State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-2052

State of Minnesota,
Respondent,

vs.

Gerald Duane Skolte,
Appellant.

Filed January 11, 2021
Affirmed
Bjorkman, Judge

Otter Tail County District Court
File No. 56-CR-15-2672

Keith Ellison, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Michelle Eldien, Otter Tail County Attorney, Fergus Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Larkin, Judge; and Bjorkman,
Judge.
NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellant challenges his conviction of attempted murder, asserting that (1) the
district court abused its discretion by declining to instruct the jury on self-defense, (2) the

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prosecutor committed misconduct during closing argument by arguing appellant did not
act in self -defense, (3) erroneous admission of testimony regarding hi s previous
incarceration and prior status as a felon require a new trial, and (4) the district court abused
its discretion by admitting s urveillance recordings and a rev olver appellant disclosed
during an unlawful police interrogation. We affirm.
FACTS
On September 4, 2015, appellant Gerald Skolte shot M.M. in the back with a black-
powder revolver. The two men had known each other for some time. M.M. and his wife
H.H. had intermittently lived in a trailer on Skolte’s land since the spring of 2014. Skolte
had not asked them to sign a formal lease agreement until August 2015, when he persuaded
H.H. to do so. But M.M. was not present at the time , and later refused to sign the lease,
sparking a feud with Skolte.
The brewing conflict escalated when M.M. reported to local police that Skolte had
“a firearm that he was prohibited from having as he was a felon” a nd was growing
marijuana on his property. The responding officer found the black-powder revolver but,
under then-existing law , Skolte was allowed to possess the revolver because it was not
considered a firearm. The officer confiscated ten marijuana plants.
Skolte was upset about law enforcement’s visit to his property , and focused his ire
upon M.M. He called H.H.’s sister, telling her that he believed M.M. had turned him in
and stating that “he was going to kill them both.” In late August, another trial witness
overheard Skolte tell M.M. during an argument that he was “going to kill [M.M.].”

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In the early morning on September 4, M.M. awoke to find Skolte had placed an
eviction notice on M.M.’s trailer. M.M. immediately went to Skolte’s trailer, got his
attention, and the two conversed through the open trailer door. M.M. said he would not
leave unless he received an eviction notice from a sheriff. M.M. then turned to walk away.
Skolte approached the open door and told M.M. to “leave right now.” Skolte then stepped
out of the trailer with his revolver in hand. M.M. responded, “‘Gerald . . . Seriously?
You’re going to pull a gun on me now, dude?’ ” M.M. then “ flicked him off ” and said
“f-you.” When he turned around to leave, Skolte shot him in the right side of his back.
Video recordings from multiple surveillance cameras located on Skolte’s property
are consistent with M.M.’s account of the shooting. They show M.M. stopping an
unidentified distance away from the trailer with hi s right side facing the door. A black
revolver appears through the open door pointed in M.M.’s direction. M.M. flinches and
briefly covers his head, then gestures to the door with his right arm. While M.M.’s arm is
outstretched, the gun fire s and he collapses to the ground. Skolte then approaches M.M.
and points the revolver at him once again. M.M. rises to his feet and, with an armed Skolte
in close pursuit, walks off the property to an adjacent road.1 According to M.M., Skolte’s
final words were, “You know, [M.M.], I have a good notion to put you in your grave.”
H.H., awakened by the gunshot, saw Skolte following M.M. with the revolver and
called the police. She later accompanied M.M. to the hospital. While M.M. was being

1 Later surveillance footage shows Skolte carry ing a white container from his trailer to an
outbuilding. Police located the container during the warranted search of the property. The
container held loads of black powder.

