Opinion
No. C9-96-1632.
Filed July 29, 1997.
Appeal from the District Court, Hennepin County, File No. 93007675.
Hubert H. Humphrey III, Attorney General, (for Respondent)
Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, (for Respondent)
Michael C. Davis, Special Assistant State Public Defender, (for Appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Verne Jack Edward Champion appeals his conviction of second-degree murder while committing a felony, arguing that the district court erred in excluding expert testimony and in imposing an upward durational sentencing departure. We affirm.
FACTS
On October 25, 1992, Howard Liebhaber was found dead in his home, with his hands tied behind his back and a gag in his mouth. An autopsy showed that he died of asphyxiation caused by manual strangulation. On the night of his murder, Liebhaber had been seen talking to two men outside the Gay Nineties nightclub in Minneapolis. Champion fit the description of one of the men and was later questioned by police investigators. Champion admitted only that he knew Liebhaber and that he talked to him on the night he was murdered.
Approximately two months later, Sergeant Steven Berg of the Minneapolis Police Department again questioned Champion about the murder. Champion told Sergeant Berg that Liebhaber had invited him and his friend, Brett, into Liebhaber's home on the night of the murder and that he and Brett intended to rob Liebhaber, but when he resisted, Champion choked him to death.
A jury convicted Champion of second-degree murder while committing a felony, in violation of Minn. Stat. § 609.19, subd. 2(1), and the district court imposed a 300-month sentence, a double durational departure. This appeal followed.
DECISION 1. Expert Witness Testimony
Champion claims that he is entitled to a new trial because the district court excluded the expert testimony of Dr. Owen Nelson, a clinical psychologist, regarding Champion's "inordinate need for attention and affection" and his propensity to lie.
Admission of expert testimony is within the district court's discretion, and the court's ruling will not be overturned absent clear error. State v. Koskela , 536 N.W.2d 625, 629 (Minn. 1995). Minn.R.Evid. 702 provides that
[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
The ultimate issue regarding the admissibility of expert testimony is whether it will assist the jury in resolving the factual questions presented. Koskela , 536 N.W.2d at 629.
The basic requirement of Rule 702 is the helpfulness requirement. If the subject of the testimony is within the knowledge and experience of a lay jury and the testimony of the expert will not add precision or depth to the jury's ability to reach conclusions about that subject which is within their experience, then the testimony does not meet the helpfulness test.
State v. Helterbridle , 301 N.W.2d 545, 547 (Minn. 1980). Expert testimony may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion, or misleading the jury. Minn.R.Evid. 403.
The district court's exclusion of Dr. Nelson's testimony was well within its discretion. Dr. Nelson's proposed testimony related only to Champion's personality traits, as observed by Dr. Nelson during four interviews after Champion had confessed to murdering Liebhaber, at a time when Champion had a motive to make self-serving statements. Dr. Nelson's testimony simply would not have added "precision or depth" to the jury's ability to evaluate the evidence or have helped the jury reach factual conclusions, see Helterbridle , 301 N.W.2d at 547, and his proposed testimony that Champion has a propensity to lie would have invaded the province of the jury to make credibility determinations. See Koskela , 536 N.W.2d at 630 (stating concern in admitting expert testimony that credibility of witness is for jury, not another witness, to decide).
2. Sentencing Departure
Champion argues that the district court erred in imposing a double durational sentencing departure. We disagree.
The decision to depart from the guidelines is within the discretion of the district court, and we will not reverse the court's decision unless there has been a clear abuse of discretion. State v. Givens , 544 N.W.2d 774, 776 (Minn. 1996). A sentencing court may depart from the presumptive sentence only if the case involves "substantial and compelling circumstances." Minn. Sent. Guidelines II.D.; State v. Garcia , 302 N.W.2d 643, 647 (Minn. 1981). Substantial and compelling reasons are those that make the facts of the particular case significantly more or less serious than a typical case involving the same crime. State v. Back , 341 N.W.2d 273, 276 (Minn. 1983). "Aggravating factors, such as those found in the Guidelines' nonexclusive list, must be present to justify an upward departure." State v. Coley , 468 N.W.2d 552, 555 (Minn.App. 1991); see also Minn. Sent. Guidelines II.D.2.b. (listing aggravating factors).
In this case, the district court relied on two factors to justify its departure: particular cruelty and abuse of a position of trust. We conclude that Champion's sentence was within the scope of the district court's discretion.
a. Particular Cruelty
A sentencing departure is justified where the victim is treated with particular cruelty. Minn. Sent. Guidelines II.D.2.b.(2). The evidence shows that Champion bound and gagged Liebhaber at knife-point. When Liebhaber tried to free himself, Champion first stabbed him, then punched him in the face and knocked him to the floor. Champion then strangled Liebhaber to death in a two-minute struggle. The record supports a finding of particular cruelty.
b. Abuse of Position of Trust
Abuse of a position of trust is an aggravating factor justifying a sentencing departure. State v. Carpenter , 459 N.W.2d 121, 128 (Minn. 1990). Commission of a crime in a victim's home, when the perpetrator is there with the victim's permission, can be "an exploitation of trust." State v. Volk , 421 N.W.2d 360, 366 (Minn.App. 1988), review denied (Minn. May 18, 1988). Liebhaber invited Champion into his home. Champion exploited that trust. The district court did not abuse its discretion in relying on Champion's abuse of a position of trust as an aggravating factor in sentencing.
c. Lack of Remorse
Champion argues that the district court erred in relying on Champion's lack of remorse as a basis for the sentencing departure. Although the district court noted Champion's lack of remorse, it did not rely on it to justify the sentencing departure. It is not error for a sentencing court to mention lack of remorse because it may support a finding that a crime was committed with particular cruelty. See State v. McGee , 347 N.W.2d 802, 806 n. 1 (Minn. 1984) (stating that lack of remorse does not justify dispositional departure, but it may be evidence of defendant's cruelty); see also State v. VanZee , 547 N.W.2d 387, 392 (Minn.App. 1996) (concluding that defendant's lack of remorse bears on cruelty of defendant's conduct), review denied (Minn. July 10, 1996).