Kochevar v. State

• Decision Date: 08 June 1979
• Docket Number: No. 49201.,49201.
• Citation: 281 NW 2d 680
• Parties: John Robert KOCHEVAR, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
• Court: Minnesota Supreme Court

281 N.W.2d 680 (1979)

John Robert KOCHEVAR, Petitioner, Appellant, v. STATE of Minnesota, Respondent.

No. 49201.

Supreme Court of Minnesota.

June 8, 1979.

C. Paul Jones, Public Defender, and J. Christopher Cuneo, Asst. Public Defender, Minneapolis, for petitioner, appellant.

Warren Spannaus, Atty. Gen., St. Paul, Keith M. Brownell, County Atty., Duluth, Mark Rubin, Asst. County Atty., Virginia, for respondent.

Heard before SHERAN, C. J., KELLY, and SCOTT, JJ., and considered and decided by the court en banc.

SCOTT, Justice.

This is an appeal from the postconviction order of the Sixth Judicial District Court which denied appellant's request to vacate his conviction for third-degree murder and to permit him to withdraw his guilty plea. We affirm.

On June 20, 1974, appellant was arrested for the shooting death of Janice Misquadace, a woman he had lived with for about five years. He was arraigned on July 1, 1974, after being indicted for first-degree murder by a grand jury. Appellant pleaded not guilty and went through various pretrial hearings. On October 31, 1974, after the jury was selected, but before it was sworn, appellant decided to accept the state's offer to plead guilty to murder in the third degree in exchange for a recommendation by the state that a cap of twelve years be placed on the sentence. Pursuant to this agreement, appellant appeared before the district court on the afternoon of October 31, 1974, to withdraw his plea of not guilty and plead guilty to the charge of third-degree murder. At the hearing, the trial court questioned defendant regarding the voluntariness of the plea and the rights he was waiving. After some inconsistency in his statements, he ultimately stated that he entered his plea voluntarily because he was guilty of third degree murder. Appellant was then put under oath and asked some preliminary questions by the court. Thereafter, at the request of the court, appellant was questioned by the prosecutor to establish a factual basis for the guilty plea.

Appellant testified that he and the victim, Janice Misquadace, had been living together for about five years. They had two children. On June 20, 1974, appellant and Misquadace went to a local tavern and drank 3.2 beer for several hours. From there they went to another tavern and continued to drink beer until about 12:30 a. m. They arrived home about 1 a. m. and drank a six-pack of beer in the car. While in the car, they "were sort of arguing back and forth" about a "family mix-up." Misquadace then wanted to go back to the tavern for some more beer, but appellant suggested that they go into the house. As they entered the home, they were still arguing.

Appellant stated that, after entering the house, Misquadace immediately went into the front room and got a gun. Appellant also got a gun from the front room. She had a .22 rifle which she said was loaded, and he had a loaded .410 shotgun. Appellant was able to take the .22 (which was actually unloaded) away from Misquadace. He then loaded the rifle with a shell and fired a shot "to scare her." She dropped to the floor, apparently, according to appellant, "playing possum." Appellant stated that he had no intention to shoot Misquadace. She remained on the floor for a few seconds, during which time appellant ejected an empty cartridge from the .22, put another shell in the chamber, and set the gun by the telephone in the kitchen. He also told Misquadace not to touch the gun because it was loaded. Appellant testified as follows as to what occurred next:

"A Then when I went to sit down there and was going to light a cigarette, she said now you are really going to get it, and she came up and charged and grabbed the .22.

"Q You are claiming she grabbed the .22?

"A Yes.

"Q And then what happened?

"A I grabbed it at the same time. We were scuffling around there, and that is when it went off and she got shot."

Appellant was asked whether he hit Misquadace over the head with the stock of the .410 shotgun. He responded that he did not think that happened, but "it might have been possible." Appellant also stated that he did not remember saying to Misquadace, "I am going to shoot you * * *." In addition, appellant was questioned about a statement he gave police in which he said that he shot Misquadace. Appellant claimed that he had really said "she got shot" and had mentioned the error in wording previously.

The prosecutor, in conclusion, inquired of appellant as follows:

"Q You pleaded guilty here, Mr. Kochevar, to Third Degree Murder, and did you enter that plea because, in fact, you are guilty? You seem reluctant here. You hesitated with the judge before, and now you are hesitating here. You are either guilty or you are not guilty of what you pleaded guilty to.

