816 N.W.2d 703 (Minn.App. 2012), A11-0987, State v. Melchert-Dinkel

Docket NºA11-0987.
Citation816 N.W.2d 703
Opinion JudgeROSS, Judge.
Party NameSTATE of Minnesota, Respondent, v. William Francis MELCHERT-DINKEL, Appellant.
AttorneyLori Swanson, Attorney General, St. Paul, MN; and G. Paul Beaumaster, Rice County Attorney, Benjamin Bejar, Assistant County Attorney, Faribault, MN, for respondent. Terry A. Watkins, Watkins Law Office, LLC, Faribault, MN, for appellant.
Judge PanelConsidered and decided by WRIGHT, Presiding Judge; ROSS, Judge; and MUEHLBERG, Judge.[*]
Case DateJuly 17, 2012
CourtCourt of Appeals of Minnesota

Page 703

816 N.W.2d 703 (Minn.App. 2012)

STATE of Minnesota, Respondent,

v.

William Francis MELCHERT-DINKEL, Appellant.

No. A11-0987.

Court of Appeals of Minnesota.

July 17, 2012

Page 704

[Copyrighted Material Omitted]

Page 705

Syllabus by the Court

1. Minnesota Statutes section 609.215, subdivision 1, which criminalizes advising, encouraging, or assisting another to commit suicide, is not unconstitutionally overbroad under the First Amendment.

2. The First Amendment does not bar the state from prosecuting a person for advising, encouraging, or assisting another to commit suicide by sending coercive messages to suicide-contemplating Internet users instructing them how to kill themselves and coaxing them to do so.

Lori Swanson, Attorney General, St. Paul, MN; and G. Paul Beaumaster, Rice County Attorney, Benjamin Bejar, Assistant County Attorney, Faribault, MN, for respondent.

Terry A. Watkins, Watkins Law Office, LLC, Faribault, MN, for appellant.

Considered and decided by WRIGHT, Presiding Judge; ROSS, Judge; and MUEHLBERG, Judge.[*]

OPINION

ROSS, Judge.

Mark Drybrough hanged himself in England in 2005, and Nadia Kajouji drowned herself in Canada three years later, both shortly after 46-year-old William Melchert-Dinkel, who knew that Drybrough and Kajouji were contemplating suicide, sent each a series of Internet messages from his home in Faribault, prodding them to kill themselves. Melchert-Dinkel instructed Drybrough and Kajouji how to commit suicide by hanging, tried to persuade them to hang themselves, and convinced them that he was a distraught young woman who would commit suicide simultaneously with them or shortly afterward. The state charged Melchert-Dinkel with two counts of urging suicide under Minnesota Statutes section 609.215, subdivision 1 (2004). The district court convicted him of the offense over his objection that his free-speech right to send the Internet messages to Drybrough and Kajouji was protected by the First Amendment. He makes both facial and as-applied constitutional challenges to the statute on appeal. Because the statute is not unconstitutional on its face or as applied to Melchert-Dinkel's conduct, we affirm his convictions.

FACTS

Minnesota law enforcement officials eventually became involved in the investigation into suicides by a British man in 2005 and a Canadian woman in 2008. Officials learned that a Minnesota computer user had engaged in email and Internet messaging conversations with the decedents shortly before their deaths. The investigation led police to William Melchert-Dinkel.

Page 706

In March 2008, Sergeant William Haider of the St. Paul Police Department was contacted by Celia Blay, a Briton who had become concerned that an " online predator" had been encouraging persons to commit suicide by hanging. Blay told Sergeant Haider that the predator used a variety of names, including " Li Dao," " Falcon Girl," and " Cami." Blay had traced the predator through a website where users post messages and converse about life, depression, and suicide. The website's members represent themselves as a subculture that believes suicide is a personal right. Blay linked the predator's email address to a male Minnesota resident. She told Sergeant Haider that the predator falsely presented himself as a woman, particularly as a " kind, sympathetic emergency room nurse" who " befriends his victims [by] pretending to be suicidal." Police linked Melchert-Dinkel to the described email addresses.

The British man who killed himself was Mark Drybrough. He hanged himself in Coventry, England, at age 31 in July 2005. Drybrough's suicide occurred within five days after the last of a series of email exchanges between him and Melchert-Dinkel, who had been falsely representing himself to Drybrough online as " Li Dao," a 25-year-old female nurse in Minnesota.

