Opinion
No. A06-0717.
Filed October 16, 2007.
Appeal from the District Court, Hennepin County, File No. 01004420.
Lori Swanson, Attorney General, and Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, (for respondent).
John M. Stuart, State Public Defender, G. Tony Atwal, Assistant Public Defender, (for appellant).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
On appeal from his conviction of and sentence for aiding and abetting second-degree intentional murder, appellant argues that (1) he was denied his right of automatic removal of the trial judge before his new trial following remand, (2) the evidence was insufficient to prove the element of intent, and (3) the upward durational departure from the presumptive sentence exaggerated the criminality of appellant's conduct. We affirm.
FACTS
Appellant Michael James Dahlin met Dustin Jirasek through appellant's fiancée, Sarah Troska. Troska and Jirasek worked together at Mail Handlers, and Jirasek was also a musician in a heavy-metal band. Troska told appellant that Jirasek was auditioning for a lead singer. One night in September 2000, appellant and Troska went to Jirasek's home to audition. The band ultimately decided not to hire appellant, at least in part because appellant showed the band a tattoo that the band members found to be offensive. Troska later testified that she opted to tell appellant that he had not been selected and that appellant got upset and angrily telephoned Jirasek.
Appellant used methamphetamine, which Troska testified made him emotional and paranoid. He began to suspect that Troska and Jirasek were having an affair. When appellant confronted Troska about his suspicion, she told him that she was not having an affair with Jirasek but that Jirasek sometimes made sexually inappropriate comments to her at work that made her feel uncomfortable. According to Troska, this made appellant "freak out."
In October, appellant and a friend, Dave Olson, went to Jirasek's home to ask him whether or not he and Troska were having an affair. Appellant had his shotgun with him. Jirasek denied any involvement with Troska and told appellant that she was "crazy." Appellant called Jirasek's wife the next day about his suspicions and told her that she could hurt Jirasek more than he could. Following his conversation with appellant, Jirasek decided to quit working at Mail Handlers, but later returned for economic reasons, working a different shift than Troska. Appellant continued to believe that Troska and Jirasek were having an affair and at one point told Troska that he wanted to torture Jirasek and make her watch.
One day, Jirasek's wife arrived home to find her husband there with the blinds drawn and the doors locked. He told her that he had received a call from an urgent-care center. The caller stated that the urgent-care center had received a call from an individual who said that someone at the Jirasek home "would soon need the center's services."
On December 15, 2000, Troska and appellant again discussed the alleged affair, and Troska told appellant that Jirasek had made an insulting comment about appellant's male anatomy. Appellant became very agitated and held a .380 handgun to Troska and threatened to kill her. Appellant also told Troska that he was going to "kill [Jirasek]." When she threatened to leave, appellant again threatened to kill her. Troska blacked out, and when she awoke, appellant was calm and promised not to hurt anyone. The next day, appellant threatened to kill himself, but Troska was able to wrestle the gun away from him. Again, appellant told Troska that he would not hurt anyone.
That evening, appellant met his friend, Mark Staats, and went to Jirasek's house. Appellant had his pistol and shotgun. Staats testified that it was his belief that appellant only wanted to threaten or rough up Jirasek.
En route to Jirasek's home, appellant and Staats went to K-Mart, where they bought birdshot, black ski masks, and a portable gas tank that appellant filled with gas. Outside Jirasek's house, Staats testified that appellant loaded the shotgun, put on a ski mask, and handed Staats the other ski mask. Staats followed appellant to Jirasek's front door but then waited in a place where he could not see the door. Staats stated that he heard a barking dog and the front door open, followed by a scuffle and a loud bang. Appellant and he ran back to the truck and drove away, and appellant told him, "Don't worry about it, you didn't do it."
Appellant denied at trial that he brought the loaded shotgun to Jirasek's home and testified that while he was walking around the house, he saw Staats standing at an open front door and then saw a flash and heard a shotgun fired. Appellant also testified that Staats admitted that he shot Jirasek when "[Jirasek] reached for the gun." Appellant and Staats threw away the ammunition, ski masks, and weapons. They were never recovered.
