Bangert v. State
| Decision Date | 27 July 1979 |
| Docket Number | No. 49371.,49371. |
| Parties | Russell William BANGERT, Appellant, v. STATE of Minnesota, Respondent. |
| Court | Minnesota Supreme Court |
C. Paul Jones, Public Defender, Evalynn B. Welling, Asst. Public Defender, Minneapolis, for appellant.
Warren Spannaus, Atty. Gen., Thomas L. Fabel, Deputy Atty. Gen., Craig H. Forsman, Sp. Asst. Atty. Gen., St. Paul, John F. Corbey, County Atty., Mankato, for respondent.
Heard before ROGOSHESKE, YETKA, and WAHL, JJ., and considered and decided by the court en banc.
A jury found defendant, Russell William Bangert, guilty of the first-degree murders of Ellen and Robert Evenson, his half sister and her husband. The trial judge sentenced him to two consecutive terms of life imprisonment, with execution stayed on the second sentence and lifetime probation ordered in the event of release on the first sentence. Defendant did not appeal but subsequently sought postconviction relief pursuant to Minn.St. c. 590. The postconviction court denied the petition and, on its own motion, modified the sentence by eliminating the stay of execution and probation on the second life term. The grounds for relief asserted in the postconviction proceeding and again on appeal are that the evidence of premeditation was insufficient; the trial court erred in failing to change the venue on its own motion; and consecutive life sentences are improper under the federal constitution and state law. We affirm the findings of the postconviction court on all issues raised in the petition for postconviction relief but, in the interests of justice, vacate the sentence and remand to the sentencing judge for resentencing.
The bodies of Robert and Ellen Evenson were discovered at their home in Rapidan, Minnesota, in the early afternoon of November 9, 1976. They were lying in bed, each having been shot fatally. Three .22-caliber long rifle cartridges were found near the bedroom doorway. Subsequent autopsies revealed that Robert had died from a single gunshot injury to the head, while Ellen had died from two such injuries. Police found two rifles in the house, tests of which showed that neither had fired the cartridges used in the killings. The couple's car, a 1972 Dodge Dart, was missing. It was located 5 days later in Ocala, Florida, in response to a nationally broadcast missing-vehicle report. Defendant, who had been living with the Evensons, could not be located.
On December 15, 1976, at approximately 11:30 p. m., defendant entered a grocery store in Fort Worth, Texas, browsed momentarily, and left. He returned shortly thereafter, picked up a package of cupcakes, and informed the manager at the checkout counter that he intended to shoplift them. The manager told defendant that he would not permit him to shoplift but that he would give him something to eat if he was hungry. Defendant declined the offer, stating that he desired to be arrested. When asked why, he responded that he was wanted in Minnesota for the murder of his half sister and her husband. The manager then telephoned the police, and defendant awaited their arrival without attempting escape.
Police officers arrived 15 to 20 minutes later. Defendant was fully cooperative, giving them his name, date of birth, and social security number. The officers ran a computer check on the information and then arrested defendant and read him his rights. While transporting defendant to the station, one of the officers questioned him about the murders. Defendant informed them that he had shot Robert and Ellen Evenson while they slept and that he had done so because he "never did like the people" and that he was "afraid" and "needed a reason to get out of there." He further told the officers that he had shot the Evensons with his .22-caliber rifle, which he had exchanged in Illinois for gas, and that he had taken the Evensons' car and abandoned it in Ocala, Florida.
On December 28, 1976, defendant was charged by indictment with two counts of first-degree murder. He was determined to be competent to stand trial and, on February 4, 1977, a jury found him guilty on both counts of first-degree murder. The trial judge immediately imposed a life sentence for each murder, but ordered a postsentence investigation before determining whether to order concurrent or consecutive sentences. On March 7, 1977, the trial judge ordered that the life sentences be served consecutively, with a stay of execution on the second sentence and probation to commence upon completion of the first sentence.
