The attorney representing accused murderer Neal C. Zumberge filed notice Wednesday that he will seek to admit character evidence at trial regarding his client and the shooting victim.
Zumberge, 57, is charged with second-degree murder with intent and attempted second-degree murder for allegedly shooting his neighbors Todd G. Stevens and Jennifer Damerow-Cleven on May 5. Stevens was killed, and Damerow-Cleven suffered non-life-threatening gunshot wounds.
Authorities believe the shooting stemmed from a years-long dispute between the families about Stevens' habit of feeding deer in his yard. Zumberge and his family, who lived across the street, apparently believed that he and the family dog contracted Lyme disease from a deer tick.
In his motion in limine, defense attorney William Orth wrote that he would ask the court during an Oct. 21 pre-trial hearing "for an order allowing the defense to introduce pertinent character evidence of the victim and the defendant. This character evidence will be submitted by testimony as to reputation and/or testimony in the form of an opinion. The character evidence will also be submitted upon specific instances of conduct."
Minnesota court rules allow for the inclusion of character evidence with restrictions and qualifications, but convincing a judge to allow it at trial can be a challenge.
That's because someone's character doesn't impact whether they receive protection under the law, said Joseph Daly, emeritus professor at Hamline University School of Law.
"Character is irrelevant," Daly said. "We're all persons under the law and have a right to be protected as citizens under the law. Doesn't matter if we're good or bad.
"Most judges don't want to [allow it], because you open up a can of worms when you let character come into play. It confuses the jury."
Character evidence at trial isn't common, but it's not necessarily rare, either, Daly said.
Attempting to introduce character evidence about the victim could be a strategic move to show that, based on past behavior, the victim was the aggressor.
"In all likelihood, they're going to be talking about the propensity of the victim being a violent person," Daly said. "That's my guess -- that he acted in an aggressive manner in the past."
Court records show that Zumberge was convicted of second-degree assault in 1987.
Court records show that Stevens, 46, has been convicted of disorderly conduct, obstructing the legal process and drunken driving.
According to murder charges filed against Zumberge, he shot Stevens and Damerow-Cleven, 48, on May 5 because Damerow-Cleven had his son, Jacob H. Zumberge, arrested earlier that day. Jacob Zumberge was wanted by police for threatening to kill Stevens and Damerow-Cleven on a previous occasion. When the younger Zumberge and Damerow-Cleven ran into each other at a restaurant on May 5, Damerow-Cleven called police.
That evening, Damerow-Cleven was confronted in her front yard by Neal Zumberge's wife, Paula A. Zumberge, who stood on the edge of her property across the street. Authorities allege that Neal Zumberge, hidden between the side of his home and some bushes, fired on his neighbors with a semiautomatic shotgun.
Paula Zumberge, 50, was tried and acquitted in August of aiding and abetting second-degree murder, aiding and abetting attempted second-degree murder and two counts of aiding and abetting second-degree assault.
When she was tried before a judge, Assistant Ramsey County Attorney Anna Christie filed a motion to exclude character evidence about Damerow-Cleven other than "her character for truthfulness." Christie also filed notice that should the defense present character evidence about Neal Zumberge, who had planned to testify at his wife's trial, the prosecution would ask him about the 1987 assault conviction and a 2009 assault report from New Brighton police.
The trade-off with introducing character evidence is that it gives the prosecution an opening to scrutinize a defendant's past behavior.
"As soon as [the defense] brings in character, it's no-hold bars," Daly said. "[The prosecution] can bring in all kinds of stuff they never would be allowed to. It's risky business for the accused to bring in his character."
Orth didn't say in his motion what character evidence he wants to introduce, but said that he would provide the court with specific information at a later date.
Neal Zumberge is scheduled to go to trial Nov. 10.
Jacob Zumberge, 24, pleaded guilty in Anoka County District Court on Oct. 13 to misdemeanor disorderly conduct, and will not receive additional jail time.