Both appellant and Staats were indicted for first-degree murder. Appellant's trial in the Fourth Judicial district court began in May 2003. At trial, appellant stipulated that DNA testing found traces of Jirasek's blood on pants taken from appellant's bedroom and that his DNA and Jirasek's blood were on a pair of gloves that were found in his pickup. Appellant had no explanation for this. The jury found appellant guilty of first-degree premeditated murder, and he was sentenced to life in prison. In a separate action in Wright County, appellant pleaded guilty to unlawful possession of a firearm arising out of his act of threatening Troska with the .380 handgun. He was sentenced for time served for that conviction. Appellant sought review of his first-degree murder conviction by the Minnesota Supreme Court, which reversed and remanded for a new trial on the ground that the jury had not been instructed on the lesser-included offense of second-degree intentional murder. State v. Dahlin, 695 N.W.2d 588, 590 (Minn. 2005).
Staats was subsequently convicted of first-degree murder.
The district court assigned the new trial to the judge who had presided over appellant's first trial. Appellant moved for removal as of right under Minn. R. Crim. P. 26.03, subd. 13(4). The district court denied the request. Appellant then moved for removal of the judge for cause. That motion was denied by the Chief Judge of the Fourth Judicial District. Appellant sought a writ of prohibition from this court to exercise his automatic right of removal. In re Dahlin, No. A05-2162, at *1 (Minn.App. Nov. 14, 2005) (order op.). This court denied the request. Id. at *2. A jury subsequently found appellant guilty of aiding and abetting second-degree intentional murder. Appellant waived his right to a jury determination of sentencing-enhancement factors and stipulated that Jirasek was killed in his home. The district court sentenced appellant to 433 months, which includes an 80-month sentencing enhancement. This appeal follows.
DECISION I.
Appellant argues that he had an automatic right to remove the judge assigned to his second trial after remand because it was a new proceeding. "The interpretation of the rules of criminal procedure is a question of law subject to de novo review." Ford v. State, 690 N.W.2d 706, 712 (Minn. 2005).
Peremptory removal of a judge in criminal proceedings is governed by Minn. R. Crim. P. 26.03, subd. 13(4). State v. Azure, 621 N.W.2d 721, 724 (Minn. 2001). Within seven days after receiving notice of the judge scheduled to preside over a trial, but before trial, a party may file a notice to remove a judge as of right. Minn. R. Crim. P. 26.03, subd. 13(4). "No notice to remove shall be effective against a judge who has already presided at the trial, Omnibus Hearing, or other evidentiary hearing of which the party had notice, except upon an affirmative showing of cause on the part of the judge." Id.
"The proper remedy to pursue when a motion to remove has been denied is to seek a writ of prohibition." State v. Cermak, 350 N.W.2d 328, 331 (Minn. 1984). "Denial of a writ . . . by the [c]ourt of [a]ppeals is subject to review by the [s]upreme [c]ourt through petition for review." Minn. R. Civ. App. P. 120.05. Final appellate determination bars raising the issue on subsequent appeal. Cermak, 350 N.W.2d at 331.
Here, appellant promptly sought a writ of prohibition from this court after the district court denied his motion to peremptorily remove the assigned judge. In re Dahlin, No. A05-2162, at *1 (Minn.App. Nov. 14, 2005) (order op.). Appellant's removal argument on appeal is the same as presented in seeking a writ of prohibition, which this court denied. Id. at *1-*2. Appellant did not petition for review by the supreme court. Therefore, our denial of appellant's writ of prohibition is law of the case, and this issue is not properly before us. Liedtke v. Ferguson, 370 N.W.2d 477, 478 (Minn.App. 1985), review denied (Minn. Sept. 13, 1985).
We note that appellant's argument in his reply brief asserts that structural error occurred here because his right to remove the judge under Minn. R. Crim. P. 26.03, subd. 13(3), (4), was denied. While appellant did earlier move for the judge's removal for cause under Minn. R. Crim. P. 26.03, subd. 13(4), that motion was denied by the Chief Judge of the Fourth Judicial District. And appellant did not challenge that ruling before this court.
II.
