Date: 01-04-2017

Case Style:

Case Number: A15-2013

Judge: David L. Lillehaug

Court: STATE OF MINNESOTA IN SUPREME COURT

Plaintiff's Attorney:

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant Ramsey County Attorney

Defendant's Attorney:

Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant State Public Defender

Description: A Ramsey County jury found appellant Neal Zumberge guilty of first-degree
murder, first-degree attempted murder, second-degree murder, and second-degree
attempted murder, for fatally shooting Todd Stevens and wounding Jennifer Cleven on
May 5, 2014. The district court sentenced Zumberge to consecutive terms of life
imprisonment without the possibility of release for the first-degree murder of Stevens and
180 months for the attempted first-degree murder of Cleven.
On direct appeal, Zumberge contends that the district court erred when it excluded
evidence relevant to his reasonable fear of Stevens on the night of the shooting, denied his
request for a third-degree murder instruction, and denied his motion to dismiss the charge
of first-degree murder. For the reasons that follow, we affirm his convictions.
Neal Zumberge and Todd Stevens were neighbors. Stevens and his longtime
girlfriend, Jennifer Cleven, enjoyed feeding deer in their yard and did so for more than a
decade. Zumberge, who lived across the street, did not like having deer in the
neighborhood.
Over a period of about two years, Zumberge’s relationship with Stevens and Cleven
deteriorated. In 2012, Zumberge circulated a letter to neighbors expressing frustration
about the deer. Later that year, Stevens and Cleven found mutilated animals in their yard
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and suspected that Zumberge was responsible. Cleven testified that when she confronted
Zumberge about the dead animals, he threatened to kill her. In response, Cleven obtained
a harassment restraining order against Zumberge. Tensions continued to rise. Cleven
repeatedly accused Zumberge of blowing an air horn to scare the deer feeding in her yard.
While talking with a neighbor about the deer, Zumberge said “it would all be over soon.”
On April 29, 2014, Cleven called police and claimed that Zumberge’s son, Jacob,
had threatened to kill her. Police told Cleven to call them if she saw Jacob so that they
could arrest him. Zumberge testified that, following this incident, and out of fear that
hostilities would escalate further, he retrieved a 12-gauge shotgun from his basement and
taught his wife, Paula, how to use it. He then loaded the gun with four shells, each
containing eight pellets of buckshot, removed the trigger lock, and placed the gun under
the living room couch.
About a week later, Cleven saw Jacob at a bar and called the police. Jacob was
arrested. Jacob’s brother, who was also at the bar, called Paula to tell her about Jacob’s
arrest. When Cleven returned home that night, Paula went outside to confront her. Paula
stood at the end of her driveway and yelled across the street at Cleven, who stood near her
own front door. Zumberge watched the confrontation through the living room window.
At some point during the cross-street yelling, Stevens came out of the house and
stood next to Cleven. Upon seeing Stevens leave his house, Zumberge retrieved his
shotgun, went to the basement, climbed through an egress window, and peered around the
corner of the house toward Stevens and Cleven. Zumberge was located about 145 feet
from Stevens. After about one minute, using lip-reading skills allegedly honed when
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growing up with a deaf brother, Zumberge testified that he thought he saw Stevens say,
“I’m gonna kill that f***ing b****.” Zumberge testified that he saw Stevens reach for his
belt, where Zumberge said Stevens previously kept a gun. Zumberge brought his shotgun
up, “it went off,” and “everything . . . was just a blur.” Zumberge fired four shots in quick
succession, hitting Stevens three times, and hitting Cleven once as she ran back into her
house. Stevens died soon after. Cleven recovered from her injuries after hospitalization.
Zumberge testified that he intended to “stop” Stevens and did not intend to hurt
Cleven. Stevens had a phone holder attached to his belt and was not armed when Zumberge
shot him.
The State initially charged Zumberge by complaint with second-degree intentional
murder, Minn. Stat. § 609.19, subd. 1(1) (2016), and attempted second-degree intentional