The exchanges between Melchert-Dinkel and Drybrough began on July 1, 2005, when Melchert-Dinkel responded from his email address li_ dao 05@ yahoo.com to a question posted by Drybrough asking whether " anyone [has] details of hanging methods where there isn't access to anything high up to tie the rope to." Melchert-Dinkel, writing as " Li Dao," told Drybrough that, " depending on how tall you are ... you can easily hang from a door using the knob on [one] side to tie the rope to, sling it over the top of the door, attach the noose or loop to yourself then step off and hang successfully." He also wrote that Drybrough could still hang himself if he is tall, offering, " [Y]ou can still do a partial suspension hanging that way by having the noose ext fairly high up and attaching it to yourself, then lowering yourself into a sitting position or kneeling down so you [can] hang that way." He then assured Drybrough that " [i]t is very effective," boasting of personal experience and representing that he, too, would hang himself, stating, " I have trialed it 5 times now with very good results so I am [us]ing it for certain when I go. Unconsciousness occurred in about 10-25 seconds...." Melchert-Dinkel explained, " [I]f [unconsciousness] doe[s] not occur then you need more neck tension and try again." He urged Drybrough to write with any questions, promising, " I'll get back to you asap." He wished Drybrough " good luck."

The next day Drybrough posted Melchert-Dinkel's self-hanging explanation in a message to another inquirer, thankful for what he described as the " instructions" that he received from Melchert-Dinkel. Drybrough also posted a message asking about easily obtainable drugs suitable for quick and painless death by overdose. Melchert-Dinkel responded to Drybrough in a July 18 email that discouraged overdosing and urged hanging:

[A]s a veteran nurse I have found that, as a rule, overdosing is at best very unpredictable and unsure because of so many factors. If you are very serious about dying, I too agree that suspen[s]ion hanging is by far the best and surest method to do, and it is the method I am using also. If you have an[y] questions please feel free to write me or if you just need to talk also. Good luck. Sincerely ... Li Dao 25 f Minnesota.

Drybrough posted a message about using ratchets to hang himself. Melchert-Dinkel responded by instructing Drybrough, " [Y]ou don't need all that of course

Page 707

just a sturdy knot...." He explained that " once unconsciousness is achieved then the body relaxes naturally and the pressure on the rop[e]/neck actually greatly increases causing death," and he closed warmly as just " Li," after writing, " got to go to bed for a while before work now[.] talk to you tomorrow hun. * *hugs* *."

Melchert-Dinkel's next email to Drybrough as Li Dao followed soon after the last one, beginning in charming fashion, " Sorry to keep bothering you ... hun," and then inquiring, " I was going to ask if there is a time line involved with your desire to die. Is it soon ... ?" He represented some degree of urgency while linking his own purported plan to die with the timing of Drybrough's suicide, saying, " [F]or me I want to very badly and plan to soon but [will] stay here for you as long as possible." Melchert-Dinkel then represented falsely that he had recently comforted another Englishman in suicide, watching him die by a hanging online:

I have had several other friends I have communicated with that are suicidal. The most interesting was a friend also in England that I had communicated with for several weeks. One night two weeks ago he asked if I could be with him when he died, obviously that was not possible physically due to the distance, but unbeknowned (sic) to me he had a web cam and asked if he could hang himself to death while I watched him on the web cam. [At] first I thought he was mad crazy, and wanted a spectticle (sic) and such but after another hour of talking I realized he lived alone ... and did not want to die alone. [I]n the end I watched him go and it was very peaceful and I was pretty pleased I could make this guys last moments special for him.... I'll be here to write to you as I can and be here for you.... * *hugs* * Li.

Drybrough responded by revealing that he had a medical condition leaving him with chronic flu-like symptoms, and disclosed a mental-health issue also, " There's something gone wrong with my mind." He told Melchert-Dinkel, " I haven't set a date for my suicide though ... each day is as good as the next for going ahead with it." Melchert-Dinkel kept his sympathetic tone under the subject line, " I understand," and represented, " I hope to be a good friend at the end for you as you are for me also."

Drybrough wrote to " Li Dao" the next day, explaining that he had taken steps toward hanging himself but expressing difficulty in following Melchert-Dinkel's specific instructions: " I've got a noose hanging in my room, and I've been slowly dropping myself putting on more weight but I've yet to have anything like falling unconscious from doing that." He revealed, " I've had the noose around my neck about 5 times now, but only 2 times did I feel close to being ready."

Drybrough next wrote to " Li Dao" on July 20, sharing, " I've had a day of feeling depressed." Melchert-Dinkel wrote back on July 22 feigning sympathy, " I am here to care and help you." Drybrough replied the next day, struggling about suicide and seeming apologetic about not yet being ready to die with " Li Dao," who had told Drybrough " she" was ready to hang herself as soon as Drybrough was ready. Drybrough wrote, " I keep holding on to the hope that things might change. Caught between being suicidal and considering it. Same old story! ... I don't want to waste anyone's time. If you want someone who's suicidal, I'm just not there yet.... Sorry. I admire your courage, I wish I had...

