No Heat of Passion Instruction in This Double First Degree Premeditated Murder Prosecution

State v. Keuren. MN.S.Ct., 12/18/2008.

 

A jury convicted Mr. Keuren of two counts of first degree premeditated murder; the trial court imposed two consecutive terms of life imprisonment without possibility of parole. Mr. Keuren argued, among other arguments on appeal, that the trial court should have given an instruction on first degree manslaughter.

Keuren dated Lee for some four years.  Just before he and Lee were to marry Lee called everything off.  "Devastated" by the breakup, Keuren broke into Lee's home and assaulted her; after that the court imposed a no contact order and Lee started dating another man.  Keuren planned either to kill himself, or to kill Lee; at times he considered killing both Lee and himself.  He wrote something of a suicide note in which he complained bitterly that Lee was intending to take away his Vikings tickets.  On his way over to Lee's home, Keuren decided only to kill himself in her presence.  When he got there, Lee was in bed with her new beau.

Finding the couple in the bedroom, Keuren immediately shot himself twice in the neck; neither wound was fatal.  New boyfriend tried to get the gun from Keuren during which Keuren shot him.  Keuren reloaded the gun.  Lee then told him, oh, by the way, I miscarried with your child.  Keuren then shot Lee twice.  He apparently kept shooting; the medical examiner determined that Lee had been shot a total of six times.  After all this mayhem, and before the police arrived, Keuren called his Dad to apologize.  The apology was limited somewhat, however, as the police had to shoot Keuren three times to get him to drop the gun.

The trial court instructed on first degree premeditated murder and on second degree murder; the court declined to instruct on first degree heat of passion manslaughter.  Keuren argued that finding Lee in bed with her new beau was enough to require a manslaughter instruction.  The trial court and the supreme court disagreed.  This discovery is not enough, at least in Minnesota, to establish that Keuren's "reason was clouded and his willpower weakened," the classic definition of "heat of passion" manslaughter.    State v. Hannon, 703 N.W.2d 498, 509 (Minn. 2003).  For Lee, Keuren argued that the news of the miscarriage "provoked his passion" sufficiently to require the manslaughter instruction.  Again, no one agreed with that argument.  In the end, the court said that Keuren only established that he was suicidal and angry; neither of those emotional states supports the requested instruction. 

In a footnote that prosecutors will immediately begin to bandy about, the court warned that the mere existence of the violation of a no contact order would be enough to defeat any requirement of giving a manslaughter instruction.  It's hard to see how this squares with the current law on when to give instructions on lesser included offenses articulated in State v. Dahlin, 695 N.W.2d 588, 598 (Minn. 2003):

When a defendant requests a lesser-included offense instruction, the district court must give the instruction if the lesser offense is included in the charged offense and if the evidence provides a rational basis to both acquit the defendant of the charged offense and convict the defendant of the lesser-included offense.

At any rate, the footnote is dicta, at least for now.  In a concurrence, Justice Meyer suggests that this exclusion is a natural extension of an opinion that she wrote five years ago, Stiles v. State, 664 N.W.2d 315 (Minn. 2003).  Stiles and some of his buddies was doing a drug deal; instead of paying for the drugs the plan was to rob the supplier.  Stiles pointed a loaded shotgun at the supplier.  When the supplier resisted and reached toward his waist, Stiles shot him.  Stiles' "aggression" in provoking a response from the supplier eliminated Stiles' entitlement to a heat of passion manslaughter instruction.  Going to your former girlfriend's house - no contact order or not - intending to kill yourself doesn't seem quite the same kind of provocation.

In other issues, Keuren argued, unsuccessfully, that the prosecutor argued in closing argument that he had tailored his trial testimony to fit the evidence.  State v. Swanson, 707 N.W.2d 645 (Minn. 2006); that he was entitled to a change of venue; and that an assistant county attorney could not attend the grand jury in place of the county attorney.  On this last issue, the court had rejected this contention in State v. Clark, 755 N.W.2d. 241 (Minn. 2008). 

A Sentence of Incarceration is "Final" for Blakely Purposes, Even When Restitution is Left Open.

State v. Hughes, Mn.S.Ct., 12/18/2008.

Mr. Hughes pled guilty to aggravated robbery.  The court imposed an executed sentence, which was an upward departure; the court also ordered Mr. Hughes to pay restitution, to be determined by probation subject to his right to a hearing.  After sentence but before determination of the amount of restitution the U.S. Supreme Court decided Blakely v. Washington, 542 U.S. 296 (2004).  Mr. Hughes convinced the trial court that his conviction was not final until the amount of restitution was determined so that he was entitled to a Blakely hearing on aggravating factors.  The Court of Appeals reversed, State v. Hughes, 742 N.W.2d 460 (Minn.Ct.App. 2007).  The Minnesota Supreme Court agrees with the Court of Appeals.

The Court says that the trial court imposed Mr. Hughes' sentence when it pronounced the sentence of incarceration and general restitution obligation.  Consequently, his time for direct appeal expired ninety days later, which happened to be one week before the date of the Blakely opinion.  Hughes tried to invoke several other procedural rules by which to stretch the "pendency" of his right of appeal, all without success.

A Defendant's In Court Explanation For Rejecting A Plea Offer May be Admissible Under Rule 410.

State v. Brown, Mn.Ct.App., 12/16/2008.

The State charged Mr. Brown with attempted second degree murder, and with possession of a pistol without a permit.  The state offered a plea to the attempt, with a recommended sentence of 130 months.  At the pretrial, in the midst of making a record of this offer, Mr. Brown engaged in a spirited colloquy with the trial court, after which he entered a plea of not guilty.  Among other statements, Mr. Brown asserted a defense of self defense and defense of others, and claimed that he had a permit for the pistol.

At trial, Mr. Brown testified, again asserting his claims of self defense and defense of others.  He also testified that he did not have a permit for the gun.  The prosecutor was all over this, asking if it wasn't true that Mr. Brown had previously told the court that he did have a permit.  After the trial court over ruled the objection to the question, Mr. Brown stated that he did recall saying that.  The defense thought that Mr. Brown's statements during the discussion of the plea offer were excluded from evidence under Rule 410, which states in pertinent part:

Evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil, criminal, or administrative action, case, or proceeding whether offered for or against the person who made the plea or offer.

The Court of Appeals agreed with the trial court's ruling.  It pointed out that Mr. Brown neither pled guilty nor offered to do so.  In fact, he mostly complained that he should not have been charged with the attempt because his actions were justified, and then he lied about having a gun permit. 

Whether Rule 410 excludes a defendant's statements is a question of law that the appeals court reviews de novo.  Whether the rule excludes statements that are made in response to a plea offer made by the state is to be decided under the totality of the circumstances, employing a two step inquiry.  First, did the defendant exhibit an actual subjective expectation to negotiate a plea at the time of the discussion; and, second, was the expectation reasonable under the totality of the objective circumstances.

Now, the colloquy that is reproduced in the Opinion does support the conclusion that Mr. Brown had no interest in pleading guilty to the attempt charge.  At the same time, he had no need to say anything about the permit charge because the deal called for its dismissal.  His admittedly false statement about having a permit was a throw away at the time he made it.  The court could have admitted the pretrial false claim about having a permit without any regard for Rule 410 at all.  Instead, the court engages in a Rule 410 analysis of other statements then includes this permit claim into the mix.

Multiple Sex Acts of Various Kinds Support Upward Departure

State v. Abrahamson, Minn.Ct.App., 12/9/2008.

Mr. Abrahamson plead guilty to first degree criminal sexual conduct - sexual penetration of a person under 16 by an offender who has a significant relationship with the victim including multiple acts of sexual abuse over an extended period of time - and also to exposing a child to methamphetamine activity.  During the plea, Mr. Abrahamson admitted to engaging in multiple acts of sexual abuse, including sexual touching and "penetration, but denied penetrating [the child's] vagina or anus."  Mr. Abrahamson waived a jury sentencing hearing on the state's motion for an upward departure, which the state based on these grounds:

(1) the offense occurred over a period of five to six years; (2) the minor victim was treated with particular cruelty; (3) the minor victim was forced to watch pornographic movies; (4) the minor victim was told that appellant wanted to photograph her without clothes; (5) there was use of and exposure to illegal drugs; and (6) overall, the conduct was far more egregious than the usual child-sexual-abuse case.

The trial court determined that there were factors that supported an upward durational departure.  Among them were "the multiplicity of trauma and the sex acts," and viewing of pornographic movies.  The Court of Appeals accepts these two factors, but points out that under the offense of conviction multiple sex acts, alone, cannot serve as a departure factor because it is an element of the offense.  On the other hand, "the variety in the sexual acts is a valid reason for departure."  See Rairdon v. State, 557 N.W.2d 318 (Minn. 1996).  The Court of Appeals also agreed with the trial court that the use of pornography as a prelude to the sexual acts supported a departure.  (It is not entirely clear from the opinion, however, that Mr. Abrahamson admitted to this behavior during the plea hearing and Blakely waiver.)

The Court of Appeals somewhat reluctantly agreed that exposing the child to methamphetamine was not a valid factor for departure.  The Court acknowledged that the conviction for such exposure could not be the basis of a departure,  because it was the basis for the conviction on the other count to which Mr. Abrahamson pled.  State v. Misquadace, 644 N.W.2d 65 (Minn. 2002).  The record did not sufficiently establish that such exposure was a part of the CSC I conviction, and so it does not support a departure.

Collateral Attacks on the OFP Statute Not Permitted as Defense to Criminal Prosecution for Violation of OFP; No Authority in OFP Statute to Forfeit & Destroy Firearms.

State v. Romine, Minn.Ct.App., 12/9/2008.

A.A. obtained an order for Protection against Mr. Romine, her estranged husband.  The Order prohibited him from, among other things, going to A.A.'s place of employment at Henry Sibley High School.  Romine initially appealed the issuance of the OFP but dropped the appeal after a while.

While the OFP was in force, Mr. Romine went up to the  high school to see the superintendent, whose office was in the high school.  As a result, the state charged him with violating the OFP, Minn.Stat. 518B.01, S. 14(b).

Mr. Romine made various constitutional challenges to the OFP statute but the Court says that he cannot collaterally attack the OFP statute as part of his criminal defense. The court relies upon what it says is the general rule that "a party’s failure to appeal the issuance of a court order precludes a collateral attack on that order in a subsequent proceeding," citing State v. Cook, 275 Minn. 571, 148 N.W.2d 368 (1967).  There is nothing terribly surprising in this ruling.  See, State v. Harrington, 504 N.W.2d 500 (Minn.Ct.App. 1993).  (A defendant who had not appealed from the issuance of a restraining order pursuant to chapter 609 was precluded from challenging the constitutionality of the restraining order in a subsequent criminal prosecution for a violation of the order.)

The defense raised a lot of other appeal issues, one of which was prosecutorial misconduct during closing argument.  The defense objected to two of the prosecutor's statements: 

“It wasn’t easy cross-examining a 14-year-old person, but that’s who [Romine] had testify here, a 14-year-old child about things that families try to hide, and that was a kind of painful exercise we had to sit through.” Romine also objected when the prosecutor stated:

Counsel would like you to simply make a mockery of our justice system, of court orders and seals and affidavits, and indicate that Mr. Romine was not personally served this at a courthouse on that date somehow. You folks can go and say, we think this is just not plausible. You have to say also that a strict court order for protection to prevent this sort of harm from happening to Ms. Romine is also not nonsense.

The state did not argue that these remarks were proper, so the appellate court assumed that they were.  Nonetheless, the court also concluded that the statements were harmless error.

Lastly, the appeals court held that the district could has no authority under 518B to order the forfeiture and destruction of Mr. Romine's firearms as part of a sentence for violation of subdivision 14(b).  Subdivision 14(l) does permit the court to restrict the possession of "pistols," but there is no authority to order the forfeiture and destruction.  The appeals court remanded the case for re-sentencing, at which time Mr. Romine may, if he wishes, raise the Second Amendment Supreme Court opinion, District of Columbia v. Heller, 128 S. Ct. 2783 (2008).

One Burglary & One Assault Still Equals Two Crimes

State v. Holmes, Mn.Ct.App., 12/9/2008.

A.W. was at home enjoying a quiet evening of arguing with his girlfriend when his girlfriend's Dad and two brothers swooped into the apartment.  Mr. Holmes is one of the brothers.  Mr. Holmes assaulted A.W., possibly with a steel pole, no one is quite sure. 

The state charged Mr. Holmes with first degree burglary and with third degree assault; a jury convicted him and the court sentenced him on both offenses.  On appeal, he argued that because third degree assault is a lesser included offense of the first degree burglary he could not be sentenced on both counts.  In other words, no double dipping.  The Court of Appeals disagrees.

The Court of Appeals accepted the proposition that the third degree assault is a lesser included offense of the first degree burglary.  It also agreed that under Minn.Stat. 609.04, Minnesota's double jeopardy statute, he could not, therefore, be convicted of both offenses.  However, there's another statute in play, 609.585, which states:

Notwithstanding section 609.04, a prosecution for or conviction of the crime of burglary is not a bar to conviction of or punishment for any other crime committed on entering or while in the building entered.

Mr. Holmes argued that "any other crime" had to be a crime other than the assault and since there was no other crime he could not be convicted and sentenced on both offenses.  The Court concludes that the third degree assault can serve double duty:  as the assault element of first degree burglary and the assault charge.  It is an "any other crime" under 609.585 notwithstanding its duplicate use. 

Instructional Error Requires New Trial Even Though State's Evidence Was Sufficient to Support Conviction.

State v. Jorgenson, Minn.Ct.App., 12/9/2008.

The Court reverses a terroristic threats conviction for faulty jury instructions.

Jorgenson had been in a romantic relationship with T.S. for a couple of years.  After a night of hard drinking, sex and some other, rather rude behavior by Mr. Jorgenson the couple were not in the best of moods.  T.S. had destroyed one of his video games.  While in the shower, Jorgenson began to sing a rather vulgar little tune describing all the things he was going to do to T.S..  After singing in the shower, Jorgenson carried out some of the threats, then threw T.S. out into the cold.

Here's the instruction that the trial court gave on the terroristic threats count [emphasis in original]:

First, the defendant threatened, directly or indirectly, to commit a crime of violence. You are instructed that assault is a crime of violence. It need not be proven that the defendant had the actual intention of carrying out the threat.

Second, the defendant made the threat with intent to terrorize another . . . or in reckless disregard of the risk of causing such terror.

. . . .

Third, the defendant’s act took place on or about October 13, 2006 in Stearns County.

The statute provides:  "Whoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another ..."  The defense did not object to the court's instruction so the review is for "plain error."

The state conceded that the instruction, "assault is a crime of violence," is incorrect because not all assaults are "crimes of violence.  Minn.Stat. 609.1095, S. 1(d).  This is, therefore, error, and it's a plain one.  State v. Vance, 734 N.W.2d 650 (Minn. 2007).  This plain error is also prejudicial; the court likens the instruction to one that eliminates a required element of the crime, an error that is not harmless beyond a reasonable doubt.    The court reverses the conviction and remands for a new trial, even though it also had determined that the state's evidence was sufficient to have supported the conviction.  The court does so, however, not without a dig at those of us in the trenches:

An appellate court, with its generous allocation of time in which to contemplate and decide issues, may devoutly wish that all parties involved at the trial level—prosecutor, defense attorney, and judge—were ever-errorless, despite time pressures, in assuring that specific and adequate instructions are given to a jury. In the absence of such specificity and adequacy, we are required to determine whether prejudice affecting the outcome of the case has been demonstrated.

Is the Governor listening? 

Alford meets MOC's & Blakely

State v. Verdon, Court of Appeals (12/9/2008).

Mr. Verdon has been battling over his Department of Corrections inmate designation, which in his case is adversely impacting his eligibility for prison programs.  It turns out that upon conviction the district court assigns a "Minnesota Offense Code" (MOC) on the warrant of commitment.  The Department of Corrections uses this code, in part, to determine the conditions of his confinement.  But the case isn't really about any of that bureaucratic stuff; it's really a procedural about putting in an Alford plea.  There's also a novel Blakely argument that gets undeserved short shrift. 

The state charged Mr. Verdon with first degree arson, felony terroristic threats, and felony criminal damage to property.  Mr. Verdon eventually entered a guilty plea to felony arson, under the holding of North Carolina v. Alford, 400 U.S. 25 (1970).  At the plea hearing, the prosecutor asked Mr. Verdon about the state's evidence.  Mr. Verdon acknowledge that each piece of evidence that the prosecutor asked him about existed, and that, if believed, the evidence supported the state's claim that he started the fire.  The "firestorm," as it were, ignited over Mr. Verdon's understanding that an officer claimed to have seen him holding a lighter fluid container.  Mr. Verdon acknowledged that this officer would be making certain statements, but he did not concede that those statements included the claim that he was holding lighter fluid. 

Based on this colloquy the trial court accepted the plea; the initial MOC, when translated, told DOC that Mr. Verdon had used a firearm in the commission of his crime.  This was plainly incorrect; litigation ensued with the final MOC translating to mean that he had used a "flammable." Mr. Verdon didn't like this MOC any better than the first one so more litigation ensued.  The upshot of all that litigation is the rather obvious rule that the MOC designation must have an adequate basis in the court record.

That record consists mostly of the Alford plea.  The court reminds us of the "better practice" by which to do this:

The “better practice” for developing a factual basis for an Alford plea is to discuss the evidence with the defendant on the record at the plea hearing:

This discussion may occur through an interrogation of the defendant about the underlying conduct and the evidence that would likely be presented at trial, the introduction at the plea hearing of witness statements or other documents, or the presentation of abbreviated testimony from witnesses likely to testify at trial, or a stipulation by both parties to a factual statement in one or more documents submitted to the court at the plea hearing.

State v. Theis, 742 N.W.2d 643, 649 (Minn. 2007).  Other acceptable methods include eliciting a defendant's testimony to establish a factual basis, State v. Ecker, 524 N.W.2d 712 (Minn. 1994); and using witness statements or testimony to develop a factual basis, State v. Goulette, 258 N.W.2d 758 (Minn. 1977). 

The Blakely claim is that the MOC is based on findings by the trial court that were neither found by a jury nor admitted by Mr. Verdon with resulting restrictions to his terms of confinement.  The court doesn't see this as an enhancement to sentence so Blakely has no application.

Oh, want to know what the final MOC turned out to be?  Ready?  "MOC F132A".  Really.