murder, Minn. Stat. § 609.17 (2016). Later, the State obtained an indictment on those
charges as well as for first-degree premeditated murder, Minn. Stat. § 609.185(a)(1) (2016),
and attempted first-degree premeditated murder, Minn. Stat. § 609.17. The district court
denied Zumberge’s motion to dismiss the first-degree murder charge. The district court
also issued three pretrial orders in which it ruled, among other things, that 16 pieces of
evidence proffered by Zumberge were inadmissible.
The case went to trial. After resting his case, Zumberge asked that the jury be
instructed on third-degree murder. The court initially granted the motion, but reconsidered
the request the next day, after conducting further research, and denied the motion. A jury
convicted Zumberge on all counts.
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On direct appeal, Zumberge argues that the district court erred when it excluded
evidence relevant to whether he had a reasonable fear of great bodily harm on the night of
the shooting, which is an element of self-defense. He also argues that the district court
erred when it denied his request for a third-degree murder instruction and his motion to
dismiss the charge of first-degree murder.
Because we conclude that the district court did not abuse its discretion in excluding
evidence and in denying a third-degree murder instruction, and did not err in denying the
motion to dismiss, we affirm Zumberge’s convictions.
I.
Zumberge contends that the district court erred in excluding evidence relevant to an
element of his self-defense claim, specifically whether he was in reasonable fear of great
bodily harm on the night of the shooting. Zumberge does not explain why the exclusion
of any individual piece of evidence was erroneous. Instead, he contends that the district
court’s orders excluding the proffered evidence generally impeded his constitutional right
to present a defense.
We review a district court’s evidentiary rulings for abuse of discretion, even when,
as here, the defendant claims that the exclusion of evidence deprived him of his
constitutional right to a meaningful opportunity to present a complete defense. State v.
Penkaty, 708 N.W.2d 185, 201 (Minn. 2006). Even if an objection was made and a district
court abused its discretion, we reverse only if the exclusion of evidence was not harmless
beyond a reasonable doubt. State v. Richardson, 670 N.W.2d 267, 277 (Minn. 2003). An
error is not harmless beyond a reasonable doubt when “there is a reasonable possibility that
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the [error] complained of may have contributed to the conviction.” Id. (alteration in
original) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
The defense of self or another has four elements: (1) the absence of aggression or
provocation by the defendant, (2) the defendant’s actual and honest belief that he or another
was in imminent danger of death or great bodily harm, (3) the existence of reasonable
grounds for the belief, and (4) the absence of a reasonable possibility of retreat to avoid
danger. State v. Basting, 572 N.W.2d 281, 285 (Minn. 1997); see Minn. Stat. § 609.06,
subd. 1(3) (2016). Once a defendant offers evidence supporting each element of the
defense, the prosecution bears the burden of disproving at least one of the elements beyond
a reasonable doubt. Basting, 572 N.W.2d at 286.
All of the evidence at issue on this appeal involves specific acts by Stevens or
Cleven. When self-defense is asserted, evidence of a specific act is admissible only to
show that a defendant reasonably feared great bodily harm, provided that the defendant
proves that he knew of the specific act at the time of the alleged offense. State v. Bland,
337 N.W.2d 378, 382 (Minn. 1983). Evidence of specific acts of violence is admissible
“where commonsense indicates that these acts could legitimately affect a defendant’s
apprehensions.” State v. Matthews, 221 N.W.2d 563, 564 (Minn. 1974). Like all evidence,
specific-acts evidence offered to show that a defendant reasonably feared great bodily harm
must also be relevant and more probative than prejudicial. Penkaty, 708 N.W.2d at 203.
We have carefully reviewed each piece of evidence at issue, and conclude that
nearly all of the contested evidence merited exclusion for at least one of three reasons: it
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was irrelevant, Zumberge was not aware of it at the time of the shooting, or it was
