter to the jury?

5. Did the trial court err by excluding cross-examination about witnesses’ prior misdemeanor convictions?

6. Were identification procedures overly suggestive?

ANALYSIS

1. Appellant claims the trial court’s instruction on reasonable doubt was erroneous because it omitted language requiring “moral certainty.” Appellant’s claim is contrary to the well-established case law in this state. See State v. Boykin, 312 Minn. 593, 594, 252 N.W.2d 604, 605-06 (1977); see also State v. Udstuen, 345 N.W.2d 766, 768 (Minn.1984); State v. Schmieg, 322 N.W.2d 759, 760 (Minn.1982); State v. Olkon, 299 N.W.2d 89, 105 (Minn.1980), cert. denied, 449 U.S. 1132, 101 S.Ct. [403]*403954, 67 L.Ed.2d 119 (1981). The trial court did not err by excluding language concerning “moral certainty” from Crimjig 3.03.

2. Appellant claims the trial court committed reversible error by denying defense counsel’s request to see the prosecutor’s written notes concerning interviews with witnesses. The trial court denied the motion holding the notes were nondiscoverable attorney work product. The prosecutor’s notes were not signed or written by the witnesses. The trial court properly excluded these notes as work product. Minn.R.Crim.P. 9.01, subd. 3; see Goldberg v. United States, 425 U.S. 94, 106, 96 S.Ct. 1338, 1346, 47 L.Ed.2d 603 (1976). Our decision in State v. Hopperstad, 367 N.W.2d 546 (Minn.Ct.App.1985) is inapplicable here because Hopperstad involved different types of information.

3. Appellant claims the trial court erred by admitting expert testimony about gun tests, a picture of a gun that was believed to be similar to the murder weapon, and bullets found in appellant’s home. Appellant claims the gun test and picture of the gun were irrelevant. The record indicates the gun tests used identical ammunition and the same brand and caliber handgun as that of the murder weapon. Thus, appellant’s objections go to the weight and not the admissibility of the evidence. The trial court had the discretion to allow this form of expert testimony. See State v. Helterbridle, 301 N.W.2d 545, 547 (Minn.1980).

4. Appellant also claims the trial court erred by admitting into evidence various bullets found in appellant’s home, including a .22 caliber Remington and Peters bullet. He claims the .22 caliber bullet was unduly prejudicial because the same type bullets were found at the scene of the shooting. The trial court properly admitted the .22 caliber bullet as evidence tending to connect appellant with the crime. State v. Gayles, 327 N.W.2d 1, 2 (Minn.1982).

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Related

State v. Galvan
374 N.W.2d 269 (Supreme Court of Minnesota, 1985)

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Bluebook (online)
368 N.W.2d 400, 1985 Minn. App. LEXIS 4236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-galvan-minnctapp-1985.