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).