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treated, and before Skolte was interrogated by the police, H.H. informed the police that
Skolte had a “security camera system” at the property.
Skolte later surrendered to the responding officers and was taken into custody.
During his interrogation, he confirmed that he had a surveillance system and told the police
where he hid the revolver. Based in large part on Skolte’s custodial statements, the police
obtained a warrant to search his property. During the search, the police recovered the
surveillance recordings and the revolver.
Prior to trial, the district court suppressed Skolte ’s statements to the police at the
interrogation because they were obtained in violation of his right to counsel. But the district
court did not prohibit the state from offering the revolve r and the surveillance recordings
at trial. The state also offered a letter Skolte wrote to his father from jail into evidence at
trial, in which he stated, “If I hadn’t shot him I probabl y would have beat him to death or
crippled him for life,” “my anger changed to hate and finally to rage,” and “[t]he stuff
[M.M.] did when he moved back in July just pushed my buttons and triggered me off.”
At trial, defense counsel told the jury in his opening statement that the ultimate issue
in the case was whether Skolte was “defending himself.” Defense counsel cross-examined
several of the state’s witnesses regarding M.M.’s relationship with Skolte and M.M.’s
actions on the day he was shot, apparently in an attempt to show Skolte feared bodily harm
when M.M. approached his trailer. At the close of the state’s case, defense counsel
requested a jury instruction on self-defense. The district court indicated that the evidence
did not support such an instruction, but noted that its ruling could change if a dditional

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evidence were presented. But the defense rested without calling any witnesses or providing
additional evidence.
During her closing argument, the prosecutor told the jury they “may hear about self-
defense” from defense counsel and that they “heard a little bit” about it during Skolte’s
opening statement. The prosecutor stated , “[W]e’re not talking about self -defense here.
This isn’t that case.” She argued that Skolte was “not threatened in any way” on the day
he shot M.M. and that M.M.’s hands were clearly empty at the time he confronted Skolte
from outside the trailer about the eviction. Defense counsel only objected to the
prosecutor’s assertion that Skolte “had a legal obligation to go in his house and call law
enforcement” if he felt threatened. The district court sustained the objection and instructed
the jury to “disregard the last statement regarding legal obligation.”
The jury found Skolte guilty. He moved for a new trial based on the prosecutor’s
statements regarding self -defense at closing , which the district court denied . Skolte
appeals.
DECISION
I. The district court did not abuse its discretion by declining to give a self-defense
instruction.

The decision to instruct the jury on self-defense is within the province of the district
court and will not be reversed absent an abuse of discretion. State v. Johnson, 719 N.W.2d
619, 629 (Minn. 2006). A district court abuses its discretion by declining to give a self -
defense instruction when the evidence supports one. Id. The defendant seeking an
instruction has the burden to produce prima facie evidence showing (1) the “absence of

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aggression or provocation” by the defendant, (2) that defendant had an “actual and honest
belief” he “was in imminent danger of death or great bodily harm ,” (3) “the existence of
reasonable grounds for that belief ,” and (4) “the absence of a reasonable possibility of
retreat.” Id.
Skolte argues that he made the requisite showing because the surveillance
recordings, when viewed in the light most favorable toward him, provided sufficient
support for the instruction. We disagree. Our careful review of the entire record shows
Skolte d id not make a prima facie showing that he was not the aggressor or that he
reasonably believed he was in imminent danger when he shot M.M.
The confrontation began with Skolte’s posting of an eviction notice on M.M.’s door.
M.M. testified that he went to tell Skolte he was not leaving, and that he did not make any
rude gestures or swear until after Skolte stepped out of the trailer and pointed the revolver
at him. The surveillance recordings are consistent with M.M.’s testimony. They show
M.M. stood some distance away from Skolte’s trailer and did not move his hands until
Skolte’s revolver was pointed in his direction ; up until that point t he interaction between
the two men could be characterized as “mere conversation.” State v. Carridine , 812
N.W.2d 130 , 145 (Minn. 2012) (stating that conduct “a good deal greater than mere
conversation” is required to establish provocation (quotation omitted)). Skolte’s prior
statements about harming M.M. and his conduct after shooting M.M. also belie Skolte’s
contention that he was not the aggressor—he marched the wounded M.M. off his property
at gunpoint.

