State v. Tscheu, Minn.S.Ct., 12/31/2008. There's a Crawford issue buried in this Opinion, reviewed on "plain error" analysis because there was no defense objection; errors, such as they were, were not "plain." The bulk of the Opinion, however, is a debate whether the Court has changed the appellate review standard for convictions based upon circumstantial evidence. Finally, there's a reminder to be sure to request prosecution disclosure of prior convictions in the standard Rule 9 disclosure request.
On Saturday afternoon, February 26, 2005, Bonita Thoms' stepson, J.B. came out to Thoms' house to fetch a camper that he stored on her property. J.B. found Thoms' dog, which normally slept indoors, outside with ice crystals on its face; J.B. also saw water running on the ground outside the house. Inside, J.B. discovered Thoms dead in the bathtub, with the shower running. There was no sign of a forced entry.
A witness saw Thoms in her car approximately five miles from her home between 3:30 and 4:35 p.m. the previous day. Dr. Amatuzio, who performed the autopsy, placed the time of death between 3:18 and 9:19 p.m. on Friday, February 25. Dr. Amatuzio described various bruising on the body which lead her to conclude that Thoms had been restrained in the bathtub, causing her to drown. The defense presented expert testimony that although Thoms died from drowning she could have died suddenly from an enlarged heart.
Mr. Tscheu worked that Friday, after which he bought some automobile parts from a Fleet Farm, then spent the evening changing the engine in his van. He first told police that he had not seen Thoms since August 2004; he later admitted that he and Thoms were having an affair, that he had been to her house on that Friday, February 25, at which time they had consensual sex. He then came home where he did, indeed, work on his van. Mr. Tscheu suggested three other persons as the killer: one was in California at the time, one was in prison at the time. Thoms apparently owed money to the third person, M.H.; a defense witness placed a similarly looking sedan as M.H. was driving at Thoms' house on that Friday evening.
Forensics found semen inside Thoms' rectum; the DNA profile of this semen matched the profile of Mr. Tscheu. Forensics also found semen inside Thoms' perineum. The DNA analyst testified that 99.95% of the general population could be excluded as a contributor of this semen. Finally, forensics found a partial male DNA profile from Thoms' fingernail clippings. At best, no more than 7.4% of the population could be a contributor; however, Mr. Tscheu could not be excluded as a contributor.
A jury convicted Mr. Tscheu of first degree murder. On appeal he argued that the evidence was insufficient to support that conviction. In a circumstantial evidence case, the majority holds that it is sufficient to sustain a conviction when:
all the circumstances proved [are] consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of his guilt.” State v. Johnson, 173 Minn. 543, 545, 217 N.W. 683, 684 (1928) (emphasis added).
To prevail, the defense must be able to point to evidence in the record that is consistent with a rational theory other than guilt. Inferences that a jury draws from the evidence are to be given what the concurrence describes as " nearly complete deference." The concurrence argues that the majority has de facto adopted the approach of the Eighth Circuit, which gives the government the benefit of all inferences that reasonably could be drawn from the evidence, thus abandoning the previous state approach of undertaking an independent evaluation of those inferences.
Mr. Tscheu also argued that the state failed to give proper notice of its intent to impeach him with his prior convictions. Unfortunately, the Rule 9.01 boilerplate did not include a request for disclosure of prior convictions. Moreover, the state did disclose the prior convictions in its Spreigl notice. Mr. Tscheu also complained about the timing of a hearing to determine the admissibility of prior convictions should he testify, which did not take place until after he testified on direct. It's not clear, however, that trial counsel requested the hearing any sooner than that; when the court ruled that the priors were admissible it then permitted the defense to reopen its direct examination in order to be the bearer of the bad news to the jury.
Finally, Mr. Tscheu argued that the trial court erroneously admitted two out of court statements, to neither of which did the defense object at trial. So, the Supreme Court applied the "plain error" analysis in its review. The first statement had to do with what a snow plow driver told a BCA agent; the agent's recount of this statement was "testimonial" and not within any hearsay exception of the evidence rules, and thus not admissible. The admission of the recount, however, did not affect the outcome of the case. Under "plain error" this argument fails. The second statement had to do with a deputy's findings about records of a motor vehicle transfer and of a conversation the deputy had with the previous owner of the vehicle. The vehicle transfer records were not testimonial; the conversation with the previous owner was. Again, though, it did not satisfy the "plain error" requirement of affecting the outcome of the trial.
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