inadmissible hearsay.
Evidence is only relevant to self-defense if it bears on whether Zumberge reasonably
feared great bodily harm from Stevens at the time of the shooting. So evidence about
people other than Zumberge and Stevens was not relevant. Zumberge contests the
exclusion of evidence that Stevens asked a police officer to remove Cleven from their home
after Stevens observed her “acting in a disorderly conduct way,” and that Cleven had
admitted to a recent DWI and car accident. Zumberge also contests the exclusion of
evidence that police responded to a domestic dispute between Cleven and her brother in
2011. These pieces of evidence are irrelevant; they concern Cleven (not Stevens) and do
not bear on whether Zumberge reasonably feared great bodily harm. Likewise, evidence
that, two weeks after the shooting, Cleven asked police to bar Stevens’s father from visiting
is irrelevant because it could not have caused Zumberge to fear Stevens at the time of the
shooting.
Behavior by Stevens that would not arouse fear in Zumberge is also irrelevant.
Zumberge proffered evidence that Stevens habitually urinated on Zumberge’s yard,
routinely locked Cleven out of their home, and sometimes plowed snow onto Zumberge’s
property. None of these acts could plausibly have informed Zumberge’s fear of great
bodily harm at the time of the shooting.
Specific-acts evidence is admissible on self-defense only if the defendant knew of
the act at the time of the offense. Zumberge failed to make any such threshold showing for
much of the evidence at issue, including the following:
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• Around 2005, police were called to Stevens’s home. While police were there,
Stevens wanted to reach into his phone carrying case to make a phone call, but
police insisted that he not put his hands near the case.
• In 2008, Cleven called police to her home after Stevens threatened her while
intoxicated. When police arrived, Stevens threatened to shoot them, and the
officers eventually arrested him after shooting him with a stun gun.
• In 2009, Cleven reported that Stevens hit her, but Cleven later retracted the
report because she did not want Stevens to go to jail.
• In 2011, Stevens and his father assaulted one another. Stevens’s niece told
police that Stevens was intoxicated and might fight with police. Stevens told the
officers “to have the tazer [sic] ready cause he was ‘not sittin,’ ” and Stevens
was removed from the house in handcuffs. Stevens was later seen yelling into
his cell phone that he was going to kill a member of his family.
• In 2012, police were called to Stevens’s home when Stevens and Cleven were
arguing. After police arrived, Stevens and Cleven resolved their disagreement.
• In 2013, Cleven reported that Zumberge was scaring deer from her property with
an air horn. Police concluded that this action, even if it actually happened, would
not violate Cleven’s harassment restraining order. In response to law
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enforcement’s decision not to intervene, Stevens told an officer, “If I have to
handle this myself, I will.”1
Zumberge proffered one additional piece of evidence that would have been
inadmissible hearsay. Zumberge contests the exclusion of evidence of a 2013 incident in
which Cleven reported that Zumberge violated her harassment restraining order by entering
Stevens’s yard. Police looked at a video captured by Stevens’s surveillance camera, but it
did not show Zumberge entering Stevens’s yard. Later, police took a report that Stevens
confronted Zumberge and his family in Zumberge’s driveway and threatened to kill them.
This evidence is hearsay within hearsay: the police officer would have testified that a
declarant (Zumberge) said that another declarant (Stevens) made a threatening statement.
Minn. R. Evid. 801(c) (explaining that hearsay is “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.”).
Many of the 16 pieces of excluded evidence were also cumulative of evidence
admitted at trial. Minnesota Rule of Evidence 403 allows a district court to exclude
relevant evidence when its probative value is substantially outweighed by, among other
things, needless presentation of cumulative evidence. When a jury hears a wealth of
evidence on a topic, the exclusion of other evidence on that same topic is unlikely to be
prejudicial. Bland, 337 N.W.2d at 384; see also State v. Buchanan, 431 N.W.2d 542, 551