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M.M.’s testimony and the surveillance recordings also defeat Skolte’s argument that
he reasonably believed M.M. would harm him. Skolte raised and pointed his revolver at
M.M. before M.M. made any of the movements Skolte points to as evidence that he feared
bodily harm. The surveillance recordings show M.M. flinching only after Skolte pulled
out the revolver; M.M.’s right hand is clearly visible and empty. And M.M. did not move
his hands down toward his waist—as Skolte contends—he moved his hands up to protect
his head. Because Skolte did not present prima facie evidence that he was not the aggressor
or that he reasonably believed M.M. would inflict bodily harm, we discern n o abuse of
discretion by the district court in declining to give a self-defense instruction.
II. The prosecutor did not commit prejudicial misconduct during c losing
argument.

The district court denied Sk olte’s motion for a new trial due t o the prosecutor’s
references to self-defense and a duty to retreat during closing argument . We will not
reverse a district court’s decision regarding alleged prosecutorial misconduct unless “the
misconduct, considered in the context of the trial as a whole, was so serious and prejudicial
that the defendant’s constitutional right to a fair trial was impaired.” State v. Johnson, 616
N.W.2d 720, 727-28 (Minn. 2000). We are not persuaded that the prosecutor’s challenged
statements rise to this level.
Assuming without deciding that the prosecutor ’s statements were improper, the
record demonstrates such error was harmless. The main issue at trial was Skolte’s intent—
whether the shooting was premeditated. In context, the prosecutor’s statements sought to
preempt any defense argument that Skolte acted on impulse because he feared M.M. would

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harm him . The evidence supporting the jury’s finding that Skolte acted with
premeditation—his prior confrontations with M.M., his prior statements to others that he
planned to harm M.M., the letter to his father describing his hatred for M.M., and the
surveillance recordings—overwhelmed any error in discussing self -defense at closing.
Moreover, the challenged comment s were brief. Skolte also argues the prosecutor’s
statements regarding any legal obligation to retreat necessarily confused the jury on the
legal standards to apply to the case. But the district court immediately instructed the jury
to disregard that statement, which we presume the jury followed. See State v. Griffin, 887
N.W.2d 257, 262 (Minn. 2016) (stating appellate courts “presume that the jury followed”
a district court’s instruction). Accordingly, any prosecutorial error did not prejudice
Skolte’s right to a fair trial.
III. Skolte is not entitled to a new trial based on brief testimony regarding his prior
incarceration and status as a felon.

Skolte next challenges M.M.’s testimony that a prior event occurred “the last time
[Skolte] went to prison” and a deputy’s two references to Skolte’s status as a felon. Skolte
objected only to M.M.’s testimony. References to “prior crimes or prior imprisonment
should generally not be admitted,” but any error in doing so does not warrant a new trial
unless the defendant “demonstrate[s] that he was prejudiced by the error .” State v. Hall,
764 N.W.2d 837, 842-43 (Minn. 2009). Unobjected-to error in admitting evidence of prior
crimes or imprisonment may be considered and may provide a basis for relief on appeal if
the error was plain and affected the defendant’s substantial rights. State v. Griller , 583
N.W.2d 736, 740 (Minn. 1998). Under either standard of review, we need not decide

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whether there was error if Skolte cannot demonstrate prejudice. See State v. Sontoya, 788
N.W.2d 868, 873 (Minn. 2010) (stating that if a defendant cannot prove an alleged error
affected their substantial rights, a court applying the plain-error analysis “need not consider
the other factors” (quotation omitted)); Hall, 764 N.W.2d at 843 (stating that “even if it
was error” for the district court not to suppress disputed testimony, “a new trial is not
warranted” under the harmless-error analysis unless the defendant establishes prejudice).
Skolte argues that M.M.’s reference to his prior imprisonment is inadmissible per se
and its presence alone is proof of prejudice. This argument is unavailing. As noted above,
Skolte is not entitled to a new trial unless he can show he was prejudiced by the statement.
See Hall, 764 N.W.2d at 843. Skolte does not a ttempt to make this showing . Given the
strength of the state’s evidence—including t he surveillance recordings, prior a nimosity
between the two men, and Skolte’s prior statements to H.H.’s sister and another person
regarding his intent to harm M.M. —we are not persuaded that one passing reference to
prior imprisonment tipped the scales against him.
Skolte next asserts that the deputy’s references to him being a felon affected his
substantial rights by portraying him as a person previously determined to be “too dangerous
to have a firearm” and as a person “capable, and who might try, to kill someone.”
Assuming without d eciding that admission of the deputy’s statements w as plain error ,
Skolte must establish that they had a significant effect on the jury’s verdict. Sontoya, 788
N.W.2d at 876. This he cannot do. The jury heard testimony and saw Skolte shoot a
departing M.M. in the back . And, as stated above, the jury heard a variety of witnesses
testify about the animosity between the men , and learned of Skolte’s expressed intent to