"The Court: What is your answer, Mr. Kochevar?

"Defendant: I told him I would plead guilty to it.

"Q Well, I ask you now — I know you pleaded guilty and isn\'t that plea entered in here — plea of guilty to Murder in the Third Degree of Janice Misquadace because you are definitely guilty. You are looking at your lawyer. Is there any question that you are guilty?

"A I plead guilty. I am guilty.

"Q Well, you are not —

"The Court: All right. He said it now. He said I am pleading guilty. I am guilty. Is that right, Mr. Kochevar?

"Defendant: That is the way I will take it.

"The Court: That is the way you are saying it. Right?

"Defendant: Yes.

"The Court: All right."

Upon further questioning by the court, appellant again stated that he did not intend to kill Misquadace, but admitted that he had used a weapon against her for the purpose of scaring her or causing her to have fear.

At the request of the court, the prosecutor then stated for the record the evidence he would offer should the case go to trial. The state's primary evidence was the anticipated testimony of John Misquadace, the victim's brother, who slept at appellant's residence on the night in question. According to the prosecutor, the witness would give the following testimony:

"* * * He the witness heard John Kochevar appellant make the statement, `I am going to shoot you and I am going to shoot someone else; someone else is going to get shot too.\' He felt the other person that was going to get shot was himself, that he stayed in bed and listened to this fight. They went into their bedroom, still fighting, and they came out and they each had a gun. He said that defendant Kochevar took the .22 rifle away from his sister Janice. Appellant must have loaded it in the kitchen. Janice was standing by the bedroom door. Robert appellant said, `I am going to shoot you.\' Then the little girl Juanita appellant\'s child said, `Don\'t shoot my mom,\' and he shot. Janice stood there. She did not seem to be hit. Then Janice seemed to faint on the floor. Janice got back up and he told her to get in bed. Janice said, `Go ahead and shoot me.\' Robert said, `If you touch this barrel, I am going to kill you.\' The witness didn\'t see them fighting in the kitchen, but at this point his sister Janice called for him to help her. He got up and started to dress, and * * * heard his sister Janice say, `Johnnie boy, come here and help me.\' Janice started swearing at Robert and said, `You hurt my knee.\' He came out of the bedroom and he saw Robert aiming down at the floor with the .22, and then he heard the shot go off. He looked at his sister and could see she was hit."

The prosecutor also stated that other state evidence would show that Misquadace was shot as she was lying on the floor, with the barrel of the rifle being two to three feet from the point at which the bullet entered her head. There was no objection to this recitation by the prosecutor.

The defense attorney then spoke to the advisability of the plea. He stated that, in his opinion, there would be a "definite possibility" that a jury could return a verdict of first, second, or third degree murder against appellant, and therefore he advised appellant that if he was "concerned about limiting his prison time" he should accept the state's offer. When asked by the court whether he agreed that appellant's testimony satisfied the felony-murder rule portion of the third-degree murder statute, appellant's trial attorney said that he did, "viewing the entire incident between the first shot and the death as res gestae, all one behavioral incident * * *."

Shortly thereafter, the court accepted appellant's plea of guilty to murder in the third degree and stated:

"* * * Number one, from the proposed testimony of the State, the Court is of the opinion that a jury could find you guilty of Murder in the First Degree, and that would be primarily based on the fact that John Misquadace would testify, according to the county attorney, that he saw you pointing the gun at his sister, that would indicate premeditation to the Court and possibly a guilty verdict by the jury on first degree murder. Secondly, the Court feels that from the testimony offered or proposed by the State you could also be found guilty of murder in the second degree, and that would be without premeditation but with intent, and from your own testimony here this morning, the Court feels that there is a factual basis for the Court to accept your plea of guilty to the charge of Murder in the Third Degree, particularly that part of the statute which reads `commits or attempts to commit a felony upon or affecting the person whose death was caused.\'"¹

On December 31, 1974, the court sentenced appellant to imprisonment for an indeterminate term not to exceed twelve years. Subsequently, appellant petitioned the district court for postconviction relief on the grounds that his guilty plea was not properly accepted by the district court and that the recently-adopted "matrix" system adversely affects the terms of his plea agreement. He sought to have his conviction for third degree murder vacated and to be permitted to withdraw his guilty plea. In the alternative, he requested a...