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Sunday, August 7, 2011

Calling Mr. Oswald With The Swastika Tattoo: MN Court Finds No Error With Testimony About Defendant's Swastika Tattoo In Assault Appeal

A defendant with a Swastika tattoo gets into a physical altercation with a Caucasian man after an earlier incident between the defendant and the Caucasian' man's African-American fiancé. The defendant is charged with crimes connected to the physical altercation, and the fiancé testified at trial regarding the prior incident that the defendant

had asked me to give him a hug, and I replied no, because he didn't like me anyway, you know, for the fact that being he had a—a swastika emblem on his arm, you know, that I had seen way before then. So we had already had that conversation about that, so I told him, Why should I hug you? You don't even like me. You know, why would we even go there?

Was this testimony, which referenced the defendant's Swastika tattoo, properly admitted, or was its probative value substantially outweighed by the danger of unfair prejudice? That was the question addressed by the Court of Appeals of Minnesota in its recent opinion in State v. Swinger, 2011 WL 3241791 (Minn.App. 2011).

In Swinger,

Appellant Christopher Wayne Swinger was with two friends in his father's room at a motel when R.K., who lived with her fiancé, R.S., in a neighboring room, stopped by to visit. Appellant's father was not in the room, and appellant asked R.K. to leave. R.K. initially refused to leave the room, but she complied after appellant spat in her face and pushed her toward the hallway. R.K. told appellant that she was going to find his father and tell him what happened.

Meanwhile,

R.S. was in the room he shared with R.K. watching television with the door and window open when he heard a lot of commotion. R.S. thought he heard R.K. say something about someone pushing, so he decided to go out and investigate. When R.S. walked out of the room, he saw a group of five or six people standing around outside a room two doors down and arguing. R.S. approached the group to learn what was going on and learned from R.K. that appellant had spit in her face and pushed her. R.S. told appellant that he was a "disrespectful damn punk." R.K. told R.S. to go back to their room and that she would take care of it. As R.S. was turning around, appellant said, "You call me a punk?" Appellant then reached over the group of people and, with a closed fist, struck R.S. on the head. During this altercation, R.S.'s glasses fell off, and he received several cuts and scratches on his face, causing him to bleed.

Thereafter, Swinger was charged with misdemeanor disorderly conduct and third-degree and fifth-degree assault in connection with the physical altercation with R.S. R.K. is African-American, and R.S. is Caucasian. As noted in the introduction, R.K. testified that part of what led Swinger to kick her out of the room was her refusal to hug him based upon his Swastika tattoo.

After he was convicted, Swinger appealed, claiming, inter alia, that the testimony violated Minnesota Rule of Evidence 403, which provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

According to Swinger,

the fact that R.K. "observed a swastika tattoo on [appellant's] arm, and assumed that [appellant] did not like her because of her race, did not make it any more likely that [appellant] assaulted [R.S.], a white man."

Moreover, he claimed that

"[e]ven if the swastika emblem did have some relevance, it had a tendency to persuade primarily by virtue of its inflammatory nature." 

The Court of Appeals of Minnesota disagreed, first concluding that the testimony had some probative value because

"[e]vidence that helps to establish the relationship between the victim and the defendant or which places the event in context bolsters its probative value."...And the supreme court has recognized that all evidence surrounding an assault, both before and after, is relevant to determine intent.

Furthermore, the court found that the probative value of the testimony was not substantially outweighed by the danger of unfair prejudice because

the testimony about the swastika tattoo was not used here to persuade by illegitimate means. Rather, the evidence was used to explain the start of the confrontation and to provide the proper context for the incident for which appellant was charged.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/08/609-mn-state-v-swinger-nw2d-2011-wl-3241791minnapp2011.html

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