Defendant filed a petition for postconviction relief on October 27, 1977. The grounds stated were that the evidence of premeditation was insufficient, a change of venue should have been ordered, and consecutive life sentences are unconstitutional. At the hearing on the petition, defendant also challenged the sentences as constituting double punishment, prohibited by Minn.St. 609.035, and subsequently filed an amended petition including that claim. The postconviction court denied relief. It also, on its own motion, amended the sentences by eliminating the stay of execution with probation placed on the second sentence, on the ground that such disposition was beyond the power of the trial court. Defendant appealed to this court.
Defendant's contention that the verdicts should be reduced from first- to second-degree murder because the evidence of premeditation introduced at trial was insufficient is without merit. In determining the sufficiency of the evidence, this court must view the evidence in the light most favorable to the jury verdict and decide whether the jury could reasonably have found the defendant guilty of the crime charged. State v. Whelan, 291 Minn. 83, 189 N.W.2d 170 (1971).
Minn.St. 609.18 defines premeditation as "to consider, plan or prepare * * to commit, the act referred to prior to its commission." Since premeditation involves the actor's state of mind, it cannot usually be proved by direct evidence but must be inferred from circumstances surrounding the homicide. State v. Merrill, 274 N.W.2d 99 (Minn.1978); State v. Gowdy, 262 Minn. 70, 113 N.W.2d 578 (1962). A "plan" to commit first-degree murder need not be formulated in any specific length of time, and premeditation may be inferred in part from the number of times a weapon is used. State v. Neumann, 262 N.W.2d 426 (Minn. 1978); State v. Martin, 261 N.W.2d 341 (Minn.1977).
The uncontradicted evidence established that defendant fired three shots into the heads of his victims while they were sleeping in their bedroom, causing their deaths shortly thereafter. To do so, he had to procure the rifle from its location in the house, walk down the hallway to the Evensons' bedroom, raise the rifle, take careful aim, and pull the trigger three times. By defendant's own admission, he killed the Evensons because he did not like them and needed an excuse to leave. On these facts, the jury's conclusion that defendant acted with premeditation is reasonable and clearly justified.
Defendant next contends that a new trial is required because the jury had no opportunity to consider certain evidence of intoxication as negating premeditation. At the postconviction hearing, defendant testified that at about 10:30 on the night of the murders he had taken ½ teaspoon of cocaine and smoked four "joints" of marijuana. He stated that after doing so he stayed in his bedroom for awhile, "just thinking." Defendant did not inform his trial counsel of these facts, allegedly because he did not want his father to find out.
The state takes the position that the issue is beyond the scope of a postconviction proceeding. We have held that postconviction relief is proper not only where constitutional issues are raised but also upon a showing of violation of state law. State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976). In State v. Neumann, 262 N.W.2d 426 (Minn.1978), we recognized that under state law a state of intoxication at the time of killing properly may be considered in determining whether the accused acted with premeditation. The A. B. A. Standards for Criminal Justice recommend that a postconviction-remedies statute provide relief when "there exists evidence of material facts, not theretofore presented and heard, which require vacation of the conviction or sentence in the interest of justice." A. B. A. Standards for Criminal Justice, Post Conviction Remedies (Approved Draft, 1968) § 2.1. Since defendant was arguably convicted without presentation of a defense available under state law, his claim falls within the scope of the postconviction-remedies statute. We do not mean to imply that a defendant may deliberately and inexcusably fail to raise an issue at trial and subsequently assert it as a ground for postconviction relief. Such a practice constitutes an abuse of process, and we will not entertain claims made under such circumstances. A. B. A. Standards for Criminal Justice, Post Conviction Remedies (Approved Draft, 1968) § 6.1. We find no evidence of abuse here. Defendant was only 18 years old at the time of the offense, he had no prior involvement with the criminal justice system, and he apparently feared his father's response to his admission of drug use. Because we believe that except in unusual circumstances a decision on the merits better serves the purposes of our postconviction-remedies statute than a disposition on procedural grounds, we will address the claim.
A new trial may be granted when the interests of justice so require or when newly discovered material evidence, which reasonable diligence would not have disclosed prior to trial, comes to light. Rule 26.04, subd. 1(1)5, Rules of Criminal Procedure. Although these provisions are not technically applicable, they present appropriate standards for resolving the issue presented. Whether a defendant's condition of intoxication negates the culpable mental state required for premeditation is normally a question for the jury. The mere fact...
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