If convicted, Potter says she wants judge to decide whether aggravating factors exist for longer sentence

14December 2021

Former Brooklyn Center police officer Kimberly Potter said in court Tuesday that she would like the judge, not the jury, to decide whether she should be subjected to a longer than typical sentence if convicted of manslaughter for shooting Daunte Wright in April.

Also Tuesday, a second and more senior member of the Brooklyn Center Police Department said that Potter’s actions in connection with the shooting of Wright — as described in the questions posed by the defense — gave her justification to use deadly force.

Defense attorney Earl Gray laid out the circumstances of the traffic stop including that Wright had an arrest warrant for a gun charge and was resisting arrest while Police Sgt. Mychal Johnson was partly in the vehicle in an effort to keep the vehicle from driving off.

“You have the right to use deadly force to save…that police officer that’s laying over the seat, correct?” Gray asked.

“Potentially, yes,” said Police Cmdr. Garett Flesland, “but I wasn’t there.”

Gray described Johnson as potentially being injured should the driver try to flee.

“It could likely happen, yes,” Flesland said. “I think it would be severe and significant, yes.”

Flesland added that “I would be extremely concerned arresting someone with a weapons warrant”

The commander’s testimony echoed that on Friday from Johnson, who was Potter’s supervisor at the scene, who backed Potter’s use of deadly force — no matter that she was warning Wright that he would be tased.

And like on Friday, Frank pushed back with Flesland, pointing out that officers need to be aware of the potential harm to others in close proximity, which was the case when Potter shot Wright while was behind the wheel.

Flesland acknowledged that he’s only seen small parts of body camera and squad video from the scene, has done no investigating of his own and has reviewed no reports of the incident. He said his defense of Potter’s use of force was based largely on the scenario in Gray’s questions.

The commander also offered praise for Potter, professionally and personally, saying, “She’s a good cop. A good person. A friend. I had no concerns going on calls with.”

The prosecution objected to those comments, after the jurors heard them, and Chu upheld the objection.

Flesland also testified about the Police Department’s numerous policy and training requirements for licensed police personnel. Department records were shown to the jurors confirming that Potter was aware of all of the policies, that she had regular training about Taser use and regularly wore her Taser at previous incidents as she did on the day shot fatally shot Wright: on her left — less dominant side — and positioned to draw in a traditional “reaction” manner with the handle pointing behind her.

Concerning Potter’s sentencing if convicted either of both counts of first- and second-degree manslaughter, she will have what is essentially a second trial to determine whether there were aggravating factors that would allow Judge Regina Chu to impose a sentence longer than called for under state sentencing guidelines.

The two factors posed by prosecutors are that: Potter “caused a greater than normal danger” when her shooting of Wright led to him getting into a serious crash that injured other people, and that “she abused her position of authority as she was a licensed police officer.”

Chu then asked Potter, “Is it your wish to give up your right to a jury trial on whether or not the two [aggravated] factors exist in the event of a guilty verdict?”

“Yes, your honor,” Potter said.

She also said she discussed this decision with her attorneys and did not need more time to think it over.

The day’s first witness, Brooklyn Center Police Cmdr. Garett Flesland answered many questions about the department’s policies, training and other requirements of all licensed officers. They dealt with the code of conduct, when to employ use of force, engage in pursuits and other matters spelled out by department that officers are required to know and follow.

Before Flesland testified, Hennepin County District Judge Regina Chu shot down two motions from prosecutors having to do with two lines of questioning earlier in the trial.

The prosecution wanted Chu to reconsider her upholding of a defense objection when Potter’s leadership role in the police labor union arose. Prosecutor Matthew Frank said it was important that jurors know about the relationships that witnesses might have with Potter through the union.

Chu ruled against prosecutors and said that Potter is no longer part of the union, so no witnesses “could possibly be biased [about] her behavior” on the day that Wright was killed.

The judge also ruled that the testimony of Potter’s former supervisor, Mychal Johnson, was valid even though he was not seated as an expert witness. “I ruled that police officers [can] testify about what they are trained to do under certain circumstances [and] are entitled to render an opinion about that.”

Minnesota Bureau of Criminal Apprehension agent Sam McGinnis testified Monday that Potter’s handgun with 17 rounds inside — its condition after Wright was killed — weighed 2.11 pounds, while her Taser weighed 0.94 pounds.

McGinnis testified about other differences as a picture of Potter’s Taser and handgun were shown to jurors: The yellow Taser has a stockier body, a smoother grip, a much shorter handle and a flat trigger vs. the black gun’s curved trigger. The Taser has an external safety while the handgun has an internal safety and a button that needs to be depressed to fire.

Larson tried to give jurors the Taser and handgun to hold in order to feel the differences, but Potter’s defense objected. Hennepin County District Judge Regina Chu sustained the objection and told jurors they’d have the de-activated weapons during deliberations.

Earlier, McGinnis stood and held a Taser of the same model aloft and activated the device, which beeped. He pointed it at the wall, showing jurors its LED light and laser, which projected red and green pinpoints. The Taser’s flashlight also shined a noticeable circle of white light in the courtroom.

Defense attorney Paul Engh focused his cross-examination of McGinnis on similarities between the two weapons.

“Tasers in general have a handle that is similar to a gun, correct? There are differences of course, but it’s designed so you hold it in your hand, right?” Engh asked. “Correct,” McGinnis said.

“It’s designed so that you pull a trigger like a gun, right?” Engh asked. “They both have triggers, yes,” McGinnis said.

“And it’s designed so you aim at somebody, right?” Engh asked. “Yes,” McGinnis said.

Monday began in the 49-year-old Potter’s trial with testimony from Assistant Hennepin County Medical Examiner Dr. Lorren Jackson.

Jackson explained his findings as autopsy photos of Wright were shown to jurors and an overflow courtroom; the images were not on the trial’s livestream.

Jackson testified that the bullet tore through Wright’s heart and both of his lungs. More than 3 liters of blood was found in Wright’s chest, he said, adding that a person of Wright’s size typically has 4.5 to 5 liters of blood in his body.

“When you lose half of that rapidly, your condition becomes critical,” Jackson said, adding that Wright’s injury was not survivable and would result in death within seconds to minutes.

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