Appellant argues that the evidence is insufficient to prove that he had the necessary intent to convict him of aiding and abetting second-degree intentional murder. The state must prove "beyond a reasonable doubt all of the essential elements of the crime with which the defendant is charged." State v. Ewing, 250 Minn. 436, 442, 84 N.W.2d 904, 909 (1957). In considering a claim of insufficient evidence, this court's review is "limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did." State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume the jury believed the state's witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). This is especially true when resolution of the matter depends on conflicting testimony. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).
The fact-finder has the exclusive function of judging witness credibility and weighing the evidence, Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995), and this court will defer to the district court's credibility determinations. State v. Kramer, 668 N.W.2d 32, 37 (Minn.App. 2003), review denied (Minn. Nov. 18, 2003). This court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).
A conviction "based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence." State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994). "While it warrants stricter scrutiny, circumstantial evidence is entitled to the same weight as direct evidence." State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999). The circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt. Jones, 516 N.W.2d at 549. A jury is in the best position to evaluate circumstantial evidence, and its verdict is entitled to deference. Webb, 440 N.W.2d at 430.
Second-degree intentional murder is "caus[ing] the death of a human being with intent to effect the death of that person or another, but without premeditation." Minn. Stat. § 609.19, subd. 1(1) (2000). "A person is criminally liable for a crime committed by another if that person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime." Minn. Stat. § 609.05, subd. 1 (2000). This requires that the state show "some knowing role in the commission of the crime by a defendant who takes no steps to thwart its completion." State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995). Such a role may be as minimal as one's presence that aids the crime. Id. at 924-25.
Here, the evidence is sufficient to support the verdict. Appellant told several people, including Troska, Staats, and Olson, that he wanted to "kill" or "hurt" Jirasek. Appellant also told Troska that he wanted to videotape his torturing of Jirasek and make her watch it.
Appellant purchased two guns before the murder, including a handgun just three days before the final confrontation at Jirasek's house. When he bought the handgun, appellant told the seller that his girlfriend was unfaithful and started to cry. Appellant bought ammunition for the guns, black ski masks, a gas can, and gasoline less than one hour before the murder. Appellant had earlier told Staats that "[his] life [was] crumbling because he believed [Troska] was cheating on him," followed by "he had to go get shotgun shells."
While appellant's testimony at trial was that Staats shot Jirasek, Staats testified that he thought that appellant wanted only to beat up Jirasek. But then appellant went beyond that. On the night of the murder, appellant was commiserating with Staats about his fiancée's alleged infidelity with Jirasek. Appellant stated on the night of the murder that he was going "to take care of his problem," "solve his problem," "take care of his business." In addition, appellant went to K-Mart to buy ammunition, chose black ski masks "[s]o no one . . . could see our faces," and obtained a portable gas can and gas so he could "destroy the scene." Staats testified that appellant showed him how to hold the magazine on his .380 pistol so that the clip would not fall out. Both men showed up at the house of Jirasek with the guns, the ammunition, the ski masks, and the gas. Further, DNA testing confirmed the presence of Jirasek's blood on appellant's pants, and appellant's gloves had evidence of both his DNA and Jirasek's.
Based on our review of the record, we conclude that the evidence was sufficient to support appellant's conviction of aiding and abetting second-degree intentional murder.
III.
Appellant contends that his sentence unfairly exaggerates the criminality of his conduct because his separate conviction of possession of a firearm by an ineligible person under Minn. Stat. § 624.713, subds. 1(b), 2 (2000), which increased his criminal-history score, and this conviction constitute a single behavioral incident and that the crimes should have been sentenced at the same time. Appellant also argues that the record does not support the 80-month sentencing enhancement.
This court reviews a district court's decision to depart from the presumptive guidelines sentence for an abuse of discretion. Taylor v. State, 670 N.W.2d 584, 588 (Minn. 2003). Reversal is warranted only if the reasons for the departure are improper or inadequate and evidence is insufficient to justify defendant's aggravated sentence. Id. Appellant argues that the disproportionate departure resulted from multiple prosecutions and that the aggravating factor of zone of privacy does not support the upward departure.
With a few exceptions, "if a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses." Minn. Stat. § 609.035, subds. 1, 3 (2000). Appellant was charged with and pleaded guilty in Wright County to illegal possession of a firearm after being convicted of a crime of violence under Minn. Stat. § 624.713, subd. 1(b). That conviction arose out of appellant's act of terrorizing Troska in their home a day before Jirasek's murder. Nevertheless, appellant argues that because he could have been sentenced on the same day for the aiding and abetting second-degree murder conviction and the firearms offense, the latter should not have been used to calculate his criminal-history score.
Crimes involving the same behavioral incident must arise "out of a continuing and uninterrupted course of conduct, manifesting an indivisible state of mind or coincident errors of judgment." State v. Sailor, 257 N.W.2d 349, 352 (Minn. 1977) (quotation omitted). For intentional crimes, the factors are time and place and whether a single criminal objective was sought. State v. Zuehlke, 320 N.W.2d 79, 82 (Minn. 1982). To obtain multiple sentences, the state must prove by a preponderance of the evidence that the defendant's conduct is not part of a single behavioral incident. State v. Williams, 608 N.W.2d 837, 841-42 (Minn. 2000).
The two crimes involved here arose out of different behavioral incidents. Appellant owned a shotgun in October 2000 and purchased a pistol on December 13, 2000. The charge for appellant's violation of the firearms-possession crime was based on his acts of threatening Troska with a gun on December 15 and 16 in their home in Wright County. Upon pleading guilty to the firearms-possession charge, appellant admitted that he resided in Waverly on December 18 and that "on or before December 18, 2000 there was a firearm." Jirasek was murdered on December 16 in Minnetonka in Hennepin County. Because these were separate behavioral incidents, the two crimes could be charged and sentenced separately.
Upward sentencing departures are based on evidence that the defendant committed the offense in a particularly serious way. Taylor, 670 N.W.2d at 588. The offense must involve "substantial and compelling circumstances," which "are those circumstances that make the facts of a particular case different from a typical case." State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985) (quotation omitted). Because a defendant may not be sentenced for a crime other than the crime of conviction, a district court may rely only on the egregious conduct underlying that offense. Taylor, 670 N.W.2d at 588.
A murderer's invasion of the zone of privacy is the killing of an individual in a place where the victim "should feel secure from outside harm." State v. Back, 341 N.W.2d 273, 276 (Minn. 1983). Unlike other crimes when the victim suffers subsequent emotional trauma from the invasion, the theory underlying the basis for an aggravating factor in a murder is that the victim was killed where the victim should have felt safe. State v. Bock, 490 N.W.2d 116, 121 (Minn.App. 1992), review denied (Minn. Aug. 27, 1992).
See, e.g., State v. Van Gorden, 326 N.W.2d, 633, 635 (Minn. 1982) (stating that defendant rapist "invaded the zone of privacy surrounding and including [the victim's] home" rendering her home "no longer the island of security that she perhaps thought it was"); State v. Griffith, 480 N.W.2d 347, 351 (Minn.App. 1992) (stating in regard to "zone of privacy" that the victim "had a reasonable expectation of privacy in her bedroom, even though it was in appellant's home"); State v. Coley, 468 N.W.2d 552, 555 (Minn.App. 1991) (stating that criminal sexual conduct and kidnapping occurring in a victim's home "imposes an additional psychological shock").
Following the jury's verdict, appellant waived his right to a jury trial "as it relates to the issue of whether or not an upward departure based on the zone of privacy is appropriate on the lesser included offenses." Appellant also stipulated "that the offense and the death of Mr. Jirasek occurred in a zone of privacy" and thus waived a factual determination of the aggravating factor. The district court inquired on the record concerning appellant's waiver and stipulation and informed appellant of his rights. Appellant asserted his waiver, knowing his rights.
But appellant now argues that the zone-of-privacy factor is too general to provide a basis for a departure and that the district court failed to make specific findings that the victim was exposed to any psychological shock or was murdered in a manner any more serious than any other second-degree intentional murder. Minnesota appellate courts have rejected this argument. In Back, the defendant argued that "the fact that the victim was shot at home should not be [an aggravating] factor [in sentencing] because firing the shots at a house was what made defendant's conduct constitute murder." 341 N.W.2d at 277. But the supreme court, in affirming, stated that "we see no problem with relying on the fact that defendant invaded the victim's curtilage as an aggravating [sentencing] factor." Id. The supreme court noted that "the victim was a totally innocent person who was in a place where she had every right to expect she was safe." Id. Affirmed.