1 This piece of evidence is inadmissible both because Zumberge did not prove that he was aware of it at the time of the shooting, and it would have been hearsay if offered through an officer’s testimony.
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(Minn. 1988) (stating that evidence that “merely duplicated other evidence already
presented” was cumulative). The cumulative evidence can be sorted into three categories:
(1) threats Stevens made to Zumberge and other people, (2) specific acts illustrating
Stevens’s character, and (3) testimony about Stevens’s habit of carrying a gun in his cell
phone case.
First, Stevens’s threats toward others were discussed at length at trial. Witnesses
testified to several threats by Stevens directed at Zumberge and his family, and recounted
Stevens making gun gestures with his hand toward Zumberge’s property. The jury also
heard testimony that Stevens made menacing remarks to Zumberge while holding a gun,
and that Zumberge generally felt threatened by Stevens. For example, the most probative
piece of excluded evidence would have been a police officer’s testimony about a 2013
incident in which Stevens threatened to kill Zumberge and his family. But Zumberge
testified about this exact incident without objection. The excluded evidence would have
added little or nothing on this topic. See State v. Abbott, 356 N.W.2d 677, 680 (Minn.
1984) (stating that when a prosecutor does not impeach the defendant’s testimony on a
topic, similar evidence is cumulative because the jury likely credited the defendant’s
testimony).
Likewise, the district court excluded proffered testimony from Zumberge that, after
he learned of a confrontation between his son Jacob and Stevens at a VFW club, he parked
a block from his home and entered his home through a window out of fear for his safety.
At trial, there were numerous references to the VFW incident. Cleven testified about it.
Paula Zumberge testified that a police officer came to the Zumberge home that night,
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looking for Jacob. Zumberge testified that he retrieved his shotgun “because of the incident
at the VFW” and that he loaded shells into his shotgun one week “after the VFW incident.”
The jury did not reject Zumberge’s claim of defense of self or another without having the
opportunity to consider Zumberge’s state of mind in the aftermath of the VFW incident.2
Second, the jury heard extensive testimony casting Stevens’s character in a negative
light. Neighbors testified that Stevens frequently drank beer in his yard. Zumberge’s son
described observing Stevens passed out in his front yard “more than ten times.”3 A police
officer testified that many officers had been to Stevens’s house in the past. And
Zumberge’s wife described Stevens and Cleven as “neighbors that, you know, are
continually fighting all the time and the police coming over to their house all the time, you
know.” The excluded evidence would have covered the same ground.
Third, several witnesses testified to seeing Stevens carry a gun on his belt.
Additional evidence on this point would have been cumulative.
Moreover, if any of the proffered evidence was erroneously excluded, its exclusion
was harmless beyond a reasonable doubt, not just because the evidence was cumulative,
but because the State’s case was strong. We may consider the strength of each party’s

