Erroneous Instruction on Definition of “Domestic Abuse” and Improper Limitations on Defense Closing Argument Results in New Trial

State v. Bustos, Minn.S.Ct., 4/1/2015.  In a 4-3 decision Justice Anderson awards Mr. Bustos a new trial because of errors in the court’s jury instructions and improper restrictions on defense counsel’s closing argument.  Joining Justice Anderson are Justices Page, Lillehaug, and Stras.  Justice Wright, heir apparent to a seat on the Eighth Circuit Court of Appeals, perhaps the most conservative federal circuit, dissents, joined by Chief Justice Gildea and Justice Dietzen.

A jury convicted Mr. Bustos of first degree murder, past pattern of domestic abuse.  The state alleged and presented evidence about five incidents of domestic abuse.  “Domestic Abuse” is a defined term.  Minn.Stat. 609.185, Subd. (e)(1).  It’s an act that is a violation of enumerated statutes – assault, criminal sexual conduct, and terroristic threats - committed against the victim who is a family or household member.  The definition also includes “similar laws of the United States or any other state.”  Here’s how the trial court defined “domestic abuse” to the jury:

Second, the injury causing the death of Dominga Limon occurred while the defendant was committing domestic abuse. Minnesota Statutes define “domestic abuse” as an act amounting to assault, domestic assault, criminal sexual conduct, terroristic threats, or similar acts if committed against a family or household member.

It’s that last phrase, “or similar acts if committed against a family or household member” that’s wrong.  The court’s instruction goes beyond the enumerated Minnesota crimes and violations of “similar laws” of the United States or other states.  The  court’s instruction invites the jury to believe, incorrectly, that “domestic abuse” includes even non-criminal acts that are similar to the listed crimes.  This expansive definition was plain error.

The other error had to do with the trial court’s restriction on defense counsel’s closing argument.  The trial court told defense counsel that he could not argue that the state was required to prove any alleged incident of prior domestic abuse beyond a reasonable doubt.  Defense counsel could argue that the state had to prove a “past pattern” beyond a reasonable doubt. 

Now, the element of “past pattern of domestic abuse” is defined as conduct consisting of two or more prior acts that are proximate in time to each other and reflect “a regular way of acting.”  State v. Hayes, 831 N.W.2d 546 (Minn. 2013).  If the state alleges prior acts in excess of what is necessary to prove the element, it need not prove each prior act beyond a reasonable doubt.  State v. Kelbel, 648 N.W.2d 690 (Minn. 2002).  The jurors must, however, agree that at least two underlying acts of domestic abuse were proven beyond a reasonable doubt even if they disagree about which two acts satisfy that requirement.  The flip side of that requirement is that the defense must be allowed to argue that an acquittal is appropriate if the state fails to prove any of the prior incidents beyond a reasonable doubt.  Or, if the state alleged four prior incidents the defense must be allowed to argue that an acquittal is appropriate because the state failed to prove beyond a reasonable doubt three of the four prior incidents.  As a consequence the trial court’s restriction on closing argument was also plain error.

The majority ducks the question whether any one of these plain errors entitled Mr. Bustos to a new trial.  Instead, the majority said that the cumulative impact of these two plain errors did entitle him to a new trial.