Bellcourt v. State

• Decision Date: 27 June 1986
• Docket Number: No. C7-85-1553,C7-85-1553
• Citation: 390 N.W.2d 269
• Parties: . STATE of Minnesota, Respondent. Supreme Court of Minnesota
• Court: Minnesota Supreme Court

Page 269

390 N.W.2d 269

John Clinton BELLCOURT, Petitioner, Appellant, v. STATE of Minnesota, Respondent.

No. C7-85-1553.

Supreme Court of Minnesota.

June 27, 1986.

Syllabus by the Court

1. Where no reasonable juror could find that defendant sufficiently communicated to a victim his intent to withdraw from an aggravated robbery, trial court did not err in refusing to instruct the jury on the revival of an aggressor's right to self-defense.

2. Where reasonable jurors could only find that the killing by defendant occurred while defendant was committing or attempting to commit an aggravated robbery, trial court did not err in refusing to submit to the jury the lesser-included offenses of murder in the third degree, manslaughter in the first degree, and manslaughter in the second degree.

William Kennedy, Hennepin Co. Public Defender, David M. Duffy, Michael H. McGlennen, Asst. Co. Public Defenders, Minneapolis, for appellant.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, Thomas L. Johnson, Hennepin Co. Atty., Vernon E. Bergstrom, Chief, Appellate Section, Lee W. Burry, Asst. Co. Atty., Minneapolis, for respondent.

Heard, considered, and decided by the court en banc.

AMDAHL, Chief Justice.

This case comes before us on defendant's appeal from a judgment entered on his conviction for first-degree felony murder. He specifically complains of the trial court's refusal to instruct the jury on the revival of an aggressor's right to self-defense and its refusal to submit to the jury the lesser-included offenses of third-degree murder and manslaughter in the first and second degrees. We affirm.

On Thursday, February 10, 1983, defendant was drinking beer with an acquaintance, Frank Norris, at defendant's home at 3128 Minnehaha Avenue in south Minneapolis. Having run out of beer and money, defendant and Norris decided to rob the Minnehaha Liquor Store at the corner of Lake Street and Minnehaha, just 2 blocks away. Since defendant was a regular customer at the store and knew he would be recognized, he covered his fingerless left hand with a mitten and his face with a ski mask. Defendant and Norris then drove over and parked in a lot down the street from the store. As they walked up to the store, they passed the Duncan Tire Company. The owner, Malcolm Duncan, saw them and noted that it was unusual for someone to be wearing a mask on such a warm (approximately 20? F.) day.

At approximately 3:15 p.m., defendant and Norris entered the liquor store. In his coat pocket defendant was carrying a .357 magnum revolver. On duty at the store were the checkout clerk, Eileen Riddle; the owner, James Nordin; his son, Paul; and Dave Ceason, the store's delivery driver. As defendant and Norris entered the store, the Nordins and Ceason were in the backroom eating lunch and talking. Riddle had just stepped into the walk-in cooler near the entrance to the backroom when she was confronted by defendant who was pointing the gun at her stomach. Defendant told Riddle to empty the tills and Riddle complied by putting all the currency from the cash register into a brown 6-pack size paper bag. Riddle immediately recognized the voice as Bellcourt's and also identified his stub fingers by the way the mitten covered his hand. As Riddle emptied the till, defendant began walking back toward the backroom, alternating pointing the gun at Riddle, the backroom, and Riddle again.

After Norris entered the store, he apparently headed for the backroom. Just to the left of the doorway as one enters the backroom is a safe and next to that is a short counter where Paul Nordin and Ceason were eating. James Nordin was standing next to the safe talking to them. Norris came into the backroom and said he needed some assistance in the store. James Nordin headed out of the backroom but stopped in the doorway, apparently upon seeing defendant. Norris then came into the backroom, walked around Paul Nordin, and swung a bottle at Ceason's head. Ceason blocked the swing with his hand and the bottle bounced across the countertop. Norris then told Paul Nordin and Ceason to get down on the floor, which they did.

As Ceason laid on the floor, he looked at Norris. Norris told Ceason to turn his head away. When Ceason refused, Norris threw Ceason's jacket at him but missed, covering Paul's head instead. Norris then threw a roll of towels at Ceason which bounced off Ceason's head. Ceason finally turned away when Norris picked up a steak knife which Paul Nordin had been using to eat his lunch.

