State v. Radke, Minn.S.Ct., 9/13/2012. Mr. Radke shot and killed Mr. Buesgens, who just happened to be his father in law. At the time, Mr. Radke’s wife, M.B., had been staying with her dad, but on the day of the shooting the couple were talking about reconciling, at least according to Mr. Radke. Mr. Radke said that he was afraid of Mr. Buesgens and that M.B. was afraid that her dad would stop her from moving back in with him. Mr. Radke said that Mr. Buesgens had been threatening him for some time, saying one time that he was going to “pound nails” into Mr. Radke’s head.
Mr. Radke was over to fetch M.B. and the kids home when Mr. Buesgens showed up. M.B. told him to go hide in the woods. While hiding his gun accidently discharged; he reloaded. Mr. Buesgens came looking for who was shooting. Mr. Radke figured it was him or his father in law so he shot off a warning round. Mr. Buesgens then “went to draw down” on Mr. Radke so Mr. Radke shot him.
M.B. told a different story, more supportive of her dad. She said that she had told Mr. Radke that she had filed for divorce and was never come back. The next thing she knew,as she and her dad were standing outside smoking, there was a gunshot from the woods. Mr. Buesgens sent his daughter inside. He came back outside with his gun. M.B. heard shots and discovered her dad crawling on the ground, bloodied. There was another shot and Mr. Buesgens went down again. Mr. Radke came out of the woods and announced that they were leaving for Mexico, but before he could load up his guns and gear the police rolled up.
A jury convicted him of first degree premeditated murder, rejecting his claim of self defense. Mr. Radke raised a number of issues in this combined appeal of the conviction and denial of post conviction relief. First he claimed that he received ineffective assistance of counsel because counsel did not introduce evidence of Mr. Buesgen’s reputation for violence, which he and the local law knew about. This evidence, he said, was crucial to his claim of self defense.
Justice Page, writing for a unanimous court, rejects this argument. The court does not get to the question of counsel’s performance because they conclude that the state disproved one of the requirements of self defense, that Mr. Buesgens was neither the aggressor nor the provocateur:
To conclude on these facts that Buesgens was the aggressor would require us to first conclude that Buesgens, who was lawfully on his own property when a high-powered rifle was discharged less than 50 feet away, acted unreasonably in defense of himself, his daughter, and his grandchildren who were present at his house. It would also require us to ignore the fact that before Buesgens was shot the first time, Buesgens had done nothing more than retrieve a shotgun and go to the area where the rifle shot came from to try to ascertain what was going on. To the extent that, as Radke claims, Buesgens sought to bring the shotgun around to “draw down” on Radke after Buesgens had been shot the first time, Buesgens presumably was attempting to defend himself from exactly what took place next: being shot a second time. Thus, on the record before us, we can only conclude that Buesgens was not the aggressor, nor did he provoke the circumstances leading up to his being shot.
Mr. Radke also complained that the state had failed to disclose police reports of two instances of prior acts of violence by Mr. Buesgens. However, Mr. Radke failed to establish that he knew of these incidents and that any fear he had of Mr. Buesgens was based on that knowledge. That being the case, evidence of the two events was not admissible. State v. Penkaty, 708 N.W.2d 185 (Minn. 2006).
Next, Mr. Radke complained that the trial court’s instructions on self defense had shifted the burden of proof to him. This had not been raised in the trial court so the review here is for plain error. The court concludes that there was no error. Here’s the pertinent part of the instruction:
No crime is committed when a person takes the life of another person, even intentionally, if the defendant’s action was taken in resisting or preventing an offense the defendant reasonably believed exposed the defendant to death or great bodily harm. In order for a killing to be justified for this reason four conditions must have [sic] be met. . . . All four conditions must be met. The State has the burden of proving beyond a reasonable doubt that the defendant did not act in self defense
Mr. Radke’s claim was the part about all four conditions having to be met shifted the burden of proof to him; the court rejects this claim pointing out that the very next sentence told the jury that the state had the burden to prove that Mr. Radke had not acted in self defense.
Mr. Radke thought that he was entitled to an instruction on heat of passion manslaughter. The argument goes something like this. A reasonable jury could have concluded that Mr. Radke’s fear at seeing Mr. Buesgens panning a shotgun toward him clouded his reason and provoked him to shoot. The court concluded that far from his reason being clouded he had evaluated and thought through each of his actions, especially his thought that it was either him or his father in law.
Mr. Radke made two other claims of error, one having to do with the state’s use of a suppressed statement and some misconduct during closing argument. The court rejects these claims along with the rest.
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