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harm M.M. This record does not persuade us that “the jury would have reached a different
verdict had the wrongfully admitted testimony not come in.” State v. Jaros, 932 N.W.2d
466, 472 (Minn. 2019).
IV. The district court did not err by denying Skolte’s request to exclude the
physical evidence he referenced in his police interrogation.

In a pretrial order, the district court suppressed Skolte’s custodial statements, but
did not suppress “evidence seized by authorities” after he made the statements. The district
court declined to do so both because Skolte did not specifically identify any fruits of his
unlawful interrogation and because Skolte made no argument that statements leading the
police to any physical evidence were given involuntarily. Skolte now argues that the
district court should have suppressed the surveillance recordings a nd the revolver. In the
absence of district court findings, we may “independently review the facts and determine
whether, as a matter of law, the district court erred in suppressing or not suppressing the
evidence.” State v. Askerooth, 681 N.W.2d 353, 359 (Minn. 2004).
When determining whether evidence identified during a n unlawful interrogation
should be excluded, we examine whether the evidence resulted from exploitation of the
illegality or was obtained by means “sufficiently distinguishable to be purged of the
primary taint.” See State v. Maldonado -Arreaga, 772 N.W.2d 74, 80 (Minn. App. 2009)
(quotation omitted). This analysis require s us to examine “the purpose and flagrancy of
the misconduct, the presence of intervening circumstances, whether it is likely that the
evidence would have been obtained in the absence of the illegality and the temporal

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proximity of the illegality and the evidence alleged to be the fruit of the illegality.” Id.
(quotation omitted).
Skolte contends that the surveillance recordings and the revolver were seized as a
direct result of the statements he made to police during his unlawful interrogation. The
record belies this assertion. H.H. told officers that Skolte had security cameras on his
property before the officers questioned Skolte. M.M. told the responding officers at the
scene that Skolte shot him with a black -powder revolver. And the police were already
aware that Skolte owned the revolver because an officer saw it one month earlier in Skolte’s
home. The record also does not indicate that police exploited Skolte’s lack of counsel at
the interrogation to ascertain the existence of either the surveillance recordings or the
revolver. Accordingly, it is highly likely police could have obtained a search warrant even
if Skolte had not told the interrogating officers that he had a security system and revolver.
The supreme court reached a similar conclusion in State v. Seefeldt , 292 N.W.2d
558, 560 (Minn. 1980). In Seefeldt, the defendant sought to suppress identification
evidence obtained during a photo line -up following his unlawful arrest . While Seefeldt
was at the station, an officer connected him to an assault. Id. That officer, who was familiar
with Seefeldt and the circumstances of the crime, believed Seefeldt fit the perpetrator’s
description. Id. Despite the district court there concluding the arrest was made without
probable cause, t he supreme court later concluded identification evidence obtained after
the arrest was admissible, reasoning that Seefeldt’s identification as the perpetrator would
have arisen independently of the unlawful arrest. Id. at 560.

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Likewise, we are satisfied that the surveillance recordings and the revolver were
discovered by means “sufficiently distinguishable to be purged of the primary taint .”
Maldonado-Arreaga, 772 N.W.2d at 80 (quotation omitted); see also State v. Bale , 267
N.W.2d 730, 731-33 (Minn. 1978) (applying the same factors as in Maldonado-Arreaga
and concluding the circumstances between an arrest for a misdemeanor traffic offense and
evidence seized after a physical assault on the arresting officer are so attenuated as to purge
the evidence of any alleged taint). The district court thus did not err by admitting the
surveillance recordings and the revolver at trial.
Affirmed.