Defendant ordered James Nordin to open the safe. Defendant then ordered Riddle and a female customer into the backroom while Nordin was opening the safe. Riddle, who left the bag containing the money on the counter, and the customer stepped into the backroom as Norris stepped out. James Nordin glanced over at Riddle and motioned with his eyes for her to get out of the way. Riddle and the customer then stepped back and laid on the floor.

Defendant took a couple of steps into the store to make sure it was clear. As he stepped back into the backroom, James Nordin stood up in front of the safe. Nordin apparently reached under his smock, where he kept a .38 revolver holstered to his belt, turned and shot defendant. The bullet hit defendant in the chest at an angle, about 4 inches below his left nipple, went through part of his stomach, and broke a rib on the right side of his back. According to expert testimony, Nordin's gun was between 6 to 24 inches from defendant's chest when the shot was fired.

Defendant testified that the shot knocked the wind out of him and he began losing control of his body. He took a couple of sidesteps and fell on the floor; the ski mask had turned on his face, partially obstructing his vision. Through one eyehole, he saw a gun coming toward his face, with the hand holding the gun becoming white and tightening. He testified that he tried to readjust the mask with his bad hand, but he just made the problem worse and his gun "went off." He finally got the mask off, yelled "I think I'm hit," got up and ran out of the store.

Paul Nordin testified that as he lay on the floor he heard two or three shots. He lifted the coat covering his head and saw his father leaning on a garbage can, about 3 feet in front of the safe, and defendant lying on his right side on the floor. Defendant's mask had come off. Paul stated that his father said something like "No, John, don't" and defendant began to fire again. Paul saw the bullets come out James' back, then James pivoted and fell on his face.

Riddle also testified to hearing "a couple" shots and a thud. She looked up and saw defendant, maskless, lying on his right side. She put her head back down and heard more shots, then dead silence. She did not hear Nordin say anything during the shooting.

Ceason also testified that he did not hear Nordin speak during the shooting. He had turned and saw flashes and smoke and what sounded like firecrackers. He testified it looked as though Nordin was dancing or trying to step on the firecrackers. Ceason looked at Nordin, who was leaning on the garbage can, unarmed, and saw bullets come out of Nordin's back. Nordin pivoted and fell.

Defendant testified that when he got up and ran out of the store, he did not see Norris anywhere and did not stop at the counter to pick up the money. When defendant got to the sidewalk, he said he saw Norris sitting in the car up ahead. Duncan, however, testified that he saw the pair walk past his store together, with Norris just a step ahead of defendant. He said that defendant was carrying a brown 6-pack size paper bag. Defendant was arrested later that evening at his home.

James Nordin died at the scene from massive internal hemorrhaging caused by gunshot wounds. Defendant was convicted by a Hennepin County jury of first-degree murder and sentenced to life imprisonment. This appeal is from the judgment entered upon the trial court's denial of defendant's petition for postconviction relief.

1. The first issue presented is whether defendant was entitled to a jury instruction on self-defense. In Minnesota, three conditions must exist in order to excuse or justify the use of deadly force under Minn.Stat. Secs. 609.06, .065 (1984):

(1) The killing must have been done in the belief that it was necessary to avert death or grievous bodily harm.

(2) The judgment of the defendant as to the gravity of the peril to which he was exposed must have been reasonable under the circumstances.

(3) The defendant's election to kill must have been such as a reasonable man would have made in light of the danger to be apprehended.

State v. Austin, 332 N.W.2d 21, 24 (Minn.1983) (citations omitted). Once the issue of self-defense is raised, the state has the burden of proving beyond a reasonable doubt that the killing was not justifiable. Id. at 23; State v. Housley, 322 N.W.2d 746, 750 (Minn.1982).

An aggressor in an incident has no right to a claim of self-defense. However, where the defendant is the original aggressor in an incident giving rise to his self-defense claim, an instruction on self-defense will be available to him only if he actually and in good faith withdraws from the conflict and communicates that withdrawal, expressly or impliedly, to his intended victim. State v. Graham, 292 Minn. 308, 310, 195 N.W.2d 442, 444 (1972). While Minnesota case law on this issue is scant, case law from other jurisdictions makes clear that an aggressor has the duty to employ all means in his power to avert the necessity of killing, and before his right to self-defense may be revived, he must clearly manifest a good-faith intention to withdraw from the affray and must remove any just apprehension or fear the original victim may be experiencing. Melchior v. Jago, 723 F.2d 486, 493 (6th Cir.1983), cert. denied, 466 U.S. 952, 104 S.Ct. 2156, 80 L.Ed.2d 542 (1984). If the circumstances are such that it is impossible for defendant to communicate the withdrawal, " 'it is...