2 To the extent proffered testimony about Zumberge’s decision to park down the block and enter his home through the window would have provided some additional detail, the district court’s exclusion of the evidence was harmless error. As discussed below, the evidence to convict was very strong. See State v. Dillon, 532 N.W.2d 558, 558 (Minn. 1995).

3 The district court excluded proffered testimony from Paula Zumberge that Stevens had a reputation for chemical abuse. Such evidence would have been cumulative.
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evidence when determining whether admitting excluded evidence would have led to a
different result. State v. Turner, 359 N.W.2d 22, 24 (Minn. 1984).
The State had a very strong case that, on May 5, 2014, Zumberge did not act in self
defense, but with premeditation and intent to kill. Zumberge and Stevens had feuded for
years. A few months before the shooting, Zumberge told a neighbor, “it would all be over
soon.” A week before the shooting, Zumberge retrieved and loaded his shotgun with
buckshot. Zumberge shot Stevens after climbing out of his basement window and peering
around the edge of his home. At the time of the shooting, Stevens was standing near his
own house, unarmed and with his arms crossed. Zumberge’s testimony that he lip-read a
threat from 145 feet away was questionable. Zumberge shot repeatedly. The jury
concluded that, given these and other facts, Zumberge did not act in self-defense. There is
no reasonable possibility that admitting the excluded evidence at issue would have altered
that conclusion.
II.
Zumberge also argues that the district court incorrectly denied his request for a third
degree murder instruction. He asserts, in particular, that he fired the gun to scare off
Stevens and Cleven, but that he did not intend to hit either of them. Based on our review
of Zumberge’s testimony, we conclude that he was not entitled to a third-degree murder
instruction.
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
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convicting the defendant of the lesser-included offense. State v. Dahlin, 695 N.W.2d 588,
598 (Minn. 2005). We review the denial of a requested lesser-included-offense instruction
for an abuse of discretion. Id. In doing so, we view the evidence in the light most favorable
to the party requesting the instruction. Id. The trial court “may not weigh the evidence or
make credibility determinations”; doing so is an abuse of discretion. Id. But even if the
trial court abused its discretion, reversal is warranted only if the defendant can show
prejudice. Id. at 598-99. “A defendant is prejudiced when the jury may have convicted
the defendant of only the lesser offense had the lesser-included-offense instruction been
given.” Troxel v. State, 875 N.W.2d 302, 310 (Minn. 2016).
In Minnesota, every lesser degree of murder is an included offense. State v.
Leinweber, 228 N.W.2d 120, 125 (Minn. 1975); see also Minn. Stat. § 609.04 (2016).
Minnesota’s third-degree murder statute states: “Whoever, without intent to effect the
death of any person, causes the death of another by perpetrating an act eminently dangerous
to others and evincing a depraved mind, without regard for human life, is guilty of murder
in the third degree . . . .” Minn. Stat. § 609.195(a) (2016). We have made clear that the
statute covers only 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).
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In this case, even a favorable review of the relevant facts provides no rational basis
for a third-degree murder instruction. Even assuming Zumberge did not intend to harm
Stevens, his testimony confirms that the shooting was committed with “special regard to
[its] effect on [a] particular person.” Wahlberg, 296 N.W.2d at 417. Zumberge’s argument
that the shots were merely “toward” Stevens and Cleven—rather than at them—cannot
overcome the fact that Zumberge twice testified that he fired the gun to “stop” Stevens.
This targeted purpose shows “a special design upon the particular person,” precluding a
third-degree murder instruction. Id.
III.
Finally, Zumberge argues that the district court erred by denying his pretrial motion
to dismiss Count I of the indictment: the first-degree murder charge. He contends that the
first-degree murder charge was supported by inadmissible evidence and that certain
exculpatory evidence was not presented to the grand jury. We affirm the district court’s
decision not to dismiss Count I.
“[A] presumption of regularity attaches to a grand jury indictment, and it is a rare
case where an indictment is invalidated.” Penkaty, 708 N.W.2d at 196. A “criminal
defendant bears a heavy burden when seeking to overturn an indictment,” especially when
“the challenge is brought after [the defendant] has been found guilty beyond a reasonable
doubt following a fair trial.” State v. Scruggs, 421 N.W.2d 707, 717 (Minn. 1988). But
“an indictment should be dismissed if the state knowingly engaged in misconduct that
substantially influenced the grand jury’s decision to indict and if [the court has] grave
doubts that the decision to indict was free of any influence of misconduct.” We analyze the effect of alleged misconduct or deficiencies on the grand jury proceeding “after looking at all of the evidence that the grand jury received.”
State v. Lynch, 590 N.W.2d 75, 79 (Minn. 1999). We consider whether the grand jury was
presented with evidence sufficient to indict despite the alleged misconduct. State v. Smith,
876 N.W.2d 310, 324 (Minn. 2016).

Outcome: