Cited by

Fratzke, d at 407; see Fairbanks, d at 303 (concluding no actual prejudice whe n most of the 119 articles defendant submitted with his motion were published 11 months or more before trial); State v. Swain , (concluding that six months between the one week of pretrial publicity and trial mitigated prejudice); (concluding that a three-month gap between pretrial publicity and trial mitigated prejudice); (Minn.

But “death from a series of blows cannot, alone, support a finding of 15 premeditation[.]”

Id.; (ruling that a “mere finding that the defendant was angry, without some evidence of the victim’s acts or words, is insufficient to support a finding of ‘heat of passion’ manslaughter”).

And the sup reme court has stated, in the context of relationship evidence, that although “evidence of prior relations between a defendant and 22 victim may be admissible, probative value diminishes with remoteness from the act.” (citation omitted).

See State v. Swain , (“[W] ritten instructions are to be encouraged as an aid to juries unversed in the law and that fairness may be better insured by giving written instructions.”).

Warren, d at 448 ; Fratzke, d at 407 ; State v. Hogan, 297 Minn. 430, 437

(holding that evidence that defendant had threatened the victim 10 months before the murder, that the murderer had attacked from behind, and that there were repeated blows to the victim’s head, was insufficient as a matter of law to show premeditation).

Indeed, although Fort concedes that Potts was stabbed 44 times in a particularly brutal manner, -14 (Minn.1978), for the proposition that a series of blows alone, without other evidence of premeditation, does not prove *344 premeditation.

In support of his argument

In State v. Swain, for example, we concluded that “death from a series of blows cannot, alone, support a finding of premeditation in a first degree murder prosecution.” (emphasis added).

Specifically relevant to this case, we have held that the number of blows inflicted on the victim standing alone is not sufficient to support a finding of premeditation, but that numerous blows can indicate premeditation when supported by other evidence.

State v. Schweppe, 306 Minn. 395, 402

The general rule is that “no adverse inference may be drawn from a party’s failure to produce evidence equally available to both sides.”

See, e.g., Fratzke, d at 407 (7-month interval); (6-month interval); State v. Hogan, 297 Minn. 430, 437 , (3-month interval).

See id.; (stating that “[a] mere finding that the defendant was angry, without some evidence of a victim’s acts or words, is insufficient to support a finding of ‘heat of passion’ manslaughter.”).

“A mere finding that the defendant was angry, without some evidence of the victim’s acts or words, is insufficient to support a finding of ‘heat of passion’ manslaughter.”

to support his contention.

*398 Evidence bearing on the appropriateness of the inference of premeditation can include, among other things: evidence as to the number of times the defendant used the weapon or the number of wounds inflicted, evidence of the nature of the wounds, Moore, d at 361 ; evidence relating to the time sequence, e.g., evidence of a period of time between shots, evidence as to motive, and evidence of the defend

(admitting evidence not abuse of discretion because it bore on intent).

(prohibiting defense comment on state’s failure to call witness available to both sides).

Thus, there was little or no evidence indicating that any external circumstances could have provoked a person of ordinary self-control to kill in the “heat of passion.” (holding that a “mere finding that the defendant was angry, without some evidence of the victim’s acts or words, is insufficient to support a finding of ‘heat of passion’ manslaughter”).

While the manner of killing may support an inference of premeditation, “death from a series of blows cannot, alone, support a finding of premeditation in a first degree murder prosecution.”