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6 practice notes
  • State v. Final Exit Network, Inc., 093013 MNCA, A13-0563
    • United States
    • Minnesota Court of Appeals of Minnesota
    • September 30, 2013
    ...charges, we agree. [3] This court rejected a similar constitutional challenge to Minn. Stat. § 609.215 in State v. Melchert-Dinkel, 816 N.W.2d 703 (Minn.App. 2012), review granted (Minn. Oct. 16, 2012), which is currently pending before our supreme court. Accordingly, our decision in Melche......
  • Deadly speech: encouraging suicide and problematic prosecutions.
    • United States
    • Case Western Reserve Law Review Vol. 67 Nbr. 3, March 2017
    • March 22, 2017
    ...(89.) Melchert-Dinkel, 844 N.W.2d at 24. (90.) Id. at 21. (91.) Id. at 19-21. (92.) Id. at 19. (93.) Id. (94.) State v. Melchert-Dinkel, 816 N.W.2d 703, 714 (Minn. Ct. App. 2012). (95.) Melchert-Dinkel, 844 N.W.2d at 19-20. (96.) Id. (emphasis omitted) (citing Giboney v. Empire Storage &......
  • State v. Melchert-Dinkel, 122815 MNCA, A15-0073
    • United States
    • Minnesota Court of Appeals of Minnesota
    • December 28, 2015
    ...Melchert-Dinkel appealed, challenging the statute's constitutionality, and this court affirmed his convictions. State v. Melchert-Dinkel, 816 N.W.2d 703, 705 (Minn.App. 2012). But the supreme court reversed. State v. Melchert-Dinkel, 844 N.W.2d 13, 25 (Minn. 2014). The supreme court held th......
  • Final Exit Network, Inc. v. Ellison, 022219 MNDC, 18-cv-01025 (NEB/ECW)
    • United States
    • Federal Cases United States District Courts 8th Circuit United States District Court of Minnesota
    • February 22, 2019
    ...held that the statute prohibits speech that is unprotected by the First Amendment. Id. at 18 (citing State v. Melchert-Dinkel, 816 N.W.2d 703, 714 (Minn.Ct.App. 2012)). The Minnesota Supreme Court upheld the “assists” portion of the statute, even if “assists” consis......
  • Request a trial to view additional results
5 cases
  • State v. Final Exit Network, Inc., 093013 MNCA, A13-0563
    • United States
    • Minnesota Court of Appeals of Minnesota
    • September 30, 2013
    ...charges, we agree. [3] This court rejected a similar constitutional challenge to Minn. Stat. § 609.215 in State v. Melchert-Dinkel, 816 N.W.2d 703 (Minn.App. 2012), review granted (Minn. Oct. 16, 2012), which is currently pending before our supreme court. Accordingly, our decision in Melche......
  • State v. Melchert-Dinkel, 122815 MNCA, A15-0073
    • United States
    • Minnesota Court of Appeals of Minnesota
    • December 28, 2015
    ...Melchert-Dinkel appealed, challenging the statute's constitutionality, and this court affirmed his convictions. State v. Melchert-Dinkel, 816 N.W.2d 703, 705 (Minn.App. 2012). But the supreme court reversed. State v. Melchert-Dinkel, 844 N.W.2d 13, 25 (Minn. 2014). The supreme court held th......
  • Final Exit Network, Inc. v. Ellison, 022219 MNDC, 18-cv-01025 (NEB/ECW)
    • United States
    • Federal Cases United States District Courts 8th Circuit United States District Court of Minnesota
    • February 22, 2019
    ...held that the statute prohibits speech that is unprotected by the First Amendment. Id. at 18 (citing State v. Melchert-Dinkel, 816 N.W.2d 703, 714 (Minn.Ct.App. 2012)). The Minnesota Supreme Court upheld the “assists” portion of the statute, even if “assists” consis......
  • 370 F.Supp.3d 995 (D.Minn. 2019), 18-cv-01025 (NEB/ECW), Final Exit Network, Inc. v. Ellison
    • United States
    • Federal Cases United States District Courts 8th Circuit United States District Court of Minnesota
    • February 22, 2019
    ...held that the statute prohibits speech that is unprotected by the First Amendment. Id. at 18 (citing State v. Melchert-Dinkel, 816 N.W.2d 703, 714 (Minn. Ct.App. 2012) ). The Minnesota Supreme Court upheld the "assists" portion of the statute, even if &quo......
  • Request a trial to view additional results
1 books & journal articles
  • Deadly speech: encouraging suicide and problematic prosecutions.
    • United States
    • Case Western Reserve Law Review Vol. 67 Nbr. 3, March 2017
    • March 22, 2017
    ...(89.) Melchert-Dinkel, 844 N.W.2d at 24. (90.) Id. at 21. (91.) Id. at 19-21. (92.) Id. at 19. (93.) Id. (94.) State v. Melchert-Dinkel, 816 N.W.2d 703, 714 (Minn. Ct. App. 2012). (95.) Melchert-Dinkel, 844 N.W.2d at 19-20. (96.) Id. (emphasis omitted) (citing Giboney v. Empire Storage &......