Potter has (some) good grounds for appeal

Attorneys have just weighed in on sentencing for Kimberly Potter, the former Brooklyn Center police officer convicted of manslaughter in the April 2021 death of Daunte Wright. The lawyers have filed their respective sentencing motions with Judge Regina Chu.

The defense is asking for probation; prosecutors, for a sentence longer than that recommended by state sentencing guidelines. It is likely we will see a middle ground prison term when Judge Chu makes her final decision at Potter's Feb. 18 sentencing.

The larger question looming over this case, however, is whether Potter could launch a successful appeal?

The basis for Potter's conviction for second-degree manslaughter is straightforward. The jury found beyond a reasonable doubt that she was culpably negligent when she shot and killed Wright, which means she created an "unreasonable risk" of seriously harming or causing the death of someone by her negligent act of mistaking her gun for her Taser.

In contrast, Potter's conviction for first-degree manslaughter is not straightforward. It is based on the confusing legal ground of using the predicate misdemeanor offense — negligently handling a firearm — to support the first-degree manslaughter conviction.

Very generally, a "predicate" offense is a crime from which death does not typically result. But in cases where death does occur, a prosecutor may allege that a defendant's actions in committing that lesser offense led to a victim's foreseeable death and therefore charge a homicide crime.

There are, however, several problems with Potter's first-degree conviction that could be the basis for a successful appeal.

First, recklessly handling a firearm has never been found by Minnesota's appellate courts to be a proper predicate offense for first-degree manslaughter. The last time the Minnesota Supreme Court examined the issue was in State v. Parsley (1995) where it held that intentionally pointing a firearm at someone may be used as a predicate offense to first-degree manslaughter. But they specifically stated: "We need not address whether the misdemeanor offense of reckless handling or use of a gun … may also serve as a predicate offense to first-degree manslaughter." The court also recognized as part of its reasoning that intentionally pointing a gun at someone is a "crime of violence" under Minnesota law.

Second, recklessly handling a firearm is no longer a crime of violence under Minnesota law — it was removed from the statutory list of crimes of violence in 2003, 18 years before Potter was charged.

Therefore, Potter was charged with a very serious violent crime, first-degree manslaughter, on the grounds that she committed an underlying misdemeanor predicate offense that is by definition not a crime of violence.

Lastly, this charge violates what is commonly known as "the Kalvig rule" from the court's 1973 State v. Kalvig decision. There, the court ruled that when two criminal statutes have basically the same elements but one is more specific than the other, the one that is more specific governs.

Potter's charges involved two criminal statutes, first- and second-degree manslaughter. First-degree is more general because it requires a predicate offense (which can vary), and second-degree is more specific by requiring culpable negligence in all cases. Here, the theory of culpable negligence was Potter's recklessly grabbing her gun instead of her Taser, which is the identical conduct that the prosecutors used to support the first-degree charge. There is no difference.

In other words, second-degree manslaughter was the more specific statute that encompassed all Potter's actions. The first-degree charge was excessive, unnecessary and legal overkill.

The predicate offense issue was not litigated before or during Potter's trial, but it might be raised on appeal and, if successful, it would mitigate Potter's sentence, to something comparable to that of former Minneapolis police officer Mohamed Noor — 48 months.

So, whatever happens at Potter's sentencing, her case will not be over until the appellate process is completed. Stay tuned.

Joe Tamburino is